Assistant Commissioner of Income Tax, Circle-1, Belagavi., Belagavi V. Sri. Siddappa Mallappa Dodamani., Belagavi

ITA 83/PAN/2015

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1403 (ITAT-PANAJI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-08-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 05-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANAND S MARATHE LD
• Keywords: Unexplained investment; Depreciation
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI N.S. SAINI, HON'BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 83/PNJ/2015 : (A.Y 2011 - 12) ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1, BELAGAVI (APPELLANT) VS. SRI SIDDAPPA MALLAPPA DODAMANI, 17/5, SHRI SAI HOSIPTAL, LAXMINAGAR, VADAGAON, BELAGAVI (RESPONDENT) PAN : AEDPD8882J ASSESSEE BY : OMKAR GODBOLE, CA REVENUE BY : ANAND S. MARATHE, LD. DR DATE OF HEARING : 19/08/2015 DATE OF PRONOUNCEMENT : 19/08/2015 O R D E R PER GEORGE MATHAN : 1. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A), BELGAUM IN ITA NO. 184/BGM/2013 - 14 DT. 12.12.2014 FOR THE A.Y 2011 - 12. SHRI ANAND S. MARATHE , LD. DR REPRESENTED ON BEHALF OF THE REVENUE AND SHRI OMKAR GODBOLE, CA REPRESENTED ON BEHALF OF THE ASSESSEE. 2. IT WAS SUBMITTED BY THE LD. DR THAT THE ASSESSEE IS AN INDIVIDUAL WHO IS A DOCTOR. A SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON THE BUSINE SS PREMISES OF THE ASSESSEE ON 23.2.2011. ON THE BASIS OF THE INCRIMINATING 2 ITA NO. 83/PNJ/2015 (A.Y : 2011 - 12) DOCUMENTS FOUND IN THE COURSE OF THE SURVEY THE ASSESSEE HAD ADMITTED AN INVESTMENT IN CONSTRUCTION OF HOSPITAL BUILDING AND IN PURCHASE OF LAND TO AN EXTENT OF RS.71,13,400/ - . I T WAS THE SUBMISSION THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR ON 30.9.2011 DECLARING AN INCOME OF RS. 67,40,360/ - . IT WAS THE SUBMISSION THAT THE ASSESSEE HAS NOT DISCLOSED THE INCOME OFFERED IN THE COURSE OF THE S URVEY, CONSEQUENTLY, THE AO HAD MADE AN ADDITION OF RS. 71,13,400/ - AS ALSO AN ADDITION OF RS. 13,78,000/ - IN RESPECT OF UNACCOUNTED INVESTMENT IN THE PURCHASE OF LAND. IT WAS THE SUBMISSION THAT THE LD. CIT(A) HAD DELETED THE ADDITION BY HOLDING THAT IN THE RETURN FOR THE RELEVANT ASSESSMENT YEAR THE ASSESSEE HAS DISCLOSED THE AMOUNT SURRENDERED IN THE COURSE OF THE SURVEY, AS ALSO ON THE GROUND THAT THE STATEMENT RECORDED U/S 133A OF THE ACT DID NOT HAVE ANY EVIDENTIARY VALUE AND COULD NOT BE RELIED UPON BY APPLYING THE PRINCIPLES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF S. KHADER KHAN SON REPORTED IN 3 52 ITR 480. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 3. IN REPLY, THE LD. AR VEHEMENTLY SUPPORTED T HE ORDER OF THE LD. CIT(A). IT WAS THE SUBMISSION THAT IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF S. KHADER KHAN SON REFERRED TO SUPRA THE STATEMENT RECORDED UNDER OATH COULD NOT BE GIVEN ANY EVIDENTIARY VALUE. IT WAS THE FURTHER SUBMISSION THAT ALL THE ASSETS HAVE BEEN DISCLOSED BY THE ASSESSEE IN ITS BALANCE SHEET FOR THE RELEVANT ASSESSMENT YEAR. IT WAS THE SUBMISSION THAT THE ASSES SEE HAD ALSO STOOD FOR ELECTION AND THE AO HAD OBTAINED A COPY OF THE AFFIDAVIT FILED BY THE ASSESSEE BEFORE THE ELECTION COMMISSION. IT WAS THE SUBMISSION THAT ALL THE ASSETS DISCLOSED BEFORE THE ELECTION COMMISSION WERE DISCLOSED IN THE BALANCE SHEET OF THE ASSESSEE. IT WAS THE SUBMISSION THAT THE AO DID NOT CONSIDER THE BALANCE SHEET IN ITS ENTIRETY AND THIS HAS 3 ITA NO. 83/PNJ/2015 (A.Y : 2011 - 12) RESULTED IN THE ADDITION. IT WAS THE SUBMISSION THAT THE AO HAD ONLY CONSIDERED THE IMMOVEABLE PROPERTIES. IT WAS THE SUBMISSION THAT IF THE BALANCE SHEET, IN ITS ENTIRETY, WAS CONSIDERED, NO ADDITION WAS CALLED FOR. IT WAS THE FURTHER SUBMISSION THAT FOR THE A.YS 2008 - 09 TO 2011 - 12 THE ASSESSEE HAS BEEN DISCLOSING INCOME VARYING BETWEEN RS. 2.24 LACS TO RS. 9.51 LACS WHEREAS FOR THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE HAS DISCLOSED AN INCOME OF RS. 67,40,360/ - WHICH ITSELF CLEARLY SHOWED THAT THE ASSESSEE HAS OFFERED THE INCOME OFFERED IN THE COURSE OF THE SURVEY. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE UPH ELD. 4. ON A SPECIFIC QUERY FROM THE BENCH AS TO EXPLAIN THE VARIOUS ASSETS AS AVAILABLE IN THE BALANCE SHEET AS ON 31.3.2011 AND WHICH IS FOUND AT PAGE 16 OF THE PAPER BOOK REPRESENTING THE D EPRECIATION CHART FOR THE YEAR ENDED 31.3.2011 AND THE AFFIDAV IT FILED BEFORE THE ELECTION COMMISSION, IT WAS SUBMITTED BY THE LD. AR THAT THOUGH THE SAID CHART DID NOT GIVE THE COMPLETE PICTURE, IT WAS ONLY BY VERIFYING WITH THE BALANCE SHEET AND TAKING INTO CONSIDERATION THE PROPERTY ADVANCE AND THE FIELD ADVANCE T HE SAID D EPRECIATION CHART WOULD TALLY WITH THE AFFIDAVIT FILED BEFORE THE ELECTION COMMISSION. IT WAS THE FURTHER SUBMISSION THAT FRESH LOANS HAD ALSO BEEN TAKEN BY THE ASSESSEE WHICH HAD NOT BEEN CONSIDERED AS SOURCE FOR THE INVESTMENTS. 5. WE HAVE C ONSIDERED THE RIVAL SUBMISSIONS. ADMITTEDLY, THERE ARE ITEMS OF FIELD ADVANCE AND PROPERTY ADVANCE IN THE CURRENT ASSETS SHOWN IN THE BALANCE SHEET. HOWEVER, THE FIXED ASSETS WHICH ARE THE ITEMS SHOWN IN THE DEPRECIATION CHART FOR THE YEAR ENDED 31.3.201 1 DOES NOT TALLY WITH THE AFFIDAVIT FILED BEFORE THE ELECTION COMMISSION. THE BREAK - UP OF THE PROPERTY ADVANCE AND THE FIELD ADVANCE HAS ALSO NOT BEEN PLACED BEFORE US. THE DETAILS 4 ITA NO. 83/PNJ/2015 (A.Y : 2011 - 12) OF THE FRESH LOANS TAKEN BY THE ASSESSEE, AS ALSO THE DETAILS OF THE CLOS URE OF THE EARLIER LOANS ARE ALSO NOT BEFORE US. IN THESE CIRCUMSTANCES, IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE ISSUES IN THIS APPEAL ARE LIABLE TO BE RESTORED TO THE FILE OF THE AO FOR RE - ADJUDICATION AFTER GRANTING THE ASSESSEE OPPORTUN ITY OF SUBSTANTIATING HIS CASE, AND WE DO SO. IN THE SE CIRCUMSTANCES, IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF S. KHADER KHAN SON REFERRED TO SUPRA THE STATEMENT RECORDED FROM THE ASSESSEE U/S 133A OF THE ACT IN THE COURSE OF TH E SURVEY CANNOT BE GIVEN ANY EVIDENTIARY VALUE AND WOULD HAVE TO BE DISCARDED. THE AO SHALL NOT CONSIDER THE STATEMENT RECORDED IN THE COURSE OF THE SURVEY FOR THE PURPOSE OF MAKING THE ASSESSMENT. THE AO SHALL CONSIDER THE INCREASE IN THE INVESTMENTS, A S ALSO THE SOURCE FOR THE SAME WHEN COMPLETING THE REASSESSMENT. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 19/08/2015. S D / - (N.S. SAINI) ACCOUNTANT MEMBER S D / - ( GEORGE MATHAN ) JUDICIAL MEMBER PLACE : PANAJI / GOA DATED : 19/08/ 201 5 *SSL* 5 ITA NO. 83/PNJ/2015 (A.Y : 2011 - 12) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER , 6 ITA NO. 83/PNJ/2015 (A.Y : 2011 - 12) DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ORDER ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 19/08/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 19/08/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 19/08/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 19/08/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 19/08/2015 SR.PS 6. DATE OF PRONOUNCEMENT 19/08/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 19/08/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER