ACIT, CHENNAI V. M.Muralikrishnan, CHENNAI

ITA 2490/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86235 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: S SRIDHAR
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI .. , ! , ' #$ BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ./ ITA NO. 2490/MDS/2014 ' % &% / ASSESSMENT YEAR : 2009-10 THE ASSISTANT COMMISSIONER OF INCOME TAX, MEDIA CIRCLE I, CHENNAI - 600 034. V. SHRI M. MURALIKRISHNAN, P.NO.3552, J5, ANNANAGAR, CHENNAI - 600 102. PAN : AFBPM 5579 G (!(/ APPELLANT) (*+!(/ RESPONDENT) !( , - / APPELLANT BY : SHRI A.V. SREEKANTH, JCIT *+!( , - / RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE . , / / DATE OF HEARING : 19.01.2015 01& , / / DATE OF PRONOUNCEMENT : 19.01.2015 / O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE REVENUE HAS FILED THIS APPEAL CHALLENGING TH E ORDER DATED 28.04.2014, PASSED BY LD. COMMISSIONER OF INC OME TAX (APPEALS)-IV, CHENNAI, RELATING TO ASSESSMENT YEAR 2009-10. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD. CIT(APP EALS) IN DELETING THE ADDITION OF ` 10,00,000/- MADE BY THE ASSESSING OFFICER UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961(IN SHO RT 'THE ACT'). 2 I.T.A. NO. 2490/MDS/2014 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE ASSESSEE HAS DEPOSITED CASH IN VARIOUS DATES AGGREG ATING TO ` 19,00,000/-. WHEN THE A.O. CALLED FOR EXPLANATION, THE ASSESSEE SUBMITTED EXPLANATION TO THE EXTENT OF ` 5,05,500/-. ACCORDINGLY, THE ASSESSING OFFICER HELD THAT THE ASSESSEE HAD FAILED TO EXPLAIN DEPOSITS TO THE EXTENT OF ` 10,00,000/- AND ASSESSED THE SAME UNDER SECTION 68 OF THE ACT. 3. IN THE APPELLATE PROCEEDING, THE LD. CIT(APPEALS ) NOTICED THAT THE ASSESSEE HAD GIVEN AN ADVANCE OF ` 10,00,000/- FOR PURCHASING LAND IN HIS NATIVE VILLAGE AND OTHER LOC ATIONS IN AND AROUND CHENNAI. IT WAS FURTHER NOTICED BY HIM THAT THE SAID ADVANCE WAS RECEIVED BACK AND THE SAME WAS UTILIZED FOR MAKING DEPOSITS OF ` 5,00,000/- EACH ON 10.04.2008 AND 28.04.2008. HENCE, THE LD. CIT(APPEALS) DELETED THE ADDITION OF ` 10,00,000/- WITH THE FOLLOWING OBSERVATION:- 4.8. IT IS SEEN THAT THE AMOUNT OF ` 10 LAKHS HAS BEEN WITHDRAWN ON 6.9.2007 AND STATED TO HAVE BEEN RE-DE POSITED ON 10.4.2008 ( ` 5,00,000) AND ON 28.4.2008 ( ` 5,00,000) WHICH WAS SUBSEQUENTLY ONCE AGAIN WITHDRAWN ON 13.10.2008 ( ` 5,00,000) AND ON 6.12.2008 ( ` 4,00,000) FOR THE PURCHASE OF THE PROPERTY. THE A.O. HAD NOT DISPUTED THE FACT THAT APPELLANT WITHDREW THE MONEY LYING IN HIS BANK ACCOUNT IN THE PREVIOUS 3 I.T.A. NO. 2490/MDS/2014 YEAR AND AS SUCH THE SUM SO CREDITED IN THE BOOKS O F THE ASSESSEE WERE FROM THE EARLIER PERIOD AND NOT DURIN G THE PREVIOUS YEAR IN QUESTION. THE A.O. APPEARS ALSO N OT TO HAVE VERIFIED THE BALANCE SHEET AND THE CAPITAL ACCOUNT OF THE ASSESSEE SO AS TO ASCERTAIN THE EXACT AMOUNT OF MON EY LYING IN HIS ACCOUNT SO AS TO BE IN A POSITION TO WITHDRAW T HE SUM OF ` 10 LAKHS STATED TO HAVE BEEN WITHDRAWN ON 6.9.2007. N EITHER HAD HE IN ANY MANNER TRIED TO FIND OUT THE PERSONAL EXP ENDITURE OR EXPENDITURE ON ACCOUNT OF ANY OTHER ACCOUNT MADE BY THE APPELLANT WHICH WOULD HAVE GIVEN AN INDICATION THAT HE HAD SPENT THAT AMOUNT PRIOR TO THE DATE WHEN HE HAS STA TED TO HAVE RE-DEPOSITED THE SAME IN HIS BANK ACCOUNT. IT IS A LSO A FACT IN THE CASE OF REAL ESTATE, TRANSACTIONS MAY NOT MATER IALIZE AND ADVANCES ARE ALSO RETURNED IN THE REGULAR COURSE OF SUCH BUSINESS AND THEREFORE TO HOLD THAT HE HAD NOT FILE D ANY EVIDENCE IN SUPPORT OF CASH CREDIT AND ADDING THE S AME AS INCOME OF THE ASSESSEE APPEARS TO BE UNWARRANTED IN THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE AND THEREFORE DIRECTED TO BE DELETED. 4. AT THE TIME OF HEARING, A SPECIFIC QUERY WAS ASK ED TO THE LD. COUNSEL AS TO WHETHER THE ASSESSEE IS MAINTAINING B OOKS OF ACCOUNTS AND WHETHER THE ABOVE SAID PAYMENT OF ADVA NCE OF ` 10,00,000/-, REFUND RECEIVED AND DEPOSIT MADE INTO BANK ACCOUNT WERE REFLECTED IN THE BOOKS OF ACCOUNTS OR NOT. TH E LD. COUNSEL SUBMITTED THAT THE ASSESSEE WAS MAINTAINING BOOKS O F ACCOUNTS AND ALL THESE TRANSACTIONS HAVE BEEN REFLECTED THEREIN. WE NOTICE THAT NEITHER THE A.O. NOR THE CIT(APPEALS) HAS EXAMINED THE BOOKS OF ACCOUNTS. THERE SHOULD NOT BE ANY DOUBT THAT IMPUG NED ADDITION IS NOT CALLED FOR IF THE ABOVE SAID TRANSACTIONS HAVE BEEN DULY 4 I.T.A. NO. 2490/MDS/2014 RECORDED IN THE BOOKS OF ACCOUNTS, SINCE THE IT REP RESENTS ONLY REFUND OF ADVANCE GIVEN ON AN EARLIER OCCASION. S INCE THE ASSESSING OFFICER HAS NOT EXAMINED THE BOOKS OF ACC OUNTS, THE BENCH EXPRESSED THE VIEW THAT THE SAME REQUIRES VER IFICATION AT THE END OF ASSESSING OFFICER. BOTH THE PARTIES AGREED TO THE SAID VIEW. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(APPE ALS) AND REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR THE LIMITED PURPOSE OF VERIFYING AS TO WHETHER THESE TRANSACTIONS ARE R EFLECTED IN THE BOOKS OF ACCOUNTS OR NOT. IF THESE TRANSACTIONS AR E REFLECTED IN THE BOOKS OF ACCOUNTS, THEN THE ASSESSING OFFICER IS DI RECTED TO DELETE THE ADDITION OF ` 10,00,000/- REFERRED ABOVE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 19 TH DAY OF JANUARY, 2015 AT CHENNAI. SD/- SD/- ( ! ) ( .. ) (VIKAS AWASTHY) (B.R. BASKARAN) ' /JUDICIAL MEMBER /ACCOUNTANT MEMBER /CHENNAI, A /DATED, THE 19 TH JANUARY, 2015. KRI. 5 I.T.A. NO. 2490/MDS/2014 B , *'/C D &/ /COPY TO: 1. !( /APPELLANT 2. *+!( /RESPONDENT 3. . E/ () /CIT(A)-IV, CHENNAI 4. . E/ /CIT-IV, CHENNAI 5. FG *'/' /DR 6. GH% I /GF.