ITO, V. Sri. Channegowda Madhugowda, Bangalore

ITA 643/BANG/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0403 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 26-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 54

Judgement Text

ITA.643/BANG/2013 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'A', BANGALORE BEFORE SHRI. SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. ABRAHAM P. GEORGE, ACCOUNTANT MEMBER I.T.A NO.643/BANG/2013 (ASSESSMENT YEAR : 2009-10) INCOME TAX OFFICER, WARD 4(1), BANGALORE .. APPELLANT V. SHRI. CHANNEGOWDA MADHUGOWDA, NO.A-203, 10 TH C MAIN ROAD, RAJAPRAKRUTHI APARTMENT, I BLOCK, JAYANAGAR, BENGALURU 560 011 .. RESPONDENT PAN : AGIPG2710P ASSESSEE BY : NONE REVENUE BY : DR. G. MANOJ KUMAR, ADDL. CIT HEARD ON : 26.05.2016 PRONOUNCED ON : 31.05.2016 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL BY THE REVENUE IT HAS TAKEN THE FOL LOWING GROUNDS : 1. THE CIT(A) ERRED IN GRANTING RELIEF ON UNEXPLAINED CASH DEPOS I TS TO THE EXTENT OF RS 21,80,000/- MERELY RELYING O N THE CHANGED VERSION OF THE ASSESSEE'S SUBMISSIONS REGAR DING ITA.643/BANG/2013 PAGE - 2 ENTRIES IN THE CASH BOOK FOR AN AMOUNT OF RS 15 LAC S WITHOUT ALLOWING AO TO CROSS VERIFY THE TRANSACTION S WITH THE CONCERNED PARTIES. 2. THE CIT(A), HAVING CONSIDERED RS 9 LACS AS COMMISSI ON RECEIVED AND ACCOUNTED AND RS 15 LACS AS RECEIVED F ROM MR VASU, ERRED IN GRANTING RELIEF FOR THE BALANCE AMOU NT OF RS 6,80,000/- WITHOUT ANY SUBSTANTIATING EVIDENCE F ROM THE ASSESSEE'S SIDE. 3. THE CIT(A) FAILED TO APPRECIATE THAT THE PROVISIONS OF SEC. 54 ENVISAGED THAT THE CAPITAL GAINS CLAIMED AS DEDUCTION WILL BE TAXED ONLY IN THE YEAR OF EXPIRY OF THREE YEARS PERIOD FROM THE DATE OF TRANSFER OF ORIGINAL ASSET ONLY IN A SITUATION OF DEPOSITING THE CAPITAL GAINS IN THE CA PITAL GAINS SCHEME AND NOT UTILIZING THE SAME WITHIN THE SAID P ERIOD. THE CIT(A) OUGHT TO HAVE HELD THAT DEDUCTION U/S 54 SHOULD BE DENIED IN THIS YEAR SINCE THE ASSESSEE DID NOT DEPO SIT THE CAPITAL GAINS IN CAPITAL GAINS SCHEME. 02. LD. DR SUBMITTED THAT ASSESSEE HAS DEPOSITED RS .52,80,000/- IN ICICI BANK, BUT COULD NOT SUBMIT ANY SOURCE FOR SUC H DEPOSITS. CIT (A) HAD ACCEPTED THE CLAIM OF THE ASSESSEE FOR SUM OF R S.8,89,000/- CLAIMED BY THE ASSESSEE AS COMMISSION RECEIVED AND RS.15 LAKHS CLAIMED BY THE ASSESSEE AS ADVANCE RECEIVED FOR SALE OF A PROPERTY FROM ONE SHRI. RADHAKRISHNA. ACCORDING TO LD. DR, EVEN IF THESE T WO AMOUNTS WERE ACCEPTED WHAT OUGHT HAVE BEEN SUSTAINED BY THE CIT (A) WAS NOT RS.21,80,000/-, BUT RS.28,91,000/-. FURTHER ACCORD ING TO THE LD. DR A ITA.643/BANG/2013 PAGE - 3 CLAIM OF THE ASSESSEE U/S.54 OF THE ACT WAS ALLOWED BY THE CIT (A) DESPITE ASSESSEE HAVING NOT DEPOSITED THE GAINS IN ANY ACCO UNT UNDER THE CAPITAL GAINS SCHEME. 03. NOBODY APPEARED ON BEHALF OF THE ASSESSEE, DESP ITE NOTICE HAVING BEEN SERVED ON THE ASSESSEE THROUGH THE DEPARTMENT. 04. WE HAVE PERUSED THE MATERIAL ON RECORD AND HEAR D THE LD. DR. VIS- A-VIS ADDITION MADE BY THE AO FOR CASH DEPOSITS OF RS.52,80,000/- IN ICICI BANK, SOURCE GIVEN BY THE ASSESSEE AND THE EVIDENCE FURNISHED WERE AS UNDER : RS.IN LAKHS EVIDENCE COMMISSION INCOME 8.89 CREDIT IN P & L ACCOUNT FROM FATHER-IN-LAW AS WIFES SHARE IN AGRICULTURAL LAND. 10.00 NO PROOF ADVANCE FOR SALE OF A HOUSE AT JAYANAGAR 05.50 NO PROOF ADVANCE FOR SALE OF A PROPERTY, FROM RADHAKRISHNA 15.00 EXCHANGE DEED FOR PROPERTY FROM MOTHER OUT OF HER SAVINGS 3.00 NO PROOF ON SALE OF PROPERTY AT RAMAIAH LAYOUT 4.00 NO PROOF TOTAL 45.89 ITA.643/BANG/2013 PAGE - 4 COMMISSION OF RS.8.89 LAKHS IN THE ABOVE TABLE WAS SHOWN BY THE ASSESSEE IN THE RETURN OF INCOME. SUM OF RS.15 LAKHS WAS RE CEIVED BY THE ASSESSEE WHEN HE EXCHANGED HIS PROPERTY WITH ONE SHRI. RADHA KRISHNA AND THE SAME REPRESENTED THE DIFFERENCE IN VALUE OF PROPERTY. C IT (A) GAVE RELIEF FOR THE ABOVE AMOUNTS SINCE EVIDENCE FOR BOTH THE ABOVE WER E PRODUCED BY THE ASSESSEE. CIT (A) GAVE SUCH RELIEF AFTER GETTING RE MAND REPORT FROM THE AO. EVEN AFTER CONSIDERING THE ABOVE AMOUNTS, THE DIFFE RENCE TO BE EXPLAINED BY THE ASSESSEE CAME TO RS.28.91 LAKHS. WE ARE THE REFORE OF THE OPINION THAT WHILE CIT (A) WAS JUSTIFIED IN GIVING RELIEF F OR RS.23.89 LAKHS, HE OUGHT HAVE CONFIRMED A SUM OF RS.28.91 LAKHS AND NO T RS.22 LAKHS. ORDERED ACCORDINGLY. IN THE RESULT GROUND 1 OF THE REVENUE IS DISMISSED WHEREAS ITS GROUND.2 STANDS ALLOWED. 03. VIS-A-VIS APPLICATION OF SECTION 54 OF THE ACT , WE FIND THAT CIT (A) HAD REMITTED THE MATTER BACK TO THE AO FOR EXAMINAT ION AND THEREAFTER TO DECIDE WHETHER ANY AMOUNT WAS TO BE TAXED AND TO WH AT EXTENT. WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT (A) IN THIS REGARD. GROUND.3 STANDS DISMISSED. ITA.643/BANG/2013 PAGE - 5 04. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST DAY OF M AY, 2016. SD/- SD/- (SUNIL KUMAR YADAV) (ABRAHAM P GEORGE) JUDICIAL MEMBER ACCOUNTANT ME MBER MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER ASSISTANT REGISTRAR