DCIT, Central Cirlce-2(1), Hyd, Hyderabad V. Naseer Aziz, A N, Hyd, Bangalore

MA 35/HYD/2016

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 5114 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Assessee Lawyers: B SAI PRASAD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A.NO.35/HYD/2016 ARISING OUT OF ITA.NO.1657/HYD/2014 ASSESSMENT YEAR 2008-2009 DCIT, CENTRAL CIRCLE-2(1) HYDERABAD. VS. MR. A.N. NASEER AZIZ BANGALORE 560094 PAN ACYPA3986K (APPLICANT) (RESPONDENT) FOR REVENUE : MR. K.E. SUNIL BABU FOR ASSESSEE : MR. B. SAI PRASAD DATE OF HEARING : 15.07.2016 DATE OF PRONOUNCEMENT : 12.08.2016 ORDER SMT. P. MADHAVI DEVI, J.M. THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVEN UE FOR RECTIFICATION OF THE ALLEGED MISTAKES IN THE ORDER OF THE TRIBUNAL DATED 22 ND JANUARY, 2016 IN ITA.NO.1657/HYD/2014. 2. IN THIS APPLICATION, THE REVENUE HAS STATED THAT THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE ITAT AGA INST THE DECISION OF THE CIT(A) HOLDING THAT THE INVESTMENT OF RS .25 LAKHS MADE BY THE ASSESSEE TO PURCHASE LAND AT CHIKBALLAPUR COULD NOT BE CORROBORATED WITH EVIDENCE ON RECORD AND AFTER CONSIDERING THE FACTS AND SUBMISSIONS OF THE ASSESSEE , THE CIT(A) HAD HELD THAT THE TRANSACTION WAS FOR RS.20 LAKHS ONLY A ND DIRECTED THE A.O. TO DELETE THE ADDITION OF RS.5 LAKHS. IT WAS SUBMITTED THAT THE CONTENTION OF THE ASSESSEE BEFORE THE CIT (A) 2 MA.NO.35/HYD/2016 ARISING OUT OF ITA.NO.1657/HYD/20 14 MR. A.N. NASEER AZIZ, BANGALORE. WAS THAT THE AMOUNT WAS MET BY HIS WIFES EARNINGS. HOW EVER, THE SAME WAS NOT ACCEPTED IN THE ABSENCE OF ANY SUPPO RTING EVIDENCE. THEREFORE, THE CIT(A) HAD CONFIRMED THE ADD ITION OF RS.20 LAKHS ONLY. IT WAS SUBMITTED BY THE REVENUE THAT AG AINST THE DECISION OF THE CIT(A), ASSESSEE HAD PREFERRED FU RTHER APPEAL BEFORE THE ITAT AND THE ASSESSEES CONTENTION WAS THAT THE AMOUNT OF RS. 20 LAKHS CANNOT BE BROUGHT TO TAX IN THE HA NDS OF THE ASSESSEE SINCE THE REVENUE AUTHORITIES HAVE ALREADY BROUGHT THE SAID AMOUNT TO TAX IN THE HANDS OF THE ASSESSEES WI FE AND THE SAME HAS BEEN ACCEPTED BY THE ASSESSEES WIFE. I T WAS SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT ON VERIFI CATION OF RECORDS, IT IS NOTICED THAT FOR THE A.Y. 2008-09, ASSESS EES WIFE SMT. ALIYA NASEER AZIZ HAD NOT ACCEPTED THE IMPUGNED AM OUNT IN HER HANDS AND SHE PREFERRED AN APPEAL BEFORE THE CIT(A), WHO VIDE ORDERS DATED 09.12.2015, HAS DELETED THE ADDITIO N BY HOLDING THAT THE ADDITION WAS MADE ON PROTECTIVE BASIS I N THE HANDS OF THE ASSESSEE THEREIN AND ON SUBSTANTIVE BASIS IN THE HANDS OF HER HUSBAND, MR. NASSER AZIZ, THE ASSESSEE BEFORE US. THUS, THE TOTAL ADDITION OF RS.25 LAKHS MADE ON PROTECTIV E BASIS IN THE HANDS OF SMT. ALIA NASSER AZIZ WAS HELD TO BE UNSUSTAINABLE AS THE ADDITION OF RS.20 LAKHS WAS UPHE LD IN THE HANDS OF HER HUSBAND (I.E., ASSESSEE HEREIN). IT IS STATED THAT THE ASSESSEE HAD MISREPRESENTED THE FACTS BEFORE THE ITAT BY STATING THAT HIS WIFE HAS ACCEPTED THE ADDITION IN HER HANDS WH ILE SHE HAD ALSO PREFERRED AN APPEAL AGAINST THE SAME ADDITIO N AND THE CIT(A) HAD DELETED THE ADDITION. IT WAS THEREFORE, PRA YED THAT SUITABLE MODIFICATION OF ORDER IN THE CASE OF MR. NAS EER AZIZ FOR THE A.Y. 2008-09 BE MADE. 3 MA.NO.35/HYD/2016 ARISING OUT OF ITA.NO.1657/HYD/20 14 MR. A.N. NASEER AZIZ, BANGALORE. 3. THE LD. D.R. REITERATED THE SUBMISSIONS MADE IN THE M.A. WHILE THE LEARNED COUNSEL FOR THE ASSESSEE, HAS FILED WRITTEN SUBMISSIONS STATING THAT THE SAME ADDITIONS WERE MA DE IN THE HANDS OF THE ASSESSEE AS WELL AS HIS WIFE ON SUBSTANTIVE AND PROTECTIVE BASIS RESPECTIVELY. HE SUBMITTED THAT IN A SSESSEES APPEAL THE MAIN POINT FOR CONSIDERATION WAS WHETHER THE ADDITION IN THE HANDS OF THE ASSESSEE WAS SUSTAINABLE. HE FURTHER SUBMITTED THAT THE ADDITIONS MADE ON PROTECTIVE BASI S HAS NO INDEPENDENT EXISTENCE. IT WAS SUBMITTED THAT WHERE THE SUBSTANTIVE ADDITION IS ERRONEOUS, THE PROTECTIVE ADDI TION WILL HAVE NO LEGS TO STAND. FURTHER, IT IS ALSO SUBMITTED THA T IF THE SUBSTANTIVE ADDITION IS CONFIRMED, THE PROTECTIVE ADDI TION WILL AUTOMATICALLY GET VACATED. LIKEWISE, IF THE SUBSTANTIVE ADDITION IS DELETED, THERE WOULD BE NO CASE TO MAKE PROTECTIVE ADDI TION OF THE SAID AMOUNT. HE FURTHER SUBMITTED THAT THE TRIBUNAL HAD NOT ONLY RELIED UPON THE ASSESSEES SUBMISSIONS THAT THE S AME WAS BROUGHT TO TAX IN THE HANDS OF HIS WIFE BUT HAS CONSIDE RED THE FACTUAL POSITION AND HAS BASED ITS JUDGMENT PURELY ON FACTS AND EVIDENCE. THEREFORE, ACCORDING TO HIM, THERE WAS NO MISTAKE APPARENT FROM RECORD WHICH NEEDS RECTIFICATION. 4. HAVING REGARD TO THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD, WE FIND THAT AT PAGE-3 PARA-7 OF ITS ORDER, THIS BENCH HAS TAKEN NOTE OF THE FACT THAT THE PROTECTIVE ASSESSMENT IN THE HANDS OF THE ASSESSEES WIFE HAS BEE N ACCEPTED. FURTHER, THE DECISION IS NOT BASED ON SUCH S TATEMENT ALONE BUT IT IS AFTER APPRECIATION OF THE EVIDENCE THAT THE TRIBUNAL HAS COME TO THE CONCLUSION THAT THE PAYMENTS O F RS. 20 4 MA.NO.35/HYD/2016 ARISING OUT OF ITA.NO.1657/HYD/20 14 MR. A.N. NASEER AZIZ, BANGALORE. LAKHS HAS BEEN MADE BY ISSUING CHEQUES FROM PARTNERS HIP FIRM OF THE ASSESSEE I.E., RS. 10 LAKHS PAID BY CHEQUE AN D RS.10 LAKHS PAID BY CASH. IT IS ALSO OBSERVED THAT ONLY A SUM OF R S. 5 LAKHS IS NOT FOUND RECORDED IN THE BOOKS OF ACCOUNT OF THE FI RM. IT IS AFTER APPRECIATION OF THESE FACTS, THAT THE TRIBUNAL HAS HELD TH AT THE ASSESSEE HAS EXPLAINED THE SOURCE OF THE PAYMENT TO THE EXTENT OF RS.20 LAKHS IN THE HANDS OF HIS WIFE. WE HAVE ALS O OBSERVED THAT SINCE THE ASSESSMENT IN THE HANDS OF THE ASSESSEES WIFE HAS BEEN CONCLUDED, WE ARE NOT PASSING ANY ORDERS AS TO W HETHER SHE EXPLAINED THE SOURCE OF PAYMENT IN HER HANDS OR NOT. I T IS AFTER OBSERVING THUS THAT THE ADDITION OF RS.20 LAKHS MADE I N THE HANDS OF THE ASSESSEE WAS DELETED AND IT WAS FURTHER OBSERVED THAT IF AT ALL ANY ADDITION IS TO BE SUSTAINED, IT IS OF RS.5 LAKHS ONLY. THEREFORE, WE AGREE WITH THE CONTENTION OF THE L EARNED COUNSEL FOR THE ASSESSEE THAT THE DECISION WAS NOT TAKE N ONLY ON THE BASIS OF THE ASSESSEES SUBMISSIONS THAT THE PROTEC TIVE ADDITION MADE IN THE HANDS OF ASSESSEES WIFE HAS BEE N ACCEPTED BY HER. THE DECISION HAS BEEN TAKEN AFTER PROPER APP RECIATION OF THE EVIDENCE ON RECORD AND THEREFORE, WE DO NOT FIND A NY REASON TO MODIFY THE ORDER OF THE TRIBUNAL DATED 22.01.2016. 5. IN THE RESULT, M.A. FILED BY THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.08.20 16. SD/- SD/- (S. RIFAUR RAHMAN) (SMT. P. MADHAVI DEVI ) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 12 TH AUGUST, 2016 VBP/- 5 MA.NO.35/HYD/2016 ARISING OUT OF ITA.NO.1657/HYD/20 14 MR. A.N. NASEER AZIZ, BANGALORE. COPY TO : 1. THE DCIT, CENTRAL CIRCLE-2(1), HYDERABAD. 2. MR. A.N. NASEER AZIZ, NO.46, AZIZ COTTAGE, 60 FEE T ROAD, BHOOPASANDRA LAYOUT, SANJAY NAGAR POST, BANGALORE 560 094. 3. CIT(A)-I, HYDERABAD 4. CIT-(CENTRAL), HYDERABAD. 5. D.R. ITAT A BENCH, HYDERABAD. 6. GUARD FILE