Kaajal Vangani, Hyd, Hyderabad V. ITO, Ward-5(1), Hyd, Hyderabad

ITA 829/HYD/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2437 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-01-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 02-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 829/HYD/2016 ASSESSMENT YEAR: 2007-08 SMT. KAJAL VANGANI, PROP: CRAFTS INDIA, HYDERABAD [PAN: ACVPK3412D] VS THE INCOME TAX OFFICER, WARD-5(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.C. DEVDAS, AR FOR REVENUE : SMT. N. SWAPNA, DR DATE OF HEARING : 18-10-2017 DATE OF PRONOUNCEMENT : 31-10-2017 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERABAD, DATED 18-03-2016. THE ISSUE IN THIS APPEAL IS WITH REFEREN CE TO THE ADDITION OF RS. 12 LAKHS TOWARDS ALLEGED UN-ACCOUNTE D MONEY DEPOSITED IN THE BANK STATED TO BE OUT OF SALE PROCEEDS O F HOUSE AND ADDITION OF RS. 1 LAKH TOWARDS ALLEGED LOW WITHDR AWALS TOWARDS HOUSE HOLD EXPENSES. 2. BRIEFLY STATED, ASSESSEE ALONG WITH HER HUSBAND SHR I GULRAJ VANGANI SOLD A PROPERTY FOR A CONSIDERATION OF RS. 5 2 LAKHS. THE SAME WERE DEPOSITED IN THE BANK. COINCIDENTALLY, ASS ESSEE ALSO DEPOSITED AN AMOUNT OF RS. 12 LAKHS IN THE SAME ACCOUN T. ASSESSING OFFICER (AO) WAS OF THE OPINION THAT THIS IS UNACCOUNTED MONEY AND BROUGHT TO TAX. ASSESSEES EXPLANATION THAT TH IS IS NOT I.T.A. NO. 829/HYD/2016 :- 2 - : PART OF SALE CONSIDERATION AND THE DEPOSITS SOURCED OU T OF CASH BOOK WERE NOT ACCEPTED. SIMILAR ACTION WAS ALSO TAKEN IN THE CASE OF SHRI GULRAJ VANGANI. 3. AT THE OUTSET IT WAS SUBMITTED THAT ASSESSMENT UNDER THE HANDS OF HUSBAND, SHRI GULRAJ VANGANI WAS RESTORED TO THE FILE OF THE AO IN ITA NO. 245/HYD/2011 DT. 18-04-2013 AND IN THE RE- ASSESSMENT PROCEEDINGS, AO HAS ACCEPTED THE EXPLANATIO N OF ASSESSEE. IN VIEW OF THAT IT WAS PRAYED THAT ADDITION I N THE HANDS OF ASSESSEE ALSO SHOULD BE DELETED. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL ON RECORD. THE ORDER OF THE ITAT IN PARA 1 0 IS AS UNDER: 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. THE SUM AND SUBSTANCE OF THE SUBMISSION OF THE LEARNED AR IS THAT PROPER OPPORTUNITY WAS NOT GIVEN TO THE ASSESS EE TO EXPLAIN AND PROVE THE FACT OF LOAN OF RS. 93,000/-, DEPOSITS OF RS. 1 2 LAKHS IN THE BANK ACCOUNT AND ALSO WITH REGARD TO THE SO CALLED LOW W ITHDRAWAL OR DOMESTIC EXPENSES. SO FAR LOAN OF RS. 93,000/- IS CONCERNED, IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THE NAMES OF THE PERSONS FROM WHOM THE LOANS WERE TAKEN WERE AVAILABLE WITH THE AO. HOWEVER, IT IS NOT CLEAR EITHER FROM THE ASSESSMENT ORDER OR THE ORDER PASSED BY THE CIT (A) WHETHER ANY INFORMATION WAS CALLED FOR FROM THE ASSESSEE TO PRO VE THE LOAN TRANSACTION. SIMILARLY, WITH REGARD TO ADDITION OF RS. 12 LAKHS ON ACCOUNT OF ON MONEY, AS IT APPEARS FROM THE ORDERS OF THE REVEN UE AUTHORITIES, NEITHER ANY INDEPENDENT ENQUIRY WAS CONDUCTED BY THE AO WIT H THE BUYER OF THE PROPERTY TO ASCERTAIN THE FACT THAT AS TO WHETHER A CTUALLY ANY ON MONEY WAS PAID BY THEM TO THE ASSESSEE NOR THE ASSESSEE W AS ASKED TO PROVE THE FACT BY PRODUCING NECESSARY EVIDENCE THAT HE HA S NOT RECEIVED MORE THAN RS. 52,00,000/- PAID IN CHEQUE TOWARDS SALE CO NSIDERATION OF THE HOUSE PROPERTY. IT APPEARS FROM THE ORDERS OF THE R EVENUE AUTHORITIES THAT ADDITION OF RS. 12 LAKHS WAS MADE PRESUMING THAT IT REPRESENTS ON MONEY PAID BY THE BUYER OF THE PROPERTY. HOWEVER, BEFORE COMING TO A DEFINITE CONCLUSION THAT THE AMOUNT OF RS. 12 LAKHS ACTUALLY REPRESENTS ON MONEY PAID BY THE BUYER, ADEQUATE MATERIAL MUST BE BROUGHT ON RECORD TO PROVE SUCH FACT. SIMILARLY, WITH REGARD TO ADDITION OF RS. 1 LAKH ON ACCOUNT OF LOW WITHDRAWALS FOR DOMESTIC EXPENSES ASSESSEES EXPLANATION IS REQUIRED TO BE CONSIDERED. THEREFORE, CONSIDERING T HE SUBMISSIONS OF THE ASSESSEE THAT ADEQUATE OPPORTUNITY WAS NOT GIVEN TO HIM TO EXPLAIN THE I.T.A. NO. 829/HYD/2016 :- 3 - : FACTS BEFORE MAKING ADDITION, WE ARE INCLINED TO RE MIT THE MATTER TO THE FILE OF THE AO FOR RECONSIDERING THE ISSUES RELATING TO THE AFORESAID ADDITIONS AFTER CONSIDERING ALL THE FACTS AND MATERIALS AVAIL ABLE ON RECORD AND FURTHER MATERIAL AND EVIDENCES WHICH MAY BE PRODUCE D BY THE ASSESSEE IN THIS REGARD. IF IT IS FOUND NECESSARY FOR ARRIVING AT A PROPER CONCLUSION, THE AO MAY DIRECT THE ASSESSEE TO PRODUCE CREDITORS, WH O STATED TO HAVE BEEN ADVANCED THE LOAN OF RS. 93,000/- TO THE ASSESSEE A ND ALSO THE BUYER WHO PURCHASED THE PROPERTY FROM THE ASSESSEE. NEEDL ESS TO SAY, THE ASSESSEE SHALL BE PROVIDE REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER. WE ALSO DIRECT THE ASSESSEE TO COOPERATE WITH THE A O IN FINALISING THE PROCEEDING BY PRODUCING THE INFORMATION AND EVI DENCES WHICH THE AO MAY ASK HIM TO PRODUCE OR WHICH HE MAY LIKE TO PROD UCE IN SUPPORT OF HIS CLAIM. IF THE ASSESSEE FAILS TO COOPERATE OR DOES N OT PRODUCE ANY EVIDENCE IN SUPPORT OF HIS CLAIM THE AO WILL BE AT LIBERTY T O DRAW HIS OWN CONCLUSIONS ON THE BASIS OF THE MATERIALS AND EVIDE NCES AVAILABLE ON RECORD. 4.1. SINCE IT IS WITHIN THE POWERS OF AO TO EXAMINE TH E CONTENTIONS, THE CONSEQUENTIAL ACCEPTANCE IN THE HANDS O F THE HUSBAND DOES NOT AUTOMATICALLY RESULT IN ACCEPTANCE IN ASSESSEES HANDS. THEREFORE, WE ARE OF THE OPINION THAT THE MATTER IS TO BE RESTORED TO THE FILE OF AO TO EXAMINE THE FACTS AND DEC IDE THE ISSUE ACCORDINGLY. IN VIEW OF THAT, WE REITERATE THE DIREC TIONS GIVEN IN HUSBANDS CASE BY THE COORDINATE BENCH( SUPRA ) AND RESTORE THE ISSUE TO THE FILE OF AO TO EXAMINE AFRESH AND DECIDE THE ISSUE BASED ON FACTS. ACCORDINGLY, THE ORDER OF CIT(A) IS SET AS IDE AND THE ISSUE IS RESTORED TO THE FILE OF AO. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2017 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD, DATED 31 ST OCTOBER, 2017 TNMM I.T.A. NO. 829/HYD/2016 :- 4 - : COPY TO : 1. KAJAL VANGANI, M/S. CRAFTS INDIA, 5-9-48/5 & 6, BASHEERBAGH, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-5(1), HYDERABAD. 3. CIT (APPEALS)-4, HYDERABAD. 4. PR.CIT-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.