Ghanashyam Sahoo, Nayagarh V. ITO, Khurda Ward, Khurda

ITA 261/CTK/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3766 (ITAT-CUTTACK)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Keywords: Salary income; Opportunity of being heard; Source of fund; Corroborative evidences; Reason to believe

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM ./ ITA NO S . 261&262 / CTK /20 1 6 ( / ASSESSMENT YEAR : 20 08 - 20 09 & 2009 - 2010 ) MR. GHANSHYAM SAHOO, JADUMANI NAGAR, RAJA BAGICHA, NAYAGARH, ODISHA VS. ITO, KHURDA WARD, KHURDA, ODISHA ./ ./ PAN/GIR NO. : A HQPS 1847 Q ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI SAN TOSH KUMAR DASH BRAJENDU MISHRA, AR /REVENUE BY : SHRI D.K.PRADHAN, DR / DATE OF HEARING : 0 6 / 0 7 /201 7 / DATE OF PRONOUNCEMENT 07 / 0 7 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E SE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE DIFFERENT ORDER S OF CIT(A) - 1, BBUBANESWAR , DATED 23.3.2016 IN I.T. APPEAL S NO. 0177/15 - 16 & 0178/15 - 16 , PASSED U/S.147 /250 OF THE ACT . 2. SINCE THE ISSUES INVOLVED IN BOTH THE APPEALS ARE COMMON, THEREFORE, BOTH THE APPEALS ARE HEARD AND DISPOSED OFF BY COMMON ORDER. 3. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP THE GROUNDS AND FACTS NARRATED IN THE ASSESSEES APPEAL I.E. ITA NO. 261 /CTK/201 6 (AY 200 8 - 20 09 ). 4 . THE ASSESSEE HAS RAISED THE SOLE S UBSTANTIVE GROUND THAT THE LD. CIT(A) HAS PARTLY CONFIRMED THE ADDITION MADE BY THE AO WITHOUT CONSIDERING THE MATERIALS FILED IN THE APPELLATE PROCEEDINGS. 5. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN SALARIED EMPLOYEE WITH STATE BANK OF INDIA AND FILED THE RETURN OF INCOME FOR THE ITA NO. 261&262/16 2 ASSESSMENT YEAR 20 08 - 2009 ON 08.08.2009 DECLARING TOTAL INCOME OF RS. 1,78,884/ - . THE AO ON PERUSAL OF THE RETURN OF INCOME FOUND THAT THE ASSESSEE HAS CLAIMED EXCESS INTEREST ON HOUSING LOAN FOR THE PURPOSE OF CONSTRU CTION OF HOUSE AVAILED FROM THE BANK. THE AO HAS REASON TO BELIEVE THAT THE INCOME HAS ESCAPED THE ASSESSMENT DUE TO EXCESS CLAIM MADE BY THE ASSESSEE AND ISSUED NOTICE U/S.148. IN COMPLIANCE OF THE SAME, THE ASSESSEE FILED RETURN OF INCOME ON 14.6.2010 AN D LD. AR FOR THE ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED THE BANK ACCOUNT AND WRITTEN SUBMISSIONS. THE AO BASED ON THE SUBMISSIONS MADE BY THE ASSESSEE, ISSUED SHOW CAUSE NOTICE THAT THE ASSESSEE IS HAVING TWO BANK ACCOUNT AND TOTAL CREDITS IN TH E BANK ACCOUNT IS AGGREGATING TO RS. 7,39,576/ - WHEREAS THE ASSESSEE HAS DISCLOSED GROSS SALARY INCOME AGGREGATING TO RS.3,68,965/ - AS PER THE FORM 16, THEREFORE, THE AO FOUND THAT THE DIFFERENCE OF RS.3,70,611/ - SHOULD BE TREATED AS UNDISCLOSED INCOME AND CALLED FOR THE VARIOUS DETAILS. IN COMPLIANCE TO THE SAME, LD. AR OF THE ASSESSEE FILED WRITTEN SUBMISSIONS EXPLAINING THAT THE ASSESSEE HAS SOURCES OF INCOME TO SUBSTANTIATE THE DEFICIT BEING PERQUISITES AND OTHER AS REFERRED BY THE AO AT PAGE 3 OF THE O RDER. THE AO SOUGHT FURTHER CLARIFICATION S AND DEALT ON THE SOURCES INDIVIDUALLY AND CONSIDERING THE EVIDENCE FILED IN THE CREDIT ENTR IES IN THE B ANK , THE AO OBSERVED THAT THE ASSESSEE DOES NOT HAVE ANY CONCRETE AND DOCUMENTARY EVIDENCE TO PROVE EACH AMOUN T, THEREFORE, MADE ADDITION CONSIDERING THE TOTAL BANK CREDITS AND ALLOWED SET OFF OF SALARY RECEIVED AND MADE ADDITION OF ITA NO. 261&262/16 3 RS.5,79,141/ - AND ASSESSED THE TOTAL INCOME OF RS.7,99,370/ - , PASSED THE ORDER U/S.147 OF THE ACT, DATED 28.12.2010. 