Thanga Pandian, Tirunelveli V. ACIT, Tirunelveli

ITA 356/CHNY/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7419 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-01-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 28-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KVR SRIDHARAN
• Keywords: Unexplained cash credit
• Section: 131

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI A BENCH, CHENNAI. BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER & SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A. NO. 356/MDS/2011 ASSESSMENT YEAR: 2002-03 SHRI S. THANGA PANDIAN, NO.42/2, RAJAJI STREET, MELAPALAYAM, TIRUNELVELI 627 005. [PAN: AERPT0421R] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE III, CHENNAI 34. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KVR SRIDHARAN, ADVOCATE REVENUE BY : SHRI SHAJI P. JACOB, SR. DR DATE OF HEARING : 09.01.2012 DATE OF PRONOUNCEMENT : 09.01.2012 ORDER PER GEORGE MATHAN, JUDICIAL MEMBER: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R OF THE LD. CIT(A) II, MADURAI IN APPEAL NO. 164/2007-08 DATED 20.12.2 010 FOR THE ASSESSMENT YEAR 2002-03. SHRI KVR SRIDHARAN, ADVOCATE REPRESEN TED ON BEHALF OF THE ASSESSEE AND SHRI SHAJI P. JACOB, SR. DR REPRESENTE D ON BEHALF OF THE REVENUE. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSES SEE SUBMITTED THAT THE ONLY ISSUE WAS AGAINST THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION REPRESENTING THE CAPITAL OF THE ASSESSEE IN M/S. BH ARANI MINERALS, PALAYAMKOTTAI, WHICH IS DOING THE BUSINESS OF SAND QUARRY. IT WAS THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO. 356/M/11 356/M/11 356/M/11 356/M/11 2 SUBMISSION THAT THE ASSESSEE HAD INTRODUCED AN INIT IAL CAPITAL OF ` 10,00,000/- WHICH WAS BORROWED FROM HIS RELATIVES. IT WAS THE SUBMISSION THAT THE ASSESSING OFFICER HAD RECORDED THE STATEME NT OF THE RELATIVES UNDER SECTION 131 AND ON THE GROUND THAT THE RELATIVES DO NOT HAVE THE SOURCE TO GIVE THE ADVANCE OF ` 1.00 LAKH EACH OR MORE HAD TREATED THE CAPITAL AS UNEXPLAINED CASH CREDIT OF THE ASSESSEE. 3. IT WAS THE SUBMISSION THAT BEFORE THE LD. CIT(A ) THE COPIES OF THE STATEMENT RECORDED UNDER SECTION 131 HAVE BEEN GRAN TED TO THE ASSESSEE. HOWEVER, ADEQUATE OPPORTUNITY HAD NOT BEEN GIVEN TO THE ASSESSEE TO REBUT THE PRESUMPTIONS DRAWN. THEREFORE, THE LD. AR OF TH E ASSESSEE PRAYED THAT THE ISSUE MAY BE RESTORED BACK TO THE FILE OF THE L D. CIT(A) FOR ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO REBUT THE PRESUMPTION. 4. IN REPLY, THE LD. DR SUBMITTED THAT IT WAS THE ONUS OF THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION AS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MANGILAL J AIN VS. ITO [2009] 315 ITR 105 (MAD). IT WAS THE SUBMISSION THAT NO PURPOSE WO ULD BE SERVED BY REMITTING THE ISSUE BACK TO THE FILE OF THE LD. CIT (A). HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD. CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIALS ON RECORD. AT THE OUTSET, IT IS NOTED THAT THE STAT EMENT OF THE RELATIVES WAS RECORDED UNDER SECTION 131 OF THE ACT. THIS STATEME NT WAS GIVEN TO THE ASSESSEE FOR REBUTTAL BY THE LEARNED CIT(A). THE LD . CIT(A) GRANTED ONLY 15 I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO. 356/M/11 356/M/11 356/M/11 356/M/11 3 DAYS TO REBUT THE STATEMENT RECORDED. AS STATED BY THE LD. AR OF THE ASSESSEE, THERE SEEMS TO BE MERIT IN THE CLAIM IN S O FAR AS TO REBUT THE PRESUMPTION DRAWN FROM THE STATEMENT RECORDED UNDER SECTION 131 ADEQUATE OPPORTUNITY HAS NOT BEEN GIVEN. IN THE CI RCUMSTANCES, THE ISSUES IN THIS APPEAL ARE RESTORED TO THE FILE OF THE LEAR NED CIT(A) FOR RE- ADJUDICATION. THE LEARNED CIT(A) SHALL RE-DECIDE T HE ISSUES AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO PRODUCE ALL SU CH EVIDENCES AS HE MAY DESIRE TO REBUT THE PRESUMPTIONS DRAWN. THE LEARNE D CIT(A) WHILE RE- DECIDING THE ISSUES SHOULD ALSO CONSIDER THE DECISI ON OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF MANGILAL J AIN V. ITO, REFERRED TO SUPRA. IT IS SPECIFICALLY ALSO DIRECTED THAT THE E VIDENCES PRODUCED BY THE ASSESSEE SHALL BE SENT TO THE LEARNED ASSESSING OFF ICER FOR HIS REBUTTAL. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT SOON AFTER THE CONCLUSION OF HEARING ON 09.01.2012. SD/- SD/- (N.S.SAINI) ACCOUNTANT MEMBER (GEORGE MATHAN) JUDICIAL MEMBER CHENNAI, DATED, THE 09 TH JANUARY, 2012. VM/H COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.