The ACIT, Range-5, Visakhapatnam V. Sri G Mohana Rao, Visakhapatnam

ITA 292/VIZ/2002

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 2700 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 8 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-10-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 08-05-2002
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Keywords: Unexplained investment; Set aside
• Section: 68

Judgement Text

ITA NO.292 OF 2002 G. MOHANA RAO, VISAKHAPATNAM PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.292/VIZAG/2002 ASSESSMENT YEAR:1998-99 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-5(1) RANGE 5 VISAKHAPATNAM VS. G. MOHANA RAO, VISAKHAPATNAM (APPELLANT) (RESPONDENT) GIR NO: M-782 APPELLANT BY: SHRI D.S. SUNDER SINGH, D.R RESPONDENT BY: SHRI G.V.N. HARI, CA ORDER PER SHRI B. R. BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE O RDER DATED 23-1- 2002 PASSED BY THE LD CIT (A) VISAKHAPATNAM-I AND IT RELATES TO THE ASSESSMENT YEAR 1998-99. 2. THE REVENUE IS IN APPEAL BEFORE US IN RESPECT OF THE FOLLOWING THREE ISSUES: A) ADDITION OF AGRICULTURAL INCOME - RS.1 ,25,000/- B) ADDITION U/S 68 FOR SOURCES UNEXPLAINED - RS. 3 .00 LAKHS C) UN EXPLAINED DEPOSIT IN BANK - RS. 1,2 5,000/- 3. THE FACTS RELATING TO THE ISSUE ARE STATED IN BR IEF. THE ASSESSEES CLAIM OF AGRICULTURAL INCOME WAS NOT ACCEPTED BY TH E ASSESSING OFFICER, SINCE THE ASSESSEE COULD NOT PROVE ITS AVAILABILITY . ACCORDINGLY THE AO BROUGHT TO TAX THE AMOUNT OF RS.1,25,000/- SHOWN AS AGRICULTURAL INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. THE AO AL SO NOTICED THAT THE ITA NO.292 OF 2002 G. MOHANA RAO, VISAKHAPATNAM PAGE 2 OF 3 ASSESSEE HAD PURCHASED A LAND AT ELAMANCHILI FOR A CONSIDERATION OF RS.3,49,451/-. THE ASSESSEE EXPLAINED THE SOURCES A S WITHDRAWAL FROM TWO PARTNERSHIP FIRMS. THE AO NOTICED THAT THE SAID WIT HDRAWALS HAVE BEEN MADE DURING THE PERIODS WHICH FALL SUBSEQUENT TO TH E DATE OF PURCHASE OF THE SAID LAND. ACCORDINGLY HE MADE THE ADDITION OF RS.3. 00 LAKHS AS UNEXPLAINED INVESTMENT. THE AO ALSO ADDED A SUM OF RS.1,25,000/- FOUND DEPOSITED IN THE BANK A/C WITHOUT ACCEPTING THE EXP LANATION OF THE ASSESSEE THAT THE SAID DEPOSIT WAS MADE OUT OF HIS AGRICULTURAL INCOME. IN THE APPEAL PREFERRED BY THE ASSESSEE, THE LD CIT (A ) DELETED ALL THE THREE ADDITIONS. HENCE THE REVENUE IS IN APPEAL BEFORE US . 4. WE HAVE HEARD THE PARTIES AND ALSO PERUSED THE R ECORD. BOTH THE PARTIES AGREED THAT THE ISSUE OF AGRICULTURAL INCOM E AND THE ISSUE RELATING TO THE UNEXPLAINED SOURCES OF RS.3.00 LAKHS BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER, AS THE LD CIT (A) HAD DELETED BO TH THE ADDITIONS ON THE BASIS OF FRESH EXPLANATIONS AND EVIDENCES FILED BEF ORE HIM. IN VIEW OF THE SAID REQUEST, WE SET ASIDE BOTH THE ISSUES TO THE F ILE OF THE AO FOR CONSIDERATION AFRESH IN ACCORDANCE WITH THE LAW ON THE BASIS OF FRESH MATERIALS AND EVIDENCES THAT MAY BE FURNISHED BY TH E ASSESSEE. THE ASSESSEE SHOULD BE GIVEN NECESSARY OPPORTUNITY OF B EING HEARD. 5. THE REMAINING ISSUE RELATES TO THE ADDITION OF R S.1,25,000/- RELATING TO THE DEPOSIT OF RS.1,25,000/- MADE IN THE BANK. IT IS A WELL SETTLED PRINCIPLE THAT THERE CANNOT BE DOUBLE ADDITION, I.E FOR THE SOURCE AND ANOTHER ONE FOR THE INVESTMENT. THE ASSESSEES CLAI M IS THAT THE IMPUGNED DEPOSIT OF RS.1,25,000/- WAS MADE OUT OF HIS AGRICU LTURAL INCOME. THOUGH THE AO DID NOT ACCEPT THE CLAIM OF AVAILABILITY OF AGRICULTURAL INCOME, YET HE HAS TAXED THE SAID AGRICULTURAL INCOME OF RS.1,25,0 00/- AS INCOME FROM OTHER SOURCES. THUS, IN EFFECT, THE ASSESSING OFFI CER HAS ACCEPTED THE AVAILABILITY OF THE SOURCE TO THE TUNE OF RS.1,25,0 00/-. HENCE, WE DO NOT FINE ANY RATIONALE IN MAKING FURTHER ADDITION OF TH E IDENTICAL AMOUNT, WHEN ITA NO.292 OF 2002 G. MOHANA RAO, VISAKHAPATNAM PAGE 3 OF 3 THE CLAIM OF THE ASSESSEE IS THAT THE SAID INVESTME NT WAS MADE OUT OF THE SOURCE THAT WAS ALREADY BROUGHT TO TAX. ACCORDING LY WE CONFIRM THE ORDER OF THE LD CIT (A) ON THIS ISSUE. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS TREATE D AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 19 TH NOVEMBER, 2010. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, DATE: 19-11- 2010 COPY TO 1 2 3 4 5 6 THE A.C.I.T., CIRCLE-5 (1), RANGE-5, VISAKHAPATNAM SHRI G. MOHANA RAO, OPP: STEEL CITY BUS STOP, KURMA NNAPALEM, VISAKHAPATNAM THE CIT (A)-I VISAKHAPATNAM THE CIT-I VISAKHAPATNAM THE DEPARTMENTAL REPRESENTATIVE, ITAT VISAKHAPATNAM GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM