ACIT, Calicut V. A. P. Moideenkutty Haji, Tirur

ITSSA 6/COCH/2006

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8433 (ITAT-COCHIN)
• Duration Of Justice: 5 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 18-01-2011
• Assessment Year: misc
• Appeal Filed On: 19-01-2006
• Court: TRIBUNAL
• Department Lawyers: S C SONKAR
• Assessee Lawyers: C R HARISH CAAR
• Keywords: Unexplained investment; Additional evidence; Onus to prove
• Section: 143(3); 132

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T(SS)A NO. 06/COCH/2006 BLOCK PERIOD: 1.4.1996 TO 11.7.2002 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, CALICUT VS. M/S. MOIDEENKUTTY HAJI, APM HOUSE, THALAKADATHUR, TIRUR. [PAN: AANPH 0842P] (REVENUE -APPELLANT) (ASSESSEE- RESPONDENT) REVENUE BY SHRI S.C.SONKAR, CIT-DR ASSESSEE BY SHRI C.R.HARISH, CA-AR O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCHI (CIT(A) FOR SHOR T) DATED 21.10.2005, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S . 158BC R.W.SS. 158BD AND 143(3) OF THE INCOME-TAX ACT, 1961 ('THE ACT' HEREINAFTER) DA TED 25/11/2004 FOR THE BLOCK PERIOD 1.4.1996 TO 11.7.2002. 2.1 THE BACKGROUND FACTS OF THE CASE ARE THAT THERE WAS A SEARCH BY THE REVENUE U/S. 132 OF THE ACT AT THE BUSINESS AND RESIDENTIAL PREM ISES OF ONE SHRI M.P.KUNHIMOHAMMED, ON 11.7.2002. THE SEARCH REVEAL ED LARGE SCALE INVESTMENTS IN IMMOVEABLE PROPERTIES BY HIM JOINTLY WITH OTHERS, I NCLUDING SHRI A.P. MOIDEENKUTTY HAJI, THE ASSESSEE. THE DETAILS OF THE PROPERTIES FOUND TO HAVE BEEN INVESTED IN BY THE SAID SHRI M.P.KUNHIMOHAMMED JOINTLY WITH THE ASSESS EE AND OTHERS WERE AS FOLLOWS:- SL. NO. DETAILS OF PROPERTY TOTAL INVESTMENT ( `) 1. INVESTMENT IN VICTORIA BUILDING, TIRUR 53,33,440 2. COST OF BUILDING CONSTRUCTION ON TH E ABOVE 20,01,559 3. MMK HAJI BUILDING, TIRUR 31,98,674 ITA.NO.06 /COCH/2006 2 4. GUEST HOTEL PROPERTY, TIRUR 6,70,000 A SWORN STATEMENT OF SHRI M.P.KUNHIMOHAMMED WAS R ECORDED IN RESPECT OF THE SAID INVESTMENTS. HE ADMITTED TO A 50% SHARE IN THE FIR ST THREE PROPERTIES, WITH THE REMAINING 50% BELONGING TO ONE, SHRI M.SOOPY OF IRINGALLOR, M ALAPPURAM DISTRICT. FURTHER, HE HAD SUBSEQUENTLY AGREED TO GIVE 50% OF HIS 50% SHARE IN THE SAID PROPERTIES TO THE ASSESSEE. AS REGARDS THE INVESTMENT IN THE GUEST HOTEL PROPER TY, I.E., FOURTH PROPERTY, HE ADMITTED HIS SHARE THEREIN TO BE 40%, WITH THE BALANCE 60% B ELONGING TO THE ASSESSEE AND HIS SON, SHRI ABOOBACKER SIDDIQUE. APART FROM THIS, HE ADMI TTED TO HAVE ADVANCED ` 19 LAKHS TO SMT. KHADIYUMMA FOR THE PURCHASE OF CERTAIN PROPERT IES JOINTLY WITH SHRI M.SOOPY AND THE ASSESSEE, HAVING RECEIVED ` 3 LAKHS AND ` 7 LAKHS RESPECTIVELY FROM THEM TOWARDS THE ADVANCE MONEY OF ` 19 LAKHS. ACCORDINGLY, NOTICE U/S. 158BD WAS ISSUE D TO THE ASSESSEE ON 6.11.2002, WHICH WAS RESPONDED TO BY A RETURN IN FORM 2B ON 14.7.2003, I.E., AFTER A PERIOD OF OVER EIGHT MONTHS, DECLARING NIL `UNDISCL OSED INCOME. THE ASSESSMENT WAS PROCEEDED WITH FURTHER AFTER ISSUE OF NOTICE U/S. 1 43(2). THE ASSESSEE ADMITTED TO HAVING PAID SHRI M.P.KUNHIMOHAMMED ` 21 LAKHS TOWARD INVESTMENT IN THE FIRST THREE PROPE RTIES LISTED AT SL NOS. 1,2 & 3 ABOVE, UNDER THE UNDERSTA NDING THAT HE WOULD HAVE 25% SHARE THEREIN. FURTHER, THE SAID INVESTMENT WAS CONTRIBU TED TO EQUALLY, I.E., AT ` 10.5 LAKHS EACH, BY HIM AND HIS SON, SHRI ABOOBACKER SIDDIQUE, REFLE CTING THE SAME IN THEIR RECEIPT AND PAYMENT ACCOUNT, FILED ALONG WITH, AND STATING OF B EING PREPARED TO PAY THE BALANCE AMOUNT DUE TOWARD HIS 25% SHARE IN THE TOTAL PROPER TY COSTING ` 105.34 LACS. IN RESPECT OF THE FOURTH PROPERTY, HE ADMITTED TO HIS 60% SHAR E IN THE SAME WITH HIS SON, THOUGH HAD CONTRIBUTED ONLY ` 1.72 LAKHS OF THE PROPORTIONATE INVESTMENT OF ` 4.02 LAKHS; THE BALANCE BEING CONTRIBUTED BY HIS SON FROM HIS OWN SOURCES. THE FIRST (AND THE ONLY) ADDITION MADE IN RESPECT OF THESE INVESTMENTS IS FOR THIS ` 2.30 LAKHS (THOUGH MISTAKENLY TAKEN AT ` 3.30 LAKHS BY THE ASSESSING OFFICER (AO), SINCE COR RECTED), I.E., QUA THE UNEXPLAINED INVESTMENT IN THE GUEST HOTEL PROPERTY, ADMITTEDLY BELONGING TO THE ASSESSEE AND HIS SON TO THE EXTENT OF 60%. 2.2 THE LD. CIT(A), HOWEVER, DELETED THE SAME IN FI RST APPEAL ON THE BASIS THAT THERE WAS NO EVIDENCE FOUND IN SEARCH OF THE ASSESSEE HA VING ACTUALLY MADE ANY INVESTMENT ITA.NO.06 /COCH/2006 3 OVER AND ABOVE ` 22.72 LAKHS ADMITTEDLY MADE BY HIM AND HIS SON TOWA RD THE DIFFERENT PROPERTIES. THE ADDITION IS U/S. 69B, THE BURDEN T O PROVE WHICH IS ON THE REVENUE. SECONDLY, AS EVIDENCED, SHRI M. SOOPY IS ALSO ONE O F THE CO-OWNERS, WHO HAS NOT BEEN QUESTIONED IN THE MATTER BY THE AO. THIRDLY, THE A SSESSEES SON COULD NOT POSSIBLY BE ASSESSED IN RESPECT OF THE SHARE OF HIS SON, SHRI A BOOBACKER SIDDIQUE, A MAJOR AND A SEPARATE ASSESSEE. AGGRIEVED, THE REVENUE IS IN APP EAL. 3. LIKE CONTENTIONS STOOD RAISED BEFORE US, WITH EACH SIDE RELYING ON THE ORDERS OF THE AUTHORITIES BELOW, I.E., AS FAVOURABLE TO THEM. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THE REVENUES CASE IS THAT THE INVESTMENT FOR THE BALANCE ` 2.30 LAKHS ( ` 4.02 - ` 1.72 LAKHS), TOWARD THE 60% SHARE BY THE ASSESSEE AND HIS SON, IS ADMITTED. THE ASSESSEE CLAIMS THE SAME TO FLOW FROM HIS SON, SHRI ABOOBACKER SIDDIQUE, WHOSE RECEI PT AND PAYMENT STATEMENT FOR THE RELEVANT YEAR (F.Y. 2000-01), HOWEVER, DOES NOT REF LECT ANY OUTGOING IN ITS RESPECT, EVEN AS THE SAME SHOWS A CLOSING CASH BALANCE AS AT THE YEAR-END (31.3.2001) AT ` 9.18 LAKHS. THE ASSESSEES CASE, ON THE OTHER HAND, IS THAT HE, ALONG WITH HIS SON, HAS MADE A TOTAL INVESTMENT OF ` 22.72 LAKHS DURING THE BLOCK PERIOD, I.E., ` 21 LAKHS FOR THE SHARE IN THE THREE PROPERTIES (LISTED AT PARA 2.1 ABOVE) AND 1.7 2 LAKHS TOWARDS 60% SHARE IN THE GUEST HOTEL PROPERTY. A 60% SHARE DOES NOT IMPLY THAT IN VESTMENT TO THE PROPORTIONATE EXTENT HAS NECESSARILY BEEN MADE, SO THAT THE BALANCE WAS DUE AND WOULD BE PAID TO SHRI M.P.KUNHIMOHAMMED (IN DUE COURSE), AND THERE IS NOT HING FOUND IN SEARCH TO INDICATE THAT SUCH PAYMENT HAD ACTUALLY ALREADY BEEN MADE. THE LD. CIT(A) HAS FOUND TWO MORE INFIRMITIES IN THE REVENUES STAND. FIRSTLY, APART FROM SHRI M.P.KUNHIMOHAMMED AND THE ASSESSEE, THERE IS ANOTHER PERSON, SHRI MOOCHIK ADA SOOPY, WHO IS ALSO A PARTY TO THE INVESTMENTS. IT WAS, THEREFORE, INCUMBENT ON THE A O TO HAVE MADE ENQUIRIES FROM HIM. SECONDLY, THE ASSESSEES SON IS A SEPARATE ASSESSEE AND, AS SUCH, ANY UNEXPLAINED INVESTMENT BY HIM COULD NOT BE ASSESSED IN THE HAND S OF HIS FATHER. 4.1 WE SHALL EXAMINE EACH OF THE ASSESSEES CLAIMS FOR THEIR MAINTAINABILITY. NO DIRECT INVESTMENT BY THE ASSESSEE OR HIS SON HAS BEEN FOUN D IN SEARCH IS THE FIRST SUCH CLAIM. ITA.NO.06 /COCH/2006 4 GOING BY THIS, NO ADDITION WHATSOEVER, I.E., EVEN I F THE ASSESSEE HAD NOT DISCLOSED THE TOTAL INVESTMENTS OF ` 22.72 LAKHS, COULD BE MADE IN THE HANDS OF THE ASSE SSEE OR HIS SON. THE EVIDENCE WHICH COULD FORM THE BASIS OF A VALID ADDI TION FOR THE ASSESSMENT UNDER CHAPTER XIV-B, I.E., FOR BEING CONSIDERED AS UNDISCLOSED I NCOME, INCLUDES NOT ONLY DIRECT EVIDENCE FOUND IN SEARCH, BUT ALL THAT IS FOUND AS A RESULT OF SEARCH, REQUISITION OR OTHER MATERIALS OR INFORMATION AVAILABLE WITH THE AO AND RELATABLE TO SUCH EVIDENCE (S. 158BB). THE TOTAL INVESTMENTS IN EACH OF THE FOUR PROPERTIE S BY SHRI M. P.KUNHIMOHAMMED (THE PERSON SEARCHED, ALONG WITH OTHERS), INCLUDING THE ASSESSEE, WERE FOUND IN SEARCH, AND WHICH ONLY LED THE REVENUE DEPARTMENT TO THE DOORS OF THE ASSESSEE. THE SAME WERE ADMITTED BY THE SAID SHRI M. P.KUNHIMOHAMMED, WHO C LEARLY MENTIONED HIS SHARE IN EACH OF THEM, ALONG WITH THE EXTENT OF HIS OWN INVE STMENT, STATING THE AMOUNT CONTRIBUTED BY OTHERS TOWARDS THEIR SHARE THEREIN. THE ASSESSE E, ON HIS PART, HAS CONFIRMED THE SHARE ATTRIBUTABLE TO HIM, AS BELONGING TO HIM AND HIS SO N, DETAILING THE INVESTMENTS MADE BY THEM, AND FILING CASH FLOW STATEMENTS IN SUBSTANTIA TION. ALL THESE ARE MATERIAL FOUND AS A RESULT OF SEARCH OR AVAILABLE WITH THE AO IN RELATI ON TO THE SAID EVIDENCE FOUND IN SEARCH AND, THUS, CONSTITUTE A VALID BASIS FOR MAKING THE ASSESSMENT OF UNDISCLOSED INCOME. 4.2 NOW WE MAY EXAMINE THE CONTROVERSY AND THE FACT S IN RELATION THERE-TO. AS REGARDS THE FIRST THREE INVESTMENTS, SHRI M.P.KUNHI MOHAMMED STATES OF BEING 50% CO- OWNER, WITH THE BALANCE 50% AS BEING OF ONE, SHRI M .SOOPY. FURTHER, THAT HE HAD SUBSEQUENTLY AGREED TO RELINQUISH 50% OF HIS SHARE TO SHRI A.P. MOIDEENKUTTY HAJI, THE ASSESSEE. THE ASSESSEE CONFIRMS THE SAME, FURTHER STATING THAT HE HAD PAID ` 21 LAKHS TO SHRI M.P. KUNHIMOHAMMED TOWARD HIS SHARE, AND IS PR EPARED TO PAY THE BALANCE. TOWARDS THE SOURCE THEREOF, HE STATES ` 10.5 LAKHS EACH AS PAID BY HIM AND HIS SON, SHRI ABOOBACKER SIDDIQUE, DULY REFLECTED IN THEIR RECEIP T AND PAYMENT STATEMENT (FOR THE BLOCK PERIOD). WE FIND THE STATEMENT, I.E., OF SHRI M.P.K UNHIMOHAMMED AND THE ASSESSEE, AS CORROBORATIVE. NO ADDITION HAS BEEN MADE BY THE AO QUA THIS INVESTMENT, AS WELL AS IN RELATION TO THE ADVANCE MONEY ADMITTEDLY PAID TO ON E, SMT.KHADIYUMMA. THE NEXT INVESTMENT IS ` 6.70 LAKHS IN THE GUEST HOTEL PROPERTY IN WHICH THE PERSON SEARCHED AVERS TO HAVE A 40% SHARE, THE BALANCE 60% BELONGING TO THE ASSESSEE AND HIS SON, ADMITTING TO HAVE INVESTED IN THE PROPERTY PRO PORTIONATELY, I.E., AT ` 2.68 LAKHS. THE ITA.NO.06 /COCH/2006 5 ASSESSEE CONFIRMS THE OWNERSHIP OF THE BALANCE 60% ALONG WITH HIS SON, SHRI ABOOBACKER SIDDIQUE, THOUGH SHOWS ONLY AN INVESTMENT OF ` 1.72 LAKHS AS THEIR CONTRIBUTION, THE WHOLE OF WHICH FINDS REFLECTION IN THE ASSESSEES C ASH FLOW STATEMENT, STATING THE BALANCE ` 2.30 LAKHS AS HAVING BEEN CONTRIBUTED BY HIS SON, W HOSE CASH FLOW STATEMENT, HOWEVER, DOES NOT REFLECT ANY OUTGOING TOWARD THIS INVESTMEN T. IT IS THIS ` 2.30 LAKHS, ADDITION FOR WHICH STANDS MADE AS UNEXPLAINED INVESTMENT, WHICH IS BEING AGITATED BY THE REVENUE, HAVING BEEN SINCE DELETED BY THE FIRST APPELLATE AU THORITY. WE, AGAIN, FIND THE STATEMENT OF THE TWO PRINCIPAL PERSONS - THE PERSON SEARCHED AND THE ASSESSEE - AS CORROBORATIVE . THERE IS, FIRSTLY, NO REFERENCE (EITHER IN THE EVID ENCE FOUND IN SEARCH OR IN EXPLANATIONS FURNISHED IN ITS RESPECT) TO, IN ANY CAPACITY WHATS OEVER, QUA THIS INVESTMENT, AND THE OWNERSHIP DETAILS IN FULL, I.E., TOWARD 100% SHARE THEREIN, ARE AVAILABLE AND UNDISPUTED. REFERENCE TO HIM (SH. M. SOOPY), IN EXAMINING THE A SSESSEES CASE, AS MADE BY THE LD. CIT(A), IS IN OUR VIEW, THEREFORE, WHOLLY UNWARRANT ED. COMING TO THE ACTUAL CONTROVERSY, CLEARLY IF SHRI M.P. KUNHIMOHAMMED HAD SHOWN A HIGH ER INVESTMENT THAN ` 2.68 LAKHS, I.E., PROPORTIONATE TO HIS 40% SHARE, SO THAT THE E XCESS STANDS TO BE RECOVERED FROM THE ASSESSEE, NO ISSUE WOULD HAVE ARISEN, AS IN THE CAS E OF THE INVESTMENT IN THE FIRST THREE PROPERTIES, WHEREIN TOO THE ASSESSEE HAS DISCLOSED LESS THAN HIS PROPORTIONATE SHARE, SO THAT THE BALANCE, WHICH STANDS FINANCED FOR THE TIM E BEING BY SHRI M.P. KUNHIMOHAMMED, IS PAYABLE TO HIM. FURTHER, THE ASSE SSEE ADMITS TO HAVE PAID THE AMOUNT PROPORTIONATE TO HIS 60% SHARE ( ` 4.02 LAKHS) TO SHRI M.P. KUNHIMOHAMMED. AS SUCH, THERE IS NO MERIT IN THE CLAIM MADE IN THE FI RST APPEAL THAT ONLY ` 1.72 LAKHS OF THE PROPORTIONATE SHARE OF ` 4.02 LAKHS HAS BEEN PAID TO SHRI M.P. KUNHIMOHAMMED , AND THE BALANCE IS DUE TO HIM ON THE DATE OF SEARCH. THE ON LY ISSUE THAT ARISES IS WHETHER THE ASSESSEE CAN RIGHTLY BE ASSESSED IN RESPECT OF THE UNEXPLAINED SHORTFALL OF ` 2.30 LAKHS TOWARD THE 60% SHARE IN GUEST HOTEL PROPERTY ACQUIR ED BY HIM AND HIS SON. THIS, TO OUR MIND, IS THE REAL CONTROVERSY ATTENDING THE MATTER. 4.3 IN THIS REGARD, WE ARE OF THE VIEW THAT IF THERE IS ANY MATERIAL FOUND IN SEARCH WHICH SHOWS THE ASSESSEES SON TO BE A CO-OWNER (ALONG WI TH HIS FATHER) OF THE IMPUGNED (GUEST HOTEL) PROPERTY, HE, BEING A MAJOR, ONLY CAN BE REA SONABLY SAID TO HAVE INVESTED TOWARD HIS SHARE. THE NOTICE U/S. 158 BD, IN SUCH A CASE, COULD, AND OUGHT TO, IN LAW, BE ISSUED IN ITA.NO.06 /COCH/2006 6 THE NAME OF THE ASSESSEES SON, SHRI ABOOBACKER SID DIQUE, WHO CANNOT, AT LEAST AT THIS STAGE, BE CONSIDERED AS A BENAMI FOR HIS FATHER, TH E ASSESSEE. NO DOUBT, HIS SHARE MAY NOT BE SPECIFIED AND, AGAIN, HE COULD HAVE INVESTED MOR E OR LESS THAN HIS SHARE, AS THE ASSESSEE HIMSELF CLAIMS OF HIM TO HAVE MADE A CONTR IBUTION OF ` 2.30 LAKHS, WHICH EXCEEDS HIS PROPORTIONATE SHARE OF ` 2.01 LAKHS, I.E., PRESUMING AN EQUAL SHARE, BUT THE N ALL THAT IS A MATTER OF DETAIL AND EXPLANATION/S, AND I TS SUBSTANTIATION, ALL OF WHICH SHALL ARISE FOR CONSIDERATION ONLY LATER. AT THIS STAGE, IT MAY ALSO BE CLARIFIED THAT THE ADDITION ARISES ON ACCOUNT OF THE NON-DISCLOSURE BY THE ASSESSEE OR HIS SON, SHRI ABOOBACKER SIDDIQUE, FOR THE BALANCE ` 2.30 LACS. CLEARLY, IF THE SON HAD DISCLOSED LIKE-W ISE, AS IN THE CASE OF THE FIRST THREE PROPERTIES, NO OCCASION FOR ASSESSI NG ANY PART OF THE SAID AMOUNT IN THE HANDS OF THE ASSESSEE WOULD ARISE; THE SAME BEING C ONSIDERED AS A PART OF THE ASSESSEES EXPLANATION, DULY SUBSTANTIATED. IN OTHER WORDS, NO ISSUE WOULD ARISE AS TO THE LESS THAN THE PROPORTIONATE INVESTMENT BY THE ASSESSEE WHICH, ASSUMING AN EQUAL SHARE, WORKS TO ` 2.01 LACS, WHILE HIS ADMITTED INVESTMENT IS ONLY AT ` 1.72 LACS. THIS IS AS IT IS COMMON IN INDIA TO INVEST IN THE NAMES OF CLOSE FAMILY MEMBER S, PARTICULARLY WIFE AND CHILDREN, SO THAT THEY MAY CONTRIBUTE LESS THAN THEIR PROPORTION ATE SHARE. NEXT, WE MAY DISCUSS THE EXTENT OF ADDITION, IF ANY, WHICH WOULD ARISE IN TH E CASE OF THE ASSESSEE IN EITHER CASE, I.E., OF THE EXTENT OF INVESTMENT THAT CAN BE CONSIDERED TO HAVE BEEN MADE BY THE ASSESSEES SON AND, BY IMPLICATION, THE ASSESSEE. THE PRESUMPT ION COULD ONLY BE OF AN EQUAL SHARE, PARTICULARLY CONSIDERING THAT HE HAS ALSO INVESTED EQUALLY TOWARDS HIS SHARE IN THE OTHER PROPERTIES. THE UNEXPLAINED INCOME AT THE ASSESSEE S END IN SUCH A CASE COULD, THUS, ONLY BE CONSIDERED TO THE EXTENT OF ` 0.29LAKHS ( ` 2.30 ` 2.01 LAKHS). IF, ON THE OTHER HAND, THERE IS NOTHING TO INDICATE SO, AND THE FACT THAT SHRI ABOOBACKER SIDDIQUE IS ALSO A CO-OWNER FLOWS ONLY F ROM THE STATEMENT OF THE PERSON SEARCHED AND/OR THE ASSESSEE, HE HAVING DENIED ANY INVESTMENT AS HAVING BEEN MADE BY HIM, IT IS FOR THE ASSESSEE TO SHOW AS TO HOW HE HA S FUNDED THE BALANCE ` 2.30 LAKHS; HE ONLY TRANSMITTING THE PAYMENT/S TO SHRI M.P. KUNHIM OHAMMED, WHO HAS, THUS, NO MEANS TO KNOW AS TO HOW THE INVESTMENT IS BEING FINANCED, EXCEPT AS CONVEYED TO HIM BY THE ASSESSEE. IN OTHER WORDS, IT ONLY THE ASSESSEE WH O KNOWS THE EXACT AMOUNT OF CONTRIBUTION BY HIMSELF AND HIS SON FOR THE FUNDS ( CASH) BEING TRANSMITTED TO SHRI M.P. KUNHIMOHAMMED FOR INVESTMENT. ITA.NO.06 /COCH/2006 7 4.4 IN SUM, IF THE MATERIAL FOUND IN SEARCH REV EALS THE CO-OWNERSHIP OF SHRI ABOOBACKER SIDDIQUE, HE ONLY CAN BE CONSIDERED TO H AVE MADE INVESTMENT TO HIS PROPORTIONATE EXTENT, MORE SO, CONSIDERING THE FACT THAT HE HAS MADE A PROPORTIONATE INVESTMENT TOWARDS HIS EQUAL SHARE IN THE OTHER PRO PERTIES, AS WELL AS THE ASSESSEES STATEMENT THAT HE HAS FUNDED THE BALANCE ` 2.30 LAKHS, SO THAT THE INVESTMENT FOR WHICH THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE, AS ONLY ` 29,000/-. HOWEVER, IF THERE IS NO SUCH MATERIAL, AND THE CLAIM OF THE OWNERSHIP OF SHRI SI DDIQUE FLOWS ONLY FROM THE STATEMENT OF SHRI M.P. KUNHIMOHAMMED AND/OR THE ASSESSEE, THE ONUS IS ON THE ASSESSEE TO SUBSTANTIATE HIS STATEMENT THAT THE BALANCE INVESTM ENT OF ` 2.30 LAKHS IS FROM HIS SON. THIS IS IN VIEW OF THE SON HAVING DENIED HAVING MADE ANY INVESTMENT OSTENSIBLY TOWARD HIS SHARE. WE DECIDE ACCORDINGLY. 4.5 AS REGARDS THE REFERENCE BY THE LD. CIT(A) TO THE BURDEN OF PROOF U/S. 69B, WE MAY ADVERT TO THE DECISION BY THE HONBLE JURISDICT IONAL HIGH COURT IN THE CASE OF SUDHAKARAN (C.K.) VS. ITO , 279 ITR 533 (KER.), WHEREIN IT STANDS CLARIFIED T HAT THE BURDEN OF PROOF THAT THERE WAS AN UNEXPLAINED INVES TMENT BY THE ASSESSEE IS ON THE REVENUE, WHICH WOULD BE CONSIDERED AS DISCHARGED BY ESTABLISHING THE FACTS AND CIRCUMSTANCES FROM WHICH A REASONABLE INFERENCE CAN BE DRAWN THAT THE ASSESSEE HAS NOT DECLARED OR DISCLOSED THE INVESTMENT CORRECTLY. 5. THE LAST GROUND RAISED BY THE REVENUE IS QUA CON FIRMATION OF ADDITION OF ` 2 LAKHS ON ACCOUNT OF A CASH LOAN OSTENSIBLY SOURCED BY THE ASSESSEE FROM HIS SON SHRI MOHAMMED UMMER. WHILE ONLY A CONFIRMATION FROM THE CREDITOR, STATED TO BE IN GULF WAS FILED BEFORE THE AO, WHO FOUND THE SAME INADEQU ATE, PARTICULARLY IN VIEW OF EARLIER CONFIRMATION, WHICH WAS SIGNED BY THE ASSESSEE HIMS ELF (ON BEHALF OF HIS SON). IN THE FIRST APPEAL, THE ASSESSEE PRODUCED A COPY OF THE PASSBOO K OF HIS (CREDITORS) SAVINGS BANK ACCOUNT WITH CANARA BANK (NRE SB 79517), ALONG WITH THE CASH FLOW STATEMENT OF THE CREDITOR. THE SAME SHOWING SUFFICIENT CREDITS AND W ITHDRAWALS, THE CREDIT FROM A CLOSE RELATIVE WAS FOUND ACCEPTABLE BY THE FIRST APPELLAT E AUTHORITY. ITA.NO.06 /COCH/2006 8 6. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. ADMITTEDLY NOTHING MORE THAN A MERE CONFIRMATION WAS FILED BEF ORE THE AO. THOUGH ADDITIONAL EVIDENCE(S) WERE FILED BEFORE THE LD. CIT(A), WHO A DMITTED THE SAME, AND WHICH DECISION IS NOT UNDER QUESTION, HIS ORDER DOES NOT BEAR ANY REASON/S FOR THE SAME. FURTHERMORE, HIS RELIANCE THEREON, WITHOUT CONFRONTING IT TO THE AO AND AFFORDING HIM AN OPPORTUNITY TO MEET THE SAME, AND CONSIDERING HIS COMMENTS/FINDING S, CANNOT BE COUNTENANCED. THIS ISSUE ARISES DIRECTLY OUT OF THE REVENUES APPEAL, WHICH THOUGH HAS NOT IMPUGNED THE SAME FOR CONTRAVENTION OF RULE 46A, HAS INDIRECTLY DONE SO WHEN IT STATES PER ITS RELEVANT GROUND OF THE SAME (CONFIRMATION) TO BE THE ONLY MA TERIAL PRODUCED BY THE ASSESSEE BEFORE THE AO QUA HIS CLAIM OF GENUINENESS OF THE LOAN. IN FACT, AS WE OBSERVE, THE IMPUGNED ORDER ALSO DOES NOT BEAR THE QUANTUM OF CR EDIT(S) AND CASH WITHDRAWALS DURING THE RELEVANT PERIOD. WERE THE CASH WITHDRAWALS MADE IN INDIA OR ABROAD; THE AMOUNT, BEING IN CONVERTIBLE FOREIGN EXCHANGE, SO THAT THE SAME COULD ALSO BE MADE FROM ABROAD ? WHO HAS SIGNED THE CASH FLOW STATEMENT, AS THE ACCO UNT HOLDER IS RESIDING ABROAD, AND HE ONLY COULD POSSIBLY CERTIFY THE PURPOSE/S FOR WHICH THE AMOUNT/S WAS WITHDRAWN ? IS THE CASH LOAN FUNDED FROM AN IMMEDIATE WITHDRAWAL OR A PAST ONE, AS THE WITHDRAWAL WOULD NOT NORMALLY BE KEPT AS CASH-IN-HAND, BUT WITHDRAWN ONLY AS AND WHEN REQUIRED ? ALSO, WHAT WOULD BE RELEVANT IN THE MATTER IS THE SOURCE OF THE SAID CREDITS IN THE SAID ACCOUNT. THESE ISSUES, HAVING A DIRECT BEARING IN THE MATTER , HAVE EVIDENTLY NOT BEEN EXAMINED AT ANY STAGE. UNDER THE CIRCUMSTANCES, WE ONLY CONSIDE R IT FIT AND PROPER THAT THE MATTER IS RESTORED BACK TO THE FILE OF THE AO FOR EXAMINATION OF THE ASSESSEES CLAIM, AND A DECISION ON MERITS IN ACCORDANCE WITH LAW, AFTER AFFORDING A REASONABLE OPPORTUNITY HEARING TO THE ASSESSEE, VACATING THE FINDINGS BY THE LD. CIT(A) I N THE MATTER. WE, HOWEVER, MAY NOT BE CONSIDERED AS HAVING EXPRESSED ANY OPINION IN THE M ATTER, WHICH IS PURELY FACTUAL. WE DECIDE ACCORDINGLY. 7. BEFORE PARTING WITH THE MATTER, WE MAY ALSO CLARIFY THAT AS WE HAVE REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSING AUTHORITY, IN VIEW OF THE FACTUAL INDETERMINATION OF THE ISSUES ARISING FOR ADJUDICATION, IT MAY BE THAT LITIGATION SUBSISTS IN THE SECOND ROUND AS WELL. AS SUCH, THE REVENUE SHALL NOT BE CONSTRAINED TO PREFER SECOND APPEAL IN THE SECOND ITA.NO.06 /COCH/2006 9 ROUND BEFORE THE TRIBUNAL, AS ITS APPEAL WOULD ONLY BE IN CONSEQUENCE OF, AND LIMITED TO THE SUBSISTING ISSUES ARISING OUT OF, THE PRESENT A PPEAL. 8. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED F OR STATISTICAL PURPOSES. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER AC COUNTANT MEMBER PLACE: ERNAKULAM DATED: 29TH APRIL, 2011 GJ COPY TO: 1. M/S. MOIDEENKUTTY HAJI, APM HOUSE, THALAKADATHUR , TIRUR. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRA L CIRCLE, CALICUT. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCH I 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6.GUARD FILE. BY ORDER (ASSIS TANT REGISTRAR)