Mr Joby Mathew, Angamally V. ACIT, Ernakulam

ITA 630/COCH/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4588 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-04-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 22-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Corroborative evidences
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO S . 630 TO 632 /COCH/20 1 0 ASS T . YEAR S : 2001 - 02,2002 - 03 & 2006 - 07 MR. JOBY MATHEW, KOTTACKAL HOUSE, NAYATHODE P.O.,ANGAMALY. PA NO.ACAPM 3614L VS. THE ASSIST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -1, ERNAKULAM. (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI K.P.PAULSON, C.A. RESPONDENT BY SHRI S.C.SONKAR,CIT.,DR . O R D E R PER N.VIJAYAKUMARAN,J.M: THESE THREE APPEALS ARE FILED BY THE ASSESSEE AGAI NST THE SEPARATE ORDERS OF THE LD. CIT(APPEALS)-I, KOCH I DATED 17-08-2010. THE ASSESSMENT YEARS INVOLVED ARE 200 1-02, 2002-03 AND 2006-07. 2. THE FACTS OF THE CASE IN BRIEF ARE THAT THERE WA S A SEARCH U/S.132 ON 13-02-2007 IN THE GROUP CASES OF P.A.KURIAKOSE AND PAULSON VARKEY GROUP. THE ASSES SEE SHRI JOBY MATHEW IS A PARTNER IN THE FIRMS OF M/S. MATHA ENTERPRISES AND M/S. BEST BAKERY AND ICE CREAM PARL OUR, ANGAMALY. SUBSEQUENT TO THE SEARCH, A NOTICE U/S.1 53A OF ITA NOS.630,631 & 632/COCH/2010 MR. JOBY MATHEW 2 THE I.T.ACT DATED 7-2-2008 WAS ISSUED AND THE ASSES SEE WAS REQUIRED TO FILE THE RETURN OF INCOME AND IN RESPON SE TO THAT NOTICE ASSESSEE FILED RETURN OF INCOME. 3. THE FIRST ISSUE FOR ASSESSMENT YEAR 2001-02 IS T HAT 153A DOES NOT APPLY IN THE CASE OF THE ASSESSEE SIN CE THE SEARCH IS NOT LEGAL AND COMPLETED ASSESSMENTS SHALL NOT ABATE. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND P ERUSED THE ENTIRE MATERIALS AVAILABLE ON RECORD. THE ASS ESSEE COULD NOT PRODUCE TO SHOW THAT THIS IS AN ASSESSMEN T WHICH WAS COMPLETED EARLIER PRIOR TO THE SEARCH. THERE IS NO MATERIAL TO PROVE THAT THE ASSESSMENT HAS ALREADY B EEN COMPLETED BEFORE THE SEARCH SO AS TO AVOID THE PROC EEDINGS U/S.153A. HENCE, WE REJECT THIS TECHNICAL OBJECTIO N RAISED BY THE ASSESSEE. 4. THE SECOND ISSUE IS REGARDING THE DISALLOWANCE O F LOAN RECEIVED FROM MR. JOE MENACHERRY AMOUNTING TO RS.1,99,140/-. WHILE FRAMING THE ASSESSMENT, THE A SSESSING OFFICER FOUND THAT THE ASSESSEE HAS RECEIVED A SUM OF RS.1,99,140/- FROM MR. JOE MENACHERRY. THE CONFIR MATION LETTER FILED DOES NOT PROVE THE CAPACITY OF THE LEN DER. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE CONFIRMA TION ALONE ITA NOS.630,631 & 632/COCH/2010 MR. JOBY MATHEW 3 CANNOT PROVE THE CREDIT WORTHINESS AND GENUINENESS OF THE CREDIT AND ACCORDINGLY THIS WAS TREATED AS ASSESSEE S INCOME FROM UNEXPLAINED SOURCES AND ADDED TO THE TOTAL INC OME. ON APPEAL, THE LD. CIT(APPEALS) OBTAINED A REMAND R EPORT AND FINALLY FOUND THAT NO FURTHER EVIDENCE HAS BEEN BROUGHT EXCEPT THE NRE BANK ACCOUNT COPY. THE LD. CIT(APP EALS) WAS OF THE VIEW THAT THE ASSESSEE FAILED TO PROVE T HE CAPACITY AND CREDITWORTHINESS OF THE CREDITOR AND THERE WAS NO MATERIAL CHANGE IN THE POSITION OF THIS CASH CRE DIT. THEREFORE, THE LD. CIT(APPEALS) BY FOLLOWING THE DE CISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ITO VS. DIZA HOLDINGS (P) LTD. (2002) 255 ITR 573 CONFIRMED THE ADDITION. 4.1 WE HAVE CONSIDERED RIVAL SUBMISSIONS. IT IS T HE SETTLED PROPOSITION THAT THE ASSESSEE HAS TO DIS-CHARGE THE ONUS. THE INITIAL BURDEN HAS TO BE DISCHARGED ON THE SIDE OF THE ASSESSEE. THE ASSESSEE HAS TO PROVE THE IDENTITY OF THE CREDITOR, WHICH IN THIS CASE WAS NOT IN DISPUTE. BUT THE OTHER TWO INGREDIENTS, I.E. CAPACITY OF SUCH CREDIT OR TO ADVANCE THE MONEY AND THE GENUINENESS OF THE TRANSA CTION LEFT UN-PROVED TO THE SATISFACTION OF THE ASSESSING OFFICER. UNDER THE ABOVE CIRCUMSTANCES RELYING ON THE DECISI ON OF THE ITA NOS.630,631 & 632/COCH/2010 MR. JOBY MATHEW 4 HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DI ZA HOLDINGS (P) LTD., CITED SUPRA, WE CONFIRMED THE FINDINGS OF THE AUTHORITIES BELOW. THEREFORE, THE ASSESSEE FAILS ON THIS GROUND. 5. THE OTHER ISSUE IS IN RESPECT OF DISALLOWANCE OF SUNDRY LOANS RECEIVED BACK AMOUNTING TO RS.1,57,000/-. O N THIS ISSUE THE POSITION AND THE FACTS ARE BEING SIMILAR, THE LD. CIT(APPEALS) RELYING ON THE AFORESAID DECISION OF T HE JURISDICTIONAL HIGH COURT UPHELD THE FINDINGS OF TH E ASSESSING OFFICER, TO WHICH WE SEE NO JUSTIFICATION TO INTERF ERE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE DESERVES TO BE DISMISSED. 6. THUS ON THE TECHNICAL OBJECTION AS WELL AS ON TH E MERIT, APPEAL FOR THE ASSESSMENT YEAR 2001-02 FAILS. 7. TURNING TO THE ASSESSMENT YEAR 2002-03, THE FIRS T OBJECTION IS IN RESPECT OF PROCEDURAL ASPECT. HER E ALSO THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE EXCEPT THE SARAL FORM OF RETURN TO ESTABLISH THAT IN THIS CASE BEFOR E SEARCH ASSESSMENT HAS BEEN COMPLETED. THE SECTION PROVID ES AS ENVISAGED U/S.153A THAT THE ASSESSMENT OR REASSESSM ENT, IF ITA NOS.630,631 & 632/COCH/2010 MR. JOBY MATHEW 5 ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN THIS SUB SECTION PENDING ON THE DATE OF INITIATION OF THE SEARCH U/S .132 OR MAKING A REQUISITION U/S.132A, AS THE CASE MAY BE, SHALL ABATE. THIS PROVISION IS DIRECTLY APPLICABLE TO TH E PRESENT CASE BEFORE US. THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE THAT THE ASSESSMENTS HAVE ALREADY BEEN COM PLETED BEFORE THE SEARCH. HENCE, SECOND PROVISO IS NOT A PPLICABLE. UNDER THE ABOVE CIRCUMSTANCES, WE REJECT THE ARGUME NT OF THE LD. COUNSEL ON THIS PROCEDURAL OBJECTION AND DE CIDE THE ISSUE IN FAVOUR OF THE REVENUE AND AGAINST THE ASSE SSEE. 8. IN RESPECT OF THE ADDITION ON ACCOUNT OF LOANS A DVANCED IN EARLIER YEARS TO THE TUNE OF RS.49,000/-, THE LD . COUNSEL WOULD SUBMIT THAT THIS IS THE AMOUNT ALREADY ADVANC ED AND RECEIVED BACK DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. HENCE, THIS IS NOT AN INCOME SO AS TO ATTRACT THE ADDITION. HOWEVER, THE LD. CIT(APPEALS) OBSER VED IN PAGE 10 AT PARA.16.2 THAT THE ASSESSEE FAILED TO PR ODUCE SUPPORTING EVIDENCE EITHER DURING THE COURSE OF ASS ESSMENT PROCEEDINGS OR WHEN CALLED UPON TO DO SO BY THE ASS ESSING OFFICER DURING THE COURSE OF REMAND PROCEEDINGS. AS PER THE REPORT OF THE REMANDING OFFICER THESE ADDITIONS WERE NOT ITA NOS.630,631 & 632/COCH/2010 MR. JOBY MATHEW 6 PRESSED DURING REMAND PROCEEDINGS. THEREFORE, THE LD. CIT(APPEALS) FOUND NO JUSTIFICATION TO INTERFERE WI TH THESE ADDITIONS MADE BY THE ASSESSING OFFICER AND FINALLY IT WAS CONFIRMED. BEFORE US ALSO, ASSESSEE HAS NOT PRODU CED ANY EVIDENCE TO PROVE THAT THESE AMOUNTS WERE ADVANCED IN EARLIER YEARS AND RECEIVED BACK DURING THE YEAR UND ER CONSIDERATION. HENCE, WE AGREE WITH THE FINDINGS OF THE LD. CIT(APPEALS) AND REJECT THIS GROUND OF APPEAL. 9. COMING TO THE NEXT ISSUE, I.E. SUNDRY LOANS FROM FRIENDS AMOUNTING TO RS.1,92,000/-, THE LD. CIT(APPEALS) HA S DEALT WITH THIS ISSUE IN PAGE 10 AT PARA 16.2 OF HIS APPE LLATE ORDER AND CONFIRMED THE FINDINGS OF THE ASSESSING OFFICER . BEFORE US ALSO, THE ASSESSEE FAILED TO SUBSTANTIATE HIS CL AIM AND AS SUCH WE ARE UNABLE TO SUBSCRIBE A DIFFERENT VIEW. ACCORDINGLY, THIS APPEAL FOR THE ASSESSMENT YEAR 20 02-03 ALSO DESERVES TO BE DISMISSED AND ACCORDINGLY DISMI SSED. 10. FOR THE ASSESSMENT YEAR 2006-07, THE ASSESSEE H AS RAISED TWO ISSUES, VIZ. 153A DOES NOT APPLY TO THE APPELLANTS CASE SINCE SEARCH IS NOT LEGAL AND COMP LETED ASSESSMENT SHALL NOT ABATE. THE SECOND ISSUE IS IN RESPECT OF SUNDRY LOANS ADVANCED, RECEIVED BACK AMOUNTING TO ITA NOS.630,631 & 632/COCH/2010 MR. JOBY MATHEW 7 RS.1,08,000/-. IN THIS YEAR ALSO, THE FACTS OF TH E CASE ARE SIMILAR. BOTH THE INCOME-TAX AUTHORITIES HAVE REJE CTED THE CLAIM OF THE ASSESSEE AS HAS BEEN DONE FOR THE ASSE SSMENT YEARS 2001-02 AND 2002-03. THE ASSESSEE HAS NOT CO ME WITH ANY FRESH MATERIALS SO AS TO TAKE A DIFFERENT VIEW OR TO MAKE A DEPARTURE FROM THE EARLIER VIEW. THEREFORE , FOR THE VERY SAME REASONS AS HAS BEEN HELD FOR THE ASSESSME NT YEARS 2001-02 AND 2002-03, WE CONFIRM THE FINDINGS OF THE LD. CIT(APPEALS)ON BOTH THE ISSUES AND DISMISS THE APPEAL OF THE ASSESSEE. ACCORDINGLY, THE APPEAL OF THE ASSE SSEE FOR THE ASSESSMENT YEAR 2006-07 IS ALSO DISMISSED. 11. IN THE RESULT, THE ASSESSEE FAILS AND ALL THE T HREE APPEALS FILED ARE DISMISSED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 21 ST APRIL,2011. PM. COPY FORWARDED TO: 1. MR. JOBY MATHEW,KOTTACKAL HOUSE, NAYATHODE P.O.,ANGAMALY. 2. THE ACIT., CENTRAL CIRCLE-1,ERNAKULAM. 3. CIT(A)-I, KOCHI. 4. CIT, CENTRAL,KOCHI. 5. D.R.