Smt Bikkina Rajasri, Vijayawada V. The ITO, Ward-2(4), Vijayawada

ITA 40/VIZ/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 2551 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 04-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 25-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Keywords: Opportunity of being heard; Set aside

Judgement Text

ITA NO.40/VIZAG/2010 BIKKINA RAJASRI, VJA PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER ITA NO.40/VIZAG/2010 ASSESSMENT YEAR: 2006-07 SMT. BIKKINA RAJASRI VIJAYAWADA VS. ITO WARD-2(4) VIJAYAWADA (APPELLANT) PAN NO: ACZPB3258L (RESPONDENT) APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI D.S. SUNDER SINGH, SR.DR ORDER PER SHRI B. R. BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17.11.2009 PASSED BY LD. CIT(A), VIJAYAWADA AND IT RELATES TO THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE IS ASSAILING THE DECISION OF LEARN ED CIT(A) IN CONFIRMING THE ADDITION OF RS.7.00 LACS MADE TO THE LONG TERM CAPITAL GAINS DISCLOSED BY THE ASSESSEE. 3. THE FACTS RELATING TO THE ISSUE ARE STATED I N BRIEF. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE DISCLOSED LONG TE RM CAPITAL GAIN ARISING ON SALE OF A PROPERTY. ACCORDING TO THE ASSESSEE T HE SAID PROPERTY WAS SOLD FOR A CONSIDERATION OF RS.19.50 LAKHS. THE BUYER H AD PAID AN ADVANCE OF RS.3.00 LAKHS IN CASH AND THE BALANCE AMOUNT OF RS. 16.50 LAKHS WAS OBTAINED AS LOAN BY HIM FROM M/S IDBI BANK LTD. WH ILE SCRUTINIZING THE BANK ACCOUNT OF THE ASSESSEE, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD RECEIVED ANOTHER SUM OF RS.7.00 LAKHS FROM IDBI BANK LTD IN ADDITION TO THE AMOUNT OF RS.16.50 LAKHS CITED ABOV E. THE ASSESSEE ITA NO.40/VIZAG/2010 BIKKINA RAJASRI, VJA PAGE 2 OF 3 EXPLAINED THAT HE HAD REFUNDED THE ABOVE SAID SUM O F RS.7.00 LAKHS TO THE BUYER, SINCE HE HAD ALREADY RECEIVED THE FULL SALE CONSIDERATION. THE ASSESSING OFFICER OBSERVED THAT THE LOANS ARE GRANT ED BY THE BANKS FOR THE PURCHASE OF PROPERTY AND ACCORDINGLY OPINED THAT TH E IMPUGNED AMOUNT OF RS.7.00 LAKHS ALSO RELATED TO THE PROPERTY THAT WAS SOLD BY THE ASSESSEE. SINCE THE ASSESSEE COULD NOT SUPPORT HIS EXPLANATIO NS, THE ASSESSING OFFICER TOOK THE SALE VALUE OF PROPERTY AT RS.26.50 LAKHS A ND ACCORDINGLY COMPUTED THE LONG TERM CAPITAL GAINS. THE LEARNED CIT(A) AL SO CONFIRMED THE SAID ADDITION, SINCE THE ASSESSEE COULD NOT FILE THE CON FIRMATION LETTER FROM IDBI BANK. 4. REITERATING THE CONTENTIONS MADE BEFORE THE ASSESSING OFFICER, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT TH ERE IS NO REASON TO ADOPT A SALE VALUE WHICH IS DIFFERENT FROM THE ONE THAT WAS SHOWN IN THE REGISTERED CONVEYANCE DEED. WITH REGARD TO THE IMP UGNED AMOUNT OF RS.7.00 LAKHS, THE LEARNED AUTHORISED REPRESENTATIV E SUBMITTED THAT THE SAME WAS RETURNED BACK TO THE BUYER OF THE PROPERTY WHICH WAS VERY MUCH EVIDENCED BY THE ENTRIES AVAILABLE IN THE BANK ACCO UNTS OF THE ASSESSEE AS WELL AS THE BUYER. HE FURTHER SUBMITTED THAT THE A SSESSEE TRIED TO GET CONFIRMATION LETTER IN THIS REGARD FROM THE IDBI BAN K DURING THE COURSE OF APPELLATE PROCEEDINGS, BUT COULD NOT GET IT. HE FUR THER SUBMITTED THAT THE ASSESSING OFFICER IS NOT CORRECT IN LAW IN TAKING D ECISION AGAINST THE ASSESSEE WITHOUT MAKING DUE VERIFICATION FROM THE B ANKERS. ACCORDINGLY, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THA T THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR MAKING NECESSARY VERIFICATION FROM THE BANKERS. THE LEARNED DEPARTM ENTAL REPRESENTATIVE ALSO DID NOT OBJECT TO THE SAID REQUEST OF THE ASSE SSEE. 5. THUS, BOTH THE PARTIES HAVE AGREED THAT THE MATTER OF VERIFICATION OF TRANSACTIONS RELATING TO THE IMPUGNED AMOUNT OF RS. 7.00 LAKHS BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ORDER OF ITA NO.40/VIZAG/2010 BIKKINA RAJASRI, VJA PAGE 3 OF 3 LEARNED CIT(A) AND REMIT THE ISSUE TO THE FILE OF T HE ASSESSING OFFICER WITH A DIRECTION TO VERIFY THE TRANSACTIONS RELATING TO TH E IMPUGNED AMOUNT OF RS.7.00 LAKHS BY OBTAINING NECESSARY INFORMATION FR OM M/S IDBI BANK AND THERE AFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW . THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE INFORMATION THAT MAY BE CAL LED FOR BY THE ASSESSING OFFICER. NEEDLESS TO MENTION, THE ASSESSING OFFIC ER SHALL PROVIDE NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER, 2010. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, DATE: 30-12-2010 COPY TO 1 BIKKINA RAJASRI, 26-23-11, F.NO.101, SUNANDAL RES IDENCY, SUNDARAMMA STREET, GANGHINAGAR, VIJAYAWADA 2 ITO WARD-2(4), VIJAYAWADA 3 4. THE CIT VIJAYAWADA THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM