Abdul Rasheed Mohammed Rafi, CHENNAI V. ADIT, CHENNAI

ITA 2903/CHNY/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9466 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 26-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: M V SWAROOP
• Keywords: Reasonable cause

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2903/MDS/2014 & S.P. NO. 138/MDS/2015 (IN I.T.A. NO. 2903/MDS/2014) ' (' / ASSESSMENT YEAR : 2009-10 SHRI ABDUL RASHEED MOHAMMED RAFI, NO.406, TTK ROAD, ALWARPET, CHENNAI - 600 028. PAN : AAKPM 0396 D V. THE ASSISTANT DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION)-II, CHENNAI - 600 034. (*+/,*' APPELLANT/PETITIONER ) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SHRI M.V. SWAROOP, ADVOCATE ,-*+ . / / RESPONDENT BY : SH. P. RADHAKRISHNAN, JCIT 0 . 1$ / DATE OF HEARING : 02.03.2016 2!( . 1$ / DATE OF PRONOUNCEMENT : 22.04.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-VII, CHENN AI, DATED 20.03.2014 AND PERTAINS TO ASSESSMENT YEAR 2009-10. THE ASSESSEE HAS ALSO MOVED A STAY PETITION FOR STAY OF OUTSTANDING 2 I.T.A. NO.2903/MDS/14 S.P. NO.138/MDS/15 DEMAND. WE HEARD BOTH THE APPEAL AND THE STAY PETI TION TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. THERE IS A DELAY OF 183 DAYS IN FILING THE APPEA L BY THE ASSESSEE. THE ASSESSEE HAS FILED AN APPLICATION TO CONDONE THE DELAY. SHRI M.V. SWAROOP, THE LD.COUNSEL FOR THE A SSESSEE, SUBMITTED THAT THE ASSESSEE IS A RESIDENT OF THAILA ND AND HE VISITS INDIA OCCASIONALLY. THE ORDER PASSED BY THE CIT(AP PEALS) WAS NOT COMMUNICATED TO THE ASSESSEE AND THE ASSESSEE CAME TO KNOW THE ORDER OF THE FIRST APPELLATE AUTHORITY WHEN HE VISI TED INDIA IN OCTOBER, 2014 AND IMMEDIATELY, HE FILED AN APPEAL B EFORE THIS TRIBUNAL. 3. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ORDER WAS COMMUN ICATED TO THE ASSESSEE THROUGH HIS REPRESENTATIVE, THEREFORE, THE RE WAS NO REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR NO T FILING THE APPEAL WITHIN THE STIPULATED PERIOD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE IS A RESIDENT OF THAILAND AND HE VISITS 3 I.T.A. NO.2903/MDS/14 S.P. NO.138/MDS/15 INDIA OCCASIONALLY. WHEN THE ASSESSEE VISITS INDIA OCCASIONALLY AND HE BEING A RESIDENT OF THAILAND, THIS TRIBUNAL IS O F THE CONSIDERED OPINION THAT THERE WAS A REASONABLE CAUSE ON THE PA RT OF THE ASSESSEE FOR NOT FILING THE APPEAL BEFORE THIS TRIB UNAL WITHIN THE SPECIFIED TIME. ACCORDINGLY, THE DELAY OF 183 DAYS IS HEREBY CONDONED AND THE APPEAL OF THE ASSESSEE IS ADMITTED . 5. NOW COMING TO THE MERIT OF THE CASE, SHRI M.V. S WAROOP, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ONLY ADDITION MADE BY THE ASSESSING OFFICER IS WITH REGARD TO CASH DEP OSIT IN THE ICICI BANK TO THE EXTENT OF ` 33,67,861/-. THE LD.COUNSEL SUBMITTED THAT THE ASSESSEE CLAIMED BEFORE THE ASSESSING OFFICER T HAT THE ASSESSEES MOTHER MADE THE DEPOSIT IN THE ASSESSEE S ACCOUNT. ACCORDING TO THE LD. COUNSEL, THE ASSESSEES MOTHER HAS AGRICULTURAL INCOME AND ALSO SOLD A LANDED PROPERTY WHICH WAS USED FOR MAKING DEPOSIT. PLACING HIS RELIANCE ON THE ST ATEMENT OF BANK ACCOUNT BELONGING TO THE ASSESSEES BROTHER, THE LD .COUNSEL SUBMITTED THAT THE MONEY WAS WITHDRAWN FROM THE ASS ESSEES BROTHERS ACCOUNT AND IT WAS USED BY THE ASSESSEES MOTHER FOR MAKING DEPOSIT IN THE ASSESSEES ACCOUNT. IN SUPPO RT OF THE SOURCES FOR DEPOSIT, THE LD.COUNSEL HAS PRODUCED CO PIES OF THE 4 I.T.A. NO.2903/MDS/14 S.P. NO.138/MDS/15 PROCEEDINGS OF THE AGRICULTURAL INCOME TAX OFFICER IN RESPECT OF THE ASSESSEES MOTHER AND COPIES OF THE SETTLEMENT DEED . THE LD.COUNSEL FURTHER SUBMITTED THAT THE STATEMENT OF BANK ACCOUNT OF THE ASSESSEES BROTHER WAS NOT AVAILABLE BEFORE THE LOWER AUTHORITIES. HOWEVER, THE STATEMENT CLEARLY SHOWS THAT THE WITHDRAWAL OF THE AMOUNT WAS BY CHEQUE ON 14.08.200 8. 6. ON THE CONTRARY, SH. P. RADHAKRISHNAN, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEES CLAIM BEFORE THE LOWER AUTHORITIES WAS THAT THE ASSESSEES MOTHER DE POSITED THE MONEY IN THE ASSESSEES ACCOUNT OUT OF THE SALE PRO CEEDS OF THE LAND AND THE AGRICULTURAL INCOME. THE ASSESSING OF FICER FOUND THAT THE DEPOSIT OF ` 33,67,861/- WAS MADE IN THE ASSESSEES ACCOUNT ON SIX TIMES. THE ASSESSEES MOTHER WAS POWER OF ATTO RNEY AGENT FOR FIVE PERSONS WHO ARE RESIDENTS OF BANGKOK, THAILAND . AS PER THE SALE DEED PRODUCED BEFORE THE LOWER AUTHORITIES, TH E SALE CONSIDERATION RECEIVED WAS ONLY ` 37,68,000/-, OUT OF WHICH THE SHARE OF THE ASSESSEES MOTHER WAS ` 5,68,000/-. ACCORDING TO THE LD. D.R., IT CANNOT BE SAID THAT THE ASSESSEES MOT HER DEPOSITED ` 33,00,000/-. ACCORDING TO THE LD. D.R., IT IS ASSE SSEES MONEY WHICH WAS DEPOSITED IN THE BANK, THE ASSESSING OFFI CER HAS RIGHTLY 5 I.T.A. NO.2903/MDS/14 S.P. NO.138/MDS/15 MADE THE ADDITION. REFERRING TO THE AGRICULTURAL I NCOME, THE LD. D.R. SUBMITTED THAT THE ASSESSEES CLAIM BEFORE THE LOWER AUTHORITIES WAS THAT THE ASSESSEES MOTHER WAS CULT IVATING 30 ACRES OF LAND. THE VILLAGE ADMINISTRATIVE OFFICER, HOWEV ER, HAS CERTIFIED THAT THE ASSESSEES MOTHER OWNED ONLY 20 ACRES OF W ET LAND. THE PROCEEDINGS OF THE AGRICULTURAL INCOME TAX OFFICER SAYS THAT THE ASSESSEE OWNS ONLY 16.59 ACRES OF LAND. IN VIEW OF THIS CONTRARY STATEMENTS, ACCORDING TO THE LD. D.R., THE ASSESSIN G OFFICER HAS RIGHTLY DISBELIEVED THE CLAIM OF THE ASSESSEE AND T HE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ORDER OF THE ASSESSING OF FICER. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. A COPY OF THE PROCEEDINGS OF AGRICULTURAL INCOME TAX OFFICER, WHI CH IS AVAILABLE AT PAGE 9 OF THE PAPER-BOOK SHOWS THAT THE ASSESSEES MOTHER OWNED 21.95 ORDINARY ACRES OF LAND WHICH IS EQUIVALENT TO 18.81 STANDARD ACRES. THE BANK STATEMENT OF SHRI SULTAN SICKENTHA R, THE BROTHER OF THE ASSESSEE, WAS AVAILABLE AT PAGE 40 OF THE PAPER -BOOK. BY REFERRING TO ENTRY MADE ON 14.08.2008, THE LD.COUNS EL FOR THE ASSESSEE CLAIMS THAT A SUM OF ` 31,00,000/- WAS WITHDRAWN ON TWO OCCASIONS. THIS COPY OF THE BANK STATEMENT WAS NOT AVAILABLE 6 I.T.A. NO.2903/MDS/14 S.P. NO.138/MDS/15 BEFORE THE LOWER AUTHORITIES. THE FIRST APPELLATE AUTHORITY, AFTER REFERRING TO THE PROCEEDINGS OF AGRICULTURAL INCOME TAX OFFICER, HAS FOUND THAT THE LAND HOLDING WAS 16.59 ACRES. BUT, THE COPY OF THE PROCEEDINGS AVAILABLE AT PAGE 9 SHOWS THAT THE LAND HOLDING WAS 21.95 ORDINARY ACRES WHICH IS EQUIVALENT TO 18.81 S TANDARD ACRES. SINCE THE ASSESSEE NOW CLAIMS THAT THE MONEY SAID T O BE WITHDRAWN FROM HDFC BANK WAS FROM THE ACCOUNT OF THE ASSESSEE S BROTHER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AFRESH IN THE LIGHT OF THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE BEFORE THIS TRIBUNA L. IN OTHER WORDS, THE COPIES OF THE BANK STATEMENT AND THE CLA IM OF THE ASSESSEE THAT MONEY WITHDRAWN FROM THE ASSESSEES B ROTHERS ACCOUNT WAS USED FOR MAKING DEPOSIT IS RAISED BEFOR E THIS TRIBUNAL FOR THE FIRST TIME. SINCE THIS TRIBUNAL BEING A FI NAL FACT FINDING AUTHORITY, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND T HE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER AFRESH IN THE L IGHT OF THE MATERIAL AVAILABLE ON RECORD, INCLUDING THE COPIES OF THE BA NK STATEMENT OF THE ASSESSEES BROTHER AND THEREAFTER DECIDE THE IS SUE IN 7 I.T.A. NO.2903/MDS/14 S.P. NO.138/MDS/15 ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES AND THE STAY PETITION IS DISMI SSED. ORDER PRONOUNCED ON 22 ND APRIL, 2016 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 22 ND APRIL, 2016. KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-VII, CHENNAI-34 4. 0 81 /CIT (INTERNATIONAL TAXATION), CHENNAI 5. 69 ,1 /DR 6. :' ; /GF.