G. Gowri Shankar, Hyderabad V. ITO, Ward 6(1), Hyderabad

ITA 299/HYD/2014

• Counselvise Citation: 29922514 RSA 2014
• Duration Of Justice: 1 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-03-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 26-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRADR
• Assessee Lawyers: B SHANTHI KUMAR
• Keywords: Reasonable cause; Condonation of delay
• Section: 131; 144; 142(1)

Judgement Text

ITA NO.299 OF 2014 G.GOWRI SHANKAR HYDERABAD PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER & SMT.ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 299/HYD/2014 (ASSESSMENT YEAR: 2008-09) SHRI G. GOWRI SHANKAR 6-3-540/3 PUNJAGUTTA HYDERABAD PAN-AASPG 1855 H VS. INCOME TAX OFFICER WARD 6(1) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI B. SHANTHI KUMAR , ADVOCATE FOR REVENUE : SHRI RAJAT MITRA,DR DATE OF HEARING : 0 9/ 0 3/ 20 15 DATE OF PRONOUNCEM ENT : 13 /03/2015 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, J.M. THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE CIT (A)-IV HYDERABAD DATED 5.12.2013 PASSED FOR A.Y 2008-09 U/S 144 OF THE I.T. ACT, 1961. 2. THE ASSESSEE FILED HIS RETURN OF INCOME ON 29.09 .2008 DECLARING A TOTAL INCOME OF RS.2,50,180. THE RETURN WAS DULY PROCESSED U/S 143(1) ON 2.2.2010. THE ASSESSEE HAD MADE PAYMENTS OF RS.40,03,250 ON HIS CREDIT CARD OF ABN AMRO BANK. SUBSEQUENTLY THE CASE HAVE BEEN TAKEN UP FOR SCRUTINY UNDER CASS. A NOTICE U/S 143(2) WAS ISSUED ON 28.8. 2009 BUT ITA NO.299 OF 2014 G.GOWRI SHANKAR HYDERABAD PAGE 2 OF 6 THERE WAS NO RESPONSE FROM THE ASSESSEE. FURTHER NO TICE U/S 142(1) WAS ISSUED ON 19.4.2010 FOR WHICH ALSO THER E WAS NO RESPONSE FROM THE ASSESSEE. IN THE ABSENCE OF RESPO NSE, ANOTHER NOTICE U/S 142(1) WAS ISSUED ON 1.6.2010 AND THIS W AS ALSO SERVED ON 3.6.2010. AS THE ASSESSEE HAS NOT TURNED UP, AGAIN NOTICE U/S 142(1) WAS ISSUED ON 23.7.2010 WHICH WAS SERVED ON THE ASSESSEE ON 18.8.2010. AS A FINAL OPPORTUNITY, NOTICE U/S 143(2) WAS ISSUED ON 22.10.2010 AND THIS WAS ALSO S ERVED ON THE ASSESSEE ON 24.11.2010. FINALLY, SUMMONS U/S 131 WE RE ISSUED ON 3.12.2010 IN RESPONSE TO WHICH THE ASSESSEE APPE ARED ON 10.12.2010 ALONG WITH SRI SRINIVAS, CA AND THEY WER E ASKED TO FILE AMONG OTHER THINGS THE CASH FLOW STATEMENT AND DETAILS OF CASH DEPOSITS AND ITS SOURCES AND THE CASE WAS ADJO URNED TO 15.12.2020. NOBODY APPEARED ON THE SAID DATE. IN TH E CIRCUMSTANCES, A SHOW CAUSE NOTICE WAS ISSUED TO TH E ASSESSEE ON 21.12.2010 ASKING HIM TO SHOW CAUSE AS TO WHY TH E AMOUNT OF RS.40,03,250 REPRESENTING ABN AMRO BANK N.V. (CR EDIT CARD PAYMENT) SHOULD NOT BE CONSIDERED AS HIS UNDISCLOSE D INCOME FOR THE FINANCIAL YEAR 2007-08 AND ADD TO THE INCOME RE TURNED FOR THE A.Y 2008-09. THE SAID SHOW CAUSE NOTICE WAS DUL Y SERVED ON THE ASSESSEE ON 23.12.2010 AND THE ASSESSEE WAS ASK ED TO FURNISH HIS REPLY TO THE SHOW CAUSE NOTICE BY 24.12 .2010 POSITIVELY. THERE WAS NO RESPONSE FROM THE ASSESSEE TILL DATE AND ASSESSEES ATTITUDE SHOWS THAT HE IS RELUCTANT EITH ER TO APPEAR OR FURNISH ANY INFORMATION. IN THESE CIRCUMSTANCES, TH E AO LEFT WITH NO OTHER ALTERNATIVE EXCEPT TO COMPLETE THE ASSESSM ENT EX PARTE U/S 144 OF THE I.T. ACT, 1961 ON THE BASIS OF MATER IAL AVAILABLE ON RECORD. ITA NO.299 OF 2014 G.GOWRI SHANKAR HYDERABAD PAGE 3 OF 6 3. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE THE CIT (A). BEFORE THE CIT (A), ASSESSEE ATTENDED ON 5.12.2013 AND MADE THE FOLLOWING SUBMISSIONS AS PER THE ORDER SHEET NOTING : SRI G. GOWRI SHANKAR ATTENDED. HE SUBMITTED THAT H E WAS RUNNING A MEDICAL SHOP NEAR NIMS HYDERABAD THAT PATIENTS COME FROM OUTSTATION FOR TREATMENT TO NIMS & PURCHASE MEDICINES FROM HIM, THAT SUCH PATIENTS DO NOT HAVE ANY BANKING FACILITY OR BANK ACCOUNTS IN HYDERABAD, THAT SUCH PATIENTS DID NOT HAVE FACILITY FOR SAFEKEEPING OF CASH THAT THEY CARRY FOR TREATMENT EXPENSES, THAT SUCH PERSONS HAD DEPOSITED THE CASH WITH HIM FOR SAFEKEEPING WHICH HE HAD DEPOSITED IN HIS BANK ACCOUNT AND LATER WITHDRAWN AND RETURNED TO THEM. APPELLANT ALSO SOUGHT TIME TO MAKE SUBMISSIONS. IT IS POINTED OUT TO HIM THAT ENOUGH OPPORTUNITY HAS BEEN GIVEN TO HIM AND THAT AS A LAST OPPORTUNITY, HEARIN G IS ADJOURNED TO 12.12.2013 AND THAT NO FURTHER OPPORTUNITY WILL BE GIVEN AT ALL. APPELLANT IS REQUESTED TO FILE COPY OF ABN AMRO BAN K ACCOUNT ON 12.12.2013. 4. THE LD CIT (A) HELD AS UNDER: 10. THE APPELLANT HAS CLAIMED THAT HE WAS RUNNING A MEDICAL SHOP NEAR NIZAMS INSTITUTE OF MEDICAL SCIENCES, HYDERABAD (NIMS) THAT CASH DEPOSITS HAD BEEN MADE IN HIS BANK ACCOUNT OUT OF CASH GIVEN TO HIM BY PATIENTS WHO CAME TO NIMS FOR TREATMENT AND THAT HE HAD LATER WITHDRAWN AND RETURNED THE CASH T O THEM. THERE IS NO EVIDENCE FOR THIS CLAIM. IN ANY EVENT, THIS EXPLANATION HAS NO RELEVANCE SINCE THE ISSUE IN THE ASSESSMENT ORDER (AND APPEAL) IS THE CREDIT CARD PAYMENTS MADE ON HIS CARD WITH ABN AMRO BANK AND NOT THE CASH DEPOSITS IN HIS BANK ACCOUNT. PRESUMING THAT IT IS THE APPELLANTS CLAIM THAT THE CASH DEPOSITED BY THE PATIENTS WITH HIM HA D BEEN USED FOR THE CREDIT CARD PAYMENTS, THE APPELLA NT WOULD STILL NEED TO EXPLAIN THE SOURCES FOR THE ITA NO.299 OF 2014 G.GOWRI SHANKAR HYDERABAD PAGE 4 OF 6 REPAYMENT OF FUNDS OF THE PATIENTS. IT IS THEREFORE , HELD THAT THE APPELLANT HAS BEEN UNABLE TO FURNISH ANY EXPLANATION WHATSOEVER FOR THE ISSUE IN APPEAL AND THE APPEAL IS DISMISSED EVEN ON MERITS. 5. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. THE LD COUNSEL FOR THE ASSESSEE SHRI SHANTHI KUMAR STATED THAT THE ASSESSEE IS AN INDIVIDUAL WHO RUNS A MEDICAL SHOP NEAR NIMS. IT WAS FURTHER SUBMITTED THAT THE PATIENTS VISITING HIS SHOP FOR P URCHASE OF MEDICINE DEPOSIT THEIR CASH WITH THE ASSESSEE FOR S AFE KEEPING AS THEY DO NOT HAVE BANK ACCOUNT AND SUCH CASH WAS DEP OSITED BY THE ASSESSEE IN BANK. IT WAS ALSO BROUGHT TO OUR N OTICE THAT THE CIT (A) ASKED TO FILE COPY OF ABN AMRO BANK A/C BEF ORE 12.12.2013 AND THE ASSESSEE DID NOT COMPLY WITH THE FILING OF THE BANK A/C. HENCE IT WAS STATED BY THE ASSESSEE THAT CASH DEPOSITS HAVE BEEN MADE IN HIS BANK A/C OUT OF THE CASH GIVE N TO HIM AT NIMS FOR TREATMENT AND LATER HE HAD WITHDRAWN THE C ASH AND RETURNED THE SAME TO THE RESPECTIVE PERSONS AND IT HAS NOT GOT ANYTHING RELATED TO CREDIT CARD PAYMENTS AS INSISTE D BY THE AO AND CIT(A). 6. THE ASSESSEE HAS ALSO FILED A PETITION FOR CONDO NATION OF DELAY IN FILING THE APPEAL STATING THAT THE EX-PART E U/S 144 DATED 31.12.2010 WAS RECEIVED BY THE ASSESSEE ON 3.1.11 W HILE DUE DATE OF FILING THE APPEAL WAS 2.2.2011. THE ASSESSE E FILED THE SAME ON 13.10.2011 AFTER DELAY OF 8 MONTHS AND 11 D AYS. ALONG WITH THE APPEAL MEMO ASSESSEE STATED THAT HE UNDERW ENT MEDICAL TREATMENT AND WAS UNABLE TO ATTEND HIS DAY TO DAY ACTIVITIES FOR A PERIOD OF 9 MONTHS AND REQUESTED F OR CONDONING THE DELAY. ITA NO.299 OF 2014 G.GOWRI SHANKAR HYDERABAD PAGE 5 OF 6 7. BEFORE US THE ASSESSEE SUBMITTED THAT HE HAD ALS O PRODUCED THE MEDICAL CERTIFICATE BEFORE THE LD CIT (A). THE CIT (A) HOWEVER, REJECTED THE PLEA FOR CONDONING THE APPEAL STATING THAT NO MEDICAL CERTIFICATE WAS ENCLOSED WITH THE LETTER SEEKING FOR CONDONATION OF DELAY AND IN THE ABSENCE OF ANY EVID ENCE ESTABLISHING THE GENUINENESS OF THE ASSESSEES CLAI M AND THE NATURE OF THE MEDICAL PROBLEMS, THE DELAY IN FILING THE APPEAL WAS NOT CONDONED BY THE CIT (A) AND THE APPEAL WAS DISMISSED IN LIMINE. 8. WE HEARD BOTH THE PARTIES. WITH RESPECT TO CONDO NATION OF DELAY, ASSESSEE HAS FURNISHED THE MEDICAL CERTIFICA TE AT PAGE 14 OF THE PAPER BOOK AND RELIED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF COLLECTOR OF LAND ACQU ISITION VS. M/S. KATIJI & OTHERS (167 ITR 47 S.C) AND ALSO THE DECISION OF THE ITAT MUMBAI BENCH (ITA NO.456/MUM/2009) DATED 10.11.2010 IN THE CASE OF YATISH TRADING CO. (P) LT D VS. ACIT. WE FIND THAT THE ASSESSEE HAS GOT REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL. SINCE THE ASSESSEE HAS NOT PRODU CED THE MEDICAL CERTIFICATE BEFORE THE CIT (A) (ACCORDING T O THE CIT (A) FINDING) WE SET ASIDE THE ISSUE TO THE FILE OF THE CIT (A) TO CONDONE THE DELAY. WITH RESPECT TO MERITS OF THE CASE, THE ASSESSEE HAS SUBMITTED THAT THE ISSUE IS WITH REGARD TO THE CASH DEPOSITS MADE BY THE ASSESSEE IN THE BANK AND NOT THE CREDIT CARD PAYMENTS. WE ARE INCLINED TO GIVE ONE MORE OPPORTUN ITY TO THE ASSESSEE TO REPRESENT HIS CASE AND REMIT THE ISSUE ON MERITS TO BE DECIDED BY THE CIT (A) AFTER CONDONING THE DELAY , ITA NO.299 OF 2014 G.GOWRI SHANKAR HYDERABAD PAGE 6 OF 6 9. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MARCH, 2015. S D/ - S D/ - (P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 13 TH MARCH, 2015. VNODAN/SPS COPY TO: 1. SHRI B. SHANTHI KUMAR, ADVOCATE, 411 TARAMANDAL COMPLEX, 5-9-13 SAIFABAD, HYDERABAD 500004 2. INCOME TAX OFFICER WARD 6(1) INCOME TAX TOWERS, AC GUARDS HYDERABAD 3. THE CIT(A)-IV HYDERABAD 4. THE CIT-III HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER