V.C.Mathew, CHENNAI V. ITO, CHENNAI

ITA 386/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9318 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 19-02-2016
• Court: TRIBUNAL
• Assessee Lawyers: D ANAND
• Keywords: Unexplained cash credit; Gift

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . , . !' , # % & [ BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ] ./ I.T.A.NO.386/MDS/2016 / ASSESSMENT YEAR : 2009-10 SHRI V.C.MATHEW NO.14/31, MITEC COLONY MADAVARAM HIGH ROAD MADAVARAM CHENNAI 600 060 VS. THE INCOME TA X OFFICER SALARY WARD V(2) CHENNAI NEW JURISDICTION ITO NCW 17(2) CHENNAI [PAN AQSPM 8065 H ] ( '( / APPELLANT) ( )*'( /RESPONDENT) / APPELLANT BY : SHRI D. ANAND, AD VOCATE /RESPONDENT BY : SH RI GURU BASHYAM, JCIT / DATE OF HEARING : 09 - 05 - 2016 / DATE OF PRONOUNCEMENT : 12 - 05 - 2016 !' / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-5, CHENNA I, DATED 1.2.2016 IN I.T.A.NO.345/CIT(A)-5/13-14 FOR ASSESSM ENT YEAR 2009-10. 2. FACTS ARE IN BRIEF THAT THE ASSESSEE IS AN INDIVID UAL. HE HAS FILED THE RETURN OF INCOME DECLARING TOTAL INCOME O F ` 1,45,690/-. THE ITA NO. 386/16 :- 2 -: RETURN WAS PROCESSED U/S 143(1) OF THE ACT. THERE AFTER, THE ASSESSING OFFICER CAME TO KNOW THAT THE ASSESSEE HAS DEPOSI TED IN CASH ` 13 LAKHS AND ` 12,50,000/- ON 25.10.2008 IN HIS SB ACCOUNT MAINTA INED WITH SOUTH INDIAN BANK LTD., CHENNAI. THE ASSESSIN G OFFICER CALLED FOR THE EXPLANATION FROM THE ASSESSEE FOR THE SOURCE O F ` 13 LAKHS AS WELL AS ` 12,50,000/-. THE ASSESSEE EXPLAINED BEFORE THE A SSESSING OFFICER IN RESPECT OF ` 12,50,000/- THAT THE SAME WAS SALE CONSIDERATION RECEIVED TOWARDS SALE OF PROPERTY AT KERALA. WITH REGARD TO THE CASH CREDIT OF ` 13 LAKHS, IT WAS SUBMITTED THAT HE HAS RECEIVED A GIFT FROM HIS MOTHER. IN RESPECT OF SALE OF AGRI CULTURAL LAND, THE ASSESSEE HAS FILED A SALE DEED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER AFTER CONSIDERING THE SAME, NOTED THAT THE SALE PROCEEDS MENTIONED IN THE SALE DEED WAS ` 7 LAKHS AND THEREFORE, HE HAS ASKED THE ASSESSEE TO EXPLAIN THE SOURCE FOR T HE BALANCE AMOUNT OF ` 5,50,000/-. HOWEVER, THE ASSESSEE FAILED TO CONVINCE THE ASSESSING OFFICER IN RESPECT OF THE SOURCE OF BALAN CE AMOUNT OF ` 5,50,000/- [` 12,50,000/- - ` 7,00,000/-]. IN SO FAR AS THE GIFT RECEIVED FROM THE ASSESSEES MOTHER IS CONCERNED, THE ASSESSING OFFICER HAS ISSUED A LETTER TO THE ASSESSEES MOTH ER AND HE HAS NOT RECEIVED ANY REPLY FROM HER. ACCORDINGLY, THE ASSE SSING OFFICER ADDED ` 13 LAKHS AND ` 5,50,000/- AS UNEXPLAINED CASH CREDIT TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO. 386/16 :- 3 -: 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE T HE CIT(A). IT WAS SUBMITTED THAT THE SALE CONSIDERAT ION ACTUALLY RECEIVED BY THE ASSESSEE WAS ` 25,50,000/-, ` 7 LAKHS WAS ONLY MENTIONED IN THE SALE DEED AND THEREFORE, THE ENTIRE AMOUNT HAS TO BE CONSIDERED AS SOURCE FOR THE DEPOSITS. TO THAT EFFECT, THE A SSESSEE HAS FILED AN AFFIDAVIT OF SHRI JOSHI PHILIP, S/O P.J. PHILIP, WH O PURCHASED THE PROPERTY. THE CIT(A), AFTER CONSIDERING THE EXPLAN ATION OF THE ASSESSEE, REJECTED THE AFFIDAVIT FILED BY THE ASSE SSEE ON THE GROUND THAT THIS DOCUMENT WAS NOT FILED BEFORE THE ASSESSI NG OFFICER AND ALSO THE STAND TAKEN BY THE ASSESSEE BEFORE THE ASSESSI NG OFFICER AD BEFORE HIM WAS DIFFERENT. WITH THE ABOVE OBSERVED, THE CIT(A) HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICER. ON B EING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED TH AT ACTUALLY THE SALE CONSIDERATION RECEIVED BY THE AS SESSEE WAS ` 25,50,000/- AND THE AMOUNT MENTIONED IN THE SALE DE ED WAS ONLY ` 7 LAKHS. THE AFFIDAVIT FILED BY THE PURCHASER OF THE PROPERTY IS A CRUCIAL DOCUMENT TO DECIDE THE SOURCE OF THE AMOUNT REFLECT ED IN THE BANK ACCOUNT OF THE ASSESSEE AND PRAYED THAT THE SAME M AY BE CONSIDERED. ITA NO. 386/16 :- 4 -: 5. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT TH E ASSESSEE IS TAKING A DIFFERENT STAND BEFORE THE AUT HORITIES BELOW AND THEREFORE, THE AFFIDAVIT FILED BY THE ASSESSEE CAN NOT BE CONSIDERED. 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE RECORDS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOTED T HAT THERE ARE TWO DEPOSITS IN CASH IN THE ASSESSEES BANK ACCOUNT WI TH SOUTH INDIAN BANK LTD, CHENNAI, OF ` 13 LAKHS AND ` 12,50000/-. WHEN THE ASSESSING OFFICER CALLED FOR THE EXPLANATION FROM T HE ASSESSEE, IT WAS SUBMITTED THAT HE HAS SOLD THE AGRICULTURAL LAND AT KERALA AND RECEIVED ` 7 LAKHS. TO THAT EXTENT, THE ASSESSING OFFICER CO NSIDERED THE SOURCE AS EXPLAINED AND FOR THE REMAINING AMOUNT OF ` 5,50,000/-, HE WAS OF THE OPINION THAT THE ASSESSEE HAS NOT DISCHARGED T HE BURDEN OF PROVING THE SAME, THEREFORE, THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IN SO FAR AS THE GIFT OF ` 13 LAKHS SAID TO HAVE BEEN RECEIVED FROM THE MOTHER OF THE ASSESSEE IS CONCER NED, IN RESPONSE TO THE LETTER ISSUED BY THE ASSESSING OFFICER, HE HAS NOT RECEIVED ANY REPLY. THEREFORE, THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. THE CASE OF THE ASSESSEE IS THAT HE HAS ACTUALLY RECEIVED AN AMOUNT OF ` 25,50,000/- ON SALE OF PROPERTY AT KERALA AND TO T HAT EFFECT, THE ASSESSEE HAS FILED AN AFFIDAVIT SWORN BY THE PURCHASER OF THE LAND SHRI JOSHI PHILIP, S/O SHRI P.J.PHILIP. T HIS IS A MATERIAL ITA NO. 386/16 :- 5 -: DOCUMENT WHICH HAS TO BE CONSIDERED TO DECIDE THE I SSUE INVOLVED IN THIS APPEAL. NO DOUBT, THE ASSESSEE HAS NOT FILED THIS DOCUMENT BEFORE THE ASSESSING OFFICER. HOWEVER, IT WAS FILE D BEFORE THE CIT(A). WE FIND THAT THIS DOCUMENT NEEDS TO BE CONSIDERED FOR DECIDING THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT OF THE ASSE SSEE. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RE MIT THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE A FFIDAVIT FILED BY THE ASSESSEE AND DECIDE THE ISSUE DE NOVO IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES.. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MAY, 2016, AT CHENNAI. SD/- SD/- ( # . $ % $ ) (A. MOHAN ALANKAMONY) !& / ACCOUNTANT MEMBER ' ( ' . ! ) ) ( V. DURGA RAO ) * !& / JUDICIAL MEMBER +* / CHENNAI ,! / DATED: 12 TH MAY, 2016 RD !''' -.'/. / COPY TO: ' 1 . / APPELLANT 4. ' 0 / CIT 2. / RESPONDENT 5. .1)' 2 / DR 3. ' 0'(3 / CIT(A) 6. )4'5 / GF