P.Vijaya Bhaskar Reddy, Hyderabad V. ITO, Hyderabad

ITA 708/HYD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3283 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 14-03-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 21-04-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: S RAMA RAO
• Section: 234B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.708/H/2008 ASSESSMENT YEAR : 2001-02 SHRI P. VIJAYA BHASKAR REDDY, HYDERABAD (PAN ADDPP 4146 C) VS THE ITO, WARD 4 (3), HYDERABAD APPELLANT RESPONDENT APPELLANT BY : SHRI S. RAMA RAO RESPONDENT BY : SHRI B.V. PRASAD REDDY ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) V , HYDERABAD DATED 13.3.2008 AND PERTAINS TO THE ASSESSMENT YEAR 2001-02. 2. THE MAIN GRIEVANCE OF THE ASSESSEE HEREIN I S WITH REGARD TO CONFIRMING THE ADDITION OF RS.21,32, 321/- , THOUGH THE ASSESSING OFFICER HAS MADE AN ADDITION O F RS.19,15,822/- U /S 68 OF THE INCOME TAX ACT. THE ASSESSEE HAS ALSO RAISED GRIEVANCE REGARDING THE LE VY OF INTEREST U/S 234A & 234B OF THE INCOME TAX ACT, 19 61. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS PRIMARILY SUBMITTED THAT THERE ARE CER TAIN CREDITS WHICH ARE NOT RELATED TO THE ASSESSMENT YEA R 2001- 02 AND ON THE OTHER HAND, THOSE CREDITS ARE IN THE BOOKS OF ITA NO.708/H/2008 SHRI VIJAYA BHASKAR REDDY, HYDERABAD ACCOUNTS OF THE ASSESSEE IN EARLIER ASSESSMENT YEAR S. FURTHER, THE ASSESSEE HAS ALSO RAISED GRIEVANCE WIT H REGARD TO ENHANCEMENT IN THE INCOME BY RS.1,50,039/- WITHO UT GIVING AN OPPORTUNITY TO THE ASSESSEE REGARDING THE ENHANCEMENT. HE HAS ALSO SUBMITTED THAT THESE CREDI TS CANNOT BE CONSIDERED U/S 68 OF THE IT ACT, AS THESE WERE NOT FOUND CREDITED IN THE BOOKS OF ACCOUNTS OF THE ASSE SSEE AND HE RELIED ON THE JUDGEMENT OF THE MADRAS HIGH COURT IN THE CASE OF CIT VS. TAJ BOREWELLS (291 ITR 232) (MAD.) 4. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS STRONGLY RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ARGUMENT OF THE ASSESSEES COUNSEL IS THAT THESE ENTRIES ARE NOT FO UND CREDITED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE F OR THE ASSESSMENT YEAR UNDER CONSIDERATION. BUT THE FACT I S THAT THE ASSESSEE HAS NOT PRODUCED THE BOOKS OF ACCOUNTS BEFORE THE LOWER AUTHORITIES AND WITHOUT EXAMINING THE BOO KS OF ACCOUNTS, WE CANNOT HOLD THAT THESE ENTRIES ARE NOT RELATING TO THE ASSESSMENT YEAR UNDER CONSIDERATION OR NOT A PPEARED IN THE BOOKS OF ACCOUNTS. SECTION 68 EMPOWERS THE ASSESSING OFFICER TO MAKE ENQUIRY REGARDING THE GENUINENESS OF THE CREDITS. IF HE IS SATISFIED THA T THESE ENTRIES ARE NOT GENUINE, HE HAS EVERY RIGHT TO ADD THESE AMOUNTS AS INCOME FROM OTHER SOURCES. THE SATISFAC TION MUST BE DERIVED FROM RELEVANT FACTORS ON THE BASIS OF THE ENQUIRY. HENCE, WE DIRECT THE ASSESSEE TO PRODUCE THE BOOKS OF ACCOUNTS OF THE ASSESSEE FOR THE ASSESSMEN T YEAR UNDER CONSIDERATION AND PROVE HIS CLAIM THAT THESE CREDITS ITA NO.708/H/2008 SHRI VIJAYA BHASKAR REDDY, HYDERABAD ARE NOT RELATING TO THE ASSESSMENT YEAR UNDER CONSIDERATION. FURTHER, IF THE ASSESSEE IS NOT COO PERATING WITH THE DEPARTMENT AND FAILS TO PRODUCE THE BOOKS OF ACCOUNTS, THE ASSESSING OFFICER IS AT LIBERTY TO CO MPLETE THE ASSESSMENT IN ACCORDANCE WITH LAW. FURTHER, WE MAKE IT CLEAR THAT THE CIT(A) HAS NOT ENHANCED THE ASSESSME NT, ON THE OTHER HAND, HE HAS ONLY CORRECTED THE TYPOGRAPH ICAL ERROR APPEARED IN THE ASSESSMENT ORDER. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 . 6.2011 SD/- G.C. GUPTA SD/- CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED 10 TH JUNE, 2011 COPY FORWARDED TO: 1. SHRI S. RAMA RAO, ADVOCATE, FLAT NO.103, H.NO.3-6- 542/INDIRADEVI NILAYAM, ST NO.7, HIMAYAT NAGAR, HYDERABAD-500 029. C/O SHRI VIJAYA BHASKAR REDDY, 2-2-23/41/485, BAGH AMBERPET, HYDERABAD 2. THE ITO, WARD 4(3), HYDERABAD 3. THE CIT(A) V, HYDERABAD 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD. NP/