Silla Rajasekhar, Berhampur V. CIT, Bhubaneswar

ITSSA 13/CTK/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8176 (ITAT-CUTTACK)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-06-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 27-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: S BANDOPADHAYAS M RAO
• Keywords: Gift; Income from undisclosed sources; Source of fund; Reasonable cause; Corroborative evidences

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK (BEFORE S/SHRI K.K. GUPTA AM & K.S.S.PRASAD RAO, J M) I.T.(SS)A.NOS.41 /CTK/2012: ASSESSMENT YEARS: 2000- 01 I.T.(SS)A.NOS.12 /CTK/2012: ASSESSMENT YEARS: 2003- 04 I.T.(SS)A.NOS.13 /CTK/2012: ASSESSMENT YEARS: 2004- 05 I.T.(SS)A.NOS.14 /CTK/2012: ASSESSMENT YEARS: 2005- 06 SILLA RAJ SEKHAR BIG BAZAR, BERHAMPUR PA NO.ADQPS 4557 D VS DCIT, AAYAKAR BHAVAN, BERHAMPUR APPELLANT RESPONDENT APPELLANT BY: SHRI S.BANDOPADHAYA/S.M.RAO RESPONDENT BY: SMT. PARAMITA TRIPATHY DATE OF HEARING :18.6.2012 DATE OF PRONOUNCEMENT: 22.6.2012 ORDER PER BENCH THESE FOUR APPEALS ARE FILED BY THE ASSESSEE AGAIN ST SEPARATE ORDERS OF THE CIT (A), BERHAMPUR FOR THE ASSESSMENT YEARS 2000-01, 2 003-04, 2004-05 & 2005-06, RESPECTIVELY. 2. IN ASSESSMENT YEAR 2000-2001, THE APPEAL FILED B Y ASSESSEE IS TIME BARRED BY 1357 DAYS AND FOR ASSESSMENT YEARS 2003-04, 2004-05 AND 2005-06, APPEALS FILED BY ASSESSEE ARE TIME BARRED BY 233 DAYS. THE ASSESA SEE HAS FILED AN AFFIDAVIT SWORN BY SHRI SILLA MALLESWAR RAO, WHO LOOKS AFTER THE TAX M ATTERS, UNDERWENT KIDNEY TRANSPLANTATION OPERATION AND AS SUCH HE WAS INDISP OSED DURING THE PERIOD 20 TH JUNE, 2011 TO 20 TH DECEMBER, 2011. IN VIEW OF THIS, THE FILING THE A PPEAL BEFORE THE TRIBUNAL COULD NOT BE ATTENDED TO. 3. ON GOING THROUGH THE ABOVE FACTS AND AFTER HEARI NG BOTH PARTIES, WE ARE SATISFIED THAT THE DELAY IN FILING APPEALS BEFORE THE TRIBUNA L WAS OCCURRED DUE TO A REASONABLE CAUSE. ACCORDINGLY, WE CONDONE THE DELAY AND PROCE ED TO DECIDE THE APPEALS ON MERITS. I.T.(SS)A.NOS.41 /CTK/2012: ASSESSMENT YEARS: 2000- 01 I.T.(SS)A.NOS.12 /CTK/2012: ASSESSMENT YEARS: 2003- 04 I.T.(SS)A.NOS.13 /CTK/2012: ASSESSMENT YEARS: 2004- 05 I.T.(SS)A.NOS.14 /CTK/2012: ASSESSMENT YEARS: 2005- 06 2 4. THE ONLY GROUND RAISED IN THE APPEAL FOR A.Y. 20 00-2001 IS THAT LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF THE SUM OF RS.18,000 BEI NG THE LOAN TAKEN BY THE APPELLANT FROM SHRI M.SHANKAR RAO. 5. ON CAREFULLY ANALYSIS OF THE ORDER OF AUTHORITIE S BELOW AND AFTER CONSIDERING THE RIVAL SUBMISSIONS OF BOTH PARTIES, WE DO NOT FIND A NY INFIRMITY IN THE ORDER OF LD CIT(A) TO INTERFERE. THE ASSESSEE HAS FAILED TO DISCHARGE HI S ONUS OF PROVING THE GENUINENESS OF LOAN TRANSACTION. SAVE AND EXCEPT THE XEROX COPY O F CONFIRMATION OF LOAN CREDITOR AS APPEARING IN BOOKS OF ACCOUNT OF SREE JEWEL HOUSE, NO OTHER DOCUMENTS HAVE BEEN FILED BEFORE THE AO OR BEFORE LD CIT(A). BEFORE US, LD C OUNSEL FOR THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE CONFIRMING THE LOAN TRANSACTIO N. IN VIEW OF THIS, WE UPHOLD THE ORDER OF LD CIT(A). 6. IN THE RESULT, APPEAL FOR ASSESSMENT YEAR 2000-2001 IS DISMISSED. 7. IN THE ASSESSMENT YEAR 2003-04, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF THE AMOUNT OF RS.1,13 ,600 BEING THE AGGREGATE OF LOANS FROM S/SHRI RAMDAS RAJESEKHAR, K . SOBHA, S.LAXMAN PATTNAIK, DURGA PRASAD ISWAL, S.K.SWAIN, A ND SILLA PRASANTI, FOR WHICH THE CONFIRMATION LETTERS FROM THE LOAN CR EDITORS AND ALSO THE COPIES OF THE INCOME TAX RETURNS OF THE SAID LOAN C REDITORS ALONGWITH INFORMATION ABOUT THEIR SOURCES OF INCOME HAD BEEN DULY FURNISHED. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD TAKEN LOAN OF RS.1,13,600 FROM S/S HRI RAMDAS RAJESEKHAR, K. SOBHA, S.LAXMAN PATTNAIK, DURGA PRASAD ISWAL, S.K.SWAIN, A ND SILLA PRASANTI. SINCE THE ASSESSEE FAILED TO ESTABLISH THE IDENTITY, GENUINEN ESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS, THE AO TREATED T HE TOTAL AMOUNT OF RS.1,13,600 AS UNACCOUNTED INCOME U/S.68 OF THE I.T.ACT, 1961. AG GRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD CIT(A) BUT WITHOUT ANY SUCCESS. 9. ON CAREFUL ANALYSIS OF THE ORDER OF THE CIT (A) IN THE LIGHT OF MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL AS WELL AS RIVAL SUBM ISSIONS OF BOTH PARTIES, WE FIND THAT I.T.(SS)A.NOS.41 /CTK/2012: ASSESSMENT YEARS: 2000- 01 I.T.(SS)A.NOS.12 /CTK/2012: ASSESSMENT YEARS: 2003- 04 I.T.(SS)A.NOS.13 /CTK/2012: ASSESSMENT YEARS: 2004- 05 I.T.(SS)A.NOS.14 /CTK/2012: ASSESSMENT YEARS: 2005- 06 3 THE LOAN OF RS.1,13,600 TAKEN BY THE ASSESSEE FROM DIFFERENT PERSONS HAS NOT BEEN PROVED WITH CORROBORATIVE EVIDENCES. IT WAS THE CO NTENTION OF THE ASSESSEE THAT CONFIRMATION LETTERS HAVE BEEN FILED BEFORE THE AO ALONGWITH THEIR SOURCE OF INCOME. THE ASSESSEE HAS TO ESTABLISH THE IDENTITY, GENUINE NESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS BUT THESE INGREDI ENTS HAVE NOT BEEN COMPLIED WITH BEFORE THE AUTHORITIES BELOW OR BEFORE US. SIMILAR ISSUE HAD COME UP FOR CONSIDERATION IN THE CASE OF SILLA VENKETSWAR IN I.T.(SS)A NO.16/ CTK/2012 AND VIDE OUR ORDER OF EVEN DATE, WE HAVE CONFIRMED THE ACTION OF LD CIT(A) REJ ECTING THE GROUNDS OF APPEAL TAKEN BY ASSESSEE. FOLLOWING THE SAME, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF LD CIT(A) AND, ACCORDINGLY, CONFIRM THE SAME BY REJECT ING GROUND OF APPEAL TAKEN BY ASSESSEE. 10. IN THE RESULT, APPEAL FILED BY ASSESSEE FOR A.Y. 2003-04 IS DISMISSED. 11. IN ASSESSMENT YEAR 2004-05, THE ASSESSEE HAS DI SPUTED THE ACTION OF LD CIT(A) IN NOT ALLOWING THE CLAIM OF THE ASSESSEE OF ALLOWANCE OF INTEREST PAYMENT OF RS.98,134 TO THE BAN K ON LOAN UTILIZED BY THE APPELLANT IN EARN ING TAXABLE INCOME. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL AS WELL AS ORDERS OF AUTHORITIES BELOW . IT IS NOTICED THAT THE ALLEGED INTEREST OF RS.98,134 PAID TO BANK WAS NOT MADE IN THE RETUR N OF INCOME. THE ASSESSEE HAD AVAILED LOAN OF RS.14,82,000 FROM SBI AND INTRODUCE D CAPITAL IN THE FIM M/S. SREE ALANKAR. IN VIEW OF THIS, WE RESTORE THE MATTER TO THE FILE OF AO TO VERIFY AS TO WHETHER THE ASSESSEE HAS PAID INTEREST OF RS.98,134 ON THE LOAN TAKEN FROM SBI AND IF HE IS SATISFIED ON THE EXPLANATION OF THE ASSESSEE WITH M ATERIAL FACTS, THEN THE AO IS DIRECTED TO ALLOW THE INTEREST PAID TO BANK. 13. IN THE RESULT, APPEAL FOR ASSESSMENT YEAR 204-05 I S ALLOWED FOR STATISTICAL PURPOSES. 14. NOW WE TAKE UP APPEAL FOR ASSESSMENT YEAR 2005- 06. I.T.(SS)A.NOS.41 /CTK/2012: ASSESSMENT YEARS: 2000- 01 I.T.(SS)A.NOS.12 /CTK/2012: ASSESSMENT YEARS: 2003- 04 I.T.(SS)A.NOS.13 /CTK/2012: ASSESSMENT YEARS: 2004- 05 I.T.(SS)A.NOS.14 /CTK/2012: ASSESSMENT YEARS: 2005- 06 4 15. IN GROUND NO.1, ASSESSEE HAS DISPUTED THE ACTIO N OF LD CIT(A) IN NOT ALLOWING THE CLAIM OF INTEREST PAYMENT TO BANK TO THE EXTENT OF RS.69,406 AGAINST INCOME FROM HOUSE PROPERTY. 16. SIMILAR ISSUE HAD COME UP FOR CONSIDERATION BEF ORE US FOR THE ASSESSMENT YEAR 2004-05, WHEREIN, WE HAVE RESTORED THE MATTER TO TH E FILE OF AO VIDE OUR ORDER OF EVEN DATE IN PARA 12 ABOVE. IN LINE WITH OUR DECISION, WE RESTORE THE MATTE TO THE FILE OF AO FOR VERIFICATION AND FRESH ADJUDICATION. 17. IN GROUND NO.2, ASSESSEE HAS DISPUTED THE ADDIT ION OF RS.70,000 BEING THE AMOUNT INVESTED IN GOVERNMENT SECURITY IN THE NAME OF MINOR DAUGHTER SILLA SANTOSHI AS GIFTS RECEIVED FROM HER GRAND PARENTS. 18. ON CAREFUL ANALYSIS OF THE ORDER OF THE CIT (A) IN THE LIGHT OF MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL AS WELL AS RIVAL SUBM ISSIONS OF BOTH PARTIES, WE FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THE CRE DITWORTHINESS OF THE DONOR AND GENUINENESS OF TRANSACTION EXCEPT IDENTITY. THEREF ORE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS NOT ESTABLISHED THE GENUINENE SS OF GIFTS. IN VIEW OF THIS, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF LD CIT(A) AND UPHOLD THE SAME BY REJECTING THE GROUND OF APPEAL TAKEN BY ASSESSEE. 19. IN THE RESULT, APPEAL FOR ASSESSMENT YEAR 2005-06 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 20. IN FINE, APPEALS FOR ASSESSMENT YEAR 2000-2001 AND 2003-04 ARE DISMISSED, APPEAL FOR ASSESSMENT YEAR 2004-05 IS ALLOWED FOR S TATISTICAL PURPOSES AND APPEAL FOR ASSESSMENT YEAR 2005-06 IS PARTLY ALLOWED FOR STATI STICAL PURPOSES. PRONOUNCED ON THE OPEN COURT ON 22 ND JUNE, 2012 SD/- SD/- (K.K.GUPTA) (K.S.S.PRASAD RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22 ND JUNE, 2012 I.T.(SS)A.NOS.41 /CTK/2012: ASSESSMENT YEARS: 2000- 01 I.T.(SS)A.NOS.12 /CTK/2012: ASSESSMENT YEARS: 2003- 04 I.T.(SS)A.NOS.13 /CTK/2012: ASSESSMENT YEARS: 2004- 05 I.T.(SS)A.NOS.14 /CTK/2012: ASSESSMENT YEARS: 2005- 06 5 PARIDA COPY TO : 1. ASSESSEE- 2. ASSESSING OFFICER 3. CIT, BERHAMPUR 4. CIT (A), BERHAMPUR 5. D.R., ITAT, CUTTACK. 6. GUARD FILE. TRUE COPY BY ORDER SR. PVT. SECRETARY