Sri.William Rodrigues, Cochin V. The ITO, Cochin

ITA 313/COCH/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7614 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 05-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: PREETHA S NAIR

Judgement Text

ITA NO . 313/C/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH (SMC) KOCHI BEFORE SHRI GEORGE GEORGE K , JUDICIAL MEMBER ITA NO 313/COCH/2016 (A SST YEAR 2008 - 09 ) M/S WILLIAM R ODRIGUES SYMPHONY - OPP KAIRALI FLATS PANAMPILY NAGAR KOCHI 682 036 VS THE INCOME TAX OFFIC ER WARD 2(1)(PRESENTLY NON - CORP W 1(5)) KOCHI ( APPELLANT) (RESPONDENT) PAN NO. AETPR2347N ASSESSEE BY SMT PREETHA S NAIR REVENUE BY SH A DHANARAJ, SR DR DATE OF HEARING 26 TH OCT 2016 DATE OF PRONOUNCEMENT 21 ST NOV 2016 ORDER PER GE ORGE GEORGE K,J M : THIS APPEAL, AT THE INSTANCE OF THE ASSESSEE, IS DIRECTED AGAINST THE CIT(A)S ORDER DATED 3.3.2016. THE RELEVANT ASSESSMENT YEAR IS 2008 - 09. 2 THE EFFECTIVE GROUND RAISED, READS AS FOLLOWS: GROUND NO.2 - THE CIT (A) WAS WRONG IN CONFIR MING THE DISALLOWANCE BY THE ASSESSING OFFICER FOR RS. 8,75,000/ - BEING THE UNEXPLAINED SOURCE OF RECEIPT FROM VARIOUS PARTIES. THE APPELLANT HAD SUBMITTED ALL THE CONFIRMATION OF ADVANCES AND THE ASSESSING AUTHORITY WAS ALSO HAVING THE CONFIRMATION OF BAL ANCE DIRECTLY RECEIVED FROM THESE PARTIES WHO CONTRIBUTED THE SAME. THESE DETAILS WERE IN THE CASH FLOW STATEMENT SUBMITTED BEFORE THE ASSESSING AUTHORITY IN WHICH EACH AND EVERY RECEIPT AND PAYMENTS FOR THE RELEVANT PREVIOUS YEAR . ITA NO . 313/C/2016 2 3 BRIEFLY STATED THE FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS THE MANAGING DIRECTOR OF M/S COASTLINE HOLIDAYS PRIVATE LTD., KOCHI. FOR THE ASSESSMENT YEAR 2008 - 0 9, THE RETURN OF INCOME WAS FILED ON 1.8.2008 DECLARING TOTAL INCOME OF RS. 21,121/ - . THE ASSESSMENT U/S 1 43(3) WAS COMPLETED VIDE ORDER DATED 30.12.2010. THE ASSESSING OFFICER ADDED BACK TO TOTAL INCOME A SUM OF RS.32,67,450 / - . THIS AMOUNT ADDED WAS CASH DEPOSIT MADE IN ASSESSEE'S SAVING ACCOUNT WITH ICIC I BANK. ON FURTHER APPEAL, THE COMMISSIONER OF INCOME TAX(APPEALS) ALLOWED THE CLAIM FOR SOURCE FOR DEPOSITS FOR AN AMOUNT OF RS.22,92A50/ - , BEING THE AMOUNTS RECEIVED AGAINST THE PLEDGE OF GOLD FROM M/S. MUTHOOT FINCORP LTD. AND LOAN FROM PUSHPA AMOUNTING TO RS.1, 15,000/ - . THE BALANCE CASH DEPOSITS WHI CH WAS CLAIMED BY THE ASSESSEE AS LOAN FROM VARIOUS PERSONS WAS CONFIRMED BY THE LD. CLT(A). SUBSEQUENT TO THE CIT(A) ORDER, THE TOTAL INCOME WAS COMPUTED AT RS.8,81, 130/ - AND THE TOTAL DEMAND INCLUDING INTEREST AMOUNTING TO RS.2,94,440/ - WAS RAISED AGAIN ST THE ASSESSEE. 4 AGGRIEVED BY THE ORDER OF THE CLT(A), THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL . THE LD COUNSEL FOR THE ASSES SEE SMT PREETHA S NAIR, HAD FI L E D A PAPER BOOK CONTAINING 68 PAGES, INTER - ALIA ENCLOSING THE COPY OF THE CONFIRMATION LETTER SUBMITTED BEFORE THE ASSESSING OFFICER; ARGUMENT NOTES SUBMITTED BEFORE THE CIT; COPY OF THE ICICI BANK STATEMENT; ITA NO . 313/C/2016 3 COPY OF THE CASH BOOK OF THE ASSESSEE ETC. THE LD COUNSEL SUBMITTED THAT BORROWED FUNDS WERE MADE FOR MEETING TH E IMMEDIATE EXPENSES OF THE ASSESSEE IN WHICH THE ASSESSEE IS THE MANAGING DIRECTOR. IT WAS SUBMITTED THAT BORROWALS WERE MADE FROM THE RELATIVES OF THE ASSESSEE AND WAS REPAID TO THEM WITHIN A SHORT PERIOD. IT WAS CONTENDED THAT REPAYMENTS ARE REFLECTED IN THE CASH BOOK OF THE ASSESSEE. THE LD COUNSEL FURTHER CONTENDED THAT THE DISALLOWANCE W AS MADE WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE TO PRODUCE THESE CREDITORS BEFORE THE ASSESSING OFFICER. IT WAS SUBMITTED THAT ONE MORE OPPORTUNITY MAY BE GRAN TED TO THE ASSESSEE TO FURNISH THE CREDITORS BEFORE THE ASSESSING OFFICER , SO THAT GENUINENESS OF THE TRANSACTION COULD BE PROVED . THE LD DR, PRESENT WAS DULY HEARD. 5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE CIT(A) HAD CONFIRMED THE ASSESSING OFFICER'S ACTION IN DISBELIEVING THE LOANS RECEIVED FROM THE FOLLOWING PERSONS: - MRS. ANNIE RODRIGUES RS.1 , 25,000/ MRS. P.N. REMANI RS.2 , 50,000/ MR. KRISHNANUNNI RS. 2,00,000/ MR. R ICHARD RODRIGUES RS.100,000/ MRS. BEENA PETER RS.1 , 00,000/ - MRS. BIJU VARGHESE RS.1 , 00,000/ SHRI K N PRABHU RS. 1,00,000/ - 5.1 OUT OF THE ABOVE, T HE ASSESSEE HAS NOT RAISED ANY SUBMISSIONS WITH REGARD TO DISBELIEVING THE AMOUNT RECEIVED FROM MR. K.N. PRABHU . THE ASSESSEE HAS FILED CONFIRMATION LETTERS FROM ALL OTHER PERSONS EXCEPT SHRI K N PRABHU ITA NO . 313/C/2016 4 5.2 THE DETAILS OF THE AMOUNT S PAID AND THE DATE ON WHICH THESE AMOUNTS HAVE BEEN RECEIVED BY THE ASSESSEE AND WHEN IT REPAID ARE MENTIONED IN THE CONFIRMATION LETTERS. THE ASSESSEES, CASH BOOK IS PLACED ON RECORD AT PAGES 37 TO 54 OF THE PAPER BOOK FILED BY THE ASSESSEE. ON PERUSAL OF THE SAME, THE AMOUN T RECEIVED FROM THE ABOVE MENTIONED PERSONS ARE SEEN , REPAID BY THE ASSESSEE WITHIN A SHORT PERIOD. IN THE INTEREST OF JUSTICE AND EQUITY, I AM OF THE VIEW THAT ONE MORE OPPORTUNITY IS TO BE GRANTED TO THE ASSESSEE SO THAT THE PERSONS FROM WHOM THE ASSESS EE HAD RECEIVED THE AMOUNTS CAN BE PRODUCED BEFORE THE ASSESSING OFFICER , SO THAT THE ASSESSEE CAN PROVE THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE CREDITORS. FOR THE ABOVE SAID PURPOSE, THE MATTER IS REMITTED TO THE ASSESSING OFFIC ER FOR DE - NOVO CONSIDERATION. THE ASSESSING OFFICER SHALL DISPOSE OFF THE MATTER AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 6 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PUR POSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF NOV 2016 . SD/ - ( GEORGE GEORGE K) JUDICIAL MEMBER COCHIN: DATED 21 NOV 2016 RAJ* ITA NO . 313/C/2016 5 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT, 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN