G S Manohar , Bangalore V. Income Tax Officer Ward-3(2)(4), Bangalore

ITA 358/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7727 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 27-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KRISHNA UPADHYA S
• Keywords: Opportunity of being heard; Assessment record; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH SMC, BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNANT MEMBER ITA NO. 358 (BANG) 2019 (ASSESSMENT YEAR : 2011 12) SHREE G S MANOHAR, APPELLANT 31/B, MOOKAMBIKA LAYOUT, SUBRAMANYAPURA MAIN ROAD, UTTAHALLI, BANGALORE - 560061 PAN. ACJPM4087A VS ITO WARD 3 (2) (4), RESPONDENT BANGALORE ASSESSEE BY : SHRI KRISHNA UPADHYA S, C. A. REVENUE BY : SHRI GANESH R. GHALE, STANDING COUNSEL DATE OF HEARING : 29-11-2019 DATE OF PRONOUNCEMENT : 29-01-2020 O R D E R PER A. K. GARODIA, A.M.: THIS APPEAL IS FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST THE ORDER OF CIT (A) 3 BANGALORE DATED 01.01.2019 FOR A. Y. 2011 12. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS. THE MAIN GRIEVANCE IS ABOUT ADDITION OF RS. 30 LACS BEING CASH DEPOSIT IN BANK BY DISREGARDING THE STATEMENT OF AFFAIRS MAINTAINED BY THE ASSESSEE AND ALSO FILED WITH THE AO IN EARLIER YEARS. 3. LEARNED AR OF THE ASSESSEE SUBMITTED THAT IN PARA 4.1 OF HIS ORDER, IT IS NOTED BY CIT (A) THAT THE ASSESSEE HAS MAINTAINED STATEMENT OF AFFAIRS FOR HIMSELF AND HIS WIFE AND HAS REPRODUCED THE SAME BUT DISREGARDED THE SAME AS AN EXPLANATION OF THE SOURCE OF CASH DEPOSITED IN BANK BY OBSERVING IN NEXT PARA I.E. PARA 4.2 TO 4.6 OF HIS ORDER THAT ALTHOUGH THE ASSESSEE HAS SHOWN CASH IN HAND OF RS. 12,73,176/- IN THE STATEMENT OF AFFAIRS AS ON 01.04.2006 AND HIS WIFE IS SHOWING CASH IN HAND OF RS. 10,42,694/- AS ON 01.04.2006 TOTAL RS. 23,15,870/- BUT THE ASSESSEE KEPT ON MAKING CASH WITHDRAWAL FROM BANK IN FY ITA NO. 358(BANG)2019 2 2006 07 TO 2009 10 AND ON THIS BASIS, HE HELD THAT THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE WAS ACCUMULATING CASH IN HAND FOR MORE THAN 4 YEARS AND THEN SUDDENLY, HE DECIDED TO DEPOSIT THE SAME IN BANK. HE POINTED OUT THAT IN PARA 4.5 OF HIS ORDER, IT IS NOTED BY CIT (A) THAT AN OPENING CASH BALANCE OF RS. 38,11,697/- AS ON 01.04.2010 WAS SHOWN BY THE ASSESSEE AND IT IS STATED THAT THIS IS THE SOURCE OF CASH DEPOSIT IN BANK OF RS. 30 LACS ON 31.08.2010. HE SUBMITTED THAT THESE STATEMENT OF AFFAIRS WERE NOT ONLY PREPARED BUT WERE FILED WITH THE RETURN OF INCOME FILED BY THE ASSESSEE FOR RESPECTIVE YEARS BUT THE CIT (A) HAS STATED IN PARA 4.1 OF HIS ORDER THAT THESE WERE NEVER FURNISHED WITH RETURN OF INCOME BUT THIS FINDING OF CIT (A) IS INCORRECT AND WITHOUT BASIS. HE SUBMITTED THAT UNDER THESE FACTS, THE MATTER SHOULD BE REMANDED TO CIT (A) FOR FRESH DECISION AFTER CALLING THE ASSESSMENT RECORDS OF THE EARLIER YEARS WHERE THESE STATEMENT OF AFFAIRS ARE AVAILABLE AS THE SAME WERE FILED BY THE ASSESSEE WITH RESPECTIVE RETURN OF INCOME. LEARNED DR OF THE REVENUE SUPPORTED THE ORDER OF CIT (A). 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT IN PARA 4.1 OF HIS ORDER, IT IS OBSERVED BY CIT (A) THAT THE STATEMENT OF AFFAIRS FOR F. Y. 2006 07 TO 2010 11 ARE RELIED UPON REGARDING EXPLANATION FOR SOURCE OF CASH DEPOSIT IN BANK BUT THE SAME IS NOT RELIABLE BECAUSE THESE WERE NEVER FURNISHED BY THE ASSESSEE ALONG WITH RETURN OF INCOME AS THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNTS. NO OTHER BASIS IS INDICATED BY HIM FOR MAKING THIS OBSERVATION EXCEPT SAYING THAT THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNTS. IN MY CONSIDERED OPINION, MERELY BECAUSE BOOKS OF ACCOUNTS ARE NOT MAINTAINED BY THE ASSESSEE, IT CANNOT BE CONCLUDED THAT THE STATEMENT OF AFFAIRS WERE NOT FILED BY THE ASSESSEE WITH RETURN OF INCOME FOR THE RESPECTIVE YEAR. THIS CAN BE EXAMINED AND DECIDED BY CALLING THE ASSESSMENT RECORDS OF THE RESPECTIVE YEAR. HENCE, I SET ASIDE THE ORDER OF CIT (A) AND RESTORE THE ENTIRE MATTER BACK TO HIS FILE FOR A FRESH DECISION. HE MAY CALL FOR THE ASSESSMENT RECORDS FOR THE RESPECTIVE YEAR TO ITA NO. 358(BANG)2019 3 EXAMINE AS TO WHETHER STATEMENT OF AFFAIRS WERE FILED WITH RETURN OF INCOME OF THE RESPECTIVE YEAR. I KEEP EVERY ISSUE OPEN. LEARNED CIT (A) SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- (A.K. GARODIA) ACCOUNTANT MEMBER BANGALORE: D A T E D : 29.01.2020 /NS/ COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE