Rajkumar Tikamdas Menda, Coimbatore V. ACIT, Coimbatore

ITA 576/CHNY/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73763 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-02-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S LAKSHMINARAYANAN
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , ! ' , # $ BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./I.T.A.NO. 576/MDS/2013 ( / ASSESSMENT YEAR : 2009-10) MR. RAJKUMAR TIKAMDAS MENDA, 205, LAVENDAR BLOCK, 236, RAHEJA ENCLAVE, RACE COURSE ROAD, COIMBATORE-641 018. VS. ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-I(1) COIMBATORE. PAN: AIMPM6737A ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. S.LAKSHMINARAYANAN, C.A /RESPONDENT BY : MR. SHAJI P.JACOB, ADDL. CIT / DATE OF HEARING : 25 TH FEBRUARY, 2014 ! /DATE OF PRONOUNCEMENT : 14 TH MARCH, 2014 % / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, COIM BATORE DATED 16.01.2013 FOR THE ASSESSMENT YEAR 2009-10. T HE ONLY ISSUE IN THE APPEAL OF THE ASSESSEE IS THAT COMMISS IONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADVANC E RECEIVED BY THE ASSESSEE ON BEHALF OF M/S. PRESIDIU M CONSTRUCTIONS (COIMBATORE) PVT. LTD. AMOUNTING TO ITA NO.576/MDS/2013 2 ` 22,25,000/- FROM MR. BHARATH H.BUSA AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT ON THE GROUND TH AT SOURCES FOR CASH CREDIT ALONG WITH GENUINENESS OF THE TRANS ACTION COULD NOT BE SATISFACTORILY PROVED BY THE ASSESSEE. 2. BRIEF FACTS ARE THAT ASSESSING OFFICER WHILE COM PLETING ASSESSMENT MADE ADDITION OF ` 22,25,000/- UNDER SECTION 69A OF THE ACT STATING THAT ASSESSEE HAS FAILED TO PROVE THAT MONEY WAS RECEIVED FROM MR. BHARAT H.BUSA, PROSPECT IVE PURCHASER OF THE FLAT FROM THE COMPANY M/S. PRESIDI UM CONSTRUCTIONS (COIMBATORE) PVT. LTD. IN WHICH THE A SSESSEE MR. R.T.MENDA IS A DIRECTOR, IGNORING THE SUBMISSIO N THAT ASSESSEE RECEIVED CASH OF ` 22,25,000/- ON VARIOUS DATES FROM MR. BHARAT H.BUSA ON BEHALF OF THE COMPANY TO AVOID PAYMENT OF SERVICE TAX AND THE AMOUNTS RECEIVED BY THE ASSESSEE WERE DEPOSITED IN THE COMPANY AND THE COMP ANY HAD RETURNED THOSE MONIES TO MR. BHARAT H.BUSA, WH EN THE TRANSACTION DID NOT MATERIALIZE. THE COMMISSIONER OF INCOME TAX (APPEALS) SUSTAINED THE ADDITION MADE BY THE A SSESSING OFFICER STATING THAT ASSESSEE COULD NOT PRODUCE ANY ITA NO.576/MDS/2013 3 CONFIRMATION FROM THE COMPANY TO PROVE THAT COMPANY HAS DEPOSITED CASH IN HIS BANK ACCOUNT, EVEN THOUGH ASS ESSEE HAS PRODUCED CONFIRMATION FROM MR. BHARAT H.BUSA DA TED 9.4.2009 CONFIRMING THAT HE HAD PAID AMOUNTS TO THE ASSESSEE TOWARDS ADVANCE FOR THE APARTMENT BOOKED B Y HIM. 3. IN THE COURSE OF PROCEEDINGS BEFORE US, AUTHORI ZED REPRESENTATIVE FOR THE ASSESSEE FILED ADDITIONAL EV IDENCES BEING LETTER ISSUED BY THE COMPANY TO THE EFFECT TH AT COMPANY HAS RECEIVED MONEY FROM MR. BHARAT H.BUSA AND DEPOS ITED THE SAME INTO ASSESSEES ACCOUNT AND ON THE VERY NE XT DAY THE ASSESSEE GAVE CHEQUES TO THE COMPANY FOR ` 22,25,000/- DEPOSITED IN HIS ACCOUNT. LATER THE COMPANY HAS REP AID ` 22,25,000/- TO THE PURCHASER MR. BHARAT B.BUSA AS T HE TRANSACTION COULD NOT MATERIALIZE. HE ALSO PRODUCED ACCOUNT COPY OF MR. R.T.MENDA IN THE BOOKS OF M/S. PRESIDIU M CONSTRUCTIONS (COIMBATORE) PVT. LTD. TO SUBSTANTIAT E HIS SUBMISSION. ITA NO.576/MDS/2013 4 4. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBM ITS THAT LETTER AND THE ACCOUNT COPY OF THE ASSESSEE IN THE BOOKS OF THE COMPANY FILED BY THE ASSESSEE AS ADDITIONAL EVIDENCE COULD NOT BE COLLECTED FROM THE COMPANY EARLIER AS THE ASSESSEE RESIGNED FROM THE COMPANY AND THERE WERE S OME DISPUTES BETWEEN THE ASSESSEE AND THE COMPANY AND ULTIMATELY HE GOT THE LETTER AND ACCOUNT COPY FROM THE COMPANY RECENTLY AND CONSIDERING THE ADDITIONAL EV IDENCE FILED BY THE ASSESSEE, HE REQUESTS THIS TRIBUNAL TO ADMIT THE ADDITIONAL EVIDENCES AND DELETE THE ADDITION MADE B Y THE ASSESSING OFFICER. 5. DEPARTMENTAL REPRESENTATIVE SUBMITS THAT SINCE ADDITIONAL EVIDENCES WERE PRODUCED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL WHICH WERE NOT FURN ISHED EITHER BEFORE THE ASSESSING OFFICER OR COMMISSIONER OF INC OME TAX (APPEALS), THEY SHOULD NOT BE ENTERTAINED, EVEN IF THEY ARE ENTERTAINED, THE MATTER SHOULD GO BACK TO THE ASSES SING OFFICER FOR VERIFICATION. ITA NO.576/MDS/2013 5 6. IN REPLY, AUTHORIZED REPRESENTATIVE SUBMITS THA T HE HAS NO OBJECTION IF THE MATTER IS SENT BACK TO THE ASSE SSING OFFICER FOR VERIFICATION OF GENUINENESS OF THE LETTER PRODU CED BY THE ASSESSEE BEFORE THE TRIBUNAL AS WELL AS ACCOUNT COP Y OF MR. R.T.MENDA IN THE BOOKS OF M/S. PRESIDIUM CONSTRUCTI ONS (COIMBATORE) PVT. LTD. 7. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES AND THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. THE LETTER AND ACCOUNT COPY OF MR. R.T.MENDA IN THE BOOKS OF M /S. PRESIDIUM CONSTRUCTIONS (COIMBATORE) PVT. LTD. NOW PRODUCED BY THE ASSESSEE BY WAY OF ADDITIONAL EVIDENCES ARE ADMITTED AS THEY ARE RELEVANT AND GOING TO THE ROOT OF THE M ATTER AND THE ASSESSEE COULD NOT COLLECT THEM FROM THE COMPA NY EARLIER AND SINCE THESE EVIDENCES WERE NOT PRODUCED BEFORE THE LOWER AUTHORITIES, IN THE INTEREST OF JUSTICE, WE R EMIT THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMIN E AFRESH IN THE LIGHT OF THE ADDITIONAL EVIDENCES PRODUCED BY T HE ASSESSEE AFTER GIVING ADEQUATE OPPORTUNITY TO THE A SSESSEE. ITA NO.576/MDS/2013 6 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 14 TH DAY OF MARCH, 2014 AT CHENNAI. SD/- SD/- (A.MOHAN ALANKAMONY) (CHALLA NAGEN DRA PRASAD) ACCOUNTANT MEMBER JUDI CIAL MEMBER CHENNAI, DATED THE 14 TH MARCH, 2014. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R (3) CIT (6) G.F.