Sri. L. Hanumanthaiah, Bangalore V. ITO, Bangalore

ITA 719/BANG/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8581 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AR V SREENIVAS
• Assessee Lawyers: H GURUSWAMY ITP
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.719/BANG/2016 ASSESSMENT YEARS : 2008-09 SHRI. L. HANUMATHAIAH, NO.207/A, 3 RD D CROSS, 2 ND BLOCK, 3 RD STAGE, BASAVESHWARANAGAR, BENGALURU-560079. PAN : AAYPH3213J VS. INCOME TAX OFFICER, WARD-2(3)(3), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI. H. GURUSWAMY, ITP REVENUE BY : SHRI. AR. V. SREENIVAS, JCIT DATE OF HEARING : 14.02.2017 DATE OF PRONOUNCEMENT : 17.02.2017 O R D E R PER A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT (APPEALS), BENGALURU-6, BENGALURU DATED 20.01.2 016, FOR THE ASSESSMENT YEAR 2008-09. ITA NO. 719/BANG/2016 PAGE 2 OF 5 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: - ITA NO. 719/BANG/2016 PAGE 3 OF 5 3. IT WAS SUBMITTED BY LEARNED AR OF THE ASSESSEE T HAT THIS IS THE SECOND ROUND OF APPEAL. IT WAS SUBMITTED THAT THE TRIBUNAL ORDER IN FIRST ROUND OF APPEAL IS AVAILABLE AT PAGE 82-84 OF THE P APER BOOK IN ITA NO. 783/B/2012 DATED 19.06.2013. THEREAFTER, HE PO INTED THAT IN PARA NO. 5 OF THIS TRIBUNAL ORDER, THE MATTER WAS RESTORED B ACK TO THE FILE OF AO WITH THE DIRECTION TO RECONSIDER THE RELEVANT EVIDENCE FILED BY THE ASSESSEE AND ITA NO. 719/BANG/2016 PAGE 4 OF 5 COMPLETE THE ASSESSMENT AS PER LAW. HE SUBMITTED T HAT IN THE SECOND ROUND, PROPER ENQUIRY WAS NOT MADE BY THE AO. HE A LSO SUBMITTED THAT ON PAGE 81 IS THE CONFIRMATION LETTER RECEIVED FROM TH E CREDITOR IN RESPECT OF LOAN OF RS.7,99,500/- RECEIVED FROM HIM. AT THIS J UNCTURE, A QUERY WAS RAISED BY THE BENCH AS TO WHETHER THERE IS ANY PAN DETAILS OF THE LOAN CREDITOR AND THE DETAILS OF HIS CREDIT WORTHINESS A RE AVAILABLE IN THE PAPER BOOK AND IN REPLY, IT WAS SUBMITTED BY LEARNED AR O F THE ASSESSEE THAT THE SAME ARE NOT READILY AVAILABLE IN THE PAPER BOOK, B UT THE SAME WAS NOT REQUIRED BY THE AUTHORITY BELOW AND THEREFORE THE M ATTER MAY BE RESTORED BACK TO THE FILE OF THE AO FOR A FRESH DECISION. I N THIS ROUND, THE ASSESSEE WILL FURNISH THE PAN DETAILS OF THE LOAN CREDITOR A LONG WITH THE EVIDENCE OF HIS CREDIT WORTHINESS. THE LEARNED DR SUPPORTED TH E ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT ALTHOUGH CONFIRMATION HAS BEEN FILED BY THE ASSESSEE TO THE AUTHORITIES BELOW AND THE SAME IS AVAILABLE BEFORE ME ALSO AT PAGE 81 OF PAPER BOOK, BUT THE ASSESSEE HAS NOT SUBMITTED PAN DETAILS OF THE LOAN CREDITOR AND NO EVIDENCE ABOUT HIS CREDIT WORTHINESS. THIS IS NOW A SETTLED POSITION OF LAW THAT IN SUPPORT OF ANY CASH CREDIT, THE ASSESSEE HA S TO ESTABLISH THREE INGREDIENTS I.E., IDENTITY OF THE LOAN CREDITOR, HI S CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTIONS. THE ASSESSEE IN T HE PRESENT CASE HAS NOT SUBMITTED THE PAN DETAILS OF THE LOAN CREDITOR AND NOTHING HAS BEEN FURNISHED IN SUPPORT OF THE CREDIT WORTHINESS OF TH E LOAN CREDITOR. IT IS ALSO ITA NO. 719/BANG/2016 PAGE 5 OF 5 TRUE THAT THESE DETAILS WERE NOT SPECIFICALLY ASKED FOR BY THE AUTHORITIES BELOW FROM THE ASSESSEE. UNDER THESE FACTS, I SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF T HE AO FOR A FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO BRING ALL EVIDENCES BE FORE THE AO REGARDING THESE THREE INGREDIENTS I.E., IDENTITY OF THE LOAN CREDITOR, HIS CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTIONS, WIT HOUT WAITING FOR ANY SPECIFIC QUERY BY THE AO. THE AO SHOULD PASS NECES SARY ORDERS AS PER LAW AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASS ESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF FEBRUARY, 2017. SD/- (A.K. GARODIA) ACCOUNTANT MEMBER BANGALORE, DATED: 17 TH FEBRUARY, 2017. /NS/ COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.