Nadira Anees, Hyd, Hyderabad V. ITO, Ward-7(1), Hyderabad, Hyderabad

ITA 599/HYD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2306 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Keywords: Unexplained investment; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 599/HYD/2015 ASSESSMENT YEAR: 2005-06 SMT. NADIRA ANEES, HYDERABAD [PAN: AFVPA9708D] VS INCOME TAX OFFICER, WARD-7(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI P.C. YADAV, AR FOR REVENUE : SMT. N. SWAPNA, DR DATE OF HEARING : 28-11-2017 DATE OF PRONOUNCEMENT : 30-11-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-3, HYDERABAD, DATED 09-01-2015, FOR THE AY. 2005-06. 2. CONDONATION: THIS APPEAL WAS FILED WITH A DELAY O F 12 DAYS. THE DELAY WAS ATTRIBUTED HER ILL-HEALTH DURING THAT TIME . CONSIDERING THE EXPLANATION AND AFFIDAVIT FILED, THE DELAY OF 12 DAYS IN FILING THE APPEAL IS CONDONED AND APPEAL IS ADMITT ED. 3. BRIEFLY STATED, ASSESSEE IS A PARTNER IN M/S. SIGMA CONSTRUCTIONS. ASSESSEE FILED HER RETURN OF INCOME O N 01-08-2005 ADMITTING A TOTAL INCOME OF RS. 82,250/- AND AGRICULTUR AL INCOME OF I.T.A. NO. 599/HYD/2015 :- 2 - : RS. 96,000/-. THE AO ADDED A SUM OF RS. 14,19,439/ - AS UNEXPLAINED INVESTMENT BY ASSESSEE IN THE FIRM SIGMA CONSTRUCTIONS AND ASSESSED THE TOTAL INCOME AT RS. 15,01, 689/-. 3.1. THE ISSUE IN APPEAL RELATES TO THE ADDITION TOWARD S THE UNEXPLAINED INVESTMENT. ASSESSEE HAD CLAIMED TO HAVE MADE THE INVESTMENT OUT OF THE FOLLOWING LOAN RECEIVED BY HER: NAME (SRI/SMT) DATE AMOUNT (RS) I. SYED ADEELUDDIN (SON) 03 - 04 - 2004 4,90,000 II. SYED ADEELUDDIN (SON) 25 - 05 - 2004 1,00, 000 III. FARHAN MOHD. KHAN 08 - 04 - 2004 2,00,000 IV. MEHJABIN 21 - 05 - 2004 6,29,435 4. BEFORE THE LD.CIT(A), ASSESSEE FILED CERTAIN CONFI RMATIONS. LD.CIT(A) CONSIDERING THE EXPLANATION AND EVIDENCES FILED, ACCEPTED THE CREDITS IN THE FIRST THREE NAMED PERSONS BUT REJECTE D IN THE CASE OF SMT. MEHJABIN BY STATING AS UNDER: 5.8 THE APPELLANTS BANK ACCOUNT SHOWED A CREDIT O F RS. 6,29,439 CLAIMED TO HAVE BEEN RECEIVED FROM SMT. MEHJABIN, S AID TO BE RESIDENT OF USA. THE APPELLANT DID NOT FURNISH THE ACCOUNT NUM BER OF SMT. MEHJABIN. THE APPELLANT ALSO EXPRESSED HER INABILITY TO FURNI SH A CONFIRMATION FROM SMT. MEHJABIN THOUGH THE PRINTOUT OF AN EMAIL FROM HER WAS FILED. THE ASSESSING OFFICER HELD THAT SINCE THE APPELLANT HAD FAILED TO ESTABLISH THE CREDITWORTHINESS OF SMT. MEHJABIN, THE CLAIM OF REC EIPT OF LOAN OF RS. 6,29,439 FROM SMT. MEHJABIN COULD NOT BE ACCEPTED. 5.9. 5.10.. 5.11 IT IS ALSO A FACT THAT THE CREDIT IN THE BANK STATEMENT HAS BEEN RECEIVED THROUGH BANKING, CHANNELS. HOWEVER, THE BA NK STATEMENT DOES NOT RECORD THE NAME OR THE BANK ACCOUNT DETAILS OF THE CREDITOR. THE I.T.A. NO. 599/HYD/2015 :- 3 - : APPELLANT HAS ALSO FAILED TO FURNISH THESE DETAILS. THOUGH AN EMAIL PRINTOUT WAS FILED, AN EMAIL ALONE CANNOT BE ACCEPTED AS A C ONFIRMATION SINCE THE AUTHENTICITY OF THE EMAIL OR THE IDENTITY OF THE PE RSON SENDING THE EMAIL CANNOT BE ESTABLISHED. AS A RESULT, THE APPELLANT H AS FILED TO DISCHARGE THE ONUS CAST ON HER TO ESTABLISH THE IDENTITY AND CRED ITWORTHINESS OF THE CREDITOR OR THE GENUINENESS OF THE TRANSACTION. THE PLEA OF THE APPELLANT REGARDING THE ALLEGED CREDIT OF RS. 6,29,439 IS, TH EREFORE, REJECTED. 5. IT WAS THE CONTENTION THAT ASSESSEE HAD RECEIVED CREDI TS IN LATER YEAR ALSO AND LD.CIT(A) HAS ACCEPTED THE CREDIT FROM SMT. MEHJABIN AS GENUINE AND FILED THE ORDER OF LD.CIT(A) IN AY. 2006- 07 IN SUPPORT. 6. LD.DR, HOWEVER, SUPPORTED THE ORDER OF AUTHORITIES AND STATED THAT ASSESSEE HAS NOT DISCHARGED THE ONUS OF ESTABL ISHING THE CREDITWORTHINESS. 7. I HAVE CONSIDERED THE RIVAL CONTENTIONS. IT IS A F ACT THAT ASSESSEE HAS NOT FURNISHED ANY CONFIRMATION OF HAVING RECEIVED MONEY FROM THE SAID SMT. MEHJABIN. HOWEVER, LD.CIT(A ) IN LATER YEAR HAVE ACCEPTED THE CREDIT FROM THE SAME PERSON. T HE EVIDENCE FURNISHED IN THAT YEAR COULD NOT BE VERIFIED BY ME. REVENUE COULD NOT COME IN APPEAL, IF NOT ACCEPTED, ON THE REASON O F TAX EFFECT. HOWEVER, CONSIDERING THE FACT THAT LD.CIT(A) HAS ACCEP TED THE CREDIT FROM THE SAME PERSON IN LATER YEAR. I AM OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY TO FUR NISH NECESSARY CONFIRMATION FROM THE PERSON ESTABLISHING ID ENTITY, CREDITWORTHINESS AND IF AMOUNT IS REPAID, THE DETAILS OF REPAYMENT OF THE SAID AMOUNT TO HER, SO AS TO DISCHARGE THE ONUS P LACED ON ASSESSEE, THAT THIS AMOUNT IS A GENUINE CREDIT. FOR THI S PURPOSE THE ORDER OF AO AND LD. CIT(A) IS SET ASIDE TO THAT EXTE NT AND ISSUE I.T.A. NO. 599/HYD/2015 :- 4 - : IS RESTORED TO THE FILE OF AO FOR FRESH EXAMINATION. A O IS DIRECTED TO EXAMINE THE ABOVE AND DECIDE THE MATTER AS PER THE FACTS AND LAW ON THE ISSUE. GROUNDS ARE TREATED AS ALLOWED FOR STATIS TICAL PURPOSES. 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH NOVEMBER, 2017 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 30 TH NOVEMBER, 2017 TNMM I.T.A. NO. 599/HYD/2015 :- 5 - : COPY TO : 1. SMT. NADIRA ANEES, C/O. M.M. FIRDOS, ADVOCATE, 11-3-942, 1 ST FLOOR, NEW MALLEPALLY, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-7(1), HYDERABAD. 3. CIT (APPEALS)-3, HYDERABAD. 4. CIT-3, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.