Mr.Mohammed Niyas, Malappuram V. The DCIT, Calicut

ITA 479/COCH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7569 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 22-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHANTOM BOSE DR
• Assessee Lawyers: C B M WARRIER
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 153A; 69; 132; 12

Judgement Text

I TA NO 479/C/2015 1 IN THE INCOME TAX APPEL L A TE T R IBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI B P JAIN , A M & G EORGE GEORGE.K , J M ITA NO . 479/COCH/2015 (ASST YEAR 2011 - 12 ) SH MOHAMMED NIYAS NIYAS MANZIL PULIKKALAKATH HOUSE NCC ROAD NEDUVA PO PARAPPANANGADI MALAPPURAM DIST 6 76 303 VS THE DY COMMR OF INCOME TAX CIRCLE 1 KOZHIKODE ( APPELLANT) (RESPONDENT) PAN NO. ACWPN4950G ASSESSEE BY SH C B M WARRIER REVENUE BY SH SHANTOM BOSE, DR - DR DATE OF HEARING 7TH JAN 2015 DATE OF PRONOUNCEMENT 8 TH JAN 2016 OR D ER PER GEORGE GEORGE. K. J M: THIS APPEAL, AT THE INSTANCE OF THE ASSESSEE, IS DIRECTED AGAINST THE ORDER DATED 23.6.2015 OF THE CIT(A) KOCHI. THE RELEVANT ASSESSMENT YEAR IS 2011 - 12. 2 THE SOLITARY ISSUE THAT IS RAISED FOR OUR CONSIDERATION WHETHER THE CIT(A ) JUSTIFIED IN DISALLOWING THE AGRICULTURAL INCOME AMOUNTING TO RS. 15,00,000/ - . 3 BRIEFLY STATED THE FACTS OF THE CASE ARE AS FOLLOWS: I TA NO 479/C/2015 2 THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM BUSINESS IN REAL ESTATE AND FROM AGRICULTURE. A SEARCH U/S132 O F THE ACT WAS CONDUCTED AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 29.9.2010 . DURING THE COURSE OF SEARCH U/S 132 CERTAIN INCRIMINATING DOCUMENTS REVEALING HIS INVESTMENTS IN REAL ESTATE AND OTHER BUSINESS ACTIVITIES WERE SEIZED. NOTICE U/S 153A OF THE ACT WAS ISSUED FOR THE AYS 2005 - 06 TO 2011 - 12. IN RESPONSE TO NOTICE U/S 153A, THE ASSESSEE FURNISHED RETURN OF INCOME WHICH HAVE BEEN ACCEPTED BY THE AO FOR THE AYS 2005 - 06, 06 - 07,07 - 08, 09 - 10 AND 2011 - 12 BY ORDER DATED 21.3.2013. FOR THE ASSESSMENT YEAR 2011 - 12, THE ASSESSEE FURNISHED HIS RETURN SHOWING INCOME OF RS. 29,00,000/ - . ON PERUSAL OF CASH FLOW STATEMENT, THE AO NOTICED THAT THE ASSESSEE HAD RECEIVED A TOTAL AMOUNT OF RS. 2,07,32,000/ - FROM DIFFERENT PERSONS WHO WERE PARTI ES TO HIS REAL ESTATE BUSINESS ACTIVITIES. THE ASSESSEE HAD FURNISHED EVIDENCE FOR THE AMOUNTS SO RECEIVED ONLY TO THE EXTENT OF RS. 1,92,32,000/ - LEAVING A DEFICIT OF RS. 15,00,000/ - . SINCE THE ASSESSEE HAS NOT GIVEN ANY EXPLANATIO N FOR THE SHORT FALLS, THE SUM OF RS. 15,00,000/ - WAS TREATED AS UNEXPLAINED INVESTMENT OF THE ASSESSEE AND BROUGHT TO TAX U/S 69 OF THE I T ACT. 4 AGGRIEVED, THE ASSESSEE PREFERRED APPEAL T O THE FIRST APPELLATE AUTHORITY. THE CIT(A) CONFIRMED THE ACTI ON OF THE AO . I TA NO 479/C/2015 3 5 AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. AT THE VERY OUTSET, THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THOUGH THE SUBMISSIONS MADE BEFORE THE CIT(A) HAS BEEN CONSIDERED; BUT THE CIT(A) HAS NOT GIVEN ANY FINDING ON THE ISSUE . ACCORDINGLY, IT WAS PRAYED THAT THE ORDER OF THE CIT(A) MAY BE SET ASIDE AND THE ISSUE MAY BE CONSIDERED AFRESH. THE LD DR PRESENT WAS DULY HEARD. 6 HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERUSAL OF THE MATERIAL ON RECOR D, WE ARE OF THE OPINION THAT TO THE INTEREST OF JUSTICE TO THE ASSESSEE , THE MATTER NEEDS FRESH ADJUDICATION , AS THE CIT(A) HAS NOT GIVEN CLEAR - CUT FINDING ON THE ISSUE. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ISSUE TO HIM WITH A DIRECTION TO CONSIDER THE SUBMISSIONS MADE BY THE ASSESSEE AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT IS ORDERED ACCORDINGLY. 7 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF JAN 2016 . SD/ - SD/ - ( B P JAIN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 8 TH JAN 2016 RAJ* I TA NO 479/C/2015 4 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CI T , 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN