ACIT, CHENNAI V. G.Vijayanirmala, CHENNAI

ITA 394/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73643 (ITAT-CHENNAI)
• Duration Of Justice: 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARI RAO
• Assessee Lawyers: B RAMAKRISHNAN
• Section: 68

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL D BENCH, CHENNAI. BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO.394/MDS/2013 ASSESSMENT YEAR: 2009-10 THE ASSISTANT COMMISSIONER OF INCOME TAX, MEDIA CIRCLE II, CHENNAI-34. VS. SMT. G. VIJAYANIRMALA FLAT NO.3A, DOOR NO.16, PORUR SOMASUNDARAM ST., T. NAGAR, CHENNAI - 17. [PAN : AHAPG1333P] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARI RAO, JCIT RESPONDENT BY : SHRI B. RAMAKRISHNAN, C.A. DATE OF HEARING : 07.01.2014 DATE OF PRONOUNCEMENT : 30.01.2014 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) VI, CHENNAI DA TED 28.11.2012 RELEVANT TO THE ASSESSMENT YEAR 2009-10. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A FILM ARTIST AND FILED HER RETURN OF INCOME OFFERING INCOME FROM LONG TERM CAPITAL GAINS AND INCOME FROM OTHER SOURCES ADMITTING TOTAL INCOME OF ` .1,44,17,170/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.394 394394 394/M/ /M/ /M/ /M/13 1313 13 2 HAS NOTICED THAT THE ASSESSEE IS LIVING IN HER HOUS E IN NANAKRAMGUDA, HYDERABAD, ANDHRA PRADESH AND SHE IS ALSO HAVING A RESIDENTIAL FLAT AT SOMASUNDARAM STREET AT T. NAGAR, CHENNAI CLAIMING A S SELF OCCUPIED FOR THE PURPOSE OF BUSINESS. SINCE NO INCOME FROM B USINESS OR PROFESSION IS OFFERED AND HER ONLY SOURCE OF INCOME IS INCOME FROM HOUSE PROPERTY AND OTHER SOURCES, THE ASSESSING OFF ICER HAS ESTIMATED THE ANNUAL LETTING VALUE AT ` .15,000/- PER MONTH AND AFTER ALLOWING THE PERMISSIBLE DEDUCTIONS, ESTIMATED THE INCOME AT ` .1,25,000/-. 3. ON APPEAL, THE LD. CIT(APPEALS) HAS CONSIDERED THE ISSUE AND DELETED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: 3.3. THE APPELLANT IS A FILM PERSONALITY HAVING A N ACTIVE INTEREST IN THE FILM INDUSTRY. IT IS A KNOWN FACT THAT THE TELU GU FILM INDUSTRY PERSONALITIES HAVE SHIFTED THE BASE OF OPERATIONS F ROM CHENNAI TO HYDERABAD IN THE 1980S AND ALSO IT IS WELL KNOWN TH AT THESE PERSONALITIES ARE OPERATING FROM BOTH THE PLACES. H ENCE IT IS FAIRLY ACCEPTED THAT THE FLAT IN CHENNAI IS MAINTAINED FOR THE PROFESSIONAL ACTIVITIES OF THE APPELLANT. BESIDES THE PROVISIONS OF SECTION 23(2) SQUARELY PREVENTS THE AO FROM ESTIMATING ANY ANNUAL LETTING VALUE (ALV) IN CASE OF THE ABSENCE OF THE OWNER OF THE PR OPERTY FROM THE PLACE WHERE IT WAS SITUATED. THIS IS A PERFECT CASE WHERE THE APPELLANT HAS GONE TO HYDERABAD TO LIVE WITH HER HUSBAND AND THUS THE PROVISIONS OF SECTION 23(2) BE SQUARELY APPLICABLE. BESIDES IN THE CASE OF FILM PERSONALITIES THERE CANNOT BE A RETIREMENT AND IN T HE ABSENCE OF PROFESSIONAL INCOME, IT ALSO CANNOT BE STATED THAT THE APPELLANT SEIZES TO BECOME A FILM PROFESSIONAL. HENCE, THE AO IS DIRECT ED TO DELETE THE ADDITION. 4. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.394 394394 394/M/ /M/ /M/ /M/13 1313 13 3 5. THE LD. DR HAS RELIED ON THE ORDER PASSED BY TH E ASSESSING OFFICER. 6. ON THE OTHER HAND, THE LD. COUNSEL FOR ASSESSEE HAS STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(APPEALS.) 7. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE A SSESSEE IS A FILM PERSONALITY HAVING ACTIVE INTEREST IN THE FILM INDU STRY. IN THE ORDER OF THE LD. CIT(APPEALS), HE HAS ELABORATELY DISCUSSED THE ISSUE THAT THE TELEGU FILM INDUSTRY PERSONALITIES HAVE SHIFTED FRO M CHENNAI TO HYDERABAD IN THE 1980S AND THESE PERSONALITIES ARE OPERATING FROM BOTH THE PLACES. THE CASE OF THE ASSESSEE IS THAT T HE ASSESSEE IS HAVING A FLAT IN CHENNAI AND MAINTAINED FOR THE PRO FESSIONAL ACTIVITIES OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT BEEN ABLE TO BRING ON RECORD ANY EVIDENCE AGAINST ASSESSEES SUBMISSION A ND SIMPLY MADE THE ADDITION ON THE GROUND THAT SHE IS STAYING AT H YDERABAD AND SHE HAS NOT OFFERED ANY INCOME FROM THE BUSINESS OR PRO FESSION. WE FIND THAT IT IS NOT A REASONABLE GROUND TO MAKE THE ADDI TION. THE LD. CIT(APPEALS) HAS ELABORATELY DISCUSSED THE ISSUE AN D DELETED THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.394 394394 394/M/ /M/ /M/ /M/13 1313 13 4 ADDITION. THEREFORE, WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD. CIT(APPEALS). 8. IN SO FAR AS ADDITION IN RESPECT OF ` .20.00 LAKHS IS CONCERNED, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER HAS NOTICED THAT ` .20.00 LAKHS HAS BEEN CREDITED INTO THE BANK ACCOUN T OF THE ASSESSEE IN JANUARY AND FEBRUARY, 2009. SO, THE ASSESSING OFFICER HAS ASKED THE ASSESSEE TO EXPLAIN THE SOURC E OF THESE DEPOSITS AND IT WAS SUBMITTED BY THE ASSESSEE THAT THESE AMO UNTS WERE WITHDRAWN FROM HER BANK ACCOUNT BY HER BROTHER THRO UGH BEARER CHEQUE FOR THE PURPOSE OF PURCHASE OF AGRICULTURAL LAND. THE PROPOSED PURCHASE OF AGRICULTURAL LAND COULD NOT MATERIALIZE AND THE AMOUNTS WERE DEPOSITED IN THE BANK ACCOUNT. HOWEVER, THE AS SESSING OFFICER HAS NOT AGREED THE EXPLANATION GIVEN BY THE ASSESSE E AND SAME WAS ADDED UNDER SECTION 68 OF THE ACT. 9. ON APPEAL, THE LD. CIT(APPEALS), AFTER CONSIDER ING THE SUBMISSIONS, DELETED THE ADDITION MADE BY THE ASSES SING OFFICER. 10. THE LD. DR HAS SUPPORTED THE ORDER PASSED BY T HE ASSESSING OFFICER. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.394 394394 394/M/ /M/ /M/ /M/13 1313 13 5 11. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASS ESSEE, WHILE REITERATING THE SUBMISSIONS AS MADE BEFORE THE LOWE R AUTHORITIES, STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT( APPEALS). 12. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL S ON RECORD AND ORDERS OF AUTHORITIES BELOW. THE CASE OF THE ASSESS EE IS THAT THE ASSESSEE HAS WITHDRAWN MONIES FROM HER BANK ACCOUNT FOR PURCHASE OF AGRICULTURAL LAND AND SINCE THE PURCHASE COULD N OT TAKEN PLACE, THE ASSESSEE HAD DEPOSITED THE AMOUNTS WITHIN A SHORT S PAN OF 10 TO 12 DAYS INTO HER ACCOUNT. THE ASSESSING OFFICER WAS NO T CONVINCED WITH THE EXPLANATION OFFERED BY THE ASSESSEE AND MADE AD DITION UNDER SECTION 68 OF THE ACT. ON APPEAL, THE LD. CIT(APPEA LS) HAS OBSERVED THAT THE FINDINGS OF THE ASSESSING OFFICER THAT NO BOOKS OF ACCOUNTS ARE MAINTAINED OR THE ASSESSEE HAS NOT LET IN ANY DOCUM ENTARY EVIDENCE TO SUPPORT THE CLAIM THAT THE ASSESSEE WAS INTENDING T O PURCHASE AGRICULTURAL LANDS AS FANCIFUL. HE HAS FURTHER OBS ERVED THAT THE ASSESSING OFFICERS OBJECTION TO NON-USAGE OF ACCOU NT PAYEE CHEQUES WAS ALSO NOT UNDERSTANDABLE AS HE ASSESSEES BROTHE R HIMSELF HAS WITHDRAWN THE MONIES BY CASH AND FOUND THAT THE ASS ESSING OFFICER WAS WRONGLY HARPED ON THE THREE LIMBS OF SATISFACTI ON FOR A CASH CREDIT WHILE THIS WAS NOT A CASH CREDIT FROM A THIRD PARTY BUT ASSESSEE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.394 394394 394/M/ /M/ /M/ /M/13 1313 13 6 WITHDRAWING MONIES FROM HER BANK ACCOUNT AND WITHIN A SHORT SPAN OF 10 TO 12 DAYS DEPOSITED THE SAME BACK INTO HER ACCO UNT AND ACCEPTED THE SUBMISSIONS OF THE ASSESSEE BY DELETING THE ADD ITIONS MADE BY THE ASSESSING OFFICER. WE FIND NO REASON TO INTERFERE W ITH THE ORDER PASSED BY THE LD. CIT(APPEALS) AND ACCORDINGLY, THE GROUND S RAISED BY THE REVENUE ARE DISMISSED. 13. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 30 TH OF JANUARY, 2014 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 30.01.2014 VM/- TO: THE ASSESSEE/A.O./CIT(A)/CIT/D.R.