Shri Boddam Kapil, Hyderabad V. ITO, Ward-8(2), , Hyderabad

MA 104/Hyd/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5559 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2006-2007
• Appeal Filed On: 30-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 133A; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY , ACCOUNTANT MEMBER M.A. NO. 104 /HYD./201 9 (IN ITA NO. 1 894 /HYD./ 2014 ) A.Y. 200 6 - 07 M.A. NO. 10 5 /HYD./2019 (IN ITA NO. 189 5 /HYD./2014) A.Y. 200 7 - 0 8 M.A. NO. 10 6 /HYD./2019 (IN ITA NO. 1 379 /HYD./201 8 ) A.Y. 200 6 - 07 M.A. NO. 10 7 /HYD./2019 (IN ITA NO. 1 380 /HYD./201 8 ) A.Y. 2007 - 08 SH. BODDAM KAPIL VS. ITO, WARD 8(2) D.NO.23 - 42, JANGARAO COMPLEX HYDERABAD SHAMSHABAD R.R.DT. PAN: AISPB8074D M.A. NO. 10 8 /HYD./2019 (IN ITA NO. 1 896 /HYD./201 4 ) A.Y. 200 6 - 07 M.A. NO. 10 9 /HYD./2019 (IN ITA NO. 189 7 /HYD./2014) A.Y. 200 7 - 08 M.A.NOS.104 /H/19 AND GROUP : SH BODDAM KAPIL AND SH BODDAM JANGA RAO 2 M.A. NO. 1 1 0/HYD./2019 (IN ITA NO. 1 381 /HYD./201 8 ) A.Y. 200 6 - 07 M.A. NO. 11 1 /HYD./2019 (IN ITA NO. 138 2 /HYD./2018) A.Y. 200 7 - 08 SH. BODDAM JANGA RAO VS. ITO, WARD 8(2) D.NO.23 - 42, JANGARAO COMPLEX HYDERABAD SHAMSHABAD R.R.DT. PAN: AHTPB1 418 P (APPELLANT) (RESPONDENT) FOR ASSESSE : SHRI K.A.SAI PRASAD, A.R. FOR REVENUE : SH. Y.V.S.T.SAI, CIT, D.R. DATE OF HEARING : 27 /0 9 /19 DATE OF PRONOUNCEMENT : 11 / 1 0/19 O R D E R PER SMT. P. MADHAVI DEVI, J.M. TH ESE MISCELLANEOUS APPLICATION S ARE FILED BY DIFFERENT ASSESSEE S SEEKING RECTIFICATION OF ALLEGED MISTAKE S FOR CLARIFICATIONS OF THE ORDER OF TRIBUNAL DATED 31.07.2019 IN THE CAPTIONED APPEALS . IN THE MISC. APPLICATION THE ASSESSEE HAS SUBMITTED AS UNDER: THE BRIEF FACTS AS CLAIMED BEFORE THE HON'BLE TRIBUNAL ARE: - M.A.NOS.104 /H/19 AND GROUP : SH BODDAM KAPIL AND SH BODDAM JANGA RAO 3 OPERATIONS U/S 133A WERE CONDUCTED ON 21.02.2008 IN THE CASE OF THE APPELLANT AND THE IMPOUNDED MATERIAL INDICATED THAT THE APPELLANT ALONG WITH A FEW OTHERS CARRIED ON REAL ESTATE TRANSACTIONS OF BUYING AND SELLING LANDS. IN THE ORDER ULS 144 THE ASSESSING OFFICER TREATED THE ENTIRE INVESTME NT IN THE HANDS OF THE APPELLANT IGNORING THE FACT THAT THE IMPOUNDED MATERIAL ITSELF INDICATED THAT THE APPELLANT HAD ONLY A AGREED SHARE IN THE TRANSACTIONS. THE ASSESSING OFFICER HAD ALSO TREATED THE ENTIRE ACTION PURCHASE PRICE AS UNEXPLAINED INVESTMEN T IGNORING THE RECEIPTS ON SALE OF EARLIER TRANSACTION AS SOURCES AS INDICATED IN THE IMPOUNDED MATERIAL ITSELF. THE FIRST APPELLATE AUTHORITY GAVE PARTIAL RELIEF ON QUANTUM OF INVESTMENT. THE REVENUE AND THE ASSESSE FILED APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. THE APPEALS WERE DISPOSED OF BY THE HON'BLE INCOME TAX APPELLATE TRIBUNAL VIDE ORDER DT.31.07.2019 IN ITA NOS.1894 & 1895/HYD/14. THE FACTS NARRATED ABOVE WERE AT PARA 6 OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL. THE FIN DINGS AND DECISION OF THE INCOME TAX APPELLATE TRIBUNAL AT PARA 8 ARE AS UNDER. 'HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD AND ALSO HAVING GONE THROUGH THE RECORDS, WE FIND THAT THE DIARY FOUND DURING THE COURSE OF SURVEY IS THE INCRIMINATING DOCUMENT ON THE BASIS OF WHICH THE ADDITIONS HAVE BEEN MADE BY THE AO. ON PERUSAL OF THE SAME, WE FIND THAT THERE ARE ENTRIES OF PAYMENTS AS WEL L AS RECEIPTS. FURTHER, THE ASSESSEE'S SHARE IS ALSO MENTIONED THEREIN, WHEREAS THE AO HAS TAKEN THE ENTIRE PAYMENT AS PAYMENT MADE BY THE ASSESSE ALONE. TO THIS POINT, THE LEARNED DR HAD SUBMITTED THAT THE ASSESSEE HAS FAILED TO PRODUCE THE OTHER PARTIES AND THEREFORE, THE ENTIRE ADDITION HAD TO BE MADE IN THE HANDS OF THE ASSESSE ALONE. WE FIND THAT SINCE THE DIARY WAS FOUND FROM THE PREMISES OF THE ASSESSE, THE ONUS IS ON THE ASSESSE TO EXPLAIN THE ENTRIES IN THE DIARIES. IF HE CLAIMS THAT THE PAYMENTS A RE MADE BY M.A.NOS.104 /H/19 AND GROUP : SH BODDAM KAPIL AND SH BODDAM JANGA RAO 4 SOME OTHER PARTIES, THE ASSESSE IS REQUIRED TO PRODUCE SUCH PARTIES BEFORE THE AO, FAILING WHICH, THE AO IS CONSTRAINED TO MAKE ENTIRE ADDITION IN THE HANDS OF THE ESSSESSEE ALON E. THEREFORE, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO CONSIDER THE ENTRIES IN THE DIARY AS A WHOLE, AND IF THERE ARE ANY RECEIPTS BY THE ASSESSE, THEN THE SAME SHOULD ALSO BE TELESCOPED AGAINST UNEXPLAINED INVESTMENTS. THUS, APPEALS OF BOTH THE ASSESSES AS WELL AS THE REVENU E ARE REMITTED TO THE FILE OF THE AO FOR DE NOVO CONSIDERATION IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION THAT THE ASSESSE SHALL BE GIVEN A FAIR OPPORTUNITY OF HEARING. THUS, ALL THE APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES'. AS CAN BE SEE N FROM THE ABOVE THE THOUGHT IT WAS MENTIONED THAT THE APPELLANTS SHARE WAS MENTIONED IN IMPOUNDED MATERIAL, IT WAS OBSERVED THAT THE ASSESSE IS REQUIRED TO PRODUCE THIRD PARTIES FAILING WHICH ASSESSING OFFICER IS CONSTRAINED TO MAKE ENTIRE ADDITION IN THE HANDS OF THE APPELLANT. IN OUR HUMBLE OPINION THOUGH THE APPEALS ARE REMITTED BACK FOR DENOVO CONSIDERATION THIS OBSERVATION MAY PROMPT THE ASSESSING OFFICER TO MAKE THE ENTIRE ADDITION IN THE HANDS OF THE APPELLANT, WHICH IS AGAINST THE FACTS EMANATING FROM THE IMPOUNDED MATERIAL. THE APPELLANT CANNOT BE PUT TO HARDSHIP ON ACCOUNT OF THE THIRD PARTIES RESPONSE OR OTHERWISE TO APPEAR BEFORE THE ASSESSING OFFICER. THE APPELLANT ON HIS PART UNDERTAKES TO FURNISH COMPLETE DETAIL OF THE OTHER CO - OWNERS/PARTIE S OF THE TRANSACTION AND THE ASSESSING OFFICER IS FREE TO PROCEED AS PER LAW. HENCE IT IS PRAYED THAT THE HON'BLE INCOME TAX APPELLATE TRIBUNAL MAY PLEASE CONSIDER THIS PETITION AND PASS SUITABLE ORDERS. 3 . HAVING HEARD BOTH THE PARTIES, WE ARE OF THE OPINION THAT THE SUBSTITUTION OF THE FOLLOWING SENTENCES IN LINE S 13 AND 14 OF PARA 8 WILL BE SUFFICIENT CLARIFICATION OF THE ORDER TO CLEAR THE CONFUSION , IF ANY , ABOUT THE DIRECTIONS OF THIS TRIBUNAL. M.A.NOS.104 /H/19 AND GROUP : SH BODDAM KAPIL AND SH BODDAM JANGA RAO 5 LINE 13 AND 14 : 6 TH SENTENCE IS TO BE SUBSTITUTED WITH: IF HE CLAIMS THAT THE PAYMENTS ARE MADE BY SOME OTHER PARTIES, THE ASSESSEE IS REQUIRED TO PRODUCE THE DETAILS OF SUCH PARTIES BEFORE THE ASSESSING OFFICER WHO THEN SHALL CAUSE VERIFICATION OF THE SAME . IN THE PLACE OF: - THE ASSESSEE IS REQUIRED TO PRODUCE SUCH PARTIES BEFORE THE AO, FAILING WHICH, THE AO IS CONSTRAINED TO MAKE ENTIRE ADDITION IN THE HANDS OF THE ASSESSEE ALONE. 4 . IN THE RESULT, ALL THESE MISC. APPLICATIONS FILED BY THE RESPECTIVE AS SESSES ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 11 /10/ 2019. SD/ - SD/ - (A. MOHAN ALANKAMONY ) (P . MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11 / 10 /2019. *GMV M.A.NOS.104 /H/19 AND GROUP : SH BODDAM KAPIL AND SH BODDAM JANGA RAO 6 COPY FORWARDED TO: 1. S/SHRI BODDAM KAPIL / BODDAM JANGA RAO, D.NO: 23 - 42, JANGARAO COMPLEX, SHAMSHABAD, RR DT. HYDER A BAD. 2. ITO, WARD 8(2), 8 TH FLOOR, D BLOCK, IT TOWERS, MASAB TANK, HYDERABAD. 3. C IT(A), VIJAYAWADA . 4. THE CIT - II, HYDERABAD. 5. D.R. ITAT HYDERABAD. 6. GUARD FILE // C O P Y // M.A.NOS.104 /H/19 AND GROUP : SH BODDAM KAPIL AND SH BODDAM JANGA RAO 7 1. DRAFT DICTATED ON 2. DRAFT PLACED BEFORE THE AUTHOR 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SRPS 6. KEPT FOR PRONOUNCEMENT 7. FILE SENT TO BENCH CLERK