Hemanta Kumar Patnaik, Bhubaneswar V. ACIT, Circle-1(1), Bhubaneswar, Bhubaneswar

ITA 541/CTK/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6325 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 27-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: D K SHETH; M SETH

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK . . , . . , BEFORE SHRI P.K.BANSAL , AM & SHRI D.T.GARASIA , JM ./ ITA NO. 5 41 / CTK /20 1 3 ( / ASSESSMENT YEAR : 20 09 - 10 ) HEMANTA KUMAR PATNAIK, PLOT NO. 2130/4711, VIVEKANANDA MARG, BHUBANESWAR - 751 002 VS. ACIT, CIR - 1(1), BHUBANESWAR ./ ./ PAN/GIR NO. : A A SPP 6302 N ( / APPELLANT ) .. ( / RE SPONDENT ) /ASSESSEE BY : SHRI D.K.SHETH & SHRI M.SETH /REVENUE BY : SHRI S.C.MOHANTY / DATE OF HEARING : 2 8 TH APRIL , 201 4 / DATE OF PRONOUNCEMENT : 01/05 /201 4 / O R D E R PER BENCH : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 16 .09.2012 . 2 . THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO ADDITION OF RS. 3,01,200/ - MADE BY THE AO AND SUSTAINED BY THE CIT(A). 3. BR IEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DIRECTOR OF A MANAGEMENT INSTITUTE IN BHUBANESWAR. THE RETURN DECLARING AN INCOME OF RS. 39,69,052/ - WAS FILED. THE AO NOTED THAT THE ASSESSE PURCHASED THE AGRICULTURAL LAND FOR RS. 14,00,000/ - . ON 19 - 5 - 2008 F OR THE PURCHASE 2 ITA NO. 541 /201 3 OF 6 ACRES OF AGRICULTURAL LAND, A SUM OF RS. 6,01,200/ - WAS PAID BY THE ASSESSE. THE AO ASKED FOR THE SOURCE OF THIS AMOUNT. THE ASSESSE EXPL AINED THAT HE WAS HAVING OPEN CASH IN H AND OF RS. 2 , 5 7,719/ - AND HAS ALSO DISCLOSED MISCELLANEOUS INCOME AT RS. 7,65,000/ - , WHICH WAS SUFFICIENT TO MAKE THE PAYMENT OF RS. 6,01,200/ - . THE AO WAS NOT SATISFIED, THEREFORE, ADDED THE SUM OF RS. 6,01,200/ - . THE ASSESSE WENT IN APPEAL BEFORE THE CIT( A), WHO RESTRICTED THE ADDITION TO RS. 3,01,200/ - , EVEN THOUGH THE CIT(A ) ACCEPTED THAT THE ASSESSE WAS HAVING OPEN CASH IN HAND OF RS. 2,57,719/ - BUT TOOK THE VIEW THAT FULL MISCELLANEOUS INCOME AT RS. 7,65,000/ - WOULD HAVE NOT ACCRUED TO THE ASSESSE UPTO 19 - 5 - 2008. 4 . WE HEARD RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE S AME . WE NOTED THAT THIS IS ONLY DISPUTED FACT THAT THE ASSESSE WAS HAVING OPEN CASH IN HAND AT RS. 2,57,719/ - , WHICH IS APPARENT FROM THE BALANCE SHEET RELATING TO THE YEAR ENDED 31 - 3 - 2008. THIS IS ALSO A FACT THAT THE ASSESSE HAS SHOWN IN THE RETURN THAT INCOME FROM MISCELLANEOUS RECEIPT RECEIVED DURING THE YEAR IS RS. 7,65,000/ - . NOW, THE QUESTION ARISES AS TO WHETHER THE WHOLE MISCELLANEOUS INCOME HAS BEEN RECEIVED BY THE ASSESSE PRIOR TO 19 - 5 - 2008 OR NOT. LEARNED AR, BEFORE US, EVEN THOUGH VEHEMENTLY CO NTENDED THAT THIS MONEY WAS SUFFICIENT TO COVER UP THE SOURCE OF RS. 6,01,200/ - BUT IN THE ABSENCE OF DETAILS WHETHER THE MONEY HAS BEEN RECEIVED BY THE ASSESSE PRIOR TO 3 ITA NO. 541 /201 3 19 - 5 - 2008 OR NOT, IT CANNOT BE SAID THAT ALL THE MISCELLANEOUS INCOME HAS BEEN RECEIVED BY THE ASSESSE PRIOR TO THAT. IN OUR OPINION , ONUS IS ON THE ASSESSE TO PROVE THE SOURCE AND ALSO THE FACT THAT HE HAS RECEIVED THIS MISCELLANEOUS INCOME PRIOR TO THAT DATE. IN THE STATEMENT OF INCOME, THE ASSESSE EVEN THOUGH HAS SHOWN THE INCOME FROM OTH ER SOURCES BUT HAS NOT GIVEN ANY DATE. SINCE THE ASSESSE WAS HAVING OPENING CASH IN HAND OF RS. 2,57,719/ - , WE, THEREFORE, AT THE BEST ON THE BASIS OF THE PROBABILITY OF EARNING OF INCOME, OF THE VIEW THAT THE ASSESSE WOULD HAVE RECEIVED PART OF THE MISCELL ANEOUS INCOME THAT COULD HAVE SUFFICIENT TO MEET OUT AN INVESTMENT OF RS. 4 LAKHS OUT OF THE SUM OF RS. 6,01,200/ - INVESTED BY THE ASSESSE. WE, THEREFORE, REDUCE THE DISALLOWANCE TO RS. 2,01,200/ - AND SUSTAINED THE SAID ADDITION. THUS, THE ASSESSE GETS RELIEF OF RS. 1,00,000/ - MORE. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01/05 / 201 4 . 01 /05 /2014 SD/ - SD/ - ( . . ) ( D.T.GARASIA ) ( . . ) ( P.K.BANSAL ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK ; DATED 01/05 /2014 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 4 ITA NO. 541 /201 3 / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, CUTTACK 3. ( ) / THE CIT(A) , BHUBANESWAR 4. / CIT , BHUBANESWAR 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//