DCIT, Palakkad V. N.V.Basheer, Palakkad

ITSSA 138/COCH/2005

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8126 (ITAT-COCHIN)
• Duration Of Justice: 7 year(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-04-2012
• Assessment Year: misc
• Appeal Filed On: 24-06-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SENAPATI
• Assessee Lawyers: C R HARISH

Judgement Text

1 IT( I.T(SS)A NO. 138/COCH/2005 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T(SS)A NO. 138/COCH/2005 (BLOCK PERIOD 01-04-1996 TO 28-08-2002) DY.C.I.T., CENT.CIR. VS SMT. N.V. BASHEER THRISSUR NELLIKAVATTAYIL HOUSE PERIMBADARI, MANNARKAD PALAKKAD PAN : AGJPB4364K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.R. SENAPATI RESPONDENT BY : SHRI C.R. HARISH DATE OF HEARING : 26-04-2012 DATE OF PRONOUNCEMENT : 29-06-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-I, KOCHI DATED 18-03-2005 AND PERTAIN TO BLOCK PERIOD 01-04-1996 TO 28- 08-2002. 2. THE FIRST GROUND OF APPEAL IS WITH REGARD TO INF LATION OF AGRICULTURAL INCOME TO THE EXTENT OF RS.1,73,375, RS.1,32,000, RS.3,10,000 IN CASE OF THE ASSESSEE, HIS WIFE AND HIS MOTHER, RESPECTIVELY. 3. SHRI S.R. SENAPATI, THE LD.DR SUBMITTED THAT THE ASSESSING OFFICER HAS RIGHTLY ESTIMATED THE INCOME. THEREFORE, THE COMMISSIONER OF INCOME-TAX(A) IS NOT CORRECT IN 2 IT( I.T(SS)A NO. 138/COCH/2005 DELETING THE ADDITION. ACCORDING TO THE LD.DR, IF THE AGRICULTURAL INCOME WAS NOT RIGHTLY ESTIMATED IT IS FOR THE ASSESSEE TO SUPPORT THE SAM E WITH NECESSARY MATERIAL. 4. ON THE CONTRARY, SHRI C.R. HARISH, THE LD.REPRES ENTATIVE FOR THE ASSESEE SUBMITTED THAT THE ASSESSEE HAS DISCLOSED AGRICULTURAL INCOME UPTO 31-03-2001 AND THE ASSESSING OFFICER HAS NOT POINTED OUT ANY MATERIAL FOUND DURI NG THE COURSE OF SEARCH OPERATION. CONSIDERING THE NATURE OF CROPS CULTIVATED BY THE A SSESSEE AND THE LAND HOLDING, THE COMMISSIONER OF INCOME-TAX(A) FOUND THAT THE ADDITI ON OF RS.1,73,375 TOWARDS THE ASSESSEE IS NOT JUSTIFIED. THE COMMISSIONER OF INC OME-TAX(A) HAS ALSO FOUND THAT THE ADDITION MADE WITH REGARD TO THE AGRICULTURAL INCOM E DISCLOSED BY THE ASSESSEES WIFE AND MOTHER ALSO COULD NOT BE SUSTAINED IN THE HANDS OF THE ASSESSEE. THE LD.REPRESENTATIVE POINTED OUT THAT IN THE ABSENCE O F ANY MATERIAL TO CONTROVERT THE CLAIM OF THE ASSESSEE, THE COMMISSIONER OF INCOME-TAX(A) HAS RIGHTLY DELETED THE ADDITION. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICE R MADE ADDITION OF RS.1,73,375 IN THE HANDS OF THE PRESENT ASSESSEE. THE AGRICULTURAL IN COME DISCLOSED IN THE HANDS OF THE ASSESSEES WIFE AND MOTHER HAS ALSO BEEN ADDED AS U NDISCLOSED INCOME IN THE HANDS OF THE ASSESEE. IN THE ABSENCE OF ANY MATERIAL, THIS TRIBUNAL IS OF THE OPINION THAT THE AGRICULTURAL INCOME DISCLOSED IN THE HANDS OF THE A SSESSEES WIFE AND MOTHER CANNOT BE TREATED AS UNDISCLOSED INCOME IN THE HANDS OF THE A SSESSEE. IF AT ALL THERE IS ANY DEFICIENCY, IT HAS TO BE TREATED IN THEIR RESPECTIV E HANDS AND NOT IN THE HANDS OF THE PRESENT ASSESSEE. CONSIDERING THE LAND HOLDING AND THE NATURE OF CROPS GROWN BY THE ASSESEE THE COMMISSIONER OF INCOME-TAX(A) HAS DELET ED THE ADDITION TO THE EXTENT OF RS.1,73,375. THIS TRIBUNAL FIND THAT THE ASSESSING OFFICER ESTIMATED THE AGRICULTURAL INCOME ON THE BASIS OF THE RUBBER BOARD SPECIFICATI ON. NO MATERIAL IS FOUND DURING THE COURSE OF SEARCH OPERATION. THE ESTIMATION ALWAYS REMAINS ESTIMATION. THE COMMISSIONER OF INCOME-TAX(A), THEREFORE, IN EXERCI SE OF HIS DISCRETION ALLOWED THE 3 IT( I.T(SS)A NO. 138/COCH/2005 CLAIM OF THE ASSESSEE. WE DO NOT FIND ANY REASON T O INTERFERE WITH THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A). THEREFORE, THE SAME IS CONFIRMED. 6. NOW COMING TO THE ADDITION WITH REGARD TO THE SH ORTFALL IN THE HOUSEHOLD AND PERSONAL EXPENSES, THE ASSESSING OFFICER MADE ADDIT ION OF RS.2,37,570. THIS ADDITION WAS MADE ON THE BASIS OF THE CASH FLOW STATEMENT. NO MATERIAL WAS FOUND DURING THE COURSE OF SEARCH OPERATION. 7. AFTER HEARING THE LD.DR AND THE LD.REPRESENTATIV E FOR THE ASSESSEE WE FIND THAT IN THE ABSENCE OF ANY SEARCH MATERIAL, THERE CANNOT BE ANY ADDITION ON THE BASIS OF THE DEFICIENCY IN THE CASH FLOW STATEMENT. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY THE SAME IS CONFIRMED. 8. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADDI TION OF RS.1 LAKH WITH REGARD TO NRE LOAN. 9. WE HAVE HEARD SHRI S.R. SENAPATI, THE LD.DR AND SHRI C.R. HARISH, THE LD.REPRESENTATIVE FOR THE ASSESSEE. THE ONLY OBJEC TION OF THE LD.DR IS THAT THE COMMISSIONER OF INCOME-TAX(A) HAS NO POWER TO DIREC T THE ASSESSING OFFICER TO RE- EXAMINE THE MATTER ON THE BASIS OF THE CONFIRMATION LETTER SAID TO BE FILED BY THE ASSESSEE. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSE SSEE HAS FILED THE CONFIRMATION LETTER FROM THE CREDITOR. THIS CONFIRMATION LETTER WAS NO T EXAMINED BY THE ASSESSING OFFICER. WHEN THE ASSESSEE FILED THE CONFIRMATION LETTER IT IS FOR THE ASSESSING OFFICER TO EXAMINE THE SAME. THEREFORE, THE COMMISSIONER OF INCOME-TA X(A) HAS DIRECTED THE ASSESSING OFFICER TO CONSIDER THE CONFIRMATION LETTER AND IF FOUND CORRECT, TO ALLOW THE CLAIM. IT IS TRUE THAT THE COMMISSIONER OF INCOME-TAX(A) HAS NO POWER TO REMIT BACK THE MATTER TO 4 IT( I.T(SS)A NO. 138/COCH/2005 THE FILE OF THE ASSESSING OFFICER; HOWEVER, IN THE INTEREST OF JUSTICE, CONFIRMATION SAID TO BE FILED BY THE ASSESSEE HAS TO BE EXAMINED. THERE FORE, IN EXERCISE OF THE POWERS OF THIS TRIBUNAL WE SET ASIDE THE ORDERS OF THE LOWER AUTHO RITIES AND THE ISSUE WITH REGARD TO NRE CREDIT IS RESTORED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE IN THE LIGHT OF THE CONFIRMATI ON LETTER FILED BY THE ASSESSEE IN RESPECT OF THE NRE LOAN AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH JUNE, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 29 TH JUNE, 2012 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH