B.Vijay Krishna, CHENNAI V. ITO, Coimbatore

ITA 2244/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90642 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 17-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 08-09-2014
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: S SATHIYANAR AYANAN

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : CHENNAI . . . , [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ] ./ I.T.A.NO.2244/MDS/2014 / ASSESSMENT YEAR : 2008-09 SHRI B. VIJAY KRISHNA NO.89/175, RAILWAY STATION ROAD PERIANAICKENPALAYAM COIMBATORE 641 020 VS. THE INCOME TAX OFFICER WARD III(1) COIMBATORE [PAN ACUPV 6779 D] ( !' / APPELLANT) ( #$!' /RESPONDENT) / APPELLANT BY : SHRI S.SATHIYANARAYANAN, ADVOCATE /RESPONDENT BY : SHRI SUPRIYO PAL, JCIT / DATE OF HEARING : 17 - 0 6 - 2016 / DATE OF PRONOUNCEMENT : 15 - 0 7 - 2016 / O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, COIMBA TORE, DATED 19.1.2012 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2. SHRI S. SATHIYANARAYANAN, LD. COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ASSESSING OFFICER MADE ADDITION OF ` 32,55,998/- U/S 69 OF THE ACT. THE ASSESSING OFFICER, ON THE B ASIS OF THE AIR INFORMATION, FOUND THAT THE ASSESSEE HAS DEPOSITED A SUM OF ` 42,94,948/- IN THE SAVINGS BANK ACCOUNT WITH KOTAK MAHINDRA BANK. ITA NO.2244/14 :- 2 -: THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICE R THAT THE CASH DEPOSIT WAS FROM AGRICULTURAL INCOME AND BORROWINGS FROM FRIENDS AND RELATIVES. THE ASSESSEE CLAIMED BEFORE THE ASSESS ING OFFICER THE HE WAS CULTIVATING 12.05 ACRES OF LAND WITH COCONUT AND TAMARIND. THE ANNUAL ESTIMATED INCOME OF THE ASSESSEE WAS ` 50,000/- PER ACRE. THEREFORE, THE ESTIMATED INCOME PER ANNUM WOULD COM E TO ` 6 LAKHS. THE ASSESSEE HAS ALSO BORROWED FUNDS FROM FRIENDS AND RELATIVES, HOWEVER, THE ASSESSEE COULD NOT FILE CONFIRMATION LETTER. MERELY BECAUSE THE ASSESSEE COULD NOT FILE THE CONFIRMATI ON LETTER, ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER IS NOT JU STIFIED IN MAKING THE ADDITION. 3. ON THE CONTRARY, SHRI SUPRIYO PAL, LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT AS PER AIR INFORMATIO N, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS DEPOSITED ` 42,94,948/- IN THE SAVINGS BANK ACCOUNT WITH KOTAK MAHINDRA BANK. THE ASSESSEE CLAIMED BEFORE THE CIT(A) THAT HE AVAILED A LOAN OF ` 65 LAKHS FROM M/S INDIA BULLS. THE LOAN AMOUNT OF ` 25,97,752/- WAS CREDITED IN THE JOINT SAVINGS BANK ACCOUNT OF THE ASSESSEE AND HIS MOTHER IN CANARA BANK. THE ASSESSEE HAS ALSO OPENED AN ACCOUNT WIT H KODAK MAHINDRA BANK WITH AN INTENTION TO AVAIL BUSINESS LOAN TO ME ET THE BUSINESS OBLIGATIONS. IN ORDER TO CONVINCE THE BANK AND TO E STABLISH THE REPAYMENT CAPACITY, THE ASSESSEE WAS WITHDRAWING F UNDS FROM CANARA ITA NO.2244/14 :- 3 -: BANK ACCOUNT AND THE SAME WAS DEPOSITED IN KODAK MA HINDRA BANK. THE CIT(A), AFTER ANALYZING THE DATE ON WHICH THE M ONEY WAS WITHDRAWN FROM CANARA BANK AND THE DATE ON WHICH TH E MONEY WAS DEPOSITED IN KOTAK MAHINDRA BANK, FOUND THAT THERE WAS NO CO-RELATION BETWEEN THE SO CALLED WITHDRAWALS AND DEPOSITS OF M ONEY. THE CIT(A) HAS ALSO FOUND THAT SUBSEQUENT TO THE CASH DEPOSIT IN THE MONTH OF NOVEMBER, THERE WAS NO WITHDRAWAL PRIOR TO CASH DEP OSIT. THEREFORE, THE CIT(A) HAS RIGHTLY REJECTED THE CLAIM OF THE A SSESSEE. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER S IDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER THAT THE DEPOSIT WAS M ADE FROM AND OUT OF AGRICULTURAL INCOME AND LOANS BORROWED FROM FRIE NDS AND RELATIVES. HOWEVER, BEFORE THE CIT(A) THE ASSESSEE CLAIMS THA T THE LOAN AMOUNT OF ` 65 LAKHS BORROWED FROM M/S INDIA BULL WAS DEPOSIT ED IN CANARA BANK IN THE JOINT ACCOUNT OF THE ASSESSEE AND HIS MOTHER AND SOME OF THE AMOUNTS WERE WITHDRAWN AND DEPOSITED TO ESTABLI SH THE REPAYMENT CAPACITY FOR THE PURPOSE OF AVAILING BUSI NESS LOAN. THIS IS THE CONTRADICTORY STATEMENT MADE BY THE ASSESSEE B EFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A). THE CIT(A ) AFTER CONSIDERING THE DETAILS FURNISHED BY THE ASSESSEE FOUND THAT O N 14.6.2007 THE ASSESSEE HAS WITHDRAWN A SUM OF ` 1 LAKH FROM CANARA BANK. IN THE CASH FLOW STATEMENT THE ASSESSEE CLAIMED THAT ` 19 LAKHS WAS ITA NO.2244/14 :- 4 -: WITHDRAWN IN THE NAME OF VIJAYAKRISHNA ON 16.6.2007 AND ANOTHER SUM OF ` 3 LAKHS IN THE NAME OF SHRI KARTHI ON 18.6.2007 AN D THESE AMOUNTS WERE AVAILABLE FOR MAKING DEPOSIT IN KOTAK MAHINDRA BANK. THE CIT(A) FOUND THAT THE SUM OF ` 19 LAKHS PAID TO SHRI VIJAYAKRISHNA WAS ON 16.6.2007 WHEREAS THE DEPOSITS WERE MADE IN THE MONTH OF MAY. THEREFORE, THE MONEY WITHDRAWN IN THE MONTH O F JUNE MAY NOT BE AVAILABLE FOR DEPOSITING IN THE MONTH OF MAY. N OW IF THE ASSESSEE CLAIMS THAT THE MONEY WITHDRAWN WAS USED FOR DEPOSI TING IN KOTAK MAHINDRA BANK, THEN THE MONEY SHOULD HAVE BEEN WITH DRAWN BEFORE THE DATE OF DEPOSIT. UNFORTUNATELY, THE MONEY WAS WITHDRAWN SUBSEQUENT TO THE DEPOSIT MADE BY THE ASSESSEE, TH EREFORE, THE SO CALLED WITHDRAWALS FROM CANARA BANK MAY NOT BE AVAI LABLE WITH THE ASSESSEE FOR DEPOSITING IN KOTAK MAHINDRA BANK. SI NCE CONTRADICTORY STATEMENTS WERE MADE BEFORE THE AUTHORITIES BELOW, IN ORDER TO ASCERTAIN THE REAL FACTS AND THE SOURCE OF DEPOSIT OF THE MONEY, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE REEXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSU E IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING O FFICER SHALL REEXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE EXACT SOURCE FOR MAKING INVESTMENT IN CANARA BANK ACCOUNT AS WELL AS KOTAK MAHINDRA BA NK ACCOUNT AND ITA NO.2244/14 :- 5 -: THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW A FTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JULY, 2016, AT CHENNAI. SD/- ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER '# / CHENNAI $% / DATED: 15 TH JULY, 2016 RD %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 4. ' + / CIT 2. / RESPONDENT 5. ),-' . / DR 3. ' +'/! / CIT(A) 6. -0'1 / GF