DCIT, Hyderabad V. Sri Venkateswara Prasad Nidadavolu, Hyderabad

ITA 808/HYD/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53776 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 23-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PHANI RAJU
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, AM AND SMT. ASHA VIJAYARAGHAVAN, JM ITA NO.808/HYD/2009 ASSESSMENT YEAR 2005-06 THE DCIT, CIRCLE 3(1), HYDERABAD VS SHRI VENKATESWARA PRASAD, NIDADAVOLU, HYDERABAD (PAN ABFPN7689G) APPELLANT RESPONDENT APPELLANT BY : SHRI PHANI RAJU RESPONDENT BY : NONE DATE OF HEARING : 31.10.2011 DATE OF PRONOUNCEMENT : 16.11.2011 ORDER PER ASHA VIJAYARAGHAVAN, JM . THE APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-IV, HYDERABA D DATED 31.3.2009 AND PERTAINS TO THE ASSESSMENT YEAR 2005- 06. 2. BRIEF FACTS OF THE ISSUE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 1.11.2005 FOR THE ASSESSMENT YE AR 2005-06 DECLARING AN INCOME OF RS.16,15,350/-. THE ASSESSEE IS IN THE BUSINESS OF PLOTTING DEVELOPING AND SALE OF LAND. THE RETURN WAS PROCESSED U/S 143(1) ON 13.3.2006. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICES U/S 143(2) AND 143(1) WERE ISS UED AND THE ASSESSMENT WAS COMPLETED U/S 143(3). WHILE COMPLETING THE ASSESSMENT THE ASSESSING OFFICER ADD ED A SUM OF RS.70 LAKHS AS UNEXPLAINED CASH CREDIT TO TH E INCOME OF THE ASSESSEE. ON FURTHER APPEAL BEFORE T HE ITA NO.808/HYD/2009 SHRI VENKATESWARA PRASAD, HYDERABAD 2 CIT(A), THE CIT(A) CONFIRMED THE ADDITIONS WITH RES PECT TO THE LOAN OF RS.30 LAKHS FROM SHRI P.V.P. PRASAD AND ALSO A LOAN OF RS.16 LAKHS FROM SHRI UMASHANKAR RAO AND RS .5 LAKHS FROM SHRI NAGESH, AS UNEXPLAINED CASH CREDIT. AS REGARDS THE LOAN OF RS.19 LAKHS FROM SRI. A. VENKAT ESWARA RAO, THE ADDITION WAS DELETED BY THE CIT(A). 3. AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE U S AND RAISED THE GROUND THAT THE CIT(A) SHOULD HAVE SUSTA INED THE ADDITION OF RS.19 LAKHS MADE BY THE ASSESSING OFFIC ER U/S 68 OF THE IT ACT. THE LEARNED DEPARTMENTAL REPRESE NTATIVE SHRI PHANI RAJU POINTED OUT THAT THE ASSESSEE IS N OT PAYING ANY INTEREST ON LOANS TAKEN. FURTHER, BOTH THE PAR TIES I.E. THE LENDER AND THE ASSESSEE HAVE NOT ENTERED INTO A NY WRITTEN AGREEMENT WITH REGARD TO LOAN EVEN THOUGH T HE AMOUNT ADVANCED IS SUBSTANTIAL. HENCE, HE SUBMITTE D THAT THE LOAN AMOUNT ADVANCED IN THE NAME OF SHRI VENKATESWARA RAO FOR RS.19 LAKHS CANNOT BE ACCEPTED AS GENUINE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE ORDER OF THE CIT(A). 5. WE HAVE HEARD THE DEPARTMENTAL REPRESENTATIVE. WE FIND NO INFIRMITY IN THE ORDERS OF THE CIT(A) WHERE IN THE CIT(A) HAS OBSERVED THAT THE ONLY OBJECTION BY THE ASSESSING OFFICER WAS THAT THE CONFIRMATION LETTER WAS ISSUED BY THE CREDITORS WIFE. THE CIT(A) POINTED OUT THAT THE A SSESSING OFFICER HIMSELF HAS NOT DISPUTED THAT THE CHEQUE OF RS.15 LAKHS OUT OF THE AMOUNT OF RS.19 LAKHS HAS BEEN ISS UED FROM THE JOINT ACCOUNT WITH THE UNION BANK OF INDIA , GOPALAPATINAM BRANCH, VISAKHAPATNAM, HELD BY THE CREDITOR WITH HIS WIFE. THE ASSESSING OFFICER HAS ALSO NOT ITA NO.808/HYD/2009 SHRI VENKATESWARA PRASAD, HYDERABAD 3 DISPUTED THAT THE CREDITOR WAS ASSESSED TO TAX AND THAT THE CREDITOR IS A BHPV EMPLOYEE AND THE LOAN HAD BEEN G IVEN OUT OF INSURANCE CLAIM RECEIVED BY HIM FROM US ON T HE DEATH OF THEIR YOUNGER SON AT US. 6. THE CIT(A) HAS ALSO FURTHER GONE INTO THE DETAI L OF THE RECEIPT OF RS.19 LAKHS WHICH HAS BEEN SHOWN IN THE BANK STATEMENT OF THE ASSESSEE WITH DHANALAKSHMI BANK REFLECTING THE CHEQUE NOS. IT WAS FURTHER CORROBOR ATED WITH THE PASS BOOK HELD BY THE CREDITOR WITH THE UNION BANK OF INDIA AND IT IS ESTABLISHED THAT THE RECEIPT OF THE INSURANCE CLAIM IS REFLECTED IN THE PASS BOOK ON 30.12.2004. THE CIT(A) OBSERVED THAT IN THE REMAND PROCEEDINGS ALSO THE ASSESSING OFFICER HAS NOT CONTROVERTED ANY OF THE FACTS AND HENCE WE CONFIRM THE ORDER OF THE CIT(A) THAT THE A SSESSEE HAS SUFFICIENTLY DISCHARGED ITS ONUS OF PROVING THE CREDIT WORTHINESS, IDENTITY AND GENUINENESS OF THE TRANSAC TIONS OF LOAN RECEIVED FROM SHRI VENKATESWARA RAO AND HENCE WE DELETE THE ADDITION OF RS.19 LAKHS. 7. IN THE RESULT, REVENUES APPEAL STANDS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT 16.1 1.2011 SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 16 TH NOV., 2011 ITA NO.808/HYD/2009 SHRI VENKATESWARA PRASAD, HYDERABAD 4 COPY FORWARDED TO: 1. THE DCIT, CIRCLE 3(1), HYDERABAD 2. SHRI N. VENKATESWARA PRASAD, FLAT NO.303, ANAND PLAZA, LAKDIKAPOOL, HYDERABAD 3. THE CIT(A)-IV, HYDERABAD 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD NP/