K N Mahesh Kumar , Bangalore V. Income TAx Officer Ward-1 , Ramanagar

ITA 2506/BANG/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5636 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 27-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMAL ANAND
• Assessee Lawyers: VENKATESH KUMAR
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Peak credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER ITA NO. 2506 / BANG/201 7 ASSESSMENT YEAR : 2014 - 15 SHRI K.N. MAHESH KUMAR, KALLIGOWDANADODDI, MULLAHALLI POST, UYYAMBALLIHOBLI, KANAKAPURA TALUK, RAMANAGAR DISTRICT 562 119. PAN: AJIPM 6194L VS. THE INCOME TAX OFFICER, WARD 1, RAMANAGAR. APPELLANT RESPONDENT APPELLANT BY : SHRI VENKATESH KUMAR, ADVOCATE RESPONDENT BY : SHRI VIMAL ANAND, ADDL. CIT (DR) DATE OF HEARING : 1 8 .01.2018 DATE OF PRONOUNCEMENT : 24 .0 1 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A) 3, BANGALORE DATED 25.09.2017 FOR ASSESSME NT YEAR 2014-15. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE ORDER OF THE LEARNED CIT(A) INSOFAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE APPELLANT, IS BAD AND UNSUSTAINABLE IN THE EYES OF LAW. 2. WITHOUT PREJUDICE, THE LEARNED CIT(A) OUGHT TO H AVE PROVIDED THE APPELLANT A FAIR OPPORTUNITY TO EXPLAIN HIS POSITIO N ON THE ADDITIONS/DISALLOWANCES IN ACCORDANCE WITH THE PRIN CIPLES OF NATURAL JUSTICE. 3. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T TOTAL CONTRACT RECEIPTS APPEARING IN THE BANK ACCOUNTS OF APPELLAN T WAS RS.59,74,948/- AS AGAINST RS.29,27,388/- DECLARED B Y THE APPELLANT IN HIS RETURN OF INCOME, AND THE DIFFERENCE OF RS.30,4 7,560/ - REPRESENTS CONTRACT RECEIPTS PERTAINING TO THE PREVIOUS YEAR F Y 2012-13 AND IT HAD BEEN DECLARED IN TAX RETURNS FILED FOR THE RELE VANT YEAR 2013-14. 4. THE LEARNED CIT(A) HAS NOT JUSTIFIED IN SUSTAINI NG THE ADDITION OF ITA NO.2506/BANG/2017 PAGE 2 OF 3 RS.10,51,380/- BEING CREDIT FROM DIFFERENT PARTIES AS UNEXPLAINED CREDIT U/S.68 OF THE ACT ON THE GROUND THAT A SUM O F RS.4,35,180/- REPRESENTS HIRE CHARGES RECEIVED ON THE LEASING OF JCB 86 THE BALANCE OF RS.6,16,000/- BEING MATURITY PROCEEDS OF EMD'S W HICH WERE GIVEN AT THE TIME OF ALLOTMENT OF PWD WORKS FROM THE STAT E GOVERNMENTS. 5. THE LEARNED CIT(A) HAS NOT JUSTIFIED IN SUSTAINI NG THE ADDITION OF RS.11,88,125/- BEING CASH DEPOSIT INTO THE BANK A/C . AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT, ON THE GROUND THAT A SUM OF RS.5,88,125/- REPRESENTS THE HIRE CHARGES RECEIVED ON THE LEASING OF JCB, AND THE BALANCE OF RS.6,00,000/- REPRESENTS AGRICULTURAL IN COME RECEIVED FROM APPELLANT MOTHER AS CASSESSEE SHARE OF INCOME' IN T HE JOINT FAMILY. 