6 . AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) . IN THE APPELLATE PROCEEDINGS, LD. AR OF THE ASSESSEE APPEARED AND ARGUED GROUNDS, REITERATED THE SUBMISSIONS MADE IN THE ASSESSMENT PROCEEDINGS. LD. CIT(A) HAVING CONSIDERED THE ARGUMENTS , SUBMISSIONS AND EXPLANATIONS AND THE FINDINGS OF THE AO, DEALT ON THE VALIDITY OF THE REASSESSMENT AND DISMISSED THE GROUND OF THE ASSESSEE. IN RESPECT OF CLAIM OF THE ASSESSEE OF ADDITION OF RS. 5,79,141/ - U/S.68 OF THE ACT BY THE AO, LD. CIT(A) CONSIDER ED THE DOCUMENTS AND EVIDENCES IN SUPPORT OF THE RECEIPTS AND ACCOUNT AND SAME WAS SENT TO THE AO FOR HIS REPORT. EVEN AFTER LAPSE OF MORE THAN THREE YEARS THERE IS NO REPORT RECEIVED FROM THE AO. LD. CIT(A) FOUND THAT THE ASSESSEE HAS CLARIFIED THE RECEIP TS WITH THE WRITTEN SUBMISSIONS TO THE SATISFACTION AND, THEREFORE, CONSIDERING THE AVAILABILITY OF INFORMATION, LD. CIT(A) HAS GRANTED RELIEF TO THE EXTENT OF SOURCE OF INCOME OF RS. 2,75,835/ - AND CONFIRMED THE ADDITION OF RS.3,03,306/ - AND PARTLY ALLOWED THE APPEAL. 7 . AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 8 . BEFORE US, LD. A R ARGUED THAT THE LD. CIT( A ) HAS ERRED IN ALLOWING THE PARTIAL RELIEF IRRESPECTIVE OF FACT THAT THE AO HAS ERRED IN MAKI NG ADDITION AND ALSO MISTAKE IN CONSIDERING THE BANK STATEMENTS. LD. AR SUBSTANTIATED HIS ARGUMENTS AND WRITTEN SUBMISSIONS AND ALSO FILED THE ITA NO. 261&262/16 4 DOCUMENTS AND SOURCES WHICH WERE EXPLAINED BEFORE THE LOWER AUTHORITIES LAND PRAYED FOR ALLOWING THE APPEAL 9 . CO NTRA, THE LD. DR RELIED ON THE ORDERS THE CIT(A) AND OPPOSED THE GROUNDS. 10 . WE HEARD RIVAL SUBMISSIONS AND PERUSED THE FINDING S OF LOWER AUTHORITIES AND MATERIAL ON RECORD. LD. ARS SOLE SUBSTANTIVE GROUND THAT THE CIT(A) HAS GRANTED PART IAL RELIEF IRRES PECTIVE OF FACT THAT THE ASSESSEE HAS SUBMITTED THE EVIDENCE IN SUPPORT OF THE SOURCES. PRIMA FACIE, THE AO HAS MADE ADDITION IN RESPECT OF ADDITION OF RS. 5,79,141/ - WHEREAS THE CIT(A) HAS GRANTED RELIEF TO THE EXTENT OF RS. 2,75,835/ - AND CONFIRMED THE BAL ANCE OF RS. 3,03,306/ - . LD. AR BEFORE US SUBMITTED THE PAPER BOOK AND DREW OUR ATTENTION TO ANNEXURE - 2 TO SUBSTANTIATE HIS SOURCE BASED ON THE CERTIFICATE ISSUED FROM THE BANK IN RESPECT OF REIMBURSEMENT OF THE PERQUISITES PAID BY THE BANK AGGREGATING TO RS . 71,343/ - . FURTHER, LD. AR FILED SUPPORTING EVIDENCE WHICH WERE FILED BEFORE THE CIT(A) AND BANK STATEMENT. LD. AR ALSO DREW OUR ATTENTION TO THE BANK STATEMENT WHERE THE TOTAL CREDITS IN THE BANK ACCOUNT OF THE ASSESSEE WAS RS. 5,79,141/ - , AS AGAINST THE AO CONSIDERED TOTAL CREDITS OF RS. 7,39,576/ - WHICH LD. AR SUBMITTED THAT FACTUALLY INCORRECT AND PRAYED FOR AN OPPORTUNITY BEFORE THE AO TO SUBSTANTIATE THESE FACTS. WE CONSIDERING THE APPARENT FACTS AND MATERIAL ON RECORD , IN THE INTEREST OF SUBSTANTIAL J USTICE, ARE OF THE OPINION THAT OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE TO REPRESENT THESE FACTS ALONG WITH EVIDENCE BEFORE THE AO. ACCORDINGLY, WE SET ASIDE THE DISPUTED ISSUE TO THE FILE OF AO TO VERIFY AND EXAMINE AND PASS THE ORDERS ITA NO. 261&262/16 5 AND ASSESSEE SH ALL BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING TO FILE THE DOCUMENTS AND SUBSTANTIATE ITS CASE. ACCORDINGLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 11 . WITH REGARD TO APPEAL FILED FOR THE ASSESSMENT YEAR 2009 - 2010 IN ITA NO. 262/CTK/20 16, THE ISSUE RAISED IN THE PRESENT APPEAL IS SIMILAR TO THE ISSUE DECIDED BY US FOR THE ASSESSMENT YEAR 2008 - 09 WHILE DECIDING ITA NO. 261/CTK/2016, ABOVE, WHEREIN WE HAVE REMIT THE ISSUE TO THE FILE OF AO TO EXAMINE AFRESH AND PASS THE ORDER AFTER PROVIDI NG ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THIS APPEAL IS ALSO REMITTED TO AO ALLOWED FOR STATISTICAL PURPOSES. 12 . IN THE RESULT, BOTH APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . O RDER PRONOUNCED IN THE OPE N COURT ON THIS 07 / 07/ 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 07 / 0 7 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - MR. GHANSH YAM SAHOO, JADUMANI NAGAR, RAJA BAGICHA, NAYAGARH, ODISHA 2. / THE RESPONDENT - ITO, KHURDA WARD, KHURDA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//