M/s. Vyalikaval House Building Co-operative Society Limited, Bangalore V. Deputy Commissioner Of Income Tax, Central Circle 1(1), Bangalore

ITA 70/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6149 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 24-09-2020
• Assessment Year: 2006-2007
• Appeal Filed On: 16-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R PRADEEP; GIRIJA G P S
• Section: 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI A.K GARODIA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.70 TO 76/BANG/2020 ASSESSMENT YEAR : 2006-07 TO 2012-13 VYALIKAVAL HOUSE BUILDING CO-OPERATIVE SOCIETY LTD., 151, 2 ND FLOOR, 15 TH CROSS, 8 TH MAIN, MALLESWARAM, BENGALURU-560 055. PAN AAAAT 9273 F VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1(1), BENGALURU APPELLANT RESPONDENT ASSESSEE BY : SHRI K.R PRADEEP & MS. GIRIJA G.P, ADVOCATES REVENUE BY : SHRI PRADEEP KUMAR, CIT (DR) DATE OF HEARING : 24-09-2020 DATE OF PRONOUNCEMENT : 25-09-2020 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT APPEALS HAS BEEN FILED BY ASSESSEE AGAINST SEPARATE ORDERS DATED 31/10/2019 PASSED BY LD.CIT(A )-11, BANGALORE FOR ASSESSMENT YEARS UNDER CONSIDERATION. BRIEF FACTS OF THE CASE ARE AS UNDER: 2. LD.AR SUBMITTED THAT, ASSESSEE IS A CO-OPERATIVE SOCIETY. FOR YEARS UNDER CONSIDERATION, ASSESSEE F ILED ITS RETURN OF INCOME UNDER SECTION 139 (1) DECLARING NI L INCOME PAGE 2 OF 6 ITA NO.70 TO 76/BANG/2020 AFTER CLAIMING DEDUCTION UNDER SECTION 80 P OF THE ACT. LD.AR SUBMITTED THAT, THESE APPEALS ARISES OUT OF A SEARCH UNDER SECTION 132 CONDUCTED IN CASE OF ASSESSEE ON 05/07/2011. 3. LD.AO NOTED THAT DURING ASSESSMENT PROCEEDINGS ASSESSEE ACQUIRED/ALLOTTED LARGE TRACTS OF LAND AT VARIOUS LOCATIONS IN AND AROUND BANGALORE. IT WAS NOTED BY AUTHORITIES BELOW THAT, ASSESSEE COLLECTED DEPOSITS /ADVANCES FROM ITS MEMBERS, WHO IN TURN WILL BE ALLOTTED SITE S ON SUCCESSFUL FORMATION OF THE LAYOUT/GROUP HOUSING. I T WAS SUBMITTED THAT, MORE OFTEN, PEOPLE SOUGHT FOR REFUN D OF MONEY ALREADY PAID FOR ALLOTMENT OF LAND WHICH POSE D GREAT DIFFICULTY TO ASSESSEE. 4. DURING THE SEARCH PROCEEDINGS, QUERIES WERE RAIS ED REGARDING TOTAL RECEIPTS FROM VARIOUS ACTIVITIES. A SSESSEE SUBMITTED THAT, STATEMENT OF RECEIPTS FOUND AND SEI ZED DURING THE COURSE OF SEARCH WAS COMPILED FROM BOOKS AND RECORDS, AND HAS BEEN DULY ACCOUNTED BY SOCIETY AND FROM REGULAR BOOKS MAINTAINED. 5. LD.AR SUBMITTED THAT, DURING ASSESSMENT PROCEEDI NGS, ASSESSING OFFICER RECORDED STATEMENTS OF MR.H.SRINI VASA, SECRETARY OF SOCIETY, AND MR.LAKSHMAN DIRECTOR OF L &C CONSTRUCTION. IT HAS BEEN SUBMITTED THAT, BASED ON STATEMENTS RECORDED, AND SEIZED MATERIALS MARKED AS A/VHBCS/3, ADDITIONS WERE MADE FOR ALL YEARS UNDER CONSIDERATION BY LD.AO. 6. LD.AR AT THE OUTSET, SUBMITTED THAT, ASSESSEE WA S NOT PROVIDED WITH SEIZED MATERIALS EVEN AFTER A SPECIFI C REQUEST PAGE 3 OF 6 ITA NO.70 TO 76/BANG/2020 WAS MADE VIDE LETTER DATED 24/03/2014. BEFORE LD.AO , PLACED AT PAGE 316-317 OF PAPER BOOK. HE FURTHER SU BMITTED THAT, SPECIFIC GROUND NOS. 6, 10 WAS RAISED BEFORE LD.CIT (A) WHICH WAS REJECTED BY LD.CIT(A) BY OBSERVING AS UNDER: 20. GROUND NO. 10- APPELLANT STATES AO RELIED ON UN SUBSTANTIATED AND UNCORROBORATED STATEMENTS RECORDED FROM VARIOUS PER SONS- PERUSAL OF ASSESSMENT ORDER SHOWS STATEMENTS OF SH. SREENIVASA SECRETARY OF THE SOCIETY & SH. LAKSHMAN DIRECTOR OF L&C CONSTRUCTION S WAS RECORDED. THE APPELLANT CANNOT REFUTE THE STATEMENT OF ITS OWN SE CRETARY. THE APPELLANT ALSO CANNOT REFUTE THE STATEMENT OF THE DIRECTOR OF A COMPANY WITH WHOM IT HAD BUSINESS DEALINGS AND INDULGED IN FINANCIAL TRA NSACTIONS. THEREFORE, THE APPELLANT'S DENIAL AT THE APPELLATE STAGE IS FOUND TO BE DEVOID OF SUBSTANCE, AND HENCE THE SAME IS REJECTED BEING UNTENABLE. THE GROUND FAILS. 7. ON THE CONTRARY LD. CIT DR IN HIS WRITTEN SUBMIS SION FILED BEFORE US, DATED 21/09/2020 RAISED RELIANCE O N ORDERS PASSED BY AUTHORITIES BELOW. HOWEVER HE HAS NOT SUB MITTED ANY ARGUMENT AGAINST WHAT HAS BEEN ADVANCED BY LD.A R REGARDING VIOLATION OF PRINCIPLES OF NATURAL JUSTIC E. 8. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SID ES IN LIGHT OF RECORDS PLACED BEFORE US. 9. IN OUR VIEW, ASSESSEE MUST BE GRANTED PROPER OPPORTUNITY TO CONTROVERT THE MATERIALS GATHERED BY LD.AO DURING SEARCH AND USED AGAINST ASSESSEE. ONLY THEN, THERE WOULD BE COMPLIANCE OF PRINCIPLE OF NATURAL JUSTIC E. HONBLE SUPREME COURT IN CASE OF KRISHNA CHAND CHELA RAM V CIT REPORTED IN 125 ITR 713 HELD THAT, CROSS-EXAMINATION IS MUST, WHERE AO RELIES ONLY ON STATEMENT OF THIRD PA RTY UNCONNECTED WITH ASSESSEE. 10. WE ALSO NOTE THAT, REVENUE HAS ALSO NOT PLACED RELIANCE ON ANY OTHER CIRCUMSTANTIAL EVIDENCES THAT FORMED T HE BASIS OF ADDITION, APART FROM STATEMENTS RECORDED. WE ALS O NOTE THAT LD.AO DID NOT PROVIDE ASSESEE THE SEIZED MATER IALS PAGE 4 OF 6 ITA NO.70 TO 76/BANG/2020 MARKED AS A/VHBCS/3 REFERRED BY ASSESSEE AND INFORMATION COLLECTED U/S 133(6). 11. UNDER SUCH CIRCUMSTANCES WE DEEM IT APPROPRIATE TO REMAND THE ISSUE BACK TO LD.AO FOR DE NOVO ASSESSMENT. LD.AO IS DIRECTED TO PROVIDE ALL SEIZED MATERIALS, DETAILS/INFORMATION IS COLLECTED UNDER SECTION 133( 6) AND STATEMENTS RECORDED TO ASSESSEE. ASSESSEE SHALL THE N FILE THEIR SUBMISSIONS WHICH WOULD BE SUBJECTED TO VERIF ICATION BY LD.AO. ASSESSEE IS DIRECTED TO FILE RELEVANT DET AILS IN SUPPORT OF THEIR CLAIM AND TO ASSIST LD.AO IN CARRY ING OUT THE ASSESSMENT BY PROVIDING ALL RELEVANT INFORMATION/EVIDENCES/DOCUMENTS AS CALLED FOR. WE D IRECT LD.AO TO PASS REASONED ORDER CONSIDERING ALL MATERIALS/EVIDENCES FILED BY ASSESSEE IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT PROPER OPPORTUNITY OF HE ARING MUST BE GRANTED TO ASSESSEE. ACCORDINGLY, GROUNDS RAISED BY ASSESSEE IN ALL ASSESSMENT YEARS UNDER CONSIDERATION ARE ALLOWED FO R STATISTICAL PURPOSES. IN THE RESULT, APPEAL FILED BY ASSESSEE FOR ALL ASS ESSMENT YEARS UNDER CONSIDERATION STANDS ALLOWED FOR STATIS TICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH SEPT, 2020. SD/- SD/- (A.K GARODIA) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 25 TH SEPT, 2020. /VMS/ PAGE 5 OF 6 ITA NO.70 TO 76/BANG/2020 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL. BANGALORE. + PAGE 6 OF 6 ITA NO.70 TO 76/BANG/2020 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -09-2020 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -09-2020 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -09-2020 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -09-2020 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -09-2020 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -09-2020 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -09-2020 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS