K Nirmala, Hyderabad V. Assistant Commissioner of Income Tax ,Central Circle-2(4), Hyderabad

ITA 346/Hyd/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 2519 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2016-2017
• Appeal Filed On: 31-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y.V.S.T. SAI
• Assessee Lawyers: P.MURALI MOHANA RAO
• Keywords: Search and seizure; Opportunity of being heard; Additional evidence
• Section: 143(3); 153A; 69A; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER IT A NO S . 345, 346 & 347 /H/20 21 ASSESSMENT YEAR S : 2 0 1 4 - 15, 20 16 - 17 & 2017 - 18 K. NIRMALA, HYDERABAD. PAN A IFPN 3381C VS. ASST. COMMISSIONER OF INCOME - TAX, CENTRAL C IRCLE 2(4) , HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: S HRI P. MURALI MOHANA RAO REVENUE BY: S HRI Y.V.S.T. SAI DATE OF HEARING: 2 8 / 10 /2021 DATE OF PRONOUNCEMENT: 29 / 10 /2021 O R D E R PER L.P. SAHU, A.M. : THESE APPEALS PERTAINING TO A SINGLE ASSESSEE ARE DIRECTED AGAINST CIT (A) - 12 , HYDERABADS SEPARATE ORDER S DATED 30 / 0 6 / 20 2 1 FOR AY S 20 1 4 - 15, 2016 - 17 & 2017 - 18 INVOLVING PROCEEDINGS U/S 143(3) R.W.S. 153A OF THE INCOME TAX ACT, 1961 ; IN SHORT THE ACT . AS IDENTICAL ISSUES ARE INVOLVED IN THESE APPEALS, THE SAME WERE CLUBBED AND HEARD TOGETHER FOR THE SAKE OF CONVENIENCE. I TA NO. 345 TO 347 /HYD /20 21 SMT. K. NIRMALA, HYD. : - 2 - : 2. TO DISPOSE OF THESE APPEALS, WE REFER TO THE FACTS IN AY 2014 - 15 BEING ITA NO. 345/HYD/2021 AND THE DECISION TAKEN IN THIS APPEAL MUTATIS - MUTANDIS SHALL APPLY TO THE OTHER APPEALS. THE GROUNDS RAISED IN ITA NO. 345/HYD/2021, WHICH ARE COMMON IN ALL THE A PPEALS, EXCEPT QUANTUM OF ADDITION, ARE AS UNDER: 1. ON THE FA CT S AND IN THE CIRCUMSTANCES OF THE CASE THE ORDER PASSED BY THE CIT (A) IS ERRONEOUS BOTH ON FACTS AND IN LAW TO THE EXTENT THE ORDER IS PREJUDICIAL TO THE INTEREST OF THE APPELLANT AND WITHOUT PROVIDING ANY SUFFICIENT OPPORTUNITY OF BEING HEARD. 2. THE LD.CIT(A) ERRED IN DISMISSING THE APPEAL AND THE LD. CIT(A) OUGHT TO HAVE ANNULLED THE ASSESSMENT PASSED U/ S .143(3) R. W.S. 153A OF THE ACT . 3. WITHOUT PREJUDICE, ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD . AO HAS ERRED IN INITIATING PROCEEDINGS U/S 143(3) R. W.S 153A OF THE INCOME TAX AD AGAINST THE APPELLANT AS THE ASSESSING OFFICER DOES NOT HAVE JURISDICTION AGAINST THE APPELLANT. 4. WITHOUT PREJUDICE, THE LD. AO HAS ERRED IN INITIATING PROCEEDINGS U/S 143(3) R.W.S 153A OF THE INCOME TAX ACT AGAINST THE APPELLANT AS THE ASSESSMENT IS BARRED BY LIMITATION FOR WANT OF INCRIMINATING MATERIAL FOR THE ASSESSMENT YEAR CON CERNED. 5. WITHOUT PREJUDICE, THE LD. AO HAS ERRED IN M AKING AN ADDITION OF R S.4,50,000 / - AS UNEXPLA IN ED CASH CRED I TS U/ S 69A OF IN COME TAX ACT . 6. THE LD.CIT(A) OUGHT TO HAVE APPRECIATED THAT THE SOURCES FOR ALL THE CASH DEPOSITS IN THE APPELLANT'S BA NK ACCOUNT HAVE BEEN PROPERLY EXPLAINED TO THE AO AT THE TIME OF ASSESSMENT VIDE APPELLANT'S LETTER DATED I TA NO. 345 TO 347 /HYD /20 21 SMT. K. NIRMALA, HYD. : - 3 - : 02.12.2019 BUT THE LD.AO HAS WRONGLY MADE THE ADDITION OF RS.4,50, 000/ - U/S 69A OF THE ACT. 7. THE APPELLANT MAY ADD OR ALTER OR AMEND OR MODIFY OR SUBSTITUTE OR DELETE AND/OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. THE ASSESSEE IS A N INDIVIDUAL DERIVING HER INCOME FROM HOUSE PROPERTY AND OTHER SOURCES. A SEARCH AND SEIZURE OPERATIONS U/S132 OF THE ACT WERE CONDUCTED IN THE CASE OF M/S . AURORA EDUCATIONAL SOCIETY ET OTHERS GROUP IN WHICH THE ASSESSEE WAS ALSO COVERED. THE WARRANT OF AUTHORIZATION WAS EXECUTED ON 17 - 05 - 2018. CONSEQUENTLY, THE CASE WAS CENTRALIZED TO THIS OFFICE VIDE PR . CIT - 1 ORDER U/S. 127 DATED 26.03.2019 IN F.NO. PR.C1T - 5/JURD/2018 - 19. 3. 1 SUBSEQUENTLY, NO TICE U/S 15 3 A OF T HE A C T WAS ISSUED ON 04.07.2019 CALLING FOR RETURN OF IN COME. IN R ESPONSE THERETO, THE ASSESSEE FILED THE RETURN OF IN C OME ON 14 - 10 - 2019 ADMITTING TOTAL INCOME AT RS. 2,11,000/ - . THE CASE WAS TAKEN UP FOR SCRUTINY AND STATUTORY NOTICES WERE ISSUED AND SERVED ON THE A SSESSEE. IN RESPONSE, THE ASSESSEE FURNISHED THE DETAIL S/INFORMA TI ON CALLED FO R . 3.2 AFTER VERIFICATION OF THE DETAILS/INFORMATION SUBMITTED BY THE ASSESSEE, THE AO OBSERVED FROM THE BANK A /C STATEMENT OF THE ASSESSEE VIDE A CCOUNT NO. 52205269419, SBI , NAGOLE THAT THE ASSESSEE HA D MADE SEVERAL CASH I TA NO. 345 TO 347 /HYD /20 21 SMT. K. NIRMALA, HYD. : - 4 - : DEPOSITS DURING THE YEAR AND A CC ORDINGL Y A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE ON 20/11/2019 ASKING HER TO SUBMIT SOURCES FOR THE GASH DEPOSITS. ASSESSEE VIDE HER REPLY DATED 02/12/2019 SUBMITTED THAT THE SOURCES OF CASH DEPOSIT S WERE FROM INCOME AND WITHDRAWALS FROM HER HUSBAND'S BANK ACCOUNT. AFTER CONSIDERING THE SUBMISSIONS, THE AO NOTED THAT THE ASSESSEE FAILED TO EXPLAIN THE SOURCES FOR THE FOLLOWING CASH DEPOSITS: 14/12/2013 - RS. 3,50,000 09/01/2014 - RS. 1,00,000 TOTAL - RS. 4,50,000 ACCORDINGLY, THE AO TREATED THE SAID AMOUNT OF RS. 4,50,000/ - AS UNEXPLAINED U/S 69A OF THE ACT AND ADDED TO THE RETURNED INCOME. 4. WHEN THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), THE CIT(A) DISMISSED THE APPEAL OF TH E ASSESSEE FOR NON - COMPLIANCE BEFORE HIM. 5. BEFORE US, THE LD. AR OF THE ASSESSEE INVITED THE BENCH ATTENTION TO THE PAGES 4 TO 10 PAGES OF THE PAPER BOOK FILED BEFORE US, WHICH ARE THE BANK STATEMENTS OF ASSESSEE AND HER HUSBAND AND SUBMITTED THAT THE SAME WERE FURNISHED BEFORE THE AO, BUT, THE AO WITHOUT TAKING INTO CONSIDERATION THE SAME, MADE THE ADDITION. HE, THEREFORE, REQUESTED THE BENCH TO REMIT THE ISSUE BACK TO THE FILE OF THE AO TO EXAMINE THE BANK STATEMENTS OF THE ASSESSEE AND I TA NO. 345 TO 347 /HYD /20 21 SMT. K. NIRMALA, HYD. : - 5 - : HER HUSBAND A ND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. THE LD. AR RELIED ON THE FOLLOWING JUDGMENTS: 1. MEHUL VYAS VS. ITO, [2017] 80 TAXMANN.COM 311 2. CIT VS. BHAI CHAND N. GANDHI, [1983] 141 ITR 67 (BOMBAY) 6. THE LD. DR, ON THE OTHER HAND, FILED A WRITTEN NOT E ON PAPER BOOK FILED BY THE ASSESSEE, WHICH IS AS UNDER: THE FOLLOWING SUBMISSIONS WITH REGARD TO THE DOCUMENTS FILED BY THE ASSESSEE IN THE PAPER BOOK FILED BEFORE THE HON'BLE ITAT ARE MADE FOR KIND CONSIDERATION OF THE HON'BLE BENCH. 1. IT IS SUBMITT ED THAT THE ASSESSEE FILED A PAPER BOOK CONTAINING THE FOLLOWING DOCUMENTS BEFORE THE HON'BLE ITAT ON 27.10.2021. 1. ITR ACKNOWLEDGEMENT FOR AY 2014 - 15 2. ITR FORM FOR AY 2014 - 15 3. BANK STATEMENT OF SMT . K. NIRMALA 4. BANK STATEMENT OF SRI K. LAKSHMI KANTH. 2. IT IS SUBMITTED THAT THE ASSESSEE STATED THAT THE ABOVE DOCUMENTS WERE FILED BEFORE THE AG & CIT(A). 3. IT IS SUBMITTED THAT THE DOCUMENT AT SL.NO - 4 I.E., BANK STATEMENT OF SRI K. LAKSHMIKANTH WAS NOT FILED BEFORE THE AG. 4. IT IS FURTHER SUBMITTED THAT AT PARA - 6.0, THE LD. CIT (A) HELD THAT THE AR FAILED TO PRODUCE ANY SUBMISSIONS/DOCUMENTS IN SUPPORT OF THE APPEAL. THE APPEAL WAS DISMISSED BY THE CIT(A) FOR N ON - APPEARANCE AND NOT F URN ISHING OF INFORMATION/ DOCUMENTS BY THE ASSESSEE/ AR. I TA NO. 345 TO 347 /HYD /20 21 SMT. K. NIRMALA, HYD. : - 6 - : 5. IN VIEW OF THE ABOVE, THE DOCUMENT AT SL.NO - 4 CONSTITUTES 'ADDITIONAL EVIDENCE'. 6. IT IS SUBMITTED THAT THE ASSESSEE HAS NOT FILED ANY PETITION FOR ADMISSION OF ADDITI ONAL EVIDENCE. 7. IT IS SUBMITTED THAT THE ASSESSEE WAS NOT PREVENTED BY ANY SUFFICIENT CAUSE FOR NOT FILING THE ABOVE SAID DOCUMENTS BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 8. RELIANCE IS PLACED ON THE FOLLOWING DECISION: HON'BLE AP HIGH COURT DECISION IN THE CASE OF A.K. BABU KHAN [1976]102 ITR 757(ANDHRA PRADESH) 9. IT IS HUMBLY SUBMITTED THAT THE ADDITIONAL EVIDENCE MAY NOT BE CONSIDERED FOR ADMISSION. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD AS WELL AS THE ORDERS OF REVENUE AUTHORITIES. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE BANK STATEMENTS OF THE ASSESSEE AND HER HUSBAND SUBMITTED BEFORE THE AO & CIT(A). WHEREAS, THE LD. DR SUBMITTED THAT THE SAME WERE NOT SUBMITTED BEFORE THE LOWER AUTHORITIES, WHICH CONSTITUTE ADDITIONAL EVIDENCE AND THE ASSESSEE HAS NOT FILED A PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE AND, THEREFORE ADDITIONAL EVIDENCE MAY NOT BE C ONSIDERED FOR ADMISSION. TO MEET THE ENDS OF JUSTICE, WE ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BY WAY OF BANK STATEMENTS, WHICH ARE REQUIRED TO DECIDE THE ISSUE AS THE AO DISALLOWED THE CASH DEPOSITS FOR WANT OF SOURCE. THEREFORE, WE REMIT THE MATTER BACK TO THE I TA NO. 345 TO 347 /HYD /20 21 SMT. K. NIRMALA, HYD. : - 7 - : FILE OF THE AO WITH A DIRECTION TO DECIDE THE ISSUE IN DISPUTE BY CONSIDERING THE ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE IN ACCORDANCE WITH LAW AND ON MERITS AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSE E IN THE MATTER. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 8. AS THE FACTS AND GROUNDS ARE IDENTICAL IN ITA NOS. 346 & 347/HYD/2021 TO ITA NO. 345/HYD/2021, FOLLOWING THE DECISION THEREIN, WE REMIT T HESE APPEALS ALSO TO THE FILE OF THE AO WITH IDENTICAL DIRECTIONS. 9. IN THE RESULT, ALL THE THREE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES, IN ABOVE TERMS. A COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. PRONOUNCED IN THE OP EN COURT ON 29 TH OCTOBER , 2021 . SD/ - SD/ - ( S.S. GODARA ) (L . P . SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDE RABAD, DATED : 29 TH OCTOBER , 20 2 1 . K V I TA NO. 345 TO 347 /HYD /20 21 SMT. K. NIRMALA, HYD. : - 8 - : C OPY TO : 1 SMT. K. NIRMALA, C/O P. MURALI & CO., CAS, 6 - 3 - 655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 82 2 A C IT, CENTRAL CIRCLE 2(4), HYDERABAD. 3 C I T (A) 12 , HYDERABAD. 4 PR . CIT (CENTRAL) , HYDERABAD. 5 ITAT, DR, HYDERABAD. 6 GUARD FILE.