Kamalakar Reddy Mora, Hyderabad V. ITO, Ward-4(2), Hyderabad

ITA 242/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53585 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURESH BATINI
• Assessee Lawyers: S RAMA RAO
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B , HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.242/HYD/2011 : ASSESSMENT YEAR 2007-0 8 SHRI KAMALAKAR REDDY MORA, HYDERABAD ( PAN AFBPM 9429 H ) V/S. INCOME - TAX OFFICER, WARD-4(2), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.RAMA RAO RESPONDENT BY : SHRI SURESH BATINI O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YE AR 2007-08 IS DIRECTED AGAINST THE ORDER OF THE COMMIS SIONER OF INCOME- TAX(APPEALS). 2. GROUNDS OF THE ASSESSEE IN THIS APPEAL READ AS UNDER- 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME-TAX(APPE ALS) ERRED IN HOLDING THAT THE DEPOSITS AGGREGATING TO RS.25 LAKH S MADE WITH THE BANK WERE NOT PROPERLY EXPLAINED AND FURTH ER ERRED IN CONFIRMING THE ADDITION MADE OF RS.25 LAKH S. 3. THE ASSESSING OFFICER OUGHT TO HAVE CONSIDE RED THE FACT THAT THE APPELLANT DISCHARGED ONUS OF PROVING DEPOS IT OF THE AMOUNTS AND, THEREFORE, OUGHT TO HAVE ALLOWED THE A PPEAL FILED. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE WAS NOT IN INDIA AT THE TIME OF ASSESSMENT PROCEEDINGS ITA NO.242/H/2011 SHRI KAMALAKAR REDDY MORA,HYDERABAD 2 BEFORE THE ASSESSING OFFICER AND THEREFORE, HE COUL D NOT FILE THE NECESSARY EVIDENCE REGARDING DEPOSIT OF THE AMOUNT, BEFORE THE ASSESSING OFFICER. HE SUBMITTED THAT THE ADDITIONA L EVIDENCE IN THE FORM OF CONFIRMATION LETTERS FROM THE FIVE AGRICULT URIST DEPOSITORS WAS FILED BEFORE THE CIT(A), WHICH WERE REJECTED BY HIM FOR NO VALID REASON. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS O PPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSE SSEE. HE SUBMITTED THAT THERE WAS NO VALID REASON, FOR NOT F ILING THE NECESSARY EVIDENCE REGARDING THE LOANS RAISED FROM FIVE AGRIC ULTURISTS BEFORE THE ASSESSING OFFICER. HE SUBMITTED THAT THE CIT(A) HA S RECORDED SUFFICIENT REASONS FOR REJECTING THE ADDITIONAL EVI DENCE FILED BY THE ASSESSEE IN THE FORM OF CONFIRMATION LETTERS BY THE SO CALLED DEPOSITORS. HE RELIED ON THE ORDERS OF THE ASSESSI NG OFFICER AND THE CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE ASSESSEE WAS IN USA AT THE TIME OF ASSESSMENT P ROCEEDINGS, AND THEREFORE, HE COULD NOT FILE THE REQUIRED EVIDENCE REGARDING THE LOANS CLAIMED TO HAVE BEEN RAISED BY HIM FROM THE FIVE AG RICULTURIST DEPOSITORS BEFORE THE ASSESSING OFFICER. THE ASSES SEE HAS FILED THE REQUISITE EVIDENCE IN THE FORM OF CONFIRMATION LETT ERS FORM THE FIVE DEPOSITORS WITH THE CIT(A). THE CIT(A) HAS REFERRE D THE ADDITIONAL EVIDENCE IN THE FORM OF CONFIRMATION LETTERS TO THE ASSESSING OFFICER AND CALLED FOR A REMAND REPORT. THE CIT(A) HAS RECO RDED THAT IN SPITE OF REMINDER SERVED ON THE ASSESSING OFFICER, NO REP ORT WAS SUBMITTED BY THE ASSESSING OFFICER, AND THEREFORE, IT WAS PRE SUMED THAT THE ASSESSING OFFICER HAS NOTHING TO SAY IN THE MATTER. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT IT SHALL BE JUSTI FIED TO SET ASIDE THE ITA NO.242/H/2011 SHRI KAMALAKAR REDDY MORA,HYDERABAD 3 ORDER OF THE AUTHORITIES BELOW, AND RESTORE THE MAT TER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FRAME A D E NOVO ASSESSMENT IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE O PPORTUNITY OF HEARING TO THE ASSESSEE AND AFTER CONSIDERING THE E VIDENCE, WHICH MAY BE FILED BY THE ASSESSEE IN SUPPORT OF HIS CASE . THE ASSESSEE SHALL BE AT LIBERTY TO FILE ANY EVIDENCE IN SUPPORT OF HIS CASE BEFORE THE ASSESSING OFFICER, WHICH SHALL BE CONSIDERED BY THE ASSESSING OFFICER BEFORE FRAMING THE DE NOVO ASSESSMENT IN TH IS CASE. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 9.9.2011 SD/- SD/- (CHANDRA POOJARI) ( G.C. G UPTA) A CCOUNTANT MEMBER V ICE PRESIDENT DATED 9 TH SEPTEMBER, 2011 COPY FORWARDED TO: 1 . SHRI KAMALAKAR REDDY MORA, , C/O. SHRI S.RAMA RAO, FLAT NO.102, SHIRYA'S ELEGANCE, NO.3-6-643, STREET NO.9, HIMAYATNAGAR, HYDERABAD 500029 2. INCOME-TAX OFFICER, WARD-4(2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) - V HYDERABAD 4. COMMISSIONER OF INCOME - TAX I V HYDERABAD 5. THE D.R., ITAT, HYDERABAD. B.V.S