Sri. Nijananda Swamy R.S., Bangalore V. ITO, Bangalore

ITA 959/BANG/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0465 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 19-04-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 16-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: GURUNATHAN
• Keywords: Opportunity of being heard; Additional evidence
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO.959/BANG/2015 ASSESSMENT YEAR : 2006-07 SRI NIJANANDA SWAMY R.S., NO.16-1, 2 ND CROSS, 2 ND PHASE, KIRLOSKAR COLONY, SHANKARMUTTA BASAVESHWARANAGARA, BANGALORE 560 079. PAN: ASWPS 7671M VS. THE INCOME TAX OFFICER, WARD 8(3), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI GURUNATHAN, ADVOCATE RESPONDENT BY : DR. P.K. SRIHARI, ADDL. CIT(DR) DATE OF HEARING : 20.04.2016 DATE OF PRONOUNCEMENT : 22.04.2016 O R D E R PER A.K. GARODIA, ACCOUNTANT MEMBER THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-V, BENGALURU DATED 19.6.2014 FOR THE ASSESSMENT YEAR 2006-07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THE LEARNED COMMISSIONER OF INCOME-TAX (A) ERR ED IN PASSING THE ORDER IN THE MANNER HE DID. ITA NO.959/BANG/2015 PAGE 2 OF 5 2. THE LEARNED COMMISSIONER (A) ERRED IN NOT TREATI NG THE ACCUMULATED SUM OF RS.14,52,100/- DEPOSITED IN THE S.B.ACCOUNT OF THE APPELLANT WITH DEEPAK SAHAKARI BANK LTD., RA JAJINAGAR BRANCH, BANGALORE AS GROSS RECEIPTS FROM CIVIL CONT RACTS CARRIED OUT BY THE APPELLANT. 3. THE LEARNED COMMISSIONER (A) FAILED TO APPRECIAT E THAT THE PROVISIONS OF SEC.44AD(1) OF THE ACT WERE APPLICABL E TO THE ABOVE SAID SUM OF RS.14,52,100/-. 4. THE LEARNED COMMISSIONER (A) ERRED IN TREATING T HE ENTIRE RECEIPT OF RS.14,52,100/- AS INCOME OF THE APPELLAN T WITHOUT CONSIDERING THAT ONLY 8% OF THE SAID SUM WAS TAXABL E AS PER THE PROVISIONS OF SEC.44AD(I) OF THE ACT. 5. THE LEARNED COMMISSIONER (A) ERRED IN UPHOLDING THE ADDITION OF THE GROSS SUM OF RS.14,52,100/- WHICH A ROSE FROM VARIOUS DEPOSITS MADE IN THE DEEPAK SAHAKARI BANK L TD., RAJAJINAGAR BRANCH, BANGALORE DUE TO THE OBSERVATIO N OF THE AO THAT AMOUNTS WERE SPLIT TO UNDER RS.50,000/- FOR MA KING THE DEPOSITS, WITH A VIEW TO PREVENT THE INFORMATION FR OM REACHING THE INCOME-TAX AUTHORITIES. 6. THE LEARNED COMMISSIONER (A) ERRED IN UPHOLDING THE DISALLOWANCE OF THE CLAIM OF RS.60,000/- MADE U/S. 80DDB OF THE ACT. 7. THE LEARNED COMMISSIONER (A) ERRED IN UPHOLDING THE CHARGING OF INTEREST U/S. 234B OF THE ACT. 8. WITHOUT PREJUDICE, THE ADDITION IS ARBITRARY AND UNREASONABLE AND LIABLE TO BE DELETED IN TOTO. 9. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL THE APPELLANT PRAYS THAT T HE APPEAL MAY BE ALLOWED. 3. IT WAS SUBMITTED BY THE LD. AR OF ASSESSEE THAT GROUND NO.6 IS NOT PRESSED, GROUND NO.7 IS CONSEQUENTIAL AND GROUND NO S.8 & 9 ARE GENERAL. ACCORDINGLY GROUND NO.6 IS REJECTED AS NOT PRESSED, GROUND NO.7 IS HELD TO ITA NO.959/BANG/2015 PAGE 3 OF 5 BE CONSEQUENTIAL AND NO ADJUDICATION IS CALLED FOR IN RESPECT OF GENERAL GROUNDS BEING NOS. 8 & 9. 4. REGARDING GROUND NOS. 1 TO 5, IT WAS SUBMITTED BY THE LD. AR OF ASSESSEE THAT ONLY ONE ISSUE IS INVOLVED AS PER THE GROUNDS AND THIS ISSUE WAS DECIDED BY THE AO AGAINST THE ASSESSEE ON THE B ASIS THAT ASSESSEE COULD NOT PRODUCE THE NAME, ADDRESS AND PAN FROM WH OM THE ASSESSEE CLAIMS TO HAVE RECEIVED THE AMOUNTS TOTALLING TO RS .14,52,100. HE SUBMITTED THAT NOW THE ASSESSEE HAS MADE AN APPLICA TION FOR ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES, 1963, AND AS PER THIS ADDITIONAL EVIDENCE, ASSESSEE HAS F URNISHED THE NAMES, ADDRESS AND PAN OF THOSE PERSONS FROM WHOM THE AMOU NT IN QUESTION WAS RECEIVED BY THE ASSESSEE FOR DOING THE CONTRACT WOR K. HE SUBMITTED THAT UNDER THESE FACTS, THE ADDITIONAL EVIDENCE SHOULD B E ADMITTED AND THE MATTER MAY BE RESTORED BACK TO THE FILE OF ASSESSIN G OFFICER FOR FRESH DECISION IN LIGHT OF THESE EVIDENCE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT ON PAGE 3 OF THE ASSESSMENT ORDER IT IS NOTED BY THE ASSESSIN G OFFICER THAT TO VERIFY THE SOURCE OF DEPOSIT OF CASH, ASSESSEE WAS REQUEST ED TO FURNISH NAME, ADDRESS AND PAN DETAILS OF THE PERSONS FROM WHOM TH E AMOUNTS HAVE BEEN RECEIVED, BUT THE ASSESSEE HAS FILED A LETTER STATING THAT HE DOES NOT REMEMBER THE NAMES OF PERSONS FROM WHOM HE HAS RECE IVED SUCH AMOUNTS. UNDER THESE FACTS, IT WAS HELD BY THE AO T HAT ASSESSEES ITA NO.959/BANG/2015 PAGE 4 OF 5 STATEMENT IS FAR FROM TRUTH AS THE ASSESSEE IS A LE CTURER IN CHEMISTRY AND TEACHES THE LESSONS WHICH LEARNT EARLIER. SO THE A SSESSEES STATEMENT THAT RECEIPTS ARE FROM CONTRACT WORKS IS NOT ACCEPTABLE. 6. NOW AS PER THE ADDITIONAL EVIDENCE SUBMITTED BY ASSESSEE BEFORE US, THE ASSESSEE HAS SUBMITTED THE NAMES, ADDRESS A ND PAN DETAILS OF THOSE PERSONS FROM WHOM THE ASSESSEE IS CLAIMING TH AT THE AMOUNTS IN QUESTION WAS RECEIVED BY HIM FOR DOING CONTRACT WOR K. CONSIDERING THE FACTS OF THE PRESENT CASE IN ITS ENTIRETY, WE ADMIT THE ADDITIONAL EVIDENCE AND SET ASIDE THE ORDER OF LD. CIT(APPEALS) ON THIS ISSUE AND RESTORE THIS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FO R FRESH DECISION IN LIGHT OF THESE ADDITIONAL EVIDENCE FURNISHED BEFORE US, AFTE R PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THESE GROUNDS BEING GROUNDS NOS. 1 TO 5 ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF APRIL, 2016. SD/- SD/- (VIJAY PAL RAO ) ( A.K. GARO DIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 22 ND APRIL, 2016. /D S/ ITA NO.959/BANG/2015 PAGE 5 OF 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.