The ACIT, Circle-1(1), Visakhapatnam V. Sri V Dhana Reddy, Visakhapatnam

MA 190/VIZ/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6248 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 31-12-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 05-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TH L PETER
• Keywords: Business income; Additional evidence

Judgement Text

MA NO.190/VIZAG/2010 V. DHANA REDDY, VIZAG PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER MA NO.190/VIZAG/2010 (ARISING OUT OF ITA NO.119/VIZAG/2007) ASSESSMENT YEAR: 2002-03 ACIT, CIRCLE-1(1) VISAKHAPATNAM VS. SRI V. DHANA REDDY VISAKHAPATNAM (APPELLANT) (RESPONDENT) PAN NO: AAIPV 8980E APPELLANT BY: SHRI TH.L. PETER, CIT(DR) RESPONDENT BY: SHRI G.V.N. HARI, CA ORDER PER SHRI B. R. BASKARAN, ACCOUNTANT MEMBER: BY THIS PETITION THE REVENUE SEEKS AMENDMENT OF OR DER DATED 16-09- 2009 PASSED BY THIS BENCH IN THE HANDS OF THE ASSES SEE CITED ABOVE, ON THE GROUND THAT THE TRIBUNAL HAS DECIDED THE ISSUE BY CONSIDERING CERTAIN AFFIDAVITS WHICH WERE NOT FILED BEFORE THE LEARNED CIT(A). 2. THE BRIEF FACTS WHICH GAVE RISE TO THIS MISCEL LANEOUS APPLICATION ARE STATED IN BRIEF. THE ASSESSING OFFICER ADDED A SUM OF RS.40.24,069/-, BEING THE AGGREGATE AMOUNT OF DEPOSITS FOUND CREDIT ED IN A CURRENT ACCOUNT MAINTAINED IN THE NAME OF A CONCERN NAMED M /S S.V.V.S.S. ENTERPRISES, WHICH WAS CONFIRMED BY LEARNED CIT(A). THE TRIBUNAL ACCEPTED THE CONTENTIONS OF THE ASSESSEE THAT THE I MPUGNED DEPOSITS REPRESENT BUSINESS RECEIPTS AND ACCORDINGLY ESTIMAT ED THE INCOME FROM BUSINESS AT 10% OF THE BUSINESS RECEIPTS. IN THE OR DER THE TRIBUNAL OBSERVED THAT THE ASSESSEE COULD FILE TWO AFFIDAVIT S FROM TWO PERSONS WHO HAVE CONFIRMED THE VERSION OF THE ASSESSEE. THE SA ID AFFIDAVITS WERE CLAIMED TO HAVE BEEN FILED BEFORE THE LEARNED CIT(A ). NOW, ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE HAS NEVER FILED THESE AFFIDAVITS BEFORE THE LEARNED CIT(A) AND IN SUPPORT OF IT THE ASSESSI NG OFFICER HAS FILED AN MA NO.190/VIZAG/2010 V. DHANA REDDY, VIZAG PAGE 2 OF 4 AFFIDAVIT ALSO. ACCORDINGLY IT IS SUBMITTED THAT T HE TRIBUNAL HAS COMMITTED A MISTAKE IN PLACING RELIANCE ON THOSE AFFIDAVITS AND ACCORDINGLY IT IS PRAYED THAT THE ISSUE MAY BE SET ASIDE TO THE FILE OF ASSE SSING OFFICER FOR EXAMINATION OF THE ISSUE AFRESH AFTER DULY CONSIDER ING THE TWO AFFIDAVITS CITED ABOVE. 3. WE HAVE HEARD THE RIVAL CONTENTIONS ON THIS ISSUE AND CAREFULLY PERUSED THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HA S NOTICED THAT A CURRENT ACCOUNT HAD BEEN OPENED IN A TRADE NAME CALLED M/S SVVSS ENTERPRISES WITH STATE BANK OF INDIA, VISAKHAPATNAM. BEFORE THE ASSESSING OFFICER, THE ASSESSEE CLAIMED IT TO BELONG TO A PARTNERSHIP CONC ERN, WHICH CARRIED TRANSPORT ACTIVITIES. IN SUPPORT OF THE SAID CLAIM, THE ASSESSEE FURNISHED A COPY OF PARTNERSHIP DEED. HOWEVER IT WAS NOTICED B Y THE ASSESSING OFFICER THAT THE SAID BANK ACCOUNT HAD BEEN OPENED BY DECLA RING THE ASSESSEE TO BE THE PROPRIETOR OF THE CONCERN M/S SVVSS ENTEPRIS ES. HENCE THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSE E AND ASSESSED THE AGGREGATE CREDIT AMOUNTS OF RS.49,24,069/- IN THE H ANDS OF THE ASSESSEE. AS STATED EARLIER, THE LEARNED CIT(A) ALSO CONFIRME D THE SAID ADDITION. BEFORE TRIBUNAL ALSO, THE ASSESSEE HAS ACTUALLY CON TENDED THAT THE SAID BANK ACCOUNT BELONGS TO A PARTNERSHIP FIRM OF WHICH THE ASSESSEE WAS ONE OF THE PARTNERS AND ACCORDINGLY SOUGHT FOR DELETION OF ENTIRE ADDITION. WHILE DECIDING THE ISSUE THE TRIBUNAL HAS TAKEN INT O ACCOUNT THE FOLLOWING FACTS:- A) THE IMPUGNED BANK ACCOUNT IS A CURRENT ACCOUNT . A CURRENT ACCOUNT IS NORMALLY OPENED FOR BUSINESS CONCERNS ON LY. B) THE IMPUGNED BANK ACCOUNT HAS BEEN OPENED IN A TRADE NAME, VIZ., M/S SVVSS ENTERPRISES. C) IT IS AN UNDISPUTED FACT THAT THE ASSESSEE H AS BEEN CLAIMING RIGHT FROM THE ASSESSMENT STAGE ITSELF THAT THE IMP UGNED BANK ACCOUNT DOES ACTUALLY BELONG TO A PARTNERSHIP CONCERN, WHIC H CARRIED ON TRANSPORT ACTIVITIES. HOWEVER, THE ASSESSEE COULD PRODUCE A COPY OF PARTNERSHIP DEED ONLY BEFORE THE ASSESSING OFFICER. MA NO.190/VIZAG/2010 V. DHANA REDDY, VIZAG PAGE 3 OF 4 D) THOUGH THE ASSESSEE CLAIMED THAT THE PARTNERSH IP FIRM HAD FILED RETURNS OF INCOME, YET THE ASSESSEE COULD NOT PRODU CE COPIES OF SUCH RETURNS. E) IT WAS NOTICED THAT THE DEPOSITS WERE MADE BY W AY OF CHEQUES AND DEMAND DRAFTS. F) IT WAS ALSO NOTICED THAT THE ASSESSEE COULD N OT PRODUCE EVIDENCES LIKE BILLS, RECEIPTS ETC. IT WAS ALSO OBS ERVED THAT THE ASSESSEE COULD NOT CLARIFY WHETHER THE IMPUGNED BANK ACCOUNT AND THE TRANSACTIONS THEREIN WERE ACCOUNTED FOR IN THE BOOKS OF THE FIRM . G) IT WAS OBSERVED BY THE TRIBUNAL THAT THE ASSESS EE COULD PRODUCE TWO AFFIDAVITS OBTAINED FROM TWO PERSONS WHO HAVE C ONFIRMED THE VERSION OF THE ASSESSEE. THE ASSESSEE HAS FILED COPIES OF AFFIDAVITS AND ALSO A PETITION BEFORE LEARNED CIT(A) SEEKING ADMISSION OF SAID AFFIDAVITS AS ADDITIONAL EVIDENCES. AFTER CONSIDERING ALL THE POINTS CITED ABOVE, THE T RIBUNAL CAME TO THE CONCLUSION THAT THE SAID BANK ACCOUNT ACTUALLY BELO NG TO THE ASSESSEE AND FURTHER THE POSSIBILITY OF THE TRANSACTIONS BEING B USINESS TRANSACTIONS CANNOT BE ALTOGETHER DISCOUNTED WITH. THUS THE TRI BUNAL HAS ACTUALLY REJECTED THE CLAIM OF THE ASSESSEE THAT THE IMPUGNE D BANK ACCOUNT BELONGS TO A PARTNERSHIP FIRM AND HELD THAT THE IMPUGNED BA NK ACCOUNT BELONG TO THE ASSESSEE. HOWEVER, THE TRIBUNAL HAS ACCEPTED T HAT THE IMPUGNED DEPOSITS REPRESENT BUSINESS RECEIPTS. 4. NOW THE CONTENTION OF THE REVENUE IN THIS MI SCELLANEOUS APPLICATION IS THAT THE TRIBUNAL HAS DECIDED THE IMPUGNED ISSUE BY SOLELY RELYING ON THE AFFIDAVITS CLAIMED TO HAVE BEEN FILED BEFORE THE LE ARNED CIT(A). ACCORDING TO THE REVENUE, THE SAID TWO AFFIDAVITS ARE NOT AVA ILABLE IN THE RECORD OF LEARNED CIT(A). 5. WE MAY STATE HERE THAT THE TRIBUNAL HAS ONLY STATED ABOUT THE AFFIDAVITS, HOWEVER THE DECISION HAS BEEN RENDERED BY TAKING OVER ALL VIEW OF ALL FACTS AND CONTENTIONS RELATING TO THE ISSUE. IT MAY BE NOTICED THAT THE ASSESSEE HAS BEEN CLAIMING THAT THE DEPOSITS REPRES ENT BUSINESS RECEIPTS RIGHT FROM BEGINNING. THE ASSESSEES CONTENTIONS A RE ALSO SUPPORTED BY THE FACT THAT THE IMPUGNED DEPOSITS WERE MADE BY WA Y OF CHEQUES AND MA NO.190/VIZAG/2010 V. DHANA REDDY, VIZAG PAGE 4 OF 4 DEMAND DRAFTS. HENCE IT IS NOT CORRECT ON THE PART OF THE REVENUE TO INTERPRET THAT THE DECISION HAS BEEN RENDERED BY TH E TRIBUNAL BY PLACING SOLE RELIANCE ON THE TWO AFFIDAVITS CLAIMED TO HAVE BEEN FILED BEFORE THE LEARNED CIT(A). ACCORDINGLY, WE DO NOT FIND MERI T IN THE PETITION OF THE REVENUE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 15 TH FEBRUARY, 2011. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM, DATE:15-02-2011 COPY TO 1 THE ACIT, CIRCLE-1(1), VISAKHAPATNAM 2 SRI VELAGALA DHANA REDDY, PLOT NO.25, OCEAN VIEW LAYOUT EXTN., PANDURANGAPURAM, VISAKHAPATNAM 3 4. THE CIT VISAKHAPATNAM THE CIT(A), VISAKHAPATNAM 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM