Shanmugam Sakthivel, CHENNAI V. ITO, CHENNAI

ITA 762/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8915 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 14-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 28-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: JHARNA B HARILAL
• Keywords: Additional evidence
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.762/MDS/2016 ' (' / ASSESSMENT YEAR : 2011-12 SHRI SHANMUGHAM SAKTHIVEL, 14/6, AVENUE GARDEN, BALAMURUGAN STREET, VYASARPADI, CHENNAI - 600 036. PAN : BOJPS 7521 E V. THE INCOME TAX OFFICER, SALARY WARD VI(1), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : MS. JHARNA B. HARILAL, FCA ,-*+ . / / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT 0 . 1$ / DATE OF HEARING : 14.06.2016 2!( . 1$ / DATE OF PRONOUNCEMENT : 01.07.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 15, CHEN NAI, DATED 11.01.2016 AND PERTAINS TO ASSESSMENT YEAR 2011-12. 2. MS. JHARNA B. HARILAL, THE LD. REPRESENTATIVE FO R THE ASSESSEE, SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IS 2 I.T.A. NO.762/MDS/16 WITH REGARD TO ADDITION OF ` 30,16,000/- AS UNEXPLAINED MONEY UNDER SECTION 69A OF THE INCOME-TAX ACT, 1961 (IN SHORT ' THE ACT'). ACCORDING TO THE LD. REPRESENTATIVE, THE ASSESSEE D EPOSITED A SUM OF ` 40,41,000/- IN HDFC BANK ACCOUNT ON VARIOUS DATES. THE ASSESSING OFFICER ACCEPTED THE EXPLANATION OF THE A SSESSEE IN RESPECT OF ` 10,25,000/- OUT OF ` 21,00,000/- DEPOSITED ON 14.03.2011 AND THE BALANCE AMOUNT WAS ADDED BY THE ASSESSING O FFICER UNDER SECTION 68 OF THE ACT. REFERRING TO THE ORDER OF T HE ASSESSING OFFICER, THE LD. REPRESENTATIVE SUBMITTED THAT THE ADDITION UNDER SECTION 68 OF THE ACT CANNOT BE MADE IN RESPECT OF THE BANK DEPOSIT. ACCORDING TO THE LD. REPRESENTATIVE, THE ADDITION UNDER SECTION 68 OF THE ACT CAN BE MADE ONLY IN RESPECT O F ENTRIES FOUND IN THE BOOKS OF ACCOUNT AND NOT IN RESPECT OF DEPOS ITS MADE IN THE BANK ACCOUNT. MOREOVER, THE ASSESSEE HAS FILED ADD ITIONAL EVIDENCE BEFORE THIS TRIBUNAL TO ESTABLISH THE SOUR CE FOR MAKING THE DEPOSITS OF ` 30,16,000/-. THIS ADDITIONAL EVIDENCE COULD NOT BE FILED BEFORE THE LOWER AUTHORITIES IN THE COURSE OF ASSES SMENT PROCEEDING AND APPELLATE PROCEEDING. THEREFORE, THE LD. REPRE SENTATIVE SUBMITTED THAT AN OPPORTUNITY MAY BE GIVEN TO THE A SSESSING OFFICER TO RE-EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL FILED BY THE ASSESSEE. 3 I.T.A. NO.762/MDS/16 3. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ADDITIONAL EVIDE NCE NOW FILED BEFORE THIS TRIBUNAL WAS ADMITTEDLY NOT FILED BEFOR E THE LOWER AUTHORITIES, THEREFORE, BOTH THE AUTHORITIES BELOW HAD NO OCCASION TO CONSIDER THE SO-CALLED ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. MOREOVER, THE ASSESSING OFFICER ACCEPTED THE EXPLAN ATION OF THE ASSESSEE TO THE EXTENT OF ` 10,25,000/- OUT OF ` 21,00,000/- DEPOSITED ON 14.03.2011. REFERRING TO THE ORDER OF THE CIT(A PPEALS), THE LD. D.R. SUBMITTED THAT MERELY BECAUSE A WRONG SECTION OR PROVISION OF LAW WAS REFERRED IN THE IMPUGNED ORDER OF THE ASSES SING OFFICER THAT CANNOT BE A REASON TO DELETE THE ENTIRE ADDITION. ACCORDING TO THE LD. D.R., WHEN THE ASSESSEE ADMITTEDLY INVESTED / D EPOSITED MONEY IN THE BANK ACCOUNT MAINTAINED WITH HDFC BANK, THE SAME CAN VERY WELL BE ADDED UNDER SECTION 69A OF THE ACT. T HEREFORE, REFERRING TO A WRONG SECTION OR NOT REFERRING THE C ORRECT PROVISION OF LAW CANNOT BE A REASON FOR DELETING THE ADDITION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE HAS DEPOSITED A SUM OF ` 40,41,000/- ON FIVE DAYS. THE DEPOSIT MADE ON 14.03.2011 TO THE EXTENT OF ` 21,00,000/- WAS 4 I.T.A. NO.762/MDS/16 EXPLAINED BY THE ASSESSEE TO THE EXTENT OF ` 10,25,000/-. THE ASSESSING OFFICER, IN FACT, ACCEPTED THE EXPLANATIO N TO THE EXTENT OF ` 10,25,000/- SAID TO BE DEPOSITED ON 14.03.2011. OU T OF `40 ,41,000/-, THE BALANCE AMOUNT OF ` 30,16,000/- WAS ADDED BY THE ASSESSING OFFICER AS INCOME OF THE ASSESSEE. THE A SSESSEE HAS NOW FILED BEFORE THIS TRIBUNAL AN ADDITIONAL MATERI AL TO ESTABLISH THE SOURCE FOR MAKING THE DEPOSITS. ADMITTEDLY, THIS M ATERIAL WAS NOT FILED BEFORE THE LOWER AUTHORITIES. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT UNDER THE SCHEME OF INCOME-TAX ACT, TH E ASSESSING OFFICER IS EXPECTED TO COMPUTE THE TOTAL TAXABLE IN COME AS PER THE PROVISIONS OF THE ACT. THEREFORE, WHEN THE ASSESSE E HAS FILED ADDITIONAL EVIDENCE BEFORE THIS TRIBUNAL AND THIS T RIBUNAL BEING FINAL FACT FINDING AUTHORITY, THE SAME HAS TO BE NECESSAR ILY CONSIDERED BY THE ASSESSING AUTHORITY FOR THE PURPOSE OF COMPUTIN G THE TOTAL TAXABLE INCOME. SINCE BOTH THE AUTHORITIES HAD NO OCCASION TO CONSIDER THIS ADDITIONAL EVIDENCE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER HAS TO EXAMINE T HE SAME AT THE FIRST INSTANCE. 5. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT GIVING OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE ADDITIONAL 5 I.T.A. NO.762/MDS/16 MATERIAL FILED BY THE ASSESSEE BEFORE THIS TRIBUNAL WOULD NOT PREJUDICE THE INTERESTS OF REVENUE IN ANY WAY. IN OTHER WORDS, GIVING OPPORTUNITY TO THE ASSESSING OFFICER TO EXAM INE THE ADDITIONAL MATERIAL WOULD DEFINITELY PROMOTE THE CAUSE OF JUST ICE. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE A ND THE ISSUE REGARDING ADDITION OF ` 30,16,000/- IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE ADDITIONAL MATERIA L FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN ACCORDAN CE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESS EE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 1 ST JULY, 2016 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 1 ST JULY, 2016. KRI. 6 I.T.A. NO.762/MDS/16 . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A)-15, CHENNAI-34 4. 0 81 /CIT-6, CHENNAI-34 5. 69 ,1 /DR 6. :' ; /GF.