6. WITHOUT PREJUDICE, THE LEARNED CIT(A) OUGHT TO H AVE APPRECIATED THAT FOR THE PURPOSE OF SEC.68 OF THE ACT, IT IS TH E AMOUNT/ SUM CREDITED IN THE BOOKS OF ACCOUNTS AND NOT PASS BOOK AS HELD BY VARIOUS COURTS; AND HENCE THE ADDITION WAS BAD IN LAW. 7. WITHOUT PREJUDICE, THE LEARNED CIT(A) OUGHT TO H AVE APPRECIATED THAT THE ENTIRE AMOUNT OF CASH DEPOSIT OF RS.11,88, 125/ - IN THE BANK A/C. CANNOT BE SAID TO BE UNEXPLAINED BECAUSE AFTER DEPOSIT OF THE CASH AMOUNT, THERE WERE WITHDRAWALS, AND HENCE ONLY PEAK CREDIT SHOULD BE CONSIDERED. 8. WITHOUT PREJUDICE, THE CIT(A) OUGHT TO HAVE APPR ECIATED THAT DECISION OF THE CO-ORDINATE BENCH OF THE ITAT, BANG ALORE DATED 08.09.2016 IN THE CASE OF MRS. FARHA KAUSAR VS. ITO IN ITA NO.1059/BANG/2016, HAS HELD THAT SEC.68 CAN BE INVO KED ONLY IN THE CASE OF CASH CREDIT IN THE BOOKS OF ACCOUNTS. AND T HE PASS BOOK CANNOT BE TREATED AS BOOKS OF ACCOUNTS AND THEREFORE NO AD DITION CAN BE MADE U/S.68 OF THE ACT. 9. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URG ED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT APPEAL MAY BE ALL OWED. 3. AT THE VERY OUTSET, IT WAS SUBMITTED BY LD. AR O F ASSESSEE THAT THE LD. CIT(A) HAS PROVIDED ONLY ONE OPPORTUNITY TO THE ASSESSEE A ND THEREFORE, IN THE INTEREST OF JUSTICE, THE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. THE LD. DR OF REVENUE SUBMITTED THAT AS PER PARA NO . 3 OF THE ORDER OF CIT(A), THE CASE WAS FIXED BY CIT(A) FOR HEARING AND WHEN T HE LD. AR OF ASSESSEE APPEARED BEFORE CIT(A) ON 12.09.2017 FOR SEEKING AD JOURNMENT, THE CASE WAS ADJOURNED TO 21.09.2017 BUT NOBODY APPEARED ON THAT DATE AND NO WRITTEN SUBMISSIONS WAS MADE. THEREFORE, THE ASSESSEE DOES NOT DESERVE ANY FURTHER OPPORTUNITY. ITA NO.2506/BANG/2017 PAGE 3 OF 3 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THE LD. AR OF ASSESSEE HAS DULY APPEARED BEFORE CIT(A) ON 12.09.2017 AND SOUGH T FOR ADJOURNMENT AND THE CASE WAS ADJOURNED TO 21.09.2017. THIS IS A FA CT THAT NOBODY APPEARED ON 21.09.2017 AND THEREFORE, THE ORDER WAS PASSED BY C IT (A) ON 25.09.2017. IN MY CONSIDERED OPINION, THE ASSESSEES AR SHOULD HAV E APPEARED BEFORE CIT(A) EVEN IF HE WAS NOT PREPARED HE WOULD HAVE RE QUESTED FOR ADJOURNMENT. BUT STILL I FEEL THAT IN THE INTEREST OF JUSTICE, O NE MORE OPPORTUNITY MAY BE PROVIDED TO ASSESSEE BECAUSE IT WILL NOT CAUSE ANY PREJUDICE TO THE REVENUE AND HENCE, I SET ASIDE THE ORDER OF CIT(A) AND REST ORE THE MATTER BACK TO THE FILE OF CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUA TE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. I ORDER ACCORDINGLY. IN VIEW OF TH IS DECISION, NO DECISION IS CALLED FOR IN RESPECT OF THE MERIT OF THE CASE AND I MAKE NO COMMENT ON THE MERIT OF THE CASE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- (ARUN KUMAR GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED, THE 24 TH JANUARY, 2018. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.