Nandkishor Tulsidas Katore, Nashik V. Assistant Commissioner of Income-tax,

ITA 32/PUN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1516 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Assessee Lawyers: KALIPRASAD BHATT
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.32/PN/2016 / ASSESSMENT YEAR : 2010-11 NANDKISHOR TULSIDAS KATORE, SURYA NURSING HOME, BEHIND REGIMENTAL PLAZA, NASHIK ROAD, NASHIK, MAHARASHTRA 422101 PAN NO.ABIPK9348L . / APPELLANT V/S ACIT, CENTRAL CIRCLE - 1, NASHIK . / RESPONDENT / APPELLANT BY : SHRI KALIPRASAD BHATT / RESPONDENT BY : SHRI P.L. KUREEL, ADDL.CIT / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 16-10-2015 OF THE CIT(A)-12, PUNE RELATING TO THE ASSESSMENT YEAR 2010-11. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY TH E ASSESSEE THEY ALL RELATE TO THE ORDER OF THE CIT(A) IN SUS TAINING THE ADDITION OF RS.4 LAKHS MADE BY THE AO U/S.69 OF THE I.T. ACT 3. FACTS OF THE CASE, IN BRIEF ARE THAT THE ASSESSEE IS A DOCTOR BY PROFESSION. HE FILED HIS RETURN OF INCOME ON 04-10-2010 DEC LARING TOTAL INCOME OF RS.11,90,550/-. HIS INCOME CONSISTS OF INCOME FROM S ALARY, HOUSE PROPERTY, BUSINESS AND PROFESSION AND CAPITAL GAIN. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT AN INTIMATION WAS / DATE OF HEARING :21.07.2016 / DATE OF PRONOUNCEMENT:29.07.2016 2 ITA NO.32/PN/2016 RECEIVED FROM ITO, CENTRAL-1, NASHIK IN WHICH HE HAS ENCLOS ED PHOTOCOPIES OF TWO RECEIPTS OF M/S. SUN INFRASTRUCTURES P VT. LTD. ISSUED TO THE ASSESSEE. THESE RECEIPTS WERE FOUND AND SEIZED D URING THE COURSE OF THE SEARCH PROCEEDINGS IN THE CASE OF THE SAID COMPANY. THESE RECEIPTS BEARING NOS. 117 AND 118 WERE ISSUED ON 26-03-2010 EVIDENCING OF PAYMENT OF RS.1 LAKH VIDE CHEQUE NO.201532 DR AWN ON BANK OF MAHARASHTRA, NASHIK ROAD BRANCH AND RS. 4 LAKHS IN CASH RESPECTIVELY. THE RECEIPTS SHOWED THAT THESE PAYMENTS WERE MADE BY THE ASSESSEE TOWARDS RESERVATION OF PROPERTY DESCRIBE D AS C-201, SUYOJIT ONE WORLD, NASHIK ROAD. HE, THEREFORE, ASKED THE A SSESSEE TO GIVE THE COMPLETE DETAILS OF THE TRANSACTION. 4. THE ASSESSEE REPLIED THAT HE HAD ENTERED INTO AN AG REEMENT WITH M/S. SUN INFRASTRUCTURES PVT. LTD. ON 23-12-2010 FOR THE PURCHASE OF FLAT NO.201 IN C-WING OF A BUILDING LOCATED IN THE PROJECT KNOWN AS SUYOJIT ONE WORLD-RESIDENTIAL SECTOR. THE COS T OF THE FLAT IS RS.16 LAKHS OUT OF WHICH AN AMOUNT OF RS.7,65,000/- HAS B EEN PAID TILL DATE. THE ABOVE PAYMENT INCLUDES THE SUM OF RS.1 LAKH BY CHEQUE DRAWN ON BANK OF MAHARASHTRA. FURTHER THE PAYMENT OF R S.6,65,000/- WAS MADE BY CHEQUES DRAWN ON BANK OF INDIA AND THE BA LANCE AMOUNT IS UNPAID. THE AO, ON THE DATE OF HEARING, I.E. 18-01-2013 C ONFRONTED THE ASSESSEE WITH THE COPY OF RECEIPT NO. 118 WHEREIN TH E PAYMENT OF RS.4 LAKHS IN CASH TOWARDS THE RESERVATION OF THE FLAT IS M ENTIONED. THE ASSESSEE SUBMITTED THAT NO CASH PAYMENT HAS BEE N MADE BY HIM TOWARDS THE PURCHASE OF THE FLAT. THE RECEIPT OF RS.4 LAK HS IS NEITHER IN THE HAND-WRITING OF THE ASSESSEE NOR DOES IT BEAR THE S IGNATURE OF THE ASSESSEE CONFIRMING THE PAYMENT OR HAVING RECEIVED THIS R ECEIPT. THE RECEIPT IS NOT FOUND IN THE POSSESSION OF THE ASSESSEE. SINCE THE SAME HAS BEEN FOUND IN THE POSSESSION OF A THIRD PARTY IT DOE S NOT HAVE ANY 3 ITA NO.32/PN/2016 EVIDENTIARY VALUE AS IT DOES NOT BEAR ANY IDENTIFICATION RELA TING TO THE ASSESSEE. THE ASSESSEE ALSO FILED A COPY OF THE LETTER IS SUED BY M/S. SUN INFRASTRUCTURES PVT. LTD. DATED 02-02-2013 WHEREIN THEY HAVE STATED THAT THE AMOUNT OF RS.4 LAKHS RECEIVED IN CASH ON 26-03-2010 VIDE RECEIPT NO.118 WAS WRONGLY ISSUED IN THE NAME OF THE ASSESSEE. VARIOUS DECISIONS WERE ALSO BROUGHT TO THE NOTICE OF THE AO AND IT WAS ACCORDINGLY SUBMITTED THAT HE IS NOT RESPONSIBLE FOR THE RECEIPT FOUN D AT THE PREMISES OF M/S. SUN INFRASTRUCTURES PVT. LTD. 5. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO HIM, THE NAME OF THE PURC HASER OF THE PROPERTY AGAINST WHICH THE SUM OF RS.4 LAKHS HAS BEEN RE CEIVED BY THE COMPANY CANNOT BE WRONG SINCE THE ADDRESS OF THE PROP ERTY IS ALSO SAME. ACCORDING TO HIM, THE ERROR IS POSSIBLE IF THE RECEIPT S ARE ISSUED ON SEPARATE DATES AND ONE OF THE DETAILS MENTIONED IN T HE RECEIPT IS ERRONEOUS. DISTINGUISHING THE VARIOUS DECISIONS CITED BEFORE HIM AND FOLLOWING VARIOUS DECISIONS THE AO MADE ADDITION OF RS.4 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE U/S.69 OF THE I.T. ACT. 6. IN APPEAL THE LD. CIT(A) CONFIRMED THE ADDITION. WHILE DOIN G SO, HE NOTED THAT THE ASSESSEE HAS NOT DENIED THE FACT THAT THE FLAT WAS BOOKED BY HIM WITH A DEVELOPER AND THE CHEQUE PAYMENT HAVE BEEN RECORDED AS PER RECEIPT NO.117 WAS MADE BY HIM. THE CO NTENTION OF THE ASSESSEE THAT THE DEVELOPER HAS LATER ISSUED A CLAR IFICATION STATING THAT CASH RECEIPT WAS WRONGLY RECEIVED BY HIM IN THE N AME OF THE ASSESSEE AND THAT THEY HAD CARRIED OUT RECTIFICATION ENT RY IN THEIR BOOKS OF ACCOUNT LACKS MERIT AND ONLY AN AFTERTHOUGHT. HE FURT HER OBSERVED THAT THE DEVELOPER HAD GIVEN BALD CLARIFICATION WITHOUT GIVIN G DETAILS AS TO WHO WAS THE PERSON FROM WHOM CASH OF RS.4 LAKHS WAS RECEIVED BY HIM IF THE RECEIPT ISSUED TO THE ASSESSEE WAS A MISTAKE. 4 ITA NO.32/PN/2016 7. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 8. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET FILED A CLARIFICATION ISSUED BY M/S. SUN INFRASTRUCTURES PVT. LTD. AC CORDING TO WHICH THE AMOUNT MENTIONED ON RECEIPT NO.118 WAS RECEIVE D FROM SHRI RATNAKAR KATORE AGAINST THE BOOKING OF FLAT AT SUYOJIT ON E WORLD PROJECT AT NASHIK. THE SAME WAS WRONGLY MENTIONED AS RECEIVED FROM DR. NANDKISHOR KATORE. THE LEDGER ACCOUNT OF SHRI RATNAK AR KATORE IN THE BOOKS OF M/S. SUN INFRASTRUCTURES PVT. LTD. WAS ALSO FILED. HE SUBMITTED THAT SINCE THESE ARE ADDITIONAL EVIDENCES OBTAIN ED AFTER THE HEARING OF THE APPEAL BEFORE THE CIT(A) AND GO THE ROO T OF THE MATTER, THEREFORE, THE SAME SHOULD BE ACCEPTED FOR ADJUDICATION. 9. HE FURTHER SUBMITTED THAT BURDEN WAS ON THE AO WHE N THE ASSESSEE DISCHARGED ITS ONUS BY STATING THAT THE RECEIP T ISSUED BY M/S. SUN INFRASTRUCTURES PVT. LTD. WAS WRONGLY ISSUED BY TH EM IN THE NAME OF THE ASSESSEE AND THE AO HAS NOT ISSUED SUMMONS OR CALLED FOR ANY INFORMATION OR CLARIFICATION FROM THE SAID PARTY. WHEN THE AS SESSEE HAS NOT PAID ANY CASH AMOUNT, THEREFORE, THE ADDITION OF THE S AME IN THE HANDS OF THE ASSESSEE IS UNJUSTIFIED, UNCALLED FOR AND LEGALLY NOT SUSTAINABLE. HE ACCORDINGLY SUBMITTED THAT THE ADDITION M ADE BY THE AO AND UPHELD BY THE CIT(A) SHOULD BE DELETED. 10. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER H AND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED TH AT THE ASSESSEE HAD PAID CASH OF RS.4 LAKHS WHICH HE WAS UNABLE TO EXPLAIN PROPERLY. WHEN THE BUILDER HAS ISSUED TWO RECEIPTS FOR T HE SAME PROPERTY IN THE SAME PROJECT, THEREFORE, IT CANNOT BE SA ID THAT THE RECEIPT ISSUED FOR THE CASH AMOUNT OF RS.4 LAKHS WAS ERR ONEOUSLY 5 ITA NO.32/PN/2016 ISSUED IN THE NAME OF THE ASSESSEE. IN HIS ALTERNATE CON TENTION, HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE O F THE AO WITH A DIRECTION TO THE ASSESSEE TO PRODUCE THE SAME PARTY A ND SUBSTANTIATE HIS CASE. 11. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A). I HAVE ALS O CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND ON THE BASIS OF THE TWO RECEIPTS ISSUED FROM THE PREMISES OF M/S. SUN INFRASTRUCTURES PVT. LTD. VIDE RECEIPT NOS. 117 AND 118 ISSUED ON 26-03-2010 EVIDENCING PAYMENT OF RS. 1 LAKH IN CHEQUE AND RS.4 LAKHS IN CASH, THE AO MADE T HE ADDITION OF RS.4 LAKHS IN THE HANDS OF THE ASSESSEE. I FIND THE LD.C IT(A) CONFIRMED THE ADDITION ON THE GROUND THAT BOTH THE REC EIPTS ARE ISSUED FOR THE SAME PROPERTY BY THE SAME BUILDER AND THE SUBS EQUENT CLARIFICATION ISSUED BY M/S. SUN INFRASTRUCTURES PVT. LTD. LAC KS MERIT. HE HAS ALSO OBSERVED THAT THE ASSESSEE COULD NOT GIVE THE NAME OF THE PERSON WHO HAS PAID THE AMOUNT OF RS.4 LAKHS IN CASH. THE ASSESSEE HAS NOW SUBMITTED BEFORE ME A CONFIRMATION FROM M/S. SUN INFRASTRUCTURES PVT. LTD. THAT THE AMOUNT OF RS.4 LAKHS WAS RECEIVED BY THEM FROM ANOTHER PERSON NAMELY, ONE MR. RATNAKAR KAT ORE. SINCE THE CLARIFICATION HAS BEEN FILED AS AN ADDITIONAL EVIDENCE I ACCEPT THE SAME AS THIS GOES TO THE ROOT OF THE MATTER. ADMITTEDLY, WHE N THE ASSESSEE HAD FILED A CLARIFICATION FROM M/S. SUN INFRASTRUCTURES PVT. L TD. IT WAS THE DUTY OF THE AO EITHER TO SUMMON THE SAID PARTY OR ASK THE ASSESSEE TO PRODUCE THE SAME PARTY BEFORE HIM FOR HIS EXAMINATION SO THAT THE ISSUE COULD HAVE BEEN CLARIFIED. HOWEVER, THE AO HAS NOT D ONE DESPITE A CLARIFICATION ISSUED BY M/S. SUN INFRASTRUCTURES PVT. LTD . I FIND THE LD.CIT(A) INSTEAD OF CASTING THE ONUS ON THE AO HAS CASTE D THE ONUS ON THE ASSESSEE BY HOLDING THAT THE CONFIRMATION LACKS MERIT. I, THEREFORE, 6 ITA NO.32/PN/2016 SET ASIDE THE ORDER OF THE CIT(A) AND REMIT THE MATTER B ACK TO THE FILE OF THE AO WITH A DIRECTION TO EITHER SUMMON M/S. SUN INFRASTRUCTURES P VT. LTD. OR DIRECT THE ASSESSEE TO PRODUCE THE SAID PARTY BEFORE HIM FOR HIS EXAMINATION. THE AO SHALL DECIDE THE ISSUE AFRESH AS PER FA CT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. I HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29-07-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED : 29 TH JULY, 2016. '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , /// TRUE COPY /// //TRUE COPY // // $ % // E &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - 12, PUNE 4. 5. 6. THE CIT-12, PUNE $ %%*, *, SMC BENCH / DR, ITAT, SMC BENCH PUNE; 2 / GUARD FILE.