Smt. Sushma Manohar Zole, Kolhapur V. Income-tax Officer, Kolhapur

ITA 386/PUN/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9537 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-01-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 06-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUN; DR VIVEK AGGARWAL ITA NOS; CO N
• Keywords: Unexplained investment
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.386/PUN/2015 / ASSESSMENT YEAR : 2011-12 SMT. SUSHAMA MANOHAR ZOLE, FACTORY ROAD, KABNOOR, TAL : HATKANANGALE, DIST : KOLHAPUR 416 129 PAN : AANPZ5658E . /APPELLANT VS. ITO, WARD-2, ICHALKARANJI . / RESPONDENT . / ITA NO.702/PUN/2015 / ASSESSMENT YEAR : 2011-12 ITO, WARD-2, ICHALKARANJI . /APPELLANT VS. SMT. SUSHAMA MANOHAR ZOLE, PROP. ZOLE KIRANA STORES, FACTORY ROAD, KABNOOR, TAL : HATKANANGALE, DIST : KOLHAPUR - 416 129 PAN : AANPZ5658E . / RESPONDENT C.O.NO.78/PUN/2017 (ARISING OUT OF ITA NO.702/PUN/2015) (ASSESSMENT YEAR : 2011-12) SMT. SUSHAMA MANOHAR ZOLE, PROP. ZOLE KIRANA STORES, FACTORY ROAD, KABNOOR, TAL : HATKANANGALE, DIST : KOLHAPUR - 416 129 PAN : AANPZ5658E . /APPELLANT VS. ITO, WARD-2, ICHALKARANJI . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : DR. VIVEK AGGARWAL, CIT-DR ITA NOS.386 & 702/PUN/2015 & CO NO.78/PUN/2017 SMT. SUSHAMA MANOHAR ZOLE 2 / DATE OF HEARING : 02.01.2018 / DATE OF PRONOUNCEMENT: 05.01.2018 / ORDER PER D. KARUNAKARA RAO, AM : THERE ARE 3 APPEALS UNDER CONSIDERATION INVOLVING A SSESSMENT YEAR 2011-12. THE APPEAL ITA NO.386/PUN/2015 AND ITA NO .702/PUN/2015 ARE THE CROSS APPEALS. FURTHER, C.O.NO.78/PUN/2017 IS FILED BY THE ASSESSEE IN CONNECTION WITH THE AFOREMENTIONED APPEAL ITA NO.70 2/PUN/2015 FILED BY THE REVENUE. ALL THESE APPEALS ARE FILED AGAINST T HE ORDER OF CIT(A), 1&2, KOLHAPUR, DATED 05-02-2015. 2. THE COMMON ISSUE AGITATED BY BOTH THE PARTIES RE VOLVES AROUND THE ADDITION OF RS.67,93,692/- MADE ON ACCOUNT OF UNEXP LAINED INVESTMENT. BACKGROUND FACTS OF THE CASE INCLUDE THAT THE ASSES SEE ALONG WITH TWO OTHERS PURCHASED AN OPEN LAND AT SURVEY NOS. 78 AND 79 IN KOLHAPUR DISTRICT FOR A SUM OF RS.4,42,68,480/-. IT INCLUDES THE STAMP DUT Y (RS.10,88,640/-) AND REGISTRATION CHARGES (RS.1,31,840/-). ASSESSEES S HARE IS 1/3 RD IN THE PROPERTY AND THEREFORE, HIS INVESTMENT WORKS OUT TO RS.1,47,56,160/- ONLY. THE ISSUE RELATING TO THE SOURCE OF INVESTMENT WAS SCRUTINIZED U/S.147 R.W.S 143(3) OF THE ACT BY THE AO AND HIS INVESTMENT TO T HE EXTENT OF RS.75,88,975/- WAS ACCEPTED HOLDING THE BALANCE OF RS.67,93,692/- AS UNEXPLAINED INVESTMENT. AO ADDED THE SAME AS INCO ME OF THE ASSESSEE U/S.69 OF THE ACT. IN THIS REGARD, ASSESSEE EXPLAI NED THE SOURCE OF INVESTMENT WHICH INCLUDES VARIOUS AMOUNTS, VARIOUS PARTIES ETC. AND PAYMENTS WERE MADE BY THE ASSESSEE OUT OF THE MONEY RECEIVED BY HIM IN CASH AND CHEQUE. ASSESSEE ALSO ATTEMPTED TO EXPLAI N THE SOURCE OF CASH RECEIVED BY HIM. AO DID NOT ACCEPT THE SAME AND RE JECTED THE EVIDENCES ITA NOS.386 & 702/PUN/2015 & CO NO.78/PUN/2017 SMT. SUSHAMA MANOHAR ZOLE 3 FURNISHED BY HIM BEFORE MAKING THE SAID AMOUNT AS A DDITION U/S.69 OF THE ACT. 3. CIT(A) PARTLY CONFIRMED THE SAID ADDITION. CONT ENTS OF PARA NOS. 5 & 6 ARE RELEVANT. HOWEVER, THE CIT(A) CONFIRMED THE ADDITION TO THE EXTENT OF RS.8,25,318/- ONLY AND GRANTED PART AMOUNTING TO RS .57,48,537/-. 4. AGGRIEVED WITH THE SAID RELIEF GRANTED BY THE CI T(A) THE REVENUE IS IN APPEAL BEFORE US VIDE ITA NO.702/PUN/2015. ASSESSE E FILED THE CROSS OBJECTION AGAINST THE SAME SUPPORTING THE ORDER OF CIT(A) AND PRAYED FOR GRANT OF ENTIRE RELIEF. FURTHER, AGGRIEVED WITH TH E DECISION CONFIRMING THE ADDITION TO THE EXTENT OF RS.8,25,318/- THE ASSESSE E IS IN APPEAL BY WAY OF THE CROSS APPEAL/OBJECTION. 5. BEFORE US, IN CONNECTION WITH ALL THE 3 APPEALS, BOTH THE PARTIES MENTIONED THAT THE FINDING OF CIT(A) GIVEN IN PARA NO.5 OF HIS ORDER REGARDING ADDITION OF RS.20,26,925/- IS ERRONEOUS. IT MAKES THE ORDER OF CIT(A) ERRONEOUS. ACTUALLY, THIS AMOUNT WAS ALREAD Y ACCEPTED BY THE AO IN THE VERY ASSESSMENT ORDER AND THE SAME WAS NOT THE ISSUE FOR ADJUDICATION BEFORE THE CIT(A). THEY ALSO BROUGHT OUR ATTENTION TO PARA NO.6 OF THE ORDER OF CIT(A) WHICH DOES NOT DEAL WITH THE ISSUES RELAT ING TO THE CORRECTNESS OF THE SOURCES OF THE ASSESSEE QUA THE CASH RECEIPTS. FURTHER, OUR ATTENTION WAS DRAWN TO THE CONTENTS OF PARA NO.5.5 AND SUBMIT TED THAT THE SAID PARA CONTAINS VARIOUS TABLES WHICH DEPICTS THE SOURCE OF THE SAID CASH PAYMENTS TO THE ASSESSEE WHICH FINALLY FOUND WAY INTO THE S AID INVESTMENT OF RS.1,47,56,160/-. CIT(A) HAS NOT DEALT WITH THE SO URCE OF THE CASH, EXPLANATION GIVEN BY THE ASSESSEE. AO/CIT(A) HAVE NOT EXAMINED THE PERSONS WHO HAVE PAID MONEY TO THE ASSESSEE. DATE- WISE ELABORATE DETAILS GIVEN BY THE ASSESSEE WERE NOT CONSIDERED BY THE CI T(A). ITA NOS.386 & 702/PUN/2015 & CO NO.78/PUN/2017 SMT. SUSHAMA MANOHAR ZOLE 4 6. LD. DR FOR THE REVENUE WAS ALSO CRITICAL OF THE ORDER OF CIT(A) BECAUSE THE SAID ORDER DOES NOT CONTAIN ANY REASONS FOR GIVING RELIEF TO THE ASSESSEE TO THE EXTENT OF RS.57,48,537/-. CIT(A) I S SILENT ON THE AFOREMENTIONED CASH TRANSACTIONS, SUSTAINABILITY OF THE ADDITIONS OR OTHERWISE ETC. THEREFORE, IT IS PRAYER OF THE PARTIES THAT T HE ENTIRE ISSUE RELATING TO ADDITION OF RS.65,73,852/-, I.E. UNEXPLAINED INVEST MENT IN THE OPEN LAND SHOULD BE REMANDED TO THE FILE OF CIT(A) FOR FRESH CONSIDERATION AND FOR WANT OF A SPEAKING ORDER ON THE ISSUE. 7. ON HEARING BOTH THE SIDES AND PERUSING THE ORDER S OF THE REVENUE AUTHORITIES, WE HAVE NOTICED THAT THE ORDER OF CIT( A) ON THE ADDITION OF RS.65,73,852/- CANNOT BE CONSIDERED AS A SPEAKING O RDER QUA THE SAID CASH TRANSACTIONS OR THE SOURCE OF CASH AND THE OTHER AM OUNTS RECEIVED BY THE ASSESSEE FROM VARIOUS PERSONS. CIT(A) ORDER IS ALS O ERRONEOUS TO THE EXTENT OF HIS FINDING IN PARA NO.5 OF HIS ORDER. THE DETA ILS GIVEN BY THE CIT(A) IN PARA NO.6 IN OUR OPINION CONSTITUTES A VERY CRYPTIC AND NON-SPEAKING ORDER. AS SUCH, THE FIGURES APPEARING IN PARA NO.6 ARE FOU ND TO BE NOT IN TUNE WITH THE FIGURES APPEARING IN THE TABLE GIVEN IN PARA NO .5.5 OF THE RE-ASSESSMENT ORDER. THERE IS NEED FOR THE CIT(A) TO EXPLAIN IN HIS ORDER BRINGING CLARITY. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE E NTIRE ISSUE OF ADDITION OF RS.65,73,852/- NEEDS TO BE REMANDED TO THE FILE OF CIT(A). THEREFORE, WE DIRECT THE CIT(A) TO ADJUDICATE THIS ISSUE AFRESH A ND PASS A SPEAKING ORDER CONSIDERING EACH OF THE CASH TRANSACTION RECEIVED B Y THE ASSESSEE WHICH FORMED THE SOURCE FOR THE INVESTMENT IN THE OPEN LA ND. IF NECESSARY, HE MAY CALL FOR A REMAND REPORT AS PER THE RULES AND PROCE DURES. CIT(A) SHALL HEAR THE ASSESSEE AS PER THE RULES. ACCORDINGLY, THE GR OUNDS RAISED IN ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.386 & 702/PUN/2015 & CO NO.78/PUN/2017 SMT. SUSHAMA MANOHAR ZOLE 5 8. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE AND THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 05 TH DAY OF JANUARY, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 05 TH JANUARY, 2018 / COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A)-1 & 2, KOLHAPUR CIT-1 & 2, KOLHAPUR , , B BENCH PUNE; / GUARD FILE.