ITO, Hyderabad V. Smt N.Kalavathi, Secunderabad

ITA 682/HYD/2006

• Counselvise Citation: 68222514 RSA 2006
• Duration Of Justice: 8 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 24-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 03-07-2006
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: S RAMA RAO
• Keywords: Unexplained investment; Additional evidence
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.682/HYD/2006 : ASSESSMENT YEAR 2001 - 02 ITA NO.683/HYD/2006 : ASSESSMENT YEAR 2002 - 03 INCOME TAX OFFICER, WARD 11(2), HYDERABAD V/S. SMT. N. KALAVATHI, SECUNDERABAD. (PAN/GIR : K - 1613) (APPELLANT) (RESPONDENT) APPELLANT BY : S HRI RAJAT MITRA DR RESPONDENT BY : SHRI S.RAMA RAO DATE OF HEARING 11 .0 9 .2014 DATE OF PRONOUNCEMENT 17.09.2014 O R D E R PER P.M.JAGTAP, ACCOUNTANT MEMBER : THESE TWO APPEALS ARE PREFERRED BY THE REVENUE AGAINST TWO SEPARATE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) VI, HYDERABAD BOTH DATED 7.3.2006 FOR THE ASSESSMENT YEARS 2001 - 02 AND 2002 - 03. 2. THE COMMON GRIEVANCE OF THE REVENUE AS RAIS E D IN THE IDENTICAL GR O UNDS TAKEN IN THESE APPEALS IS THAT THE LEARNED CIT(A) HAS ADMITT E D AND RELIED ON THE ADDITIONAL EVI D ENCE FIL E D BY TH E ASSESSEE FOR THE FIRST TIME BEFORE HIM TO GIVE RELIEF TO THE ASSESSEE WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSING OFFICER TO VERIFY THE SAME. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVI D U A L, WHO DID NO T FIL E RETURN S OF HER INCOME FOR THE YEARS UNDER CONSIDERATION WITHIN THE TIME PR E SCRIB E D IN S.139(1). SUBSEQUEN TLY, A SURVEY I TA NO. 682 - 683 /H YD/20 06 SMT. N.KALAVATHI, SECUNDERABAD. 2 ACTION UNDER S.133A WAS CARRIED OUT IN THE BU S IN E SS PREMISES OF M/S. LAXMI SRINIVASA FINANCE CORPORATION ON 5.12.2003. ON TH E B A SIS OF MATERIAL IMPOUNDED DURING TH E COU R SE OF THE SAID SURVEY, NO T I C ES UNDER S.148 WERE ISSUED BY TH E ASSESSING OFFICER REQUIRIN G THE ASSESSEE TO FURNISH HER RETURNS OF INCOME FOR BOTH THE YEARS UNDER CONSIDERATION. T H E ASSESSEE , HO WE VER NEITHER FURNISHED THE RETURNS IN RESPONSE TO THE NOTICE S ISSUED UNDER S.148 NOR COMPLIED WITH ANY O F THE NOTICES ISSUED BY TH E AS SESSING OFFICER SUBSEQU E N T LY UNDER S.142(1). THE ASSESSING OFFICER THEREFORE, WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENTS OF THE ASSESSEE FOR BOTH T HE Y E ARS UNDER CON S IDERATION TO THE BEST OF HIS BEST JUDGMENT ON THE BASIS O F THE MATERIAL AVAI LABLE ON RECORD UNDER S.14 4 READ WITH S.147 OF THE AC T . IN THE ASSESSMENT SO COMPLETED FOR ASSESSMENT YEAR 2001 - 02, T HE ASSESSING OFFICER ADDED AN AMOUNT OF RS .8,18,600 REPR E SENTING FIXED DEPOSI T S MADE BY THE ASSESSEE OFFICER WITH M/S. LAXMI SRINIVASA FINANCE CORPORATION AS FOUND FROM THE RELEVANT M AT E R IAL IMPOUNDED DURING THE COURSE OF SURVEY CARRIED OUT IN THE CASE OF M/S. LAXMI SRINIVASA FINANCE CORPORATION, TR E ATING THE SAME AS UNEXPLAINED INVESTMENT OF THE ASSESSEE UN D ER S.69 OF THE AC T. SIMILAR LY, IN THE ASSESSMENT COMPLET E D FOR ASSESSMENT YEAR 2002 - 03, A SUM OF R S . 8,82,800 WAS ADDED BY THE ASSESSING OFFICER TO THE TOTAL INCOME O F THE ASSESSEE ON ACCOUNT OF PAYMENTS MADE TO ONE SHRI SRINIVAS AS FOUND ON THE BASIS OF RELEVANT MAT E RIAL IMP O UNDED DURING TH E COURSE OF SURVEY TR E ATING THE SAME AS HER UNEXPLAINED INVESTMENT UNDER S.69 OF THE AC T. 4. AGAIN S T THE O R DERS PASSED BY THE ASSESSING OFFICER UNDER S.144 R E AD WITH S.147 O THE ACT , FOR BOTH THE YEARS UNDER CON S I D ERATION, APPEAL S W E RE PREFERR ED BY THE ASSESSEE BEFORE THE LEARNED CIT(A). D U R IN G THE COURSE OF APPELL A TE PROCEEDINGS BEFORE THE LEARNED CIT(A), IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE AMOUNT OF RS .8,18,60 WAS ACTUALLY NOT THE DEPOSIT MA D E BY TH E I TA NO. 682 - 683 /H YD/20 06 SMT. N.KALAVATHI, SECUNDERABAD. 3 ASSESSEE WITH M/S. LAXMI S RINIVASA FINANCE CORPORATION AND IT REPRESENTED THE AMOUNT S COLLECTED FROM VARIOUS DEPOSIT OR S BY THE AGENTS UNDER THE SUPERVISION OF THE ASSESSEE . I T WAS A L SO SUBMITTED THAT THE SAID AMOUN T WAS AL R EA D Y CONSIDERED IN TH E ASSESSMENT OF M/S. LAXMI SRINIVASA FINANCE CORPORATION FOR ASSESSMENT YEAR 2001 - 02. AFFI D AVITS OF THE CON CE RNED AGENTS CONFIRMING THE COLLECTION OF DEPOSITS BY THEM WER E ALSO FIL E D BY TH E ASSESSEE BEFOR E THE LEARNED CIT(A) . K EEPING IN VIEW THIS DOCUM E N T ARY EVIDENCE PL A CED ON RECORD, THE L EARNED CIT(A) AC CE PTED THE STAND OF THE ASSESSEE AND DELETED THE ADDITION OF RS .8,18,600 MADE BY THE ASSESSING OFFICER UNDER 69 OF THE ACT, HOLDING THAT THE S AME DID NO T REPRESENT THE INV E STMENT MADE BY THE ASSESSEE. 5. AS REGARDS THE ADDITION OF RS . 8 , 82,200 MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2002 - 0 3 , IT WAS CONTENDED ON BEHALF O F THE ASSESSEE BEFORE THE LEARNED CIT(A) THAT SHRI A.S R IN I VAS WAS THE HUSBAND OF SMT.S H ARADA, A P A R T NER OF M/S.LAXMI SRINIVASA FINANCE CORPORATION AND THE AMOUNT OF RS .8,82,200 WAS ACTUALLY P A ID BY THE S AID FIRM TO SHRI A.SRINIVAS ON BEHALF OF SMT.SHARADA. THE C APITAL A CCOUNT OF S MT. SHARADA IN THE SAID FIRM WAS ALSO FURNISHED BY THE ASSESSEE, BEFORE THE LEARNED CIT(A) AND RELYING ON THE SAME, THE ADDITION OF RS .8 ,82,000 MADE BY TH E ASSESSING OFFICER UNDER S.69 WAS DELETED BY THE LEARNED CIT(A) . 6. AGGRI E VED BY THE O R DERS OF THE LEARNED CIT(A) FOR ASSESSMENT YEAR S 2001 - 02 AND 2002 - 03, REVENUE HAS P R E F ER R ED THESE APPEALS B E FORE THE TRIBUNAL. 7. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS ALREADY NOT E D, T HE COMMON GRI EV ANCE O F THE REVENUE AS PROJECTED IN THE G R OUNDS I TA NO. 682 - 683 /H YD/20 06 SMT. N.KALAVATHI, SECUNDERABAD. 4 TAKEN IN TH E SE APPEALS IS THAT ADDITIONAL EVID E N C E FILED BEFORE HIM FOR THE FIRST TIME BY T H E ASSESSEE WAS ADMITTED BY THE LEARNED CIT(A) AND RELIEF WAS GIVEN TO THE ASSESSEE RELYING ON THE SAID EVIDENCE, WITHOUT GIVING ANY OPPOR T UNITY TO THE ASSESSING OFFICER TO VERIFY THE SAME. AT THE TIME OF H E ARING BEFORE US, THE LEARNED DEPARTMENTAL REPRES ENTATIVE HAS INVITED OU R ATTENTION TO THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER FOR BOTH THE YEARS UNDER CON S I D ERATION TO SHOW THAT THERE WAS NO CO M PLIANCE ON THE PART OF THE ASSESSEE TO THE NO T I C ES ISSUED BY THE ASSESSING OFFICER DURING THE CO UR S E OF ASSESSMENT P R OCEEDIN G S, LEAVING THE ASSESSING OFFICER WITH NO ALTERNATIVE BUT TO COMPL E TE TH E ASSESSMENT S EX PARTE TO THE BEST OF HIS JU D GMENT UNDER S.144 OF TH E ACT . HE HAS ALSO TAKEN US THROUGH THE RELEVANT PO R TION S O F THE IMPU G N E D ORDERS OF THE LEARNED CIT(A) , TO POINT OUT THAT ADDITIONAL EVIDENCE FILED BY TH E ASSESSEE IN TH E FORM OF A FFIDAVITS OF THE CONCERNED AGENTS, C APITAL AC COUNT OF SMT.SHARDA ETC. WAS RELIED UPON BY TH E LEARNED CIT(A) TO DELETE THE IMPUGNED ADDITIONS MADE BY THE ASSESSING OFFICER UNDER S.69 FOR BOTH THE YEARS UN D ER CON S IDERATION , WITHOUT GIVING ANY OP P O R TUNITY TO THE ASSESSING OFFICER TO V E RIFY THE SAME. LEARNED COUNSEL FOR THE ASSESSEE , ON THE OTHER HAND, HAS NO T B EEN ABLE TO DISPUTE THIS POS I TION, WHI C H IS CLEARLY E VI D ENT F R OM THE IMPU G N E D ORDERS OF THE LEARNED CIT(A). WE , TH E R E FORE , AGREE WITH TH E CON TE NTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT THE I SS UE S R E L A TIN G TO TH E ADDITION S UNDER S.69 INVOLVED IN BOTH THE YEARS UNDER CON S IDERATION, SHOULD GO BACK TO THE ASSESSING OFFICER FOR GIVING HIM AN OP P OR T UNI T Y TO VERIFY THE AD D I TI ONAL EVID E N CE FIL E D BY TH E ASSESSEE FOR THE FIRST TIME BEFORE THE LEARNED CIT(A) . ACCOR D INGLY, WE SET ASIDE THE IMPU G N E D ORDERS O F TH E LEARNED CIT(A) ON THIS I S SUE AN D RESTORE THE MAT T ER TO THE FIL E O F THE ASSESSING OFFICER FOR DECIDING THE SAM E AFRESH IN ACCORDANCE WITH LAW AFTER VERIFYING THE ADDITIONAL EVID E N C E FILED BY TH E ASSESSEE BEFOR E TH E LEARNED CIT(A). I TA NO. 682 - 683 /H YD/20 06 SMT. N.KALAVATHI, SECUNDERABAD. 5 NEEDLESS TO OBSERVE THAT THE ASSESSING OFFICER SHALL AF FORD PROPER AND SUFFI C IENT OP P OR T UNITY OF BEIN G HEARD TO THE ASSESSEE WHILE DECIDING THE ABOVE ISSUE S AFRESH. 8 . IN THE RESULT, BOTH THE APPEAL S OF THE REVENUE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 17 TH SEPTEMBER, 2014 SD/ - SD/ - ( SAKTIJIT DEY ) ( P.M.JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/ - 17 TH SEPTEMBER, 2014 COPY FORWARDED TO: 1. SMT. N. KALAVATHI, W/O. SHRI N.BALARAJ, 120 - 1 - 508/67, LAXMINAGAR, NORTH LALAGUDA, SECUNDERABAD. 2 . INCOME TAX OFFICER WARD 11(2), HYDERABAD 3. 4. COMMISSIONER OF INCOME - TAX(APPEALS) VI, HYDERABAD COMMISSIONER OF INCOME - TAX V, HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S