Harri Joseph, Cochin V. ITO, Ernakulam

ITA 518/COCH/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52219 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 24-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M ANIL KUMAR
• Section: 68

Judgement Text

1 ITA NO. 518/COCH/2011 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 518/COCH/2011 (ASSESSMENT YEAR 2006-07) HARRI JOSEPH VS ITO, WD.2(3) ROSE VILLA, KALATHIPARAMBIL ERNAKULAM ALAPPAT CROSS ROAD, KOCHI-682 016 PAN : AEEPJ6097E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MATHEW JOSEPH RESPONDENT BY : SHRI M ANIL KUMAR, C.I.T. DATE OF HEARING : 29-08-2013 DATE OF PRONOUNCEMENT : 30-08-2013 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-II, KOCHI DATED 21-01-2011 AND PERTAINS TO A SSESSMENT YEAR 2006- 07. 2. THE FIRST ISSUE RAISED BY THE ASSESSEE IS WITH R EGARD TO ADDITION U/S 68 OF THE ACT. SHRI MATHEW JOSEPH, THE LD.REPRESEN TATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEES MOTHER SOLD A PROPERT Y FOR RS.74 LAKHS. HOWEVER, IN THE SALE DEED, THE SALE CONSIDERATION W AS MENTIONED AS RS.14 2 ITA NO. 518/COCH/2011 LAKHS AND THE REMAINING AMOUNT OF RS.60 LAKHS WAS D EPOSITED IN THE ASSESSEES NAME. ACCORDING TO THE LD.REPRESENTATIV E, THE ASSESSEES MOTHER DISCLOSED THE ENTIRE SALE CONSIDERATION OF R S.74 LAKHS IN THE RETURN OF INCOME AND THAT WAS ACCEPTED BY THE ASSESSING OF FICER. WHEN THE ENTIRE SALE CONSIDERATION OF RS.74 LAKHS WAS DISCLO SED TO THE DEPARTMENT BY THE ASSESSEES MOTHER, ACCORDING TO THE LD.REPRE SENTATIVE, THERE IS NO QUESTION OF ANY FURTHER ADDITION IN THE HANDS OF TH E PRESENT ASSESSEE. 3. WE HEARD SHRI M ANIL KUMAR, THE LD.DR ALSO. SHR I M ANIL KUMAR, FILED A COPY OF THE RETURN FILED BY THE ASSESSEES MOTHER ALONG WITH THE STATEMENT OF INCOME. IN THE STATEMENT OF INCOME IT IS CLEARLY STATED THAT THE DOCUMENT VALUE WAS RS.14 LAKHS WHEREAS SALE CONSIDE RATION RECEIVED IS RS.74 LAKHS. THIS RETURN FILED BY THE ASSESSEES M OTHER DISCLOSING RS.74 LAKHS AS SALE CONSIDERATION WAS ACCEPTED BY THE DEP ARTMENT. WHEN THE ASSESSEE CLAIMS THAT THE SALE CONSIDERATION RECEIVE D BY THE MOTHER OF WAS DEPOSITED IN THE ACCOUNT AND THIS WAS EVIDENCED BY THE STATEMENT OF INCOME FILED BY ASSESSEES MOTHER BEFORE THE INCOME -TAX DEPARTMENT WHICH WAS ACCEPTED BY THE DEPARTMENT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE CANNOT BE ANY FURTHER ADDITION. IN OTHER WORDS, RS.74 LAKHS HAS BEEN CONSIDERED BY THE DEPARTMENT IN THE HANDS OF ASSESSEES MOTHER. THEREFORE, ANY FURTHER ADDITION IN THE HAN DS OF THE PRESENT ASSESSEE AMOUNTS TO DOUBLE ADDITION. ACCORDINGLY, THE ORDERS OF LOWER 3 ITA NO. 518/COCH/2011 AUTHORITIES ARE SET ASIDE AND THE ADDITION TO THE E XTENT OF RS.60 LAKHS IS DELETED. 4. THE NEXT GROUND OF APPEAL IS WITH REGARD TO THE ADDITION OF RS.25 LAKHS. SHRI MATHEW JOSEPH, THE LD.REPRESENTATIVE F OR THE ASESSEE SUBMITTED THAT THE ASSESSEES FATHER DEPOSITED A SU M OF RS.25 LAKHS IN HIS ACCOUNT. ACCORDING TO THE LD.REPRESENTATIVE, THE A SSESSEES FATHER WAS DOING BUSINESS IN GOLD JEWELLERY FOR WHICH HE BORRO WED HEAVY AMOUNTS. HOWEVER, HE COULD NOT REPAY THE LOANS. THEREFORE, HE WAS CLASSIFIED AS NON PERFORMING ASSET BY THE BANKS AND FINANCIAL I NSTITUTIONS. FOR FEAR OF ACTION BY THE BANKS AND FINANCIAL INSTITUTIONS, THE ASESSEES FATHER DEPOSITED THE FUNDS IN THE NAME OF THE ASSESSEE. O N A QUERY FROM THE BENCH WHAT IS THE SOURCE FOR THE ASESSEES FATHER F OR THE DEPOSIT OF FUNDS, THE LD.REPRESENTATIVE FILED A COPY OF BALANCE-SHEET FOR THE YEAR 1999-2000 AND SUBMITTED THAT THE ASSESSEES FATHER HAD JEWELL ERY STOCK-IN-TRADE IN THE BALANCE-SHEET. HOWEVER, HE CLARIFIED THAT THERE IS NO MATERIAL TO SHOW HOW THE GOLD JEWELLERY WAS CONVERTED INTO CASH FOR MAKI NG DEPOSIT OF RS.25 LAKHS. 5. WE HEARD SHRI M ANIL KUMAR, THE LD DR ALSO. ADM ITTEDLY, A SUM OF RS.25 LAKHS WAS DEPOSITED IN THE BANK ACCOUNT OF TH E ASSESSEE. THE ASSESSEE CLAIMS THAT HIS FATHER DEPOSITED THE MONEY . HOWEVER, NO 4 ITA NO. 518/COCH/2011 MATERIAL IS AVAILABLE ON RECORD TO ESTABLISH THE SO URCE OF HIS FATHER. THE CLAIM OF THE ASSESSEE THAT HIS FATHER WAS DOING JEW ELLERY BUSINESS AND THE STOCK IN TRADE WAS SOLD AND DEPOSITED THE REALIZATI ON IN THE ACCOUNT OF THE ASSESSEE IS NOT SUBSTANTIATED BY MATERIAL EVIDENCE. THE BALANCE-SHEET FILED BY THE ASSESSEE IS OF THE YEAR 1999-2000 AND THE YEAR UNDER CONSIDERATION IS 2006-07. THEREFORE, THERE CANNOT BE ANY PRESUMPTION THAT THE VERY SAME STOCK IN TRADE CARRIED FOR THE YEAR U NDER CONSIDERATION ALSO. IN THE ABSENCE OF ANY MATERIAL TO SUBSTANTIATE THAT THE ASSESSEES FATHER HAD SUFFICIENT SOURCE FOR MAKING DEPOSIT OF RS.25 L AKHS, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LOWER AUTHORITIES H AVE RIGHTLY MADE THE ADDITION OF RS.25 LAKHS . THIS TRIBUNAL DO NOT FIN D ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY AS FAR AS THE ADDITION OF RS .25,000 IS CONCERNED. ACCORDINGLY THE SAME IS CONFIRMED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH AUGUST, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 30 TH AUGUST, 2013 PK/- 5 ITA NO. 518/COCH/2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH