Sri Bhabani Sankar Routray, Bhubaneswar V. ITO, Khurda Ward, Khurda

ITA 4/CTK/2017

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7167 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-03-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: N R BISWAL
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 04/CTK/2017 ASSESSMENT YEAR : 2011 - 12 SRI BHABANI SANKAR ROUTRAY, ,FLAT NO.307, ARYALAYA APARTMENT, UNIT NO. - 8, NAYAPALI, BHUBANESWAR. VS. ITO, KHURDA WARD, KHURDA PAN/GIR NO. AKKPR 65447 B (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI N.R.BISWAL, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 22 /03 / 2017 DATE OF PRONOUNCEMENT : 22 /03 / 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 1, BHUBANESWAR, DATED 30.9.2016 FOR THE ASSESSMENT YEAR 2011 - 12. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.16,66,000/ - MADE BY THE ASSESSING OFFICER AS UNEXPLAINED INVESTMENT. 3. I HAVE HEARD THE RIVAL SUB MISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE BRIEF FACTS OF THE CASE ARE 2 ITA NO. 04/CTK/2017 ASSESSMENT YEAR :2011 - 12 THAT THE ASSESSING OFFICE R OBSERVED THAT THE ASSESSEE HAS MADE CASH DEPOSITS OF RS.41,68,500/ - IN SAVING BANK ACCOUNT NO.909010035424513 MAINTAINED IN AXIS BANK, JATNI. FURTHER, THE ASSESSEE ALSO MADE CASH DEPOSITS OF RS.21,31,465/ - IN ANOTHER SAVING BANK ACCOUNT NO.006101525694 MAINTAINED IN ICICI BANK, BHUBANESWAR TOTALING TO RS.62,99,965/ - . THE ASSESSEE SUBMITTED THAT HE RECEIVED CASH ADVANCES OF RS.10,75,000/ - FROM DR. NIATYANAND PAT T NAIK AND RS.8,11,000/ - FROM SRI UMASHANKAR ROUTRAY, WHO HAPPENS TO BE HIS COUSIN BROTHERS. HE SUBMITTED THE CONFIRMATION S FROM THEM. THE ASSESSEE FURTHER SUBMITTED DOCUMENTS WHEREIN, HE HAS BEEN GIVEN POWER OF ATTORNEY BY DR. NITYANANDA PAT T NAIK TO SELL HIS PROPERTY. OUT OF SUCH SALES, HE HAS RECEIVED CASH OF RS.21,29,130/ - AND DEPOSITED THE SAME IN THE BANK ACCOUNTS. FURTHER, HE HAS RECEIVED SALARY AND HOUSE RENT IN CASH AT RS.2,96,500/ - . FURTHER, HE ALSO RECEIVED CASH ADVANCE OF RS.16,66,000/ - FROM HIS MOTHER AND UNCLE WHO HAVE RECEIVED SUCH ADVANCES FOR SALE OF THEIR PATERNAL PROPERTIES. THE BALANCE AMOUNT OF RS.3,22,335/ - WAS STATED TO HAVE BEEN RECEIVED FROM HIS MOTHER AND UNCLE FOR TREATMENT OF HIS WIFE AND AS FRIENDLY LOAN. THE ASSESSING OFFICER HELD THAT THE ADVANCE OF RS.16,66,000/ - FROM MOTHER AND UNCLE WHO HAVE RECEIVED ADVANCES FROM DIFFERENT PARTIES FOR SALE OF THEIR PROPERTIES, FOR WHICH, THEY HAVE GIVEN POWER OF ATTORNEY TO THE ASSESSEE DUE TO OLD AGE. THE ASSESSEE WAS ASKED TO FURNISH THE NAME AND ADDRESS OF THE PERSONS WHO HAVE GIVEN ADVANCE FOR PURCHASE OF PROPERTY AND TH E MODE OF THEIR SOURCES. NO EVIDENCE WHATSOEVER WAS FURNISHED AND, 3 ITA NO. 04/CTK/2017 ASSESSMENT YEAR :2011 - 12 THEREFORE, THE ASSESSING OFFICER TREATED THE SUM OF RS.16,66,000/ - AS UNDISCLOSED INVESTMENT OF THE ASSESSEE. 4. ON APPEAL, THE CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER AS THE A SSESSEE FAILED TO PUT IN APPEARANCE BEFORE THE CIT(A) ON THE DATES FIXED FOR HEARING I.E. ON 13.11.15, 3.12.15, 24.12.15, 15.1.16, 1.7.16, 21.9.16 & 29.9.16. 5. BEFORE ME, LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE ADDITION OF RS.16, 66,000/ - WAS MADE AS UNEXPLAINED INVESTMENT AS THE ASSESSEE FAILED TO FILE EVIDENCE S FOR SALE OF PROPERTY AND THE NAME AND ADDRESS OF THE PERSONS FROM WHOM, THE AMOUNT WAS RECEIVED AGAINST SALE OF PROPERTY IN THE NAME OF HIS MOTHER AND UNCLE. HE FILED COP Y OF AGREEMENT TO SALE DATED 4 TH DAY OF DEC EMBER, 2010 WITH ONE PRAKASH KUMAR PATTNAIK AND AGREEMENT TO SALE DATED 14 TH OF JANUARY, 2011 WITH BEGHANADA SAHOO, SALE OF AGREEMENT DATED 7 TH DAY OF NOVEMBER, 2010 WITH ALIKANT BARAL AND SALE OF AGREEMENT DATED 19 TH DAY OF DECEMBER, 2010 WITH S ISHIL KUMAR PANDA AND SUBMITTED THAT THE ADDITION WAS MADE BY THE ASSESSING OFFICER AS THE ASSESSEE FAILED TO FILE EVIDENCE S FOR SALE OF PROPERTY. HE SUBMITTED THAT THE EVIDENCE IS NOW A VAILABLE WITH THE ASSESSEE, COPIES OF WHICH HAVE BEEN FILED BEFORE ME. THEREFORE, HE PRAYED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION OF THE ISSUE AFTER CON SIDERING THE ABOVE FOUR SALE AGREEMENTS. 4 ITA NO. 04/CTK/2017 ASSESSMENT YEAR :2011 - 12 6. LD DEPARTMENTAL REPRESENTATIVE HAD NO O BJECTION TO THE ABOVE SUBMISSION OF LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM OF THE CONSIDERED OPINION THAT RS.16,66,000/ - WAS MADE UNDER THE HEAD UNEXPLAINED INVESTMENT U/S.69 OF THE ACT AS THE ASSESSE E FAILED TO FILE EVIDENCE WITH REGARD TO SALE OF PROPERTY BELONGING TO MOTHER AND UNCLE OF THE ASSESSEE AGAINST WHICH, HE RECEIVED ADVANCES, WHICH WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS FILED BE FORE ME THE EVIDENCES I.E SALE AGREEMENTS AND PRAYED THAT THESE EVIDENCES COULD NOT BE FILED BEFORE THE ASSESSING OFFICER AS THEY WERE NOT AVAILABLE WITH THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS AND NOW AVAILABLE WITH THE ASSESSEE. HE SUBMITTED THAT IF ONE MORE OPPORTUNITY IS ALLOWED TO THE ASSESSEE TO PRODUCE THE AGREEMENTS TO SALE, THE ASSESSEE CAN PRODUCE THE SAME BEFORE THE ASSESSING OFFICER TO WHICH, LD D.R. HAD NO OBJECTION. IN VIEW OF ABOVE, I AM OF THE CONSIDERED VIEW THAT NO HARM WILL B E CAUSED TO THE REVENUE IF ONE MORE OPPORTUNITY IS GIVEN TO THE ASSESSEE TO PRODUCE THE SAME BEFORE THE ASSESSING OFFICER. I, THEREFORE, SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND REMAND THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH AD JUDICATION OF THE ASSESSEE AFTER CONSIDERING THE SALE AGREEMENTS FILED BEFORE HIM. THE ASSESSEE IS DIRECTED TO FILE AGREEMENTS TO SALE AS AFORESAID BEFORE THE ASSESSING OFFICER AS AND WHEN CALLED UPON TO DO SO. WITH THESE DIRECTIONS, THE ISSUE IS RESTORE D TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION . 5 ITA NO. 04/CTK/2017 ASSESSMENT YEAR :2011 - 12 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED IN THE OPEN COURT ON 22 /03 /2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 2 2 /03 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : SRI BHABANI SANKAR ROUTRAY, ,FLAT NO.307, ARYALAYA APARTMENT, UNIT NO. - 8, NAYAPALI, BHUBANESWAR 2. THE RESPONDENT. ITO, KHURDA WARD, KHURDA 3. THE CIT(A) - 1, BHUBA N E SWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//