Sri.T.M. Saleem, Calicut V. The ITO, Calicut

ITA 523/COCH/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8551 (ITAT-COCHIN)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 16-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-11-2015
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: C B M WARRIER
• Keywords: Unexplained cash credit; Opportunity of being heard
• Section: 68

Judgement Text

ITA NO.523./COCH/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI B P JAIN, AM & GEORGE GEORGE.K, JM ITA NO.523/COCH/2015 (ASST YEAR : 2009-10) SHRI T.M. SALEEM, THAZHEMULLIYERI HOUSE, PATHIYARAKKARA, VATAKARA, KOZHIKODE. THE INCOME TAX OFFICER, WARD- 2(2), CALICUT. ( ASSESSEE APPELLANT) VS (REVENUE -RESPONDENT) PAN NO. AEJPT 0214L ASSESSEE BY SHRI C.B.M. WARRIER, CA REVENUE BY SHRI A. DHANARAJ, SR. DR DATE OF HEARING 16/06/2016 DATE OF PRONOUNCEMENT 16/06/2016 ORDER PER B.P. JAIN, AM: THIS APPEAL OF THE ASSESSEE ARISES FROM THE O RDER OF THE LD. CIT(A), KOZHIKODE DATED 27/02/2013 FOR THE ASSESSMENT YEAR 2009-10. 2. AT THE OUTSET, THE ASSESSEE HAS FILED THE APP EAL BEFORE US BELATEDLY BY ABOUT 25 MONTHS, I.E. 752 DAYS. THE ASSESSEE HAS F ILED THE CONDONATION PETITION WHERE THE ASSESSEE HAS STATED THE REASONS FOR FILIN G THE APPEAL BELATEDLY BY 752 DAYS. IT WAS SUBMITTED THAT THE ASSESSEE WAS AN NR I WORKING IN QATOR AND HE WAS NOT AWARE OF THE SAID ORDER OF THE LD. CIT(A). ALSO THE LD. CHARTERED ACCOUNTANT OF THE ASSESSEE HAS FILED THE AFFIDAVIT WHERE HE HAS STATED THAT THE ITA NO.523./COCH/2015 2 APPELLATE ORDER WAS MISPLACED AND AFTER TRACING THE SAME, STEPS WERE TAKEN FOR FILING THE APPEAL BEFORE THE ITAT AFTER CONSULTING THE OTHER CHARTERED ACCOUNTANT. 3. THE LD. DR OPPOSED THE CONDONATION PETITION F ILED BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE FACTS OF THE CASE. WE FIND SUFFICIENT CAUSE FOR FILING THE APPEAL BELATED LY BY 752 DAYS BEFORE US FOR REASONS MENTIONED IN THE CONDONATION PETITION AND T HE AFFIDAVIT FILED BY THE LD. CHARTERED ACCOUNTANT AND ACCORDINGLY, WE CONDONE TH E DELAY. 5. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL:- THE APPELLANT IS T.M. SALEEM, VADAKARA, CALICUT AND THE COMMISSIONER OF INCOME-TAX(APPEALS HAS GONE WRONG IN CONFIRMING TH E ADDITION OF RS.8287065/- U/S. 68 OF THE ACT. COMMISSIONER OF INCOME TAX (APPEALS) HAS WRONG IN NOT CONSIDERING THE DOCUMENTARY EVIDENT IN SUPPORT OF AMOUNT RECEIVED. THE APPELLANT IS HAVING EVIDENCE FOR THE RECEIPT O F THE AMOUNTS AND HENCE THE ASSESSMENT MAY BE CANCELLED. 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASS ESSEE HAD FOLLOWING BANK ACCOUNTS IN WHICH THE UNDER MENTIONED CASH DEPOSITS WERE MADE. ITA NO.523./COCH/2015 3 NAME OF THE BANK ACCOUNT NO. CASH DEPOSITS ICICI BANK, VATAKARA 22101505703 4112400 ICICI BANK, VATAKARA 22101502862 1682831 FEDERAL BANK 10712-100019551 4499834 TOTAL CASH DEPOSITS 10295065 THE ASSESSEE WAS ASKED TO SUBMIT THE SOURCE FOR THE SE AMOUNTS WHICH WERE SUBMITTED BUT WERE NOT FOUND SATISFACTORY BY THE AS SESSING OFFICER TO THE EXTENT OF RS.82,87,065/- AND ACCORDINGLY, HE MADE ADDITION OF RS.82,87,065/- TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT U /S. 68 OF THE ACT. THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICE R. 7. THE LD. COUNSEL FOR THE ASSESSEE, SHRI C.B.M. WARRIER SUBMITTED THAT THE ASSESSING OFFICER HAS NOT PROPERLY EXAMINED THE BAN K ACCOUNTS OF THE ASSESSEE WHERE THE DEPOSITS IN FEDERAL BANK, VATAKARA IN A/ C. NO. 10712100019551 ARE NOT THE DEPOSITS IN CASH BUT THROUGH CHEQUES AMOUNT ING TO RS.31,00,000/- RS.9,00,000/- AND RS.4,99,834/- ON 13-08-2008, 18-1 0-2008 AND 26-12-2008 RESPECTIVELY. THE ASSESSING OFFICER HAS NOT PROPERL Y EXAMINED THE ABOVE DEPOSITS AND ACCORDINGLY, THE ADDITION MADE U/S. 68 OF THE ACT IS NOT CALLED FOR. 8. THE LD. DR RELIED UPON THE ORDER OF BOTH THE AUTHORITIES BELOW. 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE FACTS OF THE CASE. IT WAS SUBMITTED BY THE LD. AR THAT THE DEPOSITS IN TH E FEDERAL BANK, VATAKARA IN ITA NO.523./COCH/2015 4 THE CASE OF AMOUNTS MENTIONED HEREINABOVE ARE THROU GH CHEQUES ON THE RESPECTIVE DATES WHICH HAS NOT BEEN EXAMINED BY THE ASSESSING OFFICER IN THE RIGHT PERSPECTIVE AND THE LD. CIT(A) HAS ALSO CONFI RMED THE ACTION OF THE ASSESSING OFFICER WITHOUT EXAMINING AND LOOKING INT O THE BANK ACCOUNTS. PRIMA FACIE, THE BANK DEPOSITS IN THE FEDERAL BANK, VATAK ARA MENTIONED HEREINABOVE ARE THROUGH CHEQUES AND NOT IN CASH BUT THAT REQUIR ES EXAMINATION OF THE ISSUE. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THE ASS ESSING OFFICER HAS NOT EXAMINED THE ISSUE IN RIGHT PERSPECTIVE AND ACCORDI NGLY, WE SET ASIDE THE SAID ISSUE TO THE FILE OF THE ASSESSING OFFICER WHO WILL EXAMINE THE ISSUE DE NOVO BUT AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE ISSUE WITH REGARD TO THE BANK DEPO SITS OF RS.82,87,065/- IS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR DECI DING THE SAME DE NOVO AS PER OUR DIRECTIONS HEREINABOVE. THUS THE GROUNDS OF TH E ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16-0 6-2016 SD/- SD/ - (GEORGE GEORGE K.) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : COCHIN DATED: 16TH JUNE , 2016 ITA NO.523./COCH/2015 5 GJ COPY TO: 1. SHRI T.M. SALEEM, THAZHEMULLIYERI HOUSE, PATHIYA RAKKARA, VATAKARA, KOZHIKODE . 2. THE INCOME TAX OFFICER, WARD-2(2), CALICUT. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS),KOZHIKOD E. 4. THE COMMISSIONER OF INCOME-TAX, KOZHIKODE. 5. THE DR/ITAT, COCHIN BENCH. 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN