NIrmal Kumar Jain, CHENNAI V. ACIT, CHENNAI

ITA 669/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9226 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 18-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R CLEMENT RAMESH KUMAR
• Assessee Lawyers: K M MOHANDASS
• Section: 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBE R AND SHRI. G. PAVAN KUMAR, JUDICIAL MEMBER ./I.T.A. NO.669/MDS/2016. / ASSESSMENT YEAR : 2008-2009 NIRMAL KUMAR JAIN, NO.83, THIRUPALLY STREET, SOWCARPET, CHENNAI 600 079. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE XI, CHENNAI 600 006. [PAN ACJPN 7612A] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : SHRI. K.M.MOHANDASS, C.A., $% ! ' # /RESPONDENT BY : SHRI. R. CLEMENT RAMESH KUMAR, ADDL. CIT. & ' ' ( /DATE OF HEARING : 24-05-2016 ) ' ' ( /DATE OF PRONOUNCEMENT : 31-05-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-5, CHENNAI IN ITA NO.139/CIT(A)-5/13-14, DT 30.01.2016 FOR THE ASSESS MENT YEAR 2008-2009 ITA NO.669/MDS/2016. :- 2 -: PASSED U/S.143(3) AND 250 OF THE INCOME TAX ACT, 1 961 (HEREIN AFTER REFERRED TO AS THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND:- 1.4 THE LD.CIT(A)-5, CHENNAI ERRED IN ADDING THE CASH DEPOSITS OF 914,50,025/- IN M/S. IDBI BANK, STATED IN AIR INFORMATION WITHOUT MAKING ANY FURTHER ENQUIRIE S AS TO WHETHER THE SAID CASH DEPOSITS REPRESENTS THE IN COME OF THE APPELLANT. 3. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE IS A CHARTERED ACCOUNTANT AND FILED RETURN OF INCOME ON 31.10.2008 WITH TOTAL INCOME OF 915,03,975/- AND RETURN WAS PROCESSED U/S.143(1) OF THE ACT AND SUBSEQUENTLY, UNDER SCRUTINY NORMS NOTICE U/S.143(2 ) OF THE ACT WAS ISSUED. IN COMPLIANCE TO NOTICE, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED I NFORMATION AND WRITTEN SUBMISSIONS. THE LD. ASSESSING OFFICER FOUN D AS PER AIR INFORMATION THE ASSESSEE HAS DEPOSITED AN AGGREGATE CASH DEPOSITS OF 914,50,025/- IN M/S. IDBI BANK LTD AND CALLED FOR CLARIFICATIONS AND THE ASSESSEE FURNISHED BANK STATEMENTS AND CASH BOOK. THE LD. ASSESSING OFFICER VERIFIED AND TEST CHECKED THE BOOKS OF ACCO UNT BUT COULD NOT TALLY THE DETAILS SUBMITTED BY THE ASSESSEE WITH AIR INF ORMATION AND MADE AN ADDITION OF 914,50,025/- AND ASSESSED TOTAL INCOME OF 929,54,000/- BY ORDER U/S.143(3) OF THE ACT DATED 21.12.2010. AGGR IEVED BY THE ORDER, THE ASSESSEE FILED AN APPEAL BEFORE COMMISSIONER OF INC OME TAX (APPEALS). ITA NO.669/MDS/2016. :- 3 -: 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED RE PRESENTATIVE OF ASSESSEE REITERATED THE SUBMISSIONS OF ASSESSME NT PROCEEDINGS AND ARGUED THE GROUNDS AND EXPLAINED THAT THE ADDITION CANNOT BE SUSTAINED AS ASSESSEE IS HAVING ADEQUATE SOURCES AND THE LD. ASSESSING OFFICER HAS NOT LOOKED INTO BOOKS OF ACCOUNT AND BANK STATEMENT S AND RELIED ON SAMPLING TEST CHECK. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON PERUSAL OF THE GROUNDS AND FINDINGS OF THE LD. ASSE SSING OFFICER CALLED FOR THE EXPLANATIONS AND LD. AUTHORISED REPRESENTATIVE IN THE APPELLATE PROCEEDING EXPLAINED THAT ASSESSEE HAS SOLD THE PRO PERTY ON 06.09.2007 AND THE CASH WAS DEPOSITED IN SAVING ACCOUNT OF IDB I BANK . THE LD. AUTHORISED REPRESENTATIVE ON QUERY OF THE COMMISSIO NER OF INCOME TAX (APPEALS) EXPLAINED THAT BY THE TIME EXPLANATIONS A RE SUBMITTED THE ASSESSMENT WAS COMPLETED. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED WRITTEN SUBMISSIONS, MATERIALS FILED ON RECORD AND CASH DEPOSITED IN IDBI BANK AND COMPARED DEPOSITS F OR THE PERIOD FROM 3.4.2007 TO 31.1.2008. ON COMPARISON WITH THE RECEI PTS OF SALE CONSIDERATION OF PROPERTY ON 21.09.2007 97,21,000/ - AND 06.10.2007 97,31,500/-. THE LD. COMMISSIONER OF INCOME TAX (A PPEALS) FOUND THE DIFFERENCE IN DATES OF CASH DEPOSITS AND RECEIPTS OF SALE AND UNILATERAL CONCLUDED THAT SALE PROCEEDS ARE NOT SOURCE TO THE CASH DEPOSITS IN BANK AND THE ASSESSEE HAS FAILED TO IDENTITY THE SOURC ES AND UPHELD THE ORDER ITA NO.669/MDS/2016. :- 4 -: OF THE LD. ASSESSING OFFICER. AGGRIEVED BY THE COM MISSIONER OF INCOME TAX (APPEALS) ORDER, THE ASSESSEE ASSAILED AN APPEA L BEFORE TRIBUNAL. 5. THE LD. AUTHORISED REPRESENTATIVE REITERATED THE SU BMISSIONS OF ASSESSMENT PROCEEDINGS AND APPELLATE PROCEEDINGS AN D EXPLAINED THAT ASSESSEE HAS SOLD THE PROPERTY AND DEPOSITED THE CA SH IN IDBI BANK AND PRODUCED BANK STATEMENT, CASH BOOK TO SUPPORT THE S OURCE OF CASH DEPOSITS. BUT THE LD. ASSESSING OFFICER HAS ONLY T EST CHECKED AND NOT CONSIDERED OTHER BANK STATEMENTS. THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS RELIED ON THE DATES OF SALE RECEIPT COMPARED WITH THE AGGREGATE DEPOSITS OF BANK ACCOUNT FROM 03.04.2007 TO 31.1.2008 AND CAME TO A CONCLUSION THAT SALE RECEIPT SOURCE IS N OT A CORRECT SOURCE AND ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFI CER. THE LD. AUTHORISED REPRESENTATIVE SUBSTANTIATED HIS ARGUMENT BY FILIN G CASH INFLOW STATEMENT OF DEPOSITS IN THE IDBI BANK, COPY OF LEDGER ACCOU NT AND OTHER BANK ACCOUNT STATEMENT OF AP MAHESH BANK CO-OP BANK, IO B AND IDBI BANK. FURTHER DEMONSTRATED THAT THE ASSESSEE MADE WITHDRA WALS FROM OTHER BANK ACCOUNTS AND DEPOSITS IN IDBI BANK ARE SUPPOR TED WITH CASH DRAWALS AND LOANS MENTIONED IN STATEMENT OF CASH INFLOWS F OR DEPOSITS IN IDBI BANK FROM 01.04.2007 TO 31.03.2008 AND PRAYED FOR A LLOWING THE APPEAL. ITA NO.669/MDS/2016. :- 5 -: 6. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND OBJECTE D TO FILING OF FRESH EVIDENCE OF BANK ACCOUNT STATEMENTS AND CASH INFLOW STATEMENT FILED BEFORE THE TRIBUNAL AND OBJECTED SERIOUSLY AND PRA YED FOR DISMISSING THE APPEAL. 7. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIA L ON RECORD. THE CRUX OF THE ISSUE EMPHASIZED BY THE LD. AUTHORI SED REPRESENTATIVE THAT ASSESSEE IS HAVING ADEQUATE SOURCES TO ESTABLI SH THE DEPOSITS IN IDBI BANK AND THE LD. ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT CONSIDERED THE ASSESSEES SUBMISS IONS AND CAME TO A CONCLUSION THAT SOURCES ARE INADEQUATE AND COULD NO T BE SUSTAINED. THE LD. AUTHORISED REPRESENTATIVE FILED STATEMENT OF CA SH INFLOW FOR DEPOSITS MADE IN IDBI BANK EXPLAINING SUPPORT FOR DEPOSITS W ITH SELF WITHDRAWALS FROM BANK ACCOUNTS AND SALE CONSIDERATION AND EXPLA INED THE WITHDRAWALS OF THE BANK ACCOUNT. THE LD. DEPARTMENTAL REPRESE NTATIVE OBJECTED TO THE FILING OF EVIDENCE AS ASSESSING OFFICER WAS NO T PROVIDED OPPORTUNITY TO VERIFY THE CLAIM OF THE ASSESSEE. WE CONSIDERING T HE APPARENT FACTS, CASH INFLOW STATEMENT AND BANK STATEMENTS FILED BEFORE U S ARE OF THE OPINION THAT GENUINENESS OF THE TRANSACTION OF BANK WITHDRA WALS AND DEPOSITS HAVE TO BE VERIFIED AND THE LD. ASSESSING OFFICER WAS NOT PROVIDED OPPORTUNITY IN THE ASSESSMENT PROCEEDINGS TO VERIFY AND EXAMINE THE ITA NO.669/MDS/2016. :- 6 -: GENUINENESS OF CLAIM AND PROVISIONS OF RULE 46A OF INCOME TAX RULES HAVE TO BE COMPLIED. SO, WE ARE OF THE OPINION THA T MATTER HAS TO BE REMITTED TO THE ASSESSING OFFICER TO VERIFY THE GEN UINENESS OF THE CLAIM AND WE SET ASIDE THE ORDER OF LD.CIT(A) AND REMIT THE ENTIRE DISPUTED ISSUE TO THE FILE OF ASSESSING OFFICER TO CONSIDER AFRESH AND THE ASSESSEE SHOULD BE PROVIDED ADEQUATE OPPORTUNITY BEFORE PASS ING THE ORDER. THE GROUND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATIS TICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.669/MDS/2016 IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON TUESDAY, THE 31ST DAY OF MAY, 2016 AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) # $% / ACCOUNTANT MEMBER ( & . ' ( ) (G. PAVAN KUMAR) ) $% / JUDICIAL MEMBER *& / CHENNAI + / DATED:31ST MAY, 2016. KV , ' $'./ 0/' / COPY TO: 1 . ! / APPELLANT 2. $% ! / RESPONDENT 3. 1' () / CIT(A) 4. 1' / CIT 5. /4 5 $'6 / DR 6. 5 7 8 & / GF