The ITO, Ward-4(2)., Visakhapatnam V. Smt Arji Nookaratnamma, Ongole

ITA 464/VIZ/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1660 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2009
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 29-08-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S S GOPINATH
• Keywords: Set aside
• Section: 133A; 144

Judgement Text

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.464/VIZAG/2008 ASSESSMENT YEAR: 2005-06 ITO WARD-4(2), VISAKHAPATNAM VS. ARJI NOOKARATNAMMA, VISAKHAPATNAM (APPELLANT) (RESPONDENT) PAN NO. ACFPA 5876 K APPELLANT BY: SHRI G.S.S. GOPINATH, DR RESPONDENT BY: NONE ORDER PER SHRI B R BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 17-6-2008 PASSED BY THE LD CIT (A)-I, VISAKHAPATNAM AND IT RE LATES TO THE ASSESSMENT YEAR 2005-06. 2. THE ONLY ISSUE THAT EMERGES FROM THE GROUNDS RAI SED BY THE REVENUE IS THAT WHETHER THE LD CIT (A) IS JUSTIFIED IN TREATIN G THE SUM OF RS.9.00 LAKHS BELONGING TO THE FIRM IN WHICH THE PRESENT ASSESSEE IS A PARTNER, AS A SOURCE FOR INVESTMENT MADE BY THE ASSESSEE IN PURCHASE OF A SI TE. 3. THE FACTS ARE STATED IN BRIEF. THE ASSESSEE IS A N INDIVIDUAL AND IS ALSO ONE OF THE PARTNERS IN M/S SIVARATNA ENGINEERS & BUILDE RS. THE REVENUE CONDUCTED A SURVEY OPERATION U/S 133A OF THE ACT ON THE BUSINES S PREMISES OF THE FIRM REFERRED ABOVE ON 31.01.2007. DURING THE COURSE OF SURVEY IT WAS NOTICED THAT THE ASSESSEE HEREIN HAD PURCHASED A LAND ADMEASURIN G 400 SQ. YARDS IN RAILWAY NEW COLONY, VISAKHAPATNAM FOR A CONSIDERATI ON OF RS.24.00 LAKHS ON PAGE 2 OF 3 14.2.2005. DURING THE COURSE OF SCRUTINY PROCEEDING , THE ASSESSING OFFICER CALLED FOR DETAILS OF BOOKS, BALANCE SHEET AND BANK STATEMENT RELEVANT FOR THE ASSESSMENT YEAR 2005-06 AND ALSO ASKED THE ASSESSEE TO EXPLAIN THE SOURCES FOR THE INVESTMENT MADE IN LAND CITED ABOVE. SINCE THE ASSESSEE FAILED TO FURNISH THE DETAILS CALLED FOR, THE AO COMPLETED TH E ASSESSMENT U/S 144 OF THE ACT ADDING THE INVESTMENT OF RS.24.00 LAKHS TO THE TOTAL INCOME OF THE ASSESSEE. IN THE APPEAL PREFERRED BY THE ASSESSEE B EFORE THE LD CIT (A), THE ASSESSEE EXPLAINED CERTAIN SOURCES ON THE BASIS OF WHICH THE LD CIT (A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. THE ASSESSEE, I NTER ALIA, EXPLAINED THAT SHE HAS UTILIZED A SUM OF RS.9.00 LAKHS BELONGING TO TH E FIRM M/S SIVARATNA ENGINEERS & BUILDERS WHICH WAS ACCEPTED BY THE LD C IT (A). AGGRIEVED AGAINST THE SAID DECISION, THE REVENUE IS IN APPEAL BEFORE US. 4. NONE APPEARED ON BEHALF OF THE ASSESSEE, THOUGH THE NOTICE WAS SERVED UPON THE ASSESSEE. HENCE WE PROCEED TO HEAR THE CAS E EX-PARTE, QUA THE ASSESSEE. 5. WE HAVE HEARD THE LD DR IN THIS REGARD AND ALSO CAREFULLY PERUSED THE RECORD. IT IS NOTICED THAT THE FIRM M/S SIVARATNA E NGINEERS AND BUILDERS, AS A GENERAL POWER OF ATTORNEY HOLDER, AGREED TO SELL 24 5 SQ. YARDS OF UNDIVIDED AND UNSPECIFIED SHARE OF LAND ALONG WITH FLAT FOR RS.13 .00 LAKHS TO SHRI D. SOMA RAJU. AS PER THE SALE AGREEMENT DATED 29.10.2004, T HE FIRM RECEIVED RS.9.00 LAKHS AS ADVANCE BY WAY OF CASH. THE ASSESSEE CLAIM ED THAT SHE HAS UTILIZED THE ABOVE SAID AMOUNT OF RS.9.00 LAKHS FOR MEETING THE COST OF INVESTMENT IN IMPUGNED LAND. HOWEVER, FROM THE ORDER OF LD CIT (A ) IT IS NOT CLEAR WHETHER THE SAID AMOUNT OF RS.9.00 LAKHS WAS ROUTED THROUGH THE BOOKS OF M/S SIVARATNA ENGINEERS & BUILDERS. FURTHER, IT IS NOT CLEAR WHETHER THE SUM OF RS.9.00 LAKHS WAS WITHDRAWN THROUGH THE BOOKS OF TH E FIRM WITH THE CONSENT OF OTHER PARTNERS. IT IS STATED THAT THE FIRM HAS AGREE D TO SELL THE FLAT AS GPA HOLDER. IN THAT CASE, IT IS NOT CLEAR WHETHER THE S AID FLAT BELONGS TO THE FIRM OR PAGE 3 OF 3 SOMEBODY ELSE AND IF BELONGS TO SOMEBODY ELSE, WHET HER THE ASSESSEE CAN APPROPRIATE THE ADVANCE AMOUNT RECEIVED IN THE CAPA CITY OF GPA HOLDER FOR PERSONAL PURPOSES. IN OUR OPINION, LD CIT(A) HAS RE NDERED HIS DECISION WITHOUT EXAMINING VARIOUS FACTS LISTED ABOVE. SINCE THESE FACTS REQUIRE EXAMINATION ON THE PART OF THE AO, WE SET ASIDE THE ISSUE TO THE F ILE OF THE ASSESSING OFFICER FOR HIS EXAMINATION WITH A DIRECTION TO AFFORD NECESSAR Y OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH THE LAW. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 12-11-2009 SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, 12 TH NOVEMBER, 2009. COPY TO 1 THE ITO WARD-4 (2), VISAKHAPATNAM 2 SMT. ARJI NOOKARATNAMMA, 39-8-21/10, SAMPATH ENCL AVE, MURALINAGAR, VISAKHA PATNAM 3 THE CIT-2, VISAKHAPATNAM 4 THE CIT(A)-I, VISAKHAPATNAM 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM