A.S.Mohamed Majid, CHENNAI V. ITO, Kumbakonam

ITA 2927/CHNY/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9170 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 02-12-2014
• Court: TRIBUNAL
• Department Lawyers: P RADHA KRISHNANJ
• Assessee Lawyers: A S SRIRAMAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , . !' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.2927/MDS./2014 / ASSESSMENT YEAR :2010-11 SHRI A.S.MOHAMED MAJID , 27/4,SALAWATH BAWA COONY,NIDUR, MAYILADURTHURAI TALUK 609 203. VS. THE INCOME TAX OFFIER, WARD I(2), KUMBAKONAM. [PAN AMGPM 3940 B ] ( #$ / APPELLANT) ( %&#$ /RESPONDENT) / APPELLANT BY : MR.A.S.SRIRAMAN,ADVOCATE /RESPONDENT BY : MR.P.RADHAKRISHNAN,JCIT,DR / DATE OF HEARING : 01 - 06 - 201 6 !' / DATE OF PRONOUNCEMENT : 06 - 06 - 2016 ' / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS),TIRUCHIRAPALLI DATED 09.09.2014 PERTAINING TO ASSESSMENT YEAR 2010-11. ITA NO.2927/MDS./2014 :- 2 -: 2. THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING THE ADDITION OF ` 41,45,222/- MADE U/S.69 OF THE ACT. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, WAS EMPLOYED IN ABROAD AND RETURNED TO INDIA AND SETTLE D DOWN AT NIDUR, MAYILADUTHURAI IN 2008. THE ASSESSEE FILED HIS RETU RN OF INCOME ON 19.11.2010 ADMITTING INCOME OF ` 1,72,250/- COMPRISING OF THE INCOME FROM HOUSE PROPERTY. SUBSEQUENTLY, THE CASE WAS SEL ECTED FOR SCRUTINY UNDER CASS TO VERIFY THE CREDIT IN THE BANK ACCOUNT OF THE ASSESSEE WITH AXIS BANK NO.688010100017994, TOTALING A SUM O F ` 41,61,580/- COMPRISING OF 3 CASH DEPOSIT OF ` 9,90,000/- EACH DURING THE PERIOD FROM 01.04.2009 TO 31.03.2010 AND OUT OF THE SAME, A SUM OF ` 37,76,500/- HAPPENED TO BE DEPOSITS MADE IN CASH. DURING ASSESSMENT PROCEEDINGS, WHEN THIS WAS PUT TO THE AS SESSEES LD.A.R, LD.A.R FILED A COPY OF AN AGREEMENT FOR SALE, DAT ED 06.09.2009 SIGNED BY THE ASSESSEE AND HIS BROTHER, DULY SIGNED BY ADO CATE & NOTARY PUBLIC, MAYILADUTHURAI. ACCORDING TO THIS AGREEMENT , THE SALE CONSIDERATION IS FOR ` 40/- LAKHS. THE PURCHASER HAS PAID AN ADVANCE OF ` 20/- LAKHS BY CASH AS ON THE DATE 06.09.2009 AND TH E BALANCE OF ` 20 LAKHS WILL BE PAID ON OR BEFORE 5 TH FEBRUARY,2010 AND THE BALANCE ` 10/- LAKHS ON OR BEFORE 31.03.2010. HOWEVER, HE AS SESSEE RECEIVED ONLY ` 30 LAKHS AND BEFORE RECEIPT OF THE BALANCE OF ` 10 LAKHS, THE ITA NO.2927/MDS./2014 :- 3 -: PURCHASER AND SELLER HAVE MUTUALLY AGREED TO CANCEL HE AGREEMENT AND THE ADVANCE MONEY WAS RETURNED ON VARIOUS DATES DRO M 12.2.2010 TO 22.03.2010. THE AO POINTED OUT VARIOUS DISCREPANCI ES ON WITHDRAWALS AND REMITTANCES MADE IN THE NRE ACCOUNT OF UNION BA NK OF INDIA, MAYILADUTHURAI BRANCH. THE LD.A.R HAS REPLIED THAT MONEY WAS WITHDRAWN EARLIER IT COULD NOT BE PUT IN NRE ACCOUN T. IT WAS KEPT IN CASH AND GIVEN TO THE ASSESSEE AND REMITTED ONE YEA R AFTER. ON NOTICING VARIOUS DISCREPANCIES REGARDING WITHDRAWAL IN THE NRE PASSBOOK, THE AO NOTICED THAT ON ACCOUNT OF SALE AG REEMENT CANCELLATION ON 12.08.2010, THE AMOUNT OF ` 30 LAKHS HAS BEEN REPAID TO THE PURCHASER ON 22.03.2010 ITSELF AND IT IS PER TINENT TO NOTICE THAT WHILE THE SB ACCOUNT OF THE ASSESSEE IS HAVING MORE CREDIT BALANCE AS ON THE DATE WHY THE ASSESSEE HAS CHOSEN TO REPAY TH E SAID ADVANCE MONEY OF ` 30 LAKHS IN SO MANY INSTALLMENTS STARTING FROM 12. 02.2010 TO 22.03.2010. FURTHER, LD. ASSESSING OFFICER OBSE RVED THAT THERE IS NO PROPER EXPLANATION FROM THE ASSESSEE WHY THE RECEIP T OF MONEY ON VARIOUS DATES HAVE NOT BEEN ENTERED AND THERE IS NO PROOF ALSO FOR THE SAID REPAYMENT OF RS.30 LAKHS MADE BY THE ASSESSEE TO HIS BROTHER. HENCE, THE LD. ASSESSING OFFICER HAS NOT SATISFIED WITH THE REPLY OF LD.A.R AND LD.A.R FAILED TO EXPLAIN THE SOURCE FOR THE CASH DEPOSITS MADE BY THE ASSESSEE INTO SB ACCOUNT IN THE AXIS BA NK, MAYILADUTHURAI. SINCE THE ASSESSEE FAILED TO EXPLA IN THE SOURCES FOR ITA NO.2927/MDS./2014 :- 4 -: CASH DEPOSITS, THE ENTIRE DEPOSITS OF ` 41,45,222/- FOUND IN THE AXIS BANK SB A/C, MAYILADUTHRUAI WAS TREATED AS UNEXPLAI NED INVESTMENT U/S/69 OF THE ACT BY THE AO. AGGRIEVED, THE ASSESS EE CARRIED THE APPEAL BEFORE THE CIT(A). ON APPEAL THE LD.CIT(A) O BSERVED THAT THE AO HAS RIGHTLY DISMISSED THE EXPLANATION FILED BY T HE LD.A.R FOR EXPLAINING THE DEPOSITS IN THE SAID BANK ACCOUNT WH ICH ARE TOTALLY INCOHERENT AND DISCOVERED THE THEORY OF SALE AGREEM ENT AND CANCELLATION WHICH DO NOT FIT INTO EXPLAINING THE C ASH CREDITS AND THEREFORE, CIT(A) CONFIRMED THE ORDER OF THE AO. A GGRIEVED WITH THE ORDER OF LD.CIT(A), THE ASSESSEE IS IN APPEAL BEFOR E US. 4. THE CONTENTION OF LD.A.R IS THAT ASSESSMENT IN THIS CASE WAS HURRIEDLY PASSED AT THE FAG END OF THE TIME LIMIT A VAILABLE FOR COMPLETION OF ASSESSMENT. HE SUBMITTED THAT THE CAS E WAS TAKEN UP FOR EFFECTING HEARING ON 14.02.2013, 19.07.2013 & 2 5.03.2013 AND THE ASSESSMENT WAS COMPLETED ON 27.03.2013. EVEN BEFORE THE LD.CIT(A), THE ASSESSEE HAS NOT GOT FAIR OPPORTUNITY TO PUT A SSESSEES CASE. 5. ON THE OTHER HAND, LD.D.R STRONGLY OPPOSED THE SUBMISSIONS OF LD.A.R AND SUBMITTED THAT WHEN THE AVAILABLE OPPORT UNITY WAS PROVIDED TO THE ASSESSEE, ASSESSEE HAS NOT UTILIZED THE OPPO RTUNITY TO PUT FORTH THE MATERIAL BEFORE THE LD. ASSESSING OFFICER OR EV EN AFTER GIVING ITA NO.2927/MDS./2014 :- 5 -: OPPORTUNITIES SO MANY TIMES AND DATES, ASSESSEE HAD FAILED TO PUT EVIDENCE BEFORE THE LD. ASSESSING OFFICER. THE SAME POSITION WAS ALSO CONTINUED BEFORE THE LD.CIT(A). HE SUBMITTED THAT T HE ADDITION MAY BE SUSTAINED. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY IN THIS CASE THE ASSESSMENT WAS TAKEN UP AT THE FAG END OF THE PERIOD AVAILABLE FOR COMPLETION OF A SSESSMENT AS SEEN FROM THE ASSESSMENT ORDER AT COLUMN-11 TO SUGGEST T HAT THE CASE WAS HEARD ON 14.2.2013, 19.3.2013 AND 25.3.2013. IN OU R OPINION, THE ASSESSEE WAS DEPRIVED OF EFFECTIVE OPPORTUNITY OF B EING HEARD BEFORE THE AO. HENCE, IN THE INTEREST OF JUSTICE, WE REMI T THE ENTIRE ISSUE TO THE FILE OF AO WITH A DIRECTION TO THE ASSESSEE TO PUT ALL THE MATERIAL AVAILABLE THAT KEEP EXPLAINING THE SOURCE OF DEPOSI T IN THE ASSESSEES BANK ACCOUNT. THE AO SHALL GIVE ONE MORE OPPORTUNI TY TO THE ASSESSEE AND THE ASSESSEE SHALL CO-OPERATE WITH THE DEPARTMENT AND EXPLAIN THE INVESTMENT TO THE SATISFACTION OF THE A O. WITH THIS OBSERVATION, WE REMIT THE ISSUE TO THE FILE OF AO F OR FRESH CONSIDERATION. ITA NO.2927/MDS./2014 :- 6 -: 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JUNE, 2016, AT CHENNAI. SD/ - SD/ - ( . ) ( G.PAVAN KUMAR ) / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 06 TH JUNE, 2016 K S SUNDARAM &'(()*( +* / COPY TO: ( 1 . / APPELLANT 3. ( ,(- . / CIT(A) 5. */0 (1 / DR 2. / RESPONDENT 4. ( , / CIT 6. 02(3 / GF