Vijaya Mohan M.G., Kollam V. ITO, Kollam

ITA 76/COCH/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52273 (ITAT-COCHIN)
• Duration Of Justice: 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 28-01-2011
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHAJR
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GA NESAN, JM I.T.A NO.76 /COCH/2011 ASSESSMENT YEAR:2003-04 SHRI VIJAYA MOHAN, M.G. BUNGLAVIL VEEDU, KARIYARA P.O.. PUNALUR, KOLLAM. [PAN: ALHPR 1861Q] VS. THE INCOME TAX OFFICER, WARD-4, KOLLAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY NONE REVENUE BY MS. S. VIJAYAPRABHA,JR. DR DATE OF HEARING 28/10/2011 DATE OF PRONOUNCEMENT 28/10/2011 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A)-I, TRIVANDRUM. DATED 16.11.2010 AND PERTAINS TO THE AS SESSMENT YEAR 2003-04. THE NOTICE OF HEARING WAS SERVED ON THE ASSESSEE BY REGISTERED POST. 2. THE POSTAL ACKNOWLEDGMENT AS A PROOF OF SERVICE OF NOTICE IS PLACED ON RECORD. HOWEVER, NO ONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS CALLED FOR HEARING. THEREFORE, THE APPEAL IS BEING DISPOSED OF ON MERIT. 3. MS. S. VIJAYAPRABHA, THE LD. DEPARTMENTAL REPRES ENTATIVE SUBMITTED THAT THE ASSESSING OFFICER MADE AN ADDITION OF ` 3,43,000/- TOWARDS UNEXPLAINED INVESTMENT IN A CO-OPERATIVE BANK. I.T.A. NO. 76/COCH/2011 2 ACCORDING TO MS.VIJAYAPRABHA, THE LD. DEPARTMENTAL REPRESENTATIVE, THE ASSESSEE HAS FILED PROMISORY NOTES FROM 12 PERSONS TO WHOM HE H AS ALLEGEDLY LENT MONEY. ON VERIFICATION OF THESE PROMISSORY NOTES, IT WAS FOUN D THAT ALL THE PRONOTES WERE IN THE SAME HAND WRITING AND ONE RUPEE STAMP WAS FIXED. THE VAL UE OF THE PROMISSORY NOTE WAS LESS THAN ` 20 LAKHS. THE PROMISSORY NOTES DID NOT MENTION ABO UT THE RATE OF INTEREST. THE SIGNATURES OF THE SAME PERSON APPEARING IN DIFFEREN T PRONOTES AS LOAN CREDITORS AND THE WITNESSES SHOWM IN THE PROMISSORY NOTES VARIED. TH EREFORE, THE ASSESSING OFFICER DOUBTED THE GENUINENESS OF THE CONFIRMATION LETTERS PRODUCED BY THE ASSESSEE. FURTHER, DUE TO INSUFFICIENT TIME TO VERIFY THE GENUINENESS OF THE CREDITS, THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY MAKING AN ADDITION OF ` 3,43,000/-. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE OUGHT TO HAVE FILED THE CONFIRMATION LETTERS FROM THE CREDITORS AND PROVE THE CREDITS. ON ENQUI RY FROM THE BENCH, WHETHER THE ASSESSING OFFICER WOULD LIKE TO VERIFY THE GENUINEN ESS OF THE CREDITS, THE LD. DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT IT MAY NOT BE NECESSARY SINCE THE ASSESSEE HAS NOT FILED THE CONFIRMATION LETTERS BEFORE THE A O. 4. THE SUBMISSION OF THE LD. DEPARTMENTAL REPRESENT ATIVE IS CONSIDERED IN THE LIGHT OF MATERIAL PLACED ON RECORD. ADMITTEDLY, THE ASSESSEE CLAIMED THAT WHAT WAS DEPOSITED IN THE CO-OPERATIVE BANK IS THE MONEY RECEIVED BACK FR OM THE PERSON WHO HAS TAKEN LOAN FROM HIM. FROM THE MATERIAL AVAILABLE ON RECORD, IT APPEARS THAT THE ASSESSING OFFICER R HAS ALREADY ACCEPTED THE INCOME RETURNED TO THE EXT ENT OF ` 45,000/- FROM THE MONEY LENDING BUSINESS. MOREOVER, WHEN THE PERSON IS IN THE BUSINESS OF MONEY LENDING, THE PRONOTES WOULD BE NORMALLY WRITTEN BY ONE PERSON. T HEREFORE, MERELY BECAUSE THE PRONOTES WERE WRITTEN BY ONE PERSON, THAT CANNOT BE A REASON FOR REJECTING THE CLAIM OF THE ASSESSEE. THE ASSESSING OFFICER HAS ALSO FOUND TH AT THE SIGNATURES IN THE PROMISSORY NOTE ARE BY THE SAME PERSON. THE ASSESSING OFFICER IS NOT AN HAND WRITING EXPERT. IF THE ASSESSING OFFICER DOUBTED THE SIGNATURE OF THE PERS ON, HE OUGHT TO HAVE REFERRED THE MATTER TO A HAND WRITING EXPERT FOR VERIFICATION. IN THE ABSENCE OF ANY SUCH VERIFICATION BY THE HAND WRITING EXPERT, THIS TRIBUNAL IS OF THE OPINION THAT THE ASSESSING OFFICER IS NOT THE COMPETENT PERSON TO EXPRESS ANY OPINION ABO UT THE HAND WRITING OF ANY INDIVIDUAL. I.T.A. NO. 76/COCH/2011 3 IN OTHER WORDS, THE HAND WRITING EXPERT HAS TO EXAM INE THE SIGNATURE OF THE CONCERNED PERSON AND HE HAS TO EXPRESS THE OPINION WHETHER IT WAS SIGNED BY THE VERY SAME PERSON OR NOT. IN THE ABSENCE OF SUCH REFERENCE TO HANDWRI TING EXPERT, T THE ASSESSING OFFICER CANNOT DOUBT THE GENUINENESS OF THE PRO NOTE SUBMIT TED BY THE ASSESSEE. 4. FURTHERMORE, THE ASSESSING OFFICER COULD NOT VER IFY THE GENUINENESS OF THE CREDITS SINCE THERE WAS NO TIME AVAILABLE WITH HIM TO MAKE ANY SUCH ENQUIRY. IN OTHER WORDS, THE ASSESSING OFFICER WAS UNDER COMPULSION TO COMPLETE THE ASSESSMENT BEFORE 31.12.2007. IN THE ABSENCE OF ANY SUCH ENQUIRY FOR WANT OF TIME , THE GENUINENESS OF THE CLAIM CANNOT BE DOUBTED AT ALL. AT THE SAME TIME, WITHOUT THE V ERIFICATION OF THE GENUINENESS OF THE CREDIT, CANNOT BE ACCEPTED ALSO. THIS TRIBUNAL IS OF THE OPINION THAT THE MATTER NEEDS TO BE EXAMINED BY THE ASSESSING OFFICER, IF NECESSARY AFTER MAKING A REFERENCE TO THE HANDWRITING EXPERT ACCORDINGLY, THE ORDERS OF THE L OWER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE OF UNEXPLAINED INVESTMENT OF ` 3,43,000/- IN THE CO-OPERATIVE BANK IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHALL EXAMINE THE SAME AFRESH. AND THEREAFTER, DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT IS OPEN TO THE ASSESSING OFFICER TO MAKE A REFERENCE TO THE HANDWRITING EXPERT IF THE ASSESSIN G OFFICER DOUBTS THE SIGNATURE IN THE PRONOTE OR OTHER MATERIAL. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- (N.R.S.GANESAN) JUDICIAL MEMBER PLACE: ERNAKULAM DATED: 28TH OCTOBER, 2011 GJ COPY TO: 1. SHRI VIJAYA MOHAN, M.G. BUNGLAVIL VEEDU, KARIYAR A P.O.PUNALUR, KOLLAM. 2. THE INCOME TAX OFFICER, WARD-4, KOLLAM. I.T.A. NO. 76/COCH/2011 4 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, TRIV ANDRUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE .