S.Saravanan, Pondicherry V. ACIT, Pondicherry

ITA 51/CHNY/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7463 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 09-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Keywords: Peak credit; Set aside
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , .. ' #$, & '( BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO.51/MDS/2015 * +* / ASSESSMENT YEAR : 2011-12 SHRI S. SARAVANAN, NO.2, MARIAMMAN KOIL STREET, KADIRKAMAM, PONDICHERRY 605 009. PAN : APGPS 7103 B V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE I, PONDICHERRY. (-./ APPELLANT) (/0-./ RESPONDENT) -. 1 2 / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE /0-. 1 2 / RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT ' 1 3& / DATE OF HEARING : 02.02.2017 45+ 1 3& / DATE OF PRONOUNCEMENT : 23.03.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) VI, CHEN NAI, DATED 30.10.2014 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. SHRI S. SRIDHAR, THE LD. COUNSEL FOR THE ASSESSE E, SUBMITTED THAT THE ASSESSING OFFICER MADE ADDITION IN RESPECT OF CASH 2 I.T.A. NO.51/MDS/2015 DEPOSITS MADE BY THE ASSESSEE IN THE BANK UNDER SEC TION 68 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). IN FACT , THE ASSESSING OFFICER MADE ADDITION OF ` 63,80,000/-. THE ASSESSEE EXPLAINED BEFORE THE CIT(APPEALS) THAT THE PEAK CREDIT IN THE PONDICHERRY STATE CO-OPERATIVE BANK COMES TO ` 36,77,477/- AS ON 16.07.2010. THE ASSESSEE FURTHER EXPLAINED THAT THE SOURCE FOR ` 36,00,000/- WAS FROM HIS FATHER WHO EARNED THE MONEY FROM AGRICULTU RAL ACTIVITIES. ACCORDING TO THE LD. COUNSEL, CONFIRMATION LETTER F ROM SHRI SHANMUGHAM, THE ASSESSEES FATHER WAS ALSO FILED AP ART FROM A CERTIFICATE FROM VILLAGE ADMINISTRATIVE OFFICER. H OWEVER, THIS WAS NOT ACCEPTED BY THE ASSESSING OFFICER. THE FACT RE MAINS THAT SHRI SHANMUGHAM WAS CULTIVATING THE LAND AND GAVE MONEY TO THE ASSESSEE TO THE EXTENT OF ` 36,00,000/-. THIS CONFIRMATION LETTER WAS NOT EXAMINED BY THE ASSESSING OFFICER. THE ASSESSE E BEING THE RECIPIENT OF THE MONEY, COULD PRODUCE ONLY CONFIRMA TION LETTER AND NOTHING ELSE. THEREFORE, ACCORDING TO THE LD. COUN SEL, THE CIT(APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ORD ER OF THE ASSESSING OFFICER. 3. ON THE CONTRARY, SHRI SHIVA SRINIVAS, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSING OFFICE R FOUND THAT 3 I.T.A. NO.51/MDS/2015 THERE WAS DEPOSIT OF ` 49,07,000/- IN PONDICHERRY STATE CO-OPERATIVE BANK LTD. AND ANOTHER SUM OF ` 14,73,000/- IN IDBI BANK LTD. THE ASSESSING OFFICER FOUND THAT THERE WAS NO SOURCE TO THE ASSESSEE TO MAKE THE DEPOSIT. ON APPEAL BY THE ASSESSEE, ACCOR DING TO THE LD. D.R., THE CIT(APPEALS) FOUND THAT A DEPOSIT TO THE EXTENT OF ` 49,00,000/- REMAINS TO BE UNEXPLAINED. ACCORDINGLY , HE RESTRICTED THE ADDITION TO ` 49,00,000/- AS AGAINST THE ADDITION MADE BY THE ASSESSING OFFICER ` 63,80,000/-. THE LD. D.R. CLARIFIED THAT THE DEPARTMENT HAS NOT FILED APPEAL AGAINST THE RELIEF GRANTED BY THE CIT(APPEALS). IN THE ABSENCE OF ANY EXPLANATION, A CCORDING TO THE LD. D.R., THE CIT(APPEALS) HAS RIGHTLY CONFIRMED TH E ADDITION TO THE EXTENT OF ` 49,00,000/-. THE CONFIRMATION LETTER CANNOT ESTABL ISH THE CLAIM OF THE ASSESSEE. THEREFORE, THE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ADDITION TO THE EXTENT OF ` 49,00,000/-. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER MADE ADDITION OF ` 63,80,000/- UNDER SECTION 68 OF THE ACT. THE ASSESSEE APPEARS TO HAVE DEPOSITED A SUM OF ` 49,07,000/- IN PONDICHERRY STATE CO-OPERATIVE BANK LTD. AND ANOTHE R SUM OF ` 14,73,000/- IN IDBI BANK LTD. ON APPEAL BY THE ASSE SSEE, THE 4 I.T.A. NO.51/MDS/2015 CIT(APPEALS) FOUND THAT THE ASSESSEE COULD NOT EXPL AIN SATISFACTORILY THE DEPOSIT OF ` 49,00,000/-, THEREFORE, THE SAME WAS CONFIRMED BY THE CIT(APPEALS). HOWEVER, THE BALANC E WAS DELETED BY THE CIT(APPEALS). THE ASSESSEE NOW FILED APPEAL IN RESPECT OF ADDITION CONFIRMED BY THE CIT(APPEALS) TO THE EXTEN T OF ` 49,00,000/- THE ASSESSEE CLAIMS THAT ` 36,00,000/- WAS RECEIVED FROM HIS FATHER AND A CONFIRMATION LETTER WAS ALSO FILED FROM SHRI SHANMUGHAM APART FROM A CERTIFICATE FROM VILLAGE ADMINISTRATIV E OFFICER. THIS DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE WAS NOT EXAMINED BY THE CIT(APPEALS). THIS TRIBUNAL IS OF THE CONSIDER ED OPINION THAT WHEN THE ASSESSEE FILED DOCUMENTARY EVIDENCE, THE C IT(APPEALS) HAVING CO-TERMINUS POWER WITH THAT OF THE ASSESSING OFFICER, OUGHT TO HAVE EXAMINED THE SAME AND FOUND WHETHER THE ASS ESSEE HAS ACTUALLY RECEIVED MONEY FROM SHRI SHANMUGHAM. SINC E SUCH AN EXERCISE WAS NOT DONE BY THE CIT(APPEALS), THIS TRI BUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-E XAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES WERE SET ASIDE IN RESPECT OF ` 49,00,000/-, WHICH WAS CONFIRMED BY THE CIT(APPEALS) AND REMITTED BACK TO THE FILE OF T HE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE TH E ISSUE IN THE LIGHT OF THE CONFIRMATION LETTER FILED BY THE ASSES SEE FROM HIS FATHER 5 I.T.A. NO.51/MDS/2015 AND THE CERTIFICATE ISSUED BY THE VILLAGE ADMINISTR ATIVE OFFICER AND OTHER MATERIAL THAT MAY BE FILED BY THE ASSESSEE AN D THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW WITH REGARD TO THE ADDITION OF ` 49,00,000/- AFRESH, AFTER GIVING A REASONABLE OPPOR TUNITY TO THE ASSESSEE. SINCE NO DEPARTMENT APPEAL WAS FILED IN RESPECT OF ADDITION DELETED BY THE CIT(APPEALS), THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT CANNOT BE DISTURBED AT THIS STAGE. IT IS MADE CLEAR THAT THE ISSUE IS REMITTED ONLY TO THE E XTENT OF ADDITION MADE BY THE CIT(APPEALS) AT ` 49,00,000/-. THE ADDITION DELETED BY THE CIT(APPEALS) CANNOT BE RE-EXAMINED BY THE ASSES SING OFFICER. 5. WITH THE ABOVE OBSERVATION, THE APPEAL OF THE AS SESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 23 RD MARCH, 2017 AT CHENNAI. SD/- SD/- ( . . ' #$ ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) & / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 23 RD MARCH, 2017. KRI. 6 I.T.A. NO.51/MDS/2015 1 /3#8 98+3 /COPY TO: 1. -. /APPELLANT 2. /0-. /RESPONDENT 3. ' :3 () /CIT(A)-VI, CHENNAI-34 4. ' :3 /CIT, PONDICHERRY 5. 8; /3 /DR 6. * < /GF.