N.T. Sagar, Bangalore V. ACIT, Bangalore

ITA 756/BANG/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5634 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 04-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G V GOPALA RAO CITI
• Assessee Lawyers: H N KHINCHA
• Keywords: Additional evidence
• Section: 234B; 68

Judgement Text

PAGE 1 OF 5 ITA NO.756/BANG/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI GEORGE GEORGE K, J.M. AND SHRI A MOHAN ALANKAMONY, A.M ITA NO.756/BANG/2010 (ASSESSMENT YEAR 2007-08) SHRI N T SAGAR, NO.77, 3 RD CROSS, NANDIDURGA EXTENSION, OPP. JANATA BAZAR, BANGALORE. - APPELLANT VS THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2(3), BANGALORE. - RESPONDENT APPELLANT BY : SHRI H N KHINCHA, C.A. RESPONDENT BY : SHRI G V GOPALA RAO, CIT-I ORD ER PER GEORGE GEORGE K : THIS APPEAL INSTITUTED BY THE ASSESSEE ARISE OUT OF THE ORDER OF LEARNED CIT(A)-VI, BENGALURU DATED 5/4/201 0. THE ASST. YEAR CONCERNED IS 2007-08. 2. THE ASSESSEE HAS RAISED FOUR GROUNDS OF APPEAL. THE 1 ST AND THE 4 TH GROUNDS ARE GENERAL IN NATURE AND NO SPECIFIC ADJUDICATION IS CALLED FOR AND HENCE, THE SAME ARE DISMISSED. 3. GROUND NO.3 IS REGARDING LEVY OF INTEREST U/S 23 4B AND 234C OF THE ACT. PAGE 2 OF 5 ITA NO.756/BANG/2010 2 3.1 LEVY OF INTEREST U/S 234B AND 234C OF THE ACT I S MANDATORY AND CONSEQUENTIAL IN NATURE AND THEREFORE, THE SAME IS DISMISSED. 4. THE SOLE SURVIVING GROUND, NAMELY, GROUND NO.2 R ELATE TO THE ISSUE OF ADDITION MADE U/S 68 OF THE ACT AMO UNTING TO RS.7 LAKHS. 5. BRIEFLY STATED THE FACTS ARE AS FOLLOWS:- THE ASSESSEE IS AN INDIVIDUAL. FOR THE CONCERNED ASST. YEAR, RETURN OF INCOME WAS FILED ON 8.10.2008 DECLAR ING AN INCOME OF RS.43,387/- BEING THE INCOME FROM LONG TERM CAPI TAL GAINS. IN THE COURSE OF ASSESSMENT, IT WAS NOTICED BY THE AO T HAT AS ON 31.3.2007, THE BALANCE SHEET OF THE ASSESSEE REFLEC TED THE LOAN OF RS.18,22,000/- FROM SHRI T VINOD KUMAR. THE ASSESS EE WAS ASKED TO PROVE THE LOAN AMOUNT OF RS.18,22,000/-. THE AS SESSEE FILED CONFIRMATION FROM SHRI T VINOD KUMAR VIDE HIS LETTE R DATED 25.11.2008. ON EXAMINATION OF THE CONFIRMATION LET TER, IT WAS SEEN THAT THE CREDITOR HAD SHOWN THE LOAN AMOUNT AT RS.1 1,22,000/-. THEREFORE, THE BALANCE OF RS.7 LAKHS WAS TREATED BY THE AO AS NOT GENUINE AND WAS BROUGHT TO TAX U/S 68 OF THE ACT. 6. THE ASSESSEE, BEING AGGRIEVED BY THE ASSESSMENT COMPLETED VIDE ORDER DATED 29/12/2008, CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. PAGE 3 OF 5 ITA NO.756/BANG/2010 3 7. BEFORE THE FIRST APPELLATE AUTHORITY, IT WAS SUB MITTED THAT THESE LOAN TRANSACTIONS ARE GENUINE AND THE AM OUNTS HAVE BEEN RECEIVED THROUGH NORMAL BANKING CHANNELS. THE CIT( A), HOWEVER, IN THE ABSENCE OF CONFIRMATION LETTER FROM SHRI T VINO D KUMAR IN RESPECT OF AN AMOUNT OF RS.7 LAKHS, CONFIRMED THE O RDER OF ASSESSMENT. 8. THE ASSESSEE, BEING AGGRIEVED BY THE ORDER OF FI RST APPELLATE AUTHORITY IN CONFIRMING THE ADDITION OF RS .7 LAKHS U/S 68 OF THE ACT, IS IN APPEAL BEFORE US. 9. THE LEARNED AR SUBMITTED THAT THE AMOUNT OF RS.18,22,000/- WAS RECEIVED FROM SHRI T VINOD KUMAR VIDE ACCOUNT PAYEE CHEQUE ON THREE DIFFERENT DATES. THESE THREE LOAN TRANSACTIONS ARE INDEPENDENT LOAN AMOUNTS RECEIVED FROM SHRI T VINOD KUMAR AND BY OMISSION AT THE FIRST INSTANCE, D ID NOT FURNISH THE CONFIRMATION IN RESPECT OF RS.5 LAKHS AND RS.2 LAKHS RECEIVED ON 21.3.2006 AND 2.6.2006 RESPECTIVELY. IT WAS SUBMITT ED THAT THE CONFIRMATION FROM SHRI T VINOD KUMAR IS NOW RECEIVE D AND AN APPLICATION UNDER RULE 29 IS FILED FOR ADMISSION OF ADDITIONAL EVIDENCE. HE PRAYED THAT IN THE INTEREST OF SUBSTAN TIAL JUSTICE, THE MATTER MAY BE REMITTED BACK TO THE FILE OF AO FOR FR ESH EXAMINATION WITH REGARD TO THE GENUINENESS OF CASH CREDIT AMOUNTING TO RS.7 LAKHS. 10. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED T HE IMPUGNED ORDERS OF THE I.T. AUTHORITIES. PAGE 4 OF 5 ITA NO.756/BANG/2010 4 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. THE TOTAL LOAN AMOUNT RECEIVE D FROM SHRI T VINOD KUMAR IS TO THE TUNE OF RS.18,22,000/-. THIS AMOUNT WAS RECEIVED THROUGH CHEQUE ON THREE DIFFERENT DATES. THE DETAILS OF THE CHEQUE NUMBERS, THE DATES ON WHICH THESE AMOUNT S WERE RECEIVED AND THE SUM RECEIVED ARE AS FOLLOWS:- CHEQUE NO. DATE AMOUNT 035694 31.5.2006 11,22,000/- 0394845 21.3.2006 5,00,000/- 0394849 02.06.2006 2,00,000/- THE CONFIRMATION LETTER OF SHRI T VINOD KUMAR IS PR ODUCED AND FOR ADMISSION OF THE SAME IN EVIDENCE, THE ASSESSEE HAS FILED AN APPLICATION UNDER RULE 29 ALONG WITH AN AFFIDAVIT. IN THE ABOVE SAID CONFIRMATION LETTER OF THE CREDITOR, IT HAS BEEN CA TEGORICALLY STATED THAT THE AMOUNTS WERE PAID BY CHEQUE ON 3 DIFFERENT DATES AND THE CREDITOR HAS ADMITTED FOR ADVANCE OF THE SAME, 11.1 WE ARE OF THE VIEW THAT IN THE INTEREST OF JU STICE AND FOR THE ADVANCEMENT OF SUBSTANTIAL CAUSE, THIS CONF IRMATION LETTER NOW PRODUCED SHOULD BE ADMITTED IN EVIDENCE AND THE REFORE, WE ADMIT THE SAME. SINCE THE ADDITIONAL EVIDENCE HAS BEEN ADMITTED, THE MATTER IS REMITTED BACK TO THE FILE OF THE AO F OR FRESH CONSIDERATION. HE SHALL EXAMINE THE GENUINENESS OF THE CREDIT OF RS.7 LAKHS, CLAIMED TO HAVE BEEN RECEIVED BY THE ASS ESSEE ON 21.3.2006 AMOUNTING TO RS.5 LAKHS AND RS.2 LAKHS RE CEIVED ON PAGE 5 OF 5 ITA NO.756/BANG/2010 5 2.6.2006. NEEDLESS TO SAY THAT THE ASSESSEE SHALL B E HEARD BEFORE FRESH ORDER OF ASSESSMENT IS FRAMED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON THURSDAY, THE 21 ST DAY OF APRIL, 2011 AT BANGALORE. SD/- SD/- (A MOHAN ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE C IT CONCERNED. 4. THE CIT(A) CONCERNED. 5. DR 6. GF MSP/28/3. BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.