K.M.Moideen Kunhi, Kasargode V. ACIT, Calicut

ITA 526/COCH/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64963 (ITAT-COCHIN)
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 09-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 20-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VERGHESE
• Assessee Lawyers: C B M WARRIER
• Keywords: Gift; Additional evidence

Judgement Text

1 ITA NO.526/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) I.T.A NO. 526/COCH/2010 (ASSESSMENT YEAR 2006-07) SHRI K.M. MOIDEEN KUNHI VS A.C.I.T., CENT.CIR.1 PADHOOR HOUSE, THEKKIL POST CALICUT KASARGODE PAN : AILPM9445N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.B.M. WARRIER RESPONDENT BY : SMT. SUSAN GEORGE VERGHESE DATE OF HEARING : 09-10-2012 DATE OF PRONOUNCEMENT : 16-11-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE TAXPAYER IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-I, KOCHI DATED 25-03-201 0 AND PERTAINS TO ASSESSMENT YEAR 2006-07. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDIT ION OF RS.16 LAKHS WHICH WAS CLAIMED TO BE RECEIVED FROM DR K.P. ALI. 3. SHRI C.B.M. WARRIER, THE LD.REPRESENTATIVE FOR T HE TAXPAYER SUBMITTED THAT DR. K.P. ALI IS THE BROTHER IN LAW OF THE TAXPAYER. DR K.P. ALI CONFIRMED THE AMOUNT 2 ITA NO.526/COCH/2010 GIVEN TO THE TAXPAYER. ACCORDING TO THE LD.REPRESE NTATIVE, DR K.P. ALI RUNS THREE CLINICS AND PHARMACEUTICALS IN DUBAI. THE GIFT GIV EN IN THE EARLIER YEAR WAS ACCEPTED BY THE ASSESSING OFFICER. THEREFORE, THER E IS NO REASON FOR REJECTING THE CLAIM OF THE TAXPAYER FOR THE YEAR UNDER CONSIDERAT ION. THE LD.REPRESENTATIVE HAS ALSO FILED ADDITIONAL EVIDENCE FROM THE AUDIT MANAG ER CLAIMING THAT AN AMOUNT OF RS.6 LAKHS WAS DRAWN ON 11-08-2005 FROM THE ACCUMULATE D PROFIT OF THE CLINIC. THE OTHER CERTIFICATE SHOWS AN AMOUNT OF RS.10 LAKHS DRAWN ON 28-02-2006. WE HAVE ALSO HEARD THE LD.DR. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE MATERIAL PLACED ON RECORD. THE LD.REPRESENTATIVE FOR THE TA XPAYER HAS NOW PLACED ON RECORD TWO CERTIFICATES ISSUE BY THE AUDIT MANAGER TO SUPPORT THAT DR K.P. ALI HAD THE CREDITWORTHINESS TO GIVE THE AMOUNT. HOWEVER, THESE CERTIFICATES WERE NOT FILED BEFORE THE LOWER AUTHORITIES. WHEN THE TAXPA YER CLAIMS THAT THE AMOUNTS WERE RECEIVED FROM DR K.P. ALI, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THEY HAVE TO BE EXAMINED WHETHER THE TAXPAYER HAS ACTUAL LY RECEIVED MONEY FROM THE NON RESIDENT INDIAN OR THE TAXPAYERS MONEY WAS ROU TED INDIRECTLY THROUGH NRE ACCOUNT. NOW CERTIFICATES FROM A.L. SAIF AUDITING & ACCOUNTS SIGNED BY ITS AUDIT MANAGER ARE FILED BEFORE THIS TRIBUNAL AS ADDITIONA L EVIDENCE. ADMITTEDLY, THESE CERTIFICATES WERE NOT FILED BEFORE THE LOWER AUTHOR ITY. THEREFORE, IT HAS TO BE EXAMINED WHETHER THE MONEY WITHDRAWN FROM THE FIRM WAS GIVEN TO THE TAXPAYER THROUGH BANKING CHANNEL OR NOT, HAS TO BE E XAMINED. THIS TRIBUNAL IS THEREFORE, OF THE CONSIDERED OPINION THAT THE MATTE R NEEDS TO BE RE-EXAMINED IN THE LIGHT OF THE PRINCIPLES LAID DOWN BY THE APEX C OURT IN THE CASE OF COMMISSIONER OF INCOME-TAX V P MOHANAKALA 291 ITR 278 (SC). SINCE THE LOWER AUTHORITIES HAD NO OCCASION TO EXAMINE THE CERTIFIC ATES NOW FILED BEFORE THIS TRIBUNAL, THE MATTER NEEDS TO BE LOOKED INTO BY THE ASSESSING OFFICER. THEREFORE, 3 ITA NO.526/COCH/2010 THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE A ND THE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE ISSUE AFRESH AND FIND OUT HOW THE MONEY WAS ROUTED FROM T HE NRE ACCOUNT TO THE TAXPAYER AND DECIDE THE ISSUE IN THE LIGHT OF JUDGM ENT OF THE APEX COURT IN THE CASE OF P MOHANAKALA (SUPRA) AND IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE TAXPAYER. IN THE RESULT, APPEAL OF THE TAXPAYER IS ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH NOVEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 16 TH NOVEMBER, 2012 PK/- 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