Jalinder Tatyasaheb Deshmukh, Beed V. Income-tax Officer,

ITA 2680/PUN/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1269 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-12-2020
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Set aside
• Section: 143(3); 13; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO. 2680 /PUN/201 6 / ASSESSMENT YEAR : 20 09 - 10 SHRI JALINDER TATYASAHEB DESHMUKH ANUSAYA CONSTRUCTION COMPANY, VIDYANAGAR PARLI VAIJNATH, DIST. - BEED 431515 PAN : ADWPD6423H ....... / APPELLANT / V/S. INCOME TAX OFFICER, WARD 2, BEED / RESPONDENT ASSESSEE BY : N O N E REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 0 8 - 12 - 2020 / DATE OF PRONOUNCEMENT : 16 - 1 2 - 2020 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 10 - 10 - 2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, AURANGABAD [CIT(A)] FOR ASSESSMENT YEAR 20 09 - 10. 2 ITA NO . 2680/PUN/2016, A.Y. 2009 - 10 2. WE FIND NO REPRESENTATION ON BEHALF OF THE ASSESSEE NOR ANY APPLICATION FILED SEEKING ADJOURNMENT. ON PERUSAL OF RECORD WE OBSERVE THAT FROM 13 - 01 - 2020 TILL TODAY THE CASE HAS BEEN ADJOURNED FOR NON - APPEARANCE OF ASSESSEE OR ANY REPRESENTATIVE OF THE ASSESSEE. THUS , THE ASSESSEE CALLED ABSENT AND SET EX - PARTE. THEREFORE WE PROCEED TO DISPOSE OF THE CASE BY HEARING THE LD. DR AND PERUSING THE MATERIAL AVAILABLE ON RECORD. 3. THE ONLY ISSUE IS TO BE DECIDED IS AS TO WHETHER THE CIT(A) JUSTIFIED IN CONFIRMING THE AD DITION OF RS.7,00,000/ - ON ACCOUNT OF INTRODUCTION OF CAPITAL IN CASH IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. HEARD LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM INTEREST AND SHARES. THE ASSESSEE DECLARED A TOTAL INCOME OF RS.8,96,490/ - AND THE AO ACCEPTED THE SAME U/S. 143(3) OF THE ACT VIDE THIS ORDER DATED 09 - 09 - 2011. CONSEQUENTLY, THE CIT INVOKED JURISDICTION U/S. 263 OF THE ACT AND SET ASIDE THE ORDER DATED 09 - 09 - 2011 PASSED BY T HE AO U/S. 143(3) OF THE ACT. THE AO IN GIVING EFFECT PROCEEDING S DETERMINED TOTAL INCOME OF ASSESSEE AT RS. 15,96,490/ - INTER ALIA MAKING ADDITION OF RS.7,00,000/ - ON ACCOUNT OF INTRODUCTION OF CAPITAL IN CASH. 5. THE ASSESSEE CHALLENG ED THE SAME BEFORE THE CIT(A). A CONTENTION WAS RAISED IN THE FIRST APPELLATE PROCEEDINGS THAT AN AMOUNT OF RS.1,35,000/ - AND RS.2,07,000/ - WITHDRAWN FROM SHRI CHHATRAPATI RAJASHRI SHAHU URBAN CO - OP. BANK LTD. ON TWO DIFFERENT DATES I.E. 24 - 07 - 2008 AND 23 - 12 - 2008, RESPECTIV ELY. FOR THE REMAINING AMOUNT IT WAS 3 ITA NO . 2680/PUN/2016, A.Y. 2009 - 10 CONTENDED THAT AN AMOUNT OF RS.1,25,161/ - WAS RECEIVED ON ACCOUNT OF LAND ACQUISITION COMPENSATION AND AN AMOUNT OF RS.1,84,789/ - WAS RECEIVED ON SALE OF COTTON. THE CIT(A) OBSERVED THAT THE ASSESSEE COULD NOT PRODUCE EVIDENCES IN RESPECT OF RECEIPT OF LAND ACQUISITION COMPENSATION AND SALE OF COTTON AND CONFIRMED THE ORDER OF AO. 6. WE NOTE THAT IN THE STATEMENT OF FACTS MADE BEFORE THE CIT(A) REGARDING THE NON - CONSIDERATION OF FINDING IN SECTION 263 ORDER BY THE C IT. WE NOTE THAT THE SAID FINDING IS REPRODUCED IN THE STATEMENT OF FACTS. WE FIND THAT THE CIT U/S. 263 HELD THAT THE ASSESSEE HAS CAPITAL OF RS.2,28,82,295/ - AND LOAN OF LIC WHICH CAN EASILY SUFFICE THE INVESTMENT MADE BY THE ASSESSEE IN M/S. ANUSUYA C ONSTRUCTION CO. BUT HOWEVER THE AO NOR CIT(A) IN QUANTUM PROCEEDINGS DID NOT CONSIDER THE SAME. AS DISCUSSED ABOVE, OUT OF RS.7,00,000/ - , THE ASSESSEE COULD PRODUCE EVIDENCE FOR AN AMOUNT OF RS.3,42,000/ - (RS.1,35,000/ - + RS.2,07,000/ - ) SHOWING THE SAME H AS BEEN WITHDRAWN FROM THE BANK. THE LD. DR DID NOT DISPUTE THE SAME. FOR REMAINING AMOUNTS OF RS.3,09,950/ - (RS.1,25,161/ - + RS.1,84,789/ - ) THE ASSESSEE CONTENDED THAT THE SAME WERE RECEIVED TOWARDS THE LAND ACQUISITION COMPENSATION AND SALE OF COTTON B UT HOWEVER FOR NON - FURNISHING OF EVIDENCES THE CIT(A) CONFIRMED THE ENTIRE ADDITION. WE NOTE THAT THE CIT U/S. 263 PROCEEDINGS HAS BEEN CLEARLY HELD THAT THE ASSESSEE HAS CAPITAL OF RS.2,2,28,82,295/ - AND THE ASSESSEE HAS CAPACITY TO MAKE INVESTMENT BUT THE CIT(A) OUGHT TO HAVE CONSIDERED THE FINDING OF CIT U/S. 263 PROCEEDINGS. THE LD. D R DID NOT DID NOT DISPUTE THE SAME BUT HOWEVER HE VEHEMENTLY SUPPORTED THE ORDER OF CIT(A). THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND STATEMENT OF FACTS FILED BEFORE THE CIT(A), WE ARE OF THE OPINION THAT THE ORDER OF CIT(A) IS NO T 4 ITA NO . 2680/PUN/2016, A.Y. 2009 - 10 JUSTIFIED AND IT IS SET ASIDE. THE ADDITION CONFIRMED BY THE CIT(A) IS DELETED. THUS, ONLY GROUND RAISED BY THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2020 . SD/ - SD/ - ( INTURI RAMA RAO ) ( S.S. VISWANETHRA RAVI ) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 16 TH DECEMBER, 2020. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 2, AURANGABAD 4. THE PR. CIT - 2, AURANGABAD 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT , PUNE