Shri. H.S. Abdul Hakeem, Bengaluru V. The