Appeal details
Counselvise Citation
77521714 RSA 2012
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-09-2012
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
24-09-2012
Assessment Year
2008-2009
Appeal Filed On
12-04-2012
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER] I.T.A.NO.775/MDS/2012 ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER BUSINESS WARD XII(3) CHENNAI VS SHRI SURENDRAKUMAR MALOO NO.25/2, PERIYAR NAGAR MOOLAKADAI CHENNAI 600 060 [PAN AAWPS 7029P] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GURU BHASHYAM, JT. CIT RESPONDENT BY : SHRI T. VASUDEVAN DATE OF HEARING : 24-09-2012 DATE OF PRONOUNCEMENT : 27-09-2012 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVEN UE AGAINST THE ORDER OF THE CIT(A)-IV, CHENNAI, DATED 19.12.2011. 2. THE APPEAL FILED BY THE REVENUE IS BARRED BY LIMITA TION OF 9 DAYS. AT THE TIME OF HEARING, THE A.R OF THE ASS ESSEE SUBMITTED THAT HE HAS NO OBJECTION TO CONDONING THE DELAY IN FILIN G OF APPEAL BY THE REVENUE AND DISPOSING OF THE SAME ON MERITS. THERE FORE, THE DELAY IN FILING THE APPEAL BY THE REVENUE IS CONDONED AND TH E APPEAL IS ADMITTED FOR HEARING. I.T.A.NO.775/12 :- 2 -: 3. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE HAD SATISFACTORILY EX PLAINED THE SOURCE OF CASH DEPOSIT OF ` 40 LAKHS AND ACCEPTING THE CLAIM OF THE ASSESSEE THAT THE ENTIRE AMOUNT WAS RECEIVED IN CASH FROM S HRI VINOD KUMAR JAIN WITHOUT VERIFYING THE CASH AVAILABILITY WITH S HRI VINOD KUMAR JAIN FROM HIS CASH BOOK OR PASSBOOK. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER MADE ADDITION TOWARDS UNEXPLAINED CASH DEPOSITS INT O THE BANK ACCOUNT OF ASSESSEE OF ` 40 LAKHS. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). 5. ON APPEAL BEFORE THE CIT(A), THE ASSESSEE FILED C OPY OF SALE AGREEMENT SHOWING THAT THE ASSESSEE RECEIVED ` 60 LAKHS DURING THE ASSESSMENT YEAR 2008-09 AND ` 15 LAKHS DURING THE ASSESSMENT YEAR 2009-10 BY WAY OF CASH AGAINST THE SALE OF PRO PERTY SITUATED AT NO.7, MICETECH COLONY, MADHAVARAM, CHENNAI-60. SIN CE THIS DOCUMENT WAS FILED FOR THE FIRST TIME BEFORE THE CI T(A), THE CIT(A) CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFF ICER. IN THE REMAND REPORT, THE ASSESSING OFFICER WAS REQUESTED TO FIND OUT WHETHER THE ASSESSEE RECEIVED THESE AMOUNTS FROM S HRI VINOD KUMAR JAIN. THE ASSESSING OFFICER, IN THE REMAND REPORT DATED 16.09.2011, STATED THAT HE SUMMONED SHRI VINOD KUMAR JAIN AND R ECORDED HIS I.T.A.NO.775/12 :- 3 -: STATEMENT WHICH SHOWS THAT SHRI VINOD KUMAR JAIN HA S PAID THE AMOUNT BY WAY OF CASH FOR THE PROPERTY AS AN ADVANC E AS MENTIONED IN THE SALE AGREEMENT. THE CIT(A) GAVE COPY OF THE REMAND REPORT TO THE ASSESSEE FOR HIS COMMENTS. THE ASSESSEE SUBM ITTED A LETTER DATED 18.11.2011 STATING THAT IN THE REMAND REPORT THE ASSESSING OFFICER HAS CATEGORICALLY MENTIONED THAT THE AMOUNT S WERE RECEIVED FROM SHRI VINOD KUMAR JAIN AND THEREFORE, THE CASH DEPOSIT STANDS EXPLAINED AND REQUESTED TO DELETE THE ADDITION. TH E CIT(A), IN VIEW OF THE ABOVE SUBMISSIONS AND CONSIDERING THE REMAND RE PORT OF THE ASSESSING OFFICER, DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 6. BEING AGGRIEVED BY THIS ORDER, THE REVENUE IS IN AP PEAL BEFORE US. 7. THE DR SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE CIT(A) HAS DELETED THE ADDITION WITHOUT VERIFYING THE AVAILABILITY OF CASH WITH SHRI VINOD KUMAR JAIN AFTER VERIFYING THE CASH BOOK AND PASSBOOK OF THE SAID SHRI VINOD KUMAR JAIN. THE CIT(A) HAS ALSO NOT CONSIDERED THE CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION BEFORE HOLDING THAT THE ASSESSEE HAD SATISFACTORILY EXPLAINED THE SOURCE FOR CASH DEPOSI TS. 8. THE A.R OF THE ASSESSEE, ON THE OTHER HAND, SUBMIT TED THAT THE APPEAL FILED BY THE REVENUE IS MISCONCEIVED IN VIEW OF THE FACT I.T.A.NO.775/12 :- 4 -: THAT THE ASSESSING OFFICER HIMSELF IN THE REMAND RE PORT HAS ACCEPTED THE FACT THAT THE AMOUNT OF ` 60 LAKHS WAS PAID BY SHRI VINOD KUMAR JAIN AS ADVANCE TO THE ASSESSEE IN THE YEAR UNDER CONSIDERATION AGAINST AGREEMENT TO SELL THE PROPERTY BY THE ASS ESSEE. HE, THEREFORE, REQUESTED THAT THE APPEAL OF THE REVENUE SHOULD BE DISMISSED. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS REPAID ` 65 LAKHS TOWARDS HOUSING LOAN WITH CITI BANK DURIN G THE PERIOD 2007-08. IN RESPONSE TO THE NOTICE ISSUED BY THE ASSESSING OFFICER TO EXPLAIN THE SOURCE OF DEPOSIT OF ` 65 LAKHS SHOWN IN THE BANK ACCOUNT WITH CITI BANK, THE ASSESSEE EXPLAINED THAT THE SA ID AMOUNT WAS RECEIVED FROM ONE SHRI VINOD KUMAR JAIN TOWARDS THE SALE OF PROPERTY SITUATED AT NO.7, MICETECH COLONY, MADHAVARAM, CHEN NAI-60. THE ASSESSING OFFICER, IN ORDER TO VERIFY THE ABOVE TRA NSACTION, ISSUED SUMMON U/S 131 ON 26.11.2010 TO SHRI VINOD KUMAR J AIN. IN RESPONSE TO THE SAME, HE FILED A LETTER DATED 11.12 .2010 WITH ANNEXURES STATING THAT HE AND HIS BROTHERS HAVE PAI D A TOTAL SUM OF ` 42 LAKHS AS BELOW, TOWARDS THE ABOVE PROPERTY: I.T.A.NO.775/12 :- 5 -: MR.M.VINOD KUMAR SI.NO. DATE CHEQUE BANK NAME AMOUNT L. 2.11.2007 766152 CITI BANK ` 5,00,000/- 2. 14.2.2008 766159 -DO- ` 5,00,000/- 3. 02.06.208 766173 -DO- ` 4,00,000/- AMOUNT PAID BY MR.VINOD KUMAR ` 14,00,000/- MR.M.MADAN CHAND SI.NO. DATE CHEQUE BANK NAME AMOUNT L. 14.2.2008 827946 CITI BANK ` 5,00,000/- 2. 17.04.2008 827970 -DO- ` 5,00,000/- 3. 28.05.2008 827973 DO- - ` 4,00,000/- AMOUNT PAID BY MR.M.MADAN CHAND ` 14,00,000/- MR.M.LALITH KURNAR SI.NO. DATE CHEQUE BANK NAME AMOUNT L. 2.11.2007 766152 CITI BANK ` 10,00,000/- 0,00,0001 - 2. 02.06.208 766173 -DO- ` 4,00,000/- AMOUNT PAID BY MR.M.LALITH KUMAR ` 14,00,000/- PAYMENTS MADE AS PER MR.M. VINOD KUMAR AND HIS BROTHERS TOTAL AMOUNT PAID TO MR.SURENDRA KUMAR MALOO ` 42,00,000/- AMOUNT PAID TO THE ASSESSEE DURING THE PERIOD 2007 - 08 ` 25,00,000/- ' 10. FROM THE ABOVE DETAILS, THE ASSESSING OFFICER CONCL UDED THAT THE ASSESSEE RECEIVED ` 25 LAKHS BY CHEQUE DURING THE YEAR UNDER CONSIDERATION. WHEN PUT TO THE ASSESSEE, THE ASS ESSEE SUBMITTED THAT SHRI VINOD KUMAR JAIN AND HIS BROTHERS HAVE DI SCLOSED ONLY THE CHEQUE PAYMENTS MADE BY THEM TO HIM IN THEIR RETURN S OF INCOME AND REITERATED THAT THE TOTAL SUM OF ` 65 LAKHS WAS RECEIVED AS ADVANCE FROM SHRI VINOD KUMAR JAIN AND HIS BROTHERS DURING THE PERIOD. IN THE ABSENCE OF EVIDENCE TO SUPPORT THE SOURCE OF CASH R ECEIPTS, THE I.T.A.NO.775/12 :- 6 -: ASSESSING OFFICER MADE AN ADDITION OF ` 40 LAKHS TO THE INCOME OF THE ASSESSEE. 11. ON APPEAL BEFORE THE CIT(A) WHEN THE ASSESSEE FILE D COPY OF THE SALE AGREEMENT FOR THE SALE OF PROPERTY SITU ATED AT NO.7, MICETECH COLONY, MADHAVARAM, CHENNAI-60, FOR THE FI RST TIME, THE CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSIN G OFFICER WHEREIN THE ASSESSING OFFICER, AFTER EXAMINING SHRI VINOD K UMAR JAIN, IN THE REMAND REPORT DATED 16.9.2011, STATED THAT FROM THE STATEMENT OF SHRI VINOD KUMAR JAIN RECORDED, SHOWS THAT THE AMOUNTS B Y WAY OF CASH FOR THE PROPERTY AS ADVANCE AS MENTIONED IN THE SAL E AGREEMENT WERE PAID TO THE ASSESSEE BY HIM. IN VIEW OF THIS STAT EMENT MADE BY THE ASSESSING OFFICER IN THE REMAND REPORT, THE CIT(A) DELETED THE ADDITION OF ` 40 LAKHS BY TREATING THE SOURCE OF ` 40 LAKHS AS EXPLAINED. WE FIND THAT THE REVENUE IS IN APPEAL AGAINST THIS DEL ETION OF ` 40 LAKHS MADE BY THE CIT(A) ON THE GROUND THAT THE CIT(A) HA S ACCEPTED THE STATEMENT OF SHRI VINOD KUMAR JAIN THAT THE AMOUNT WAS PAID BY HIM TO THE ASSESSEE WITHOUT VERIFYING THE AVAILABILITY OF CASH FROM THE CASH BOOK AND PASSBOOK OF SHRI VINOD KUMAR JAIN AND ALSO THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION SATISFACTORILY EXPLAINING THE SOURCE OF CASH DEPOSIT BY SHRI VINOD KUMAR JAIN. WE FIND THAT THE CIT(A) HAS ACCEPTED THE SOURCE OF THE AMOUNT REPAID BY I.T.A.NO.775/12 :- 7 -: THE ASSESSEE ON THE BASIS OF REMAND REPORT SUBMITT ED BY THE ASSESSING OFFICER WHICH, IN TURN, WAS BASED UPON TH E SATISFACTION OF THE ASSESSING OFFICER DERIVED ON THE BASIS OF AGRE EMENT OF SALE AS WELL AS STATEMENT RECORDED OF SHRI VINOD KUMAR JAIN U/S 131 OF THE ACT. WE FIND THAT IN THE INSTANT CASE, THE CLAIM OF THE ASSESSEE ABOUT THE SOURCE OF HIS REPAYMENT OF HOUSING LOAN IS SUPPORTE D BY THE AGREEMENT OF SALE AS WELL AS STATEMENT OF SHRI VINO D KUMAR JAIN. THE REVENUE HAS BROUGHT NO MATERIAL BEFORE US TO SHOW S TILL THE AMOUNT OF ` 40 LAKHS OUT OF THE TOTAL AMOUNT OF ` 65 LAKHS RECEIVED BY THE ASSESSEE FROM SHRI VINOD KUMAR JAIN SHOULD BE TREAT ED AS BOGUS AND UNEXPLAINED INCOME OF THE ASSESSEE. THUS, WE DO N OT FIND ANY MERIT IN THIS APPEAL OF THE REVENUE, HENCE, THE SAME IS D ISMISSED. 12. IN THE RESULT, THE APPEAL FILED BY THE REVEN UE IS DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 27 TH OF SEPTEMBER, 2012, AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 27 TH SEPTEMBER, 2012 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR
