K.B. Lokesh, V. ITO, Mandya

ITA 968/BANG/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1518 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 17-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUKMINI ATTRI JT
• Assessee Lawyers: S VENKATESAN
• Keywords: Condonation of delay
• Section: 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO.968/BANG/2015 ASSESSMENT YEAR : 2008-09 SHRI K.B. LOKESH, M/S. SRI AHALYA MARKETING, NEAR SBM, MAIN ROAD, SRIRANGAPATNA, MANDYA DISTRICT. PAN: AOJPK 7607N VS. THE INCOME TAX OFFICER, WARD-2, MANDYA. APPELLANT RESPONDENT APPELLANT BY : SHRI S. VENKATESAN, CA RESPONDENT BY : SHRI RUKMINI ATTRI, JT. CIT(DR) DATE OF HEARING : 09.11.2015 DATE OF PRONOUNCEMENT : 10.11.2015 O R D E R PER ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 17.10.2014 OF THE CIT(APPEALS), MYSORE RELATING TO ASSESSMENT YEAR 2008- 09. 2. RETURN OF INCOME FOR THE A.Y. 2008-09 IN HIS IND IVIDUAL STATUS WAS FILED BY THE ASSESSEE BEYOND THE SPECIFIED DATE, BU T WITHIN THE EXTENDED ITA NO.968/BANG/2015 PAGE 2 OF 4 PERIOD ALLOWED U/S. 139(4) OF THE ACT ON 30.9.2008 DECLARING TOTAL INCOME OF RS.2,44,862. RETURN WAS PROCESSED U/S. 143(1) AND AN AMOUNT OF RS.30,230 WAS DETERMINED AS PAYABLE BY THE ASSESSEE AS PER THE INTIMATION DATED 28.1.2010. 3. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/ S. 143(2) WAS ISSUED ON 27.8.2009 AND SERVED ON THE ASSESSEE ON 3 .9.2009. ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT. W HILE COMPLETING THE ASSESSMENT, THE AO MADE ADDITION WITH RESPECT TO OP ENING CAPITAL OF RS.1,50,000 AND DIFFERENCE IN SALES OF RS.1,38,263 TO THE RETURNED INCOME. 4. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE CIT(APPEALS). WITH RESPECT TO ADDITION OF OPENING CAPITAL OF RS.1.50 L AKHS, THE ASSESSEE STATED THAT IT WAS THE OPENING CAPITAL WHICH WAS ACCUMULAT ED OUT OF HIS SAVINGS. THE CIT(APPEALS) WAS OF THE VIEW THAT NO EVIDENCE A S TO WHERE THE SAVINGS WERE STORED, ETC., WERE FURNISHED BY THE ASSESSEE N OR THE SAVINGS WERE PROVED AT ANY STAGE OF THE APPEAL. HENCE, HE CONFI RMED THE ADDITION. AGGRIEVED BY THE ORDER OF CIT(APPEALS), THE ASSESSE E IS IN APPEAL BEFORE US. 5. THERE IS A DELAY OF 141 DAYS IN FILING THE APPEA L BY THE ASSESSEE BEFORE THE TRIBUNAL, FOR WHICH THE ASSESSEE HAS FIL ED AFFIDAVIT FOR CONDONATION OF DELAY. IT IS PLEADED THAT THE ASSE SSEE COULD NOT APPROACH HIS CA FOR FURTHER INSTRUCTIONS, IMMEDIATELY ON THE RECEIPT OF THE IMPUGNED ORDER, AS HIS WIFE WAS AILING AND HAD PASSED AWAY O N 13.05.2015. IT WAS ITA NO.968/BANG/2015 PAGE 3 OF 4 SUBMITTED THAT HE WAS PRE-OCCUPIED IN ASSISTING AND LOOKING AFTER HIS WIFE AS SHE WAS AILING FOR A LONG PERIOD. LATER HE APP ROACHED HIS CA WHO IS REPRESENTING HIS CASE NOW BEFORE US, WHO HAD ADVISE D HIM TO SEEK FOR CONDONATION OF DELAY IN FILING THE APPEAL. WE FIN D THAT THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL IS DUE TO REASONABLE CAU SE AND ON ACCOUNT OF CIRCUMSTANCES BEYOND THE CONTROL OF THE ASSESSEE. HENCE, THE DELAY NOT BEING INTENTIONAL OR WILLFUL, IS CONDONED AND WE AD MIT THE APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE, SHRI S. VENKAT ESAN, SUBMITTED THAT ASSESSEE IS AGED ABOUT 33 YEARS AND WHATEVER HE HAD SAVED FROM THE LAST 10 YEARS I.E., AN AMOUNT OF RS.1,50,000, THE ASSES SEE HAD INTRODUCED AS INITIAL CAPITAL TO HIS BUSINESS AND THIS AMOUNT CAN NOT BE TREATED AS INCOME OF THE CURRENT YEAR. 7. THE LD. DR, SMT. RUKMINI ATTRI, ON THE OTHER HAN D, OBJECTED BY STATING THAT THE ASSESSEE HAS NOT PROVED THE SOURCE FOR THE CAPITAL INTRODUCED AND HENCE THE SUM OF RS.1.50 LAKHS WAS R IGHTLY ADDED AS INCOME OF THE YEAR. 8. WE HAVE HEARD BOTH THE PARTIES. THE ASSESSEE H AS PLEADED THAT FROM THE AGE OF 23 (NOW 33 YEARS) HE HAS BEEN SAVI NG AN AMOUNT OF RS.1,250 PER MONTH I.E., RS.15,000 PER YEAR FOR THE PAST TEN YEARS WHICH COMES TO RS.1,50,000. WE ARE OF THE OPINION THAT THE ASSESSEE COULD HAVE ACCUMULATED THE SUM OF RS.1,50,000 BY SAVING A MEAGER AMOUNT OF RS.1,250 PER MONTH AND HENCE IN THE INTEREST OF JUS TICE, WE ARE OF THE VIEW ITA NO.968/BANG/2015 PAGE 4 OF 4 THAT PROOF FOR THE SOURCE IS ESTABLISHED BY THE ASS ESSEE. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE SUM O F RS.1,50,000 WHICH HAS BEEN INVESTED BY THE ASSESSEE IN THE START OF H IS BUSINESS IS NOT TO BE ADDED AS INCOME OF THE YEAR AND HENCE WE DELETE THE SAME. GROUND NO.2 IS ALLOWED. 9. GROUND NO.3 IS WITH REGARD TO CHARGING OF INTERE ST U/S. 234B AND 234C OF THE ACT WHICH IS CONSEQUENTIAL AND HENCE WE ARE NOT ADJUDICATING THE SAME. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF NOVEMBER, 2015. SD/- SD/- ( INTURI RAMA RAO ) (ASHA VIJAYARAGHAVAN ) ACCOUNTANT MEMBER JUDICIAL M EMBER BANGALORE, DATED, THE 10 TH NOVEMBER, 2015. /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.