ITO, Hassan V. Sri. H.G. Narayan (HUF), Hassan

ITA 394/BANG/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7289 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-06-2017
• Assessment Year: 1994-1995
• Appeal Filed On: 18-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K CHANDRASEKHAR SHRI M K
• Keywords: Additional evidence; Assessment record

Judgement Text

ITA.394 & 395/BANG/2015 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'C', BENGALURU BEFORE SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI. LALIT KUMAR, JUDICIAL, JUDICIAL MEMBER I.T.A NOS.394 & 395/BANG/2015 (ASSESSMENT YEARS : 1994-95 & 1995-96) SHRI. H. G. NARAYAN (HUF), REP BY H. N. CHETAN NARAYAN, NO.48, GANGADHARESWARA NILAYA, B. M. ROAD, HASSAN .. APPELLANT PAN : AABHH4328F V. INCOME-TAX OFFICER, WARD 2, HASSAN .. RESPONDENT ASSESSEE BY : SHRI. K. CHANDRASEKHAR, ADVOCATE REVENUE BY : SHRI. M. K. BIJU, JCIT HEARD ON : 01.11.2017 PRONOUNCED ON : 21.11.2017 O R D E R PER LALIT KUMAR, JUDICIAL MEMBER: THESE ARE APPEALS BY THE REVENUE, WHICH ARE SECOND ROUND OF LITIGATION IN RESPECT OF THE ADDITION MADE FOR THE ASSESSMENT YEARS 1994-95 AND 1995-96. THE REVENUE HAS RAISED THE FO LLOWING GROUNDS OF APPEAL WHICH ARE COMMON FOR BOTH THE YEARS : ITA.394 & 395/BANG/2015 PAGE - 2 ITA.394 & 395/BANG/2015 PAGE - 3 02. THE BRIEF FACTS ARE AS UNDER. THE HONBLE JURI SDICTIONAL HIGH COURT IN ITA NO.2635/2005, DT.02.03.2010, HAS PASSE D THE FOLLOWING DIRECTIONS : 03. AFTER RECEIVING THE DIRECTIONS FROM THE HONBLE JURISDICTIONAL HIGH COURT, THE AO HAS GIVEN AN OPPORTUNITY TO THE ASSESSEE TO FURNISH THE REQUIRED ADDITIONAL EVIDENCE IN SUPPORT OF THE CREDITS ALLEGED TO HAVE BEEN GIVEN AMOUNTING TO RS.70,00,000/- APPROXI MATELY. HOWEVER, DESPITE THAT NO ADDITIONAL EVIDENCE WAS FILLED AND LD AR MADE THE IDENTICAL SUBMISSIONS MADE EARLIER AND AS SUCH THE AO HAS CONFIRMED THE ADDITIONS IN THE ORDER GIVING EFFECT TO, DT.30.03.2014. FEELING AGGRIEVED BY THE ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). 04. THE CIT (A) HAD SUMMARISED THE CASE OF THE ASSE SSEE BASED ON THE AFFIDAVITS FILED BY THE ASSESSEE, TO THE FOLLOW ING EFFECT WHICH IS ON RECORD : ITA.394 & 395/BANG/2015 PAGE - 4 A. Y. 1994-95 : SIMILAR LOGIC WAS FOLLOWED BY THE CIT (A) FOR THE A . Y. 1995-96, AS IS CLEAR FROM THE FOLLOWING PARAGRAPH : ITA.394 & 395/BANG/2015 PAGE - 5 A. Y. 1995-96 : AGGRIEVED BY THE ABOVE FINDING OF THE CIT (A) FOR T HE TWO YEARS, THE REVENUE IS IN APPEAL BEFORE US, ON VARIOUS GROUNDS MENTIONED HEREIN ABOVE. 05. WE WILL TAKE UP THE GROUND IN RELATION TO SECTI ON 46A, WHICH WAS ONLY GROUND ARGUED BY REVENUE TAKEN BEFORE US. IT WAS SUBMITTED THAT THE CIT (A) HAS RELIED UPON THE AFFIDAVIT DT.0 3.12.2014 FOR GRANTING THE RELIEF TO THE ASSESSEE AND IT WAS THE CASE OF THE REVENUE THAT THESE DOCUMENTS WERE NOT FORMING PART AND PAR CEL OF THE ASSESSMENT ORDER AT THE TIME OF GIVING EFFECT, AS I S DISCERNIBLE FROM THE ASSESSMENT ORDERS. ITA.394 & 395/BANG/2015 PAGE - 6 06. IT WAS THE CASE OF THE ASSESSEE BEFORE US THAT THE AFFIDAVITS WERE PLACED ON RECORD PRIOR TO 06.02.2014, WHICH WAS THE LAST DATE GRANTED BY THE AO TO FILE THE EVIDENCE BEFORE HIM. HOWEVER THE AO HAS FAILED TO CONSIDER THESE EVIDENCES WHILE PASSING OR DER GIVING EFFECT TO THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT. 07. ON AN EARLIER OCCASION THE BENCH HAS DIRECTED T HE DR TO PRODUCE THE ENTIRE REMAND PROCEEDINGS RECORD INCLUDING AFFI DAVITS SOUGHT TO BE RELIED UPON BY THE CIT (A), IF THEY WERE ON RECORD. THE LD. DR HAS PRODUCED THE ASSESSMENT RECORDS BEFORE US. WE HAVE LOOKED INTO THE RECORD FILED BY THE ASSESSEE BEFORE THE AO. FROM A PERUSAL OF THE RECORD, IT IS CLEAR THAT COPIES OF THE AFFIDAVIT DT .03.02.2014 ARE ON RECORD ALONG WITH THE COVERING LETTER DT.04.02.2014 . 08. THE AO ON THE NOTING SHEET HAS RECORDED ON 28.0 2.2014, AS UNDER : THE ABOVE NOTING WAS RECORDED BY THE AO ON 28.02.20 14 AND IT WAS ALSO SIGNED BY SHRI. B. N. RAMESH ON 28.02.2014. H OWEVER IN THE ITA.394 & 395/BANG/2015 PAGE - 7 ABOVE NOTING, THE NEXT DATE OF HEARING IS MENTIONED AS 06.02.2014. THE ORDER WAS FINALLY PASSED BY THE AO ON 30.03.201 4 AND THE COPY OF THE ORDER WAS RECEIVED BY THE ASSESSEE ON 02.04. 2014. THUS, FROM THE ORDER SHEET, IT IS CLEAR THAT THE AO, INSTEAD O F SIGNING THE ORDER DATE OF 28.01.2014 HAS WRONGLY RECORDED THE DATE AS 28.0 2.2014 AND THIS MISTAKE WAS ALSO COMMITTED BY THE LD. AR FOR THE AS SESSEE. THEREFORE THE NOTING IN THE ORDER SHEET DT.28.02.20 14 IS REQUIRED TO BE READ AS 28.01.2014. FURTHER THERE IS NO ORDER SHEET ENTRY AFTER 28.01.2 014, EITHER OF 06.02.2014 OR THE DATE OF PASSING OF THE ORDER GIVI NG EFFECT TO, I.E., 30.03.2014 IN THE ASSESSMENT RECORD. 09. WE HAVE GONE THROUGH THE RECORD AND HEARD THE R IVAL CONTENTIONS. PRIMA FACIE WE ARE OF THE OPINION THA T THE AO SHOULD HAVE WRITTEN THE ORDER SHEET ON 06.02.2014 I.E., TH E NEXT DATE OF HEARING GIVEN ON 28.01.2014 AND ORDER SHEET ON 30.3 .2014. HOWEVER THERE IS NO ORDER SHEET ENTRY ON 06.02.2014/30.3.20 14. MOREOVER AFFIDAVITS FILED PRIOR TO 06.02.2014 I.E ON 4.2.201 4 ARE ON RECORD AND WERE PERUSED BY US. IN ANY CASE, THE CIT (A) BY RE LYING UPON THESE AFFIDAVITS HAS DELETED THE ADDITIONS MADE BY THE AO . IN OUR CONSIDERED OPINION, NO NEW DOCUMENT OR RECO RD WAS RELIED UPON BY THE CIT (A) WHILE PASSING THE ORDER HENCE T HE OBJECTION OF REVENUE FOR VIOLATION OF RULE 46 IS WITHOUT ANY MER IT. ITA.394 & 395/BANG/2015 PAGE - 8 10. FURTHER FROM A BARE PERUSAL OF THE DIRECTIONS GIVEN IN THE JURISDICTIONAL HIGH COURTS ORDER (SUPRA), IT IS CL EAR THAT THE ASSESSEE WAS REQUIRED TO GIVE THE DETAILS OF THE DEPOSITS RE CEIVED FROM THE PERSONS THROUGH HIS EMPLOYEES / AGENTS. THE ASSESS EE HAS GIVEN THE AFFIDAVITS CONTAINS THE DETAILS OF THE PERSONS FRO M WHOM THE DEPOSITS WERE RECEIVED BY THE EMPLOYEE/ AGENT OF THE ASSESSE E THEREFORE THERE IS COMPLIANCE OF THE ORDER OF HONBLE HIGH COURT. 11. IN VIEW OF THE AFFIDAVIT FILED BY WAY OF EVIDEN CE BEFORE THE AO, WHICH WERE NOT CONSIDERED BY AO, THE CIT (A) IN APP ELLATE PROCEEDINGS HAD DELETED THE ADDITION AS THE AO FAIL ED TO BRING ON RECORD ANY CONTRADICTORY EVIDENCE OR DOCUMENT, AFTE R FOLLOWING THE RECORD FILED BEFORE AO. THEREFORE THE OBJECTION RA ISED BY THE REVENUE ARE NOT SUSTAINABLE AS THE BASIC OBJECTION RAISED BY THE REVENUE IN GROUND NOS.1 TO 5 WERE WITH REGARD TO VI OLATION OF RULE 46A(1) OF THE IT RULES. IN THE RESULT WE DO NOT FI ND ANY REASON TO INTERFERE WITH THE CONCLUSION DRAWN BY THE CIT (A) IN PARA 4 (SUPRA) FOR BOTH THE YEARS. IN VIEW THEREOF, WE DISMISS T HE APPEAL. 12. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST DAY OF NOVEMBER, 2017. SD/- SD/- (INTURI RAMA RAO) (LA LIT KUMAR) ACCOUNTANT MEMBER JUDICIAL M EMBER BENGALURU DATED : 21ST NOVEMBER, 2017 MCN* ITA.394 & 395/BANG/2015 PAGE - 9 COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PROVATE SECRETARY