Smt. Geetha Mahedev Gowda, Bangalore V. ITO, Bangalore

ITA 930/BANG/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5438 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 01-03-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 14-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BIJU BENGALURU
• Keywords: Unexplained cash credit; Business income; Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ITA NO.930/BANG/2014 ASSESSMENT YEAR : 2009-10 SMT. GEETHA MAHADEV GOWDA, NO.28/1, 6 TH MAIN, 9 TH CROSS, MALLESHWARAM, BANGALORE 560 003. PAN: ABTPG 3452C VS. THE INCOME TAX OFFICER, WARD 11(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI SANDEEP C., CA RESPONDENT BY : SHRI M.K. BIJU, CIT(DR)(ITAT-3), BENGALURU DATE OF HEARING : 01.03.2017 DATE OF PRONOUNCEMENT : 28.04.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINS T THE ORDER OF CIT(APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), IN SO FAR IT IS PREJUDICIAL TO THE INTER ESTS OF THE APPELLANT, IS BAD AND ERRONEOUS IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE SUM O F RS. 17,86,346/- IS TO BE ADDED U/S 68 OF THE ACT JUST B ECAUSE THE ITA NO.930/BANG/2014 PAGE 2 OF 4 SUPPORTING SALES BILLS EVIDENCING SALE OF VEGETABLE S TO SMALL VENDORS WAS NOT MADE AVAILABLE. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) ERRED IN LAW AND ON FACTS IN HOLDING THAT THERE IS A DIFFERENCE BETWEEN THE DETAILS FURNISHED TO THE ASSESSING OFFI CER AND THE DETAILS IN THE CASH SALES REGISTER AND HIS FINDING IN PARA 4.6 OF THE APPELLATE ORDER IS PERVERSE AS BEING CONTRADICT TO THE MATERIALS ON RECORD. 4. WITHOUT PREJUDICE TO PARA 3, THE LEARNED COMMIS SIONER OF INCOME TAX (APPEAL) ERRED IN LAW AND ON FACTS IN NO T GIVING THE OPPORTUNITY TO THE APPELLANT TO EXPLAIN THE CORRECT POSITION. 5. WITHOUT PREJUDICE TO ALL THE ABOVE GROUNDS 2 TO 4, THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ENTIRE AMOUNT OF RS. 1 7,86,346 REPRESENTS UNEXPLAINED CASH CREDITS AND OUGHT TO HA VE ESTIMATED THE UNEXPLAINED CASH CREDITS AT A MUCH LOWER FIGURE TAKING INTO ACCOUNT THE FACTS AND CIRCUMSTANCES OF THE CASE. EACH OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO O NE ANOTHER AND THE APPELLANT CRAVES LEAVE OF THE HONBLE INCOM E TAX APPELLATE, BANGALORE TO ADD, DELETE, AMEND OR OTHER WISE MODIFY ONE OR MORE OF THE ABOVE GROUNDS EITHER BEFORE OR A T THE TIME OF HEARING OF THIS APPEAL. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE HAS INVITED OUR ATTENTION THAT THE AO HAS DISBELIEVED T HE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE AND HAS MADE THE ADDITION OF THE DIFFERENCE IN THE SALE PROCEEDS SHOWN IN THE PROFIT & LOSS ACCOUNT AN D STATEMENT FILED BY THE ASSESSEE. 3. BEFORE THE CIT(APPEALS), ASSESSEE HAS CONTENDED THAT AO HAS NOT TAKEN COGNIZANCE OF CORRECT FIGURES OF SALE PROCEED S. THE CIT(APPEALS) ITA NO.930/BANG/2014 PAGE 3 OF 4 CALLED FOR A REMAND REPORT FROM THE AO IN THIS REGA RD AND IN THE REMAND REPORT THE AO REITERATED THAT THE TOTAL SALES AS PE R DETAILS SUBMITTED DURING THE ASSESSMENT PROCEEDINGS WERE OF RS.93,80,655 AS AGAINST THE AMOUNT OF GROSS SALE OF RS.1,11,66,001 SHOWN AS PER THE PR OFIT & LOSS ACCOUNT. THE AO HAS ALSO OBSERVED THAT THE ASSESSEE WAS ASKE D TO FURNISH BILLS FOR DIFFERENTIAL AMOUNT, BUT IT WAS NOT FURNISHED. REL YING UPON THE REMAND REPORT, THE CIT(APPEALS) CONFIRMED THE ADDITIONS. 4. NOW THE ASSESSEE IS BEFORE US AND INVITED OUR AT TENTION TO THE REJOINDER TO REMAND REPORT WITH THE SUBMISSION THAT IT WAS THE MISTAKE OF THE AR OF ASSESSEE BY STATING THAT THE DETAILS WERE NOT AVAILABLE, WHEREAS THE DETAILS ARE AVAILABLE IN THE DAILY CASH REGISTE R FILED ALONG WITH THE REJOINDER TO THE REMAND REPORT. THE ASSESSEE HAS F ILED THE DETAILS OF TOTAL SALES. ALL THESE EVIDENCE WAS NOT EXAMINED BY THE CIT(APPEALS) WHILE CONFIRMING THE ADDITION. HE HAS SIMPLY RELIED UPON THE REMAND REPORT AND CONFIRMED THE ADDITION. 5. THE LD. DR SIMPLY PLACED RELIANCE ON THE ORDER O F CIT(APPEALS). 6. HAVING CAREFULLY EXAMINED THE ORDER OF LOWER AUT HORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSEE HAS FILED THE REJOINDER TO THE REMAND REPOT ALONG WITH DETAILS OF DAILY SALES. IF THE TOTAL SALES ARE TO BE WORKED OUT INCLUDING THE DAILY SALES, IT WOULD COME TO RS.1,11,66,001 AND THERE WOULD NOT BE ANY DIFFERENCE IN THE SALE PROCE EDS OF AGRICULTURAL PRODUCE. SINCE THE CIT(APPEALS) HAS NOT EXAMINED T HE DETAILS OF DAILY ITA NO.930/BANG/2014 PAGE 4 OF 4 SALES, WE ARE OF THE VIEW THAT THIS MATTER SHOULD G O BACK TO THE CIT(APPEALS) FOR READJUDICATION OF THE ISSUE AFRESH . WE ACCORDINGLY SET ASIDE THE ORDER OF CIT(APPEALS) AND RESTORE THE MAT TER TO HIS FILE WITH A DIRECTION TO READJUDICATE THE ISSUE AFRESH, AFTER A FFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE LIGHT OF DETAILS OF DAILY SALES SHOWN IN THE REGISTER. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF APRIL, 2017. SD/- SD/- ( S. JAYARAMAN ) (SUNIL KUMAR YA DAV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER BANGALORE, DATED, THE 28 TH APRIL, 2017. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.