Sri M Sivanarayana, Visakhapatnam V. The ITO, Ward-2, Ongole

MA 15/VIZ/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6487 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 28-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J SIRI KUMAR
• Keywords: Unexplained cash credit; Opportunity of being heard

Judgement Text

MA NO.15/V/11 M SIVANARAYANA, VSKP. IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER MA NO.1 5 /VIZAG/ 20 11 (ARISING OUT OF ITA NO.263/VIZ/2010) ASSESSMENT YEAR : 2005 - 06 SRI M. SIVANARAYANA ONGOLE VS. ITO WARD - 2 ONGOLE (APPELLANT) (RESPONDENT) PAN NO.ABDPN 5507F APPELLANT BY: SHRI G.V.N. HARI, CA RESPONDENT BY: SHRI J. SIRI KUMAR, SR. DR ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS MISCELLANEOUS APPLICATION IS PREFERRED BY TH E ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 8.3.2011 WITH THE SUBMI SSION THAT WHILE FILING THE REVISED GROUND OF APPEAL DUE TO INADVERTENCE THE AS SESSEE BY MISTAKE SOUGHT RELIEF IN RESPECT OF FOLLOWING AMOUNTS WHICH ARE AL READY DELETED BY THE LD. CIT(A): SMT. SUDHEERA - RS.55,000/- SRI N. VENKAIAH - RS.40,000/- SRI N. SATYANARAYANA- RS.30,000/- SRI B. RANGAMMA - RS.35,000/- 2. WHILE ADJUDICATING THE ISSUE, THE TRIBUNAL HAS S ET ASIDE THE ADDITION WITH REGARD TO THE OTHER CREDITS INTRODUCED IN THE NAME OF I. SATYAVARDHAN, M. SURESH REDDY, D. HARNADH BABU & M. SUDHAKAR RAO AND RESTORED THE MATTER TO THE FILE OF THE A.O. WITH A DIRECTION TO RE-EXAMINE THE GENUINENESS OF THE LOAN IN THE LIGHT OF EVIDENCE FILED BY THE A SSESSEE AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO HIM. WITH REGARD TO M. SUDHEERA, N. VENKAIAH, N. SATYANARAYANA & SMT. RANGAMMA, THE ABOVE SAID CA SH CREDITORS THE TRIBUNAL HAS CONFIRMED THE ADDITION WITHOUT NOTICIN G THE FACT THAT THESE ADDITIONS HAVE ALREADY BEEN DELETED BY THE CIT(A). THEREFORE, AN ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR A RECTIFICATION. THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO INVITED TO OUR AT TENTION TO THE RELEVANT MA NO.15/V/11 M SIVANARAYANA, VSKP. PARAS OF THE ORDER OF THE CIT(A) IN WHICH THE ADDIT ION WITH RESPECT TO THE AFORESAID CREDITORS HAVE BEEN DELETED. 3. THE LD. D.R. DID NOT DISPUTE THE FACTUAL ASPECT. HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL, VIS--VIS THE M ISCELLANEOUS APPLICATION AND THE ORDERS OF THE CIT(A), WE FIND THAT THE ASSE SSEE HAS INCLUDED THESE CASH CREDITS IN ITS GROUNDS OF APPEAL BY MISTAKE WI THOUT REALIZING THE FACT THAT THE RELIEF IN THIS REGARD HAS ALREADY BEEN GRANTED BY THE CIT(A). WHILE ADJUDICATING THE ISSUE THE TRIBUNAL DID NOT NOTICE THIS FACT AND HAS CONFIRMED THE ADDITIONS WITH REGARD TO THESE 4 CREDITORS FOR THE REASONS THAT NO EVIDENCE TO PROVE THE GENUINENESS OF THE LOANS WERE FILED BEFORE THE TRIBUNAL. THEREFORE, AN ERROR HAS CREPT IN THE ORD ER OF THE TRIBUNAL AND WE ACCORDINGLY MODIFY PARA-6 OF THE ORDER OF THE TRIBU NAL. WE SUBSTITUTE THIS LAST 6 LINES OF PARA-6 WHICH STARTS FROM SO FAR AS REMAINING CASH CREDITS..AS UNEXPLAINED CASH CREDIT BY THE FOLLOWING LINES: SO FAR AS REMAINING CASH CREDITS INTRODUCED IN TH E NAME OF THE M. SUDHEERA, N. VENKAIAH, N. SATYANARAYANA & SMT. RANG AMMA ARE CONCERNED, WE FIND THESE CASH CREDITS HAVE ALREADY BEEN ACCEPT ED BY THE CIT(A) AND REVENUE HAS NOT CHALLENGED THE ACCEPTANCE OF GENUIN ENESS OF THE LOANS BY THE CIT(A). THE ASSESSEE HOWEVER, WRONGLY RAISED A CLAIM IN THIS REGARD IN WHICH WE FIND NO MERIT AS IT HAS ALREADY BEEN GRANT ED BY THE CIT(A). ACCORDINGLY, THE MISCELLANEOUS APPLICATION OF THE A SSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 13.4.2011 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 13 TH APRIL, 2011 MA NO.15/V/11 M SIVANARAYANA, VSKP. COPY TO 1 G.V.N. HARI & CO. OFFICE NO.6, 2 ND FLOOR, DABBIRU MANSIONS, 30 - 14 - 11, DABAGARDENS, OPP. RAO AUTOMOBILES, NEAR SARASWATHI PARK, VISAKHAPATNAM-530 020 2 ITO WARD - 2, ONGO LE 3 THE CI T, GUNTUR 4 THE CIT (A) , GUNTUR 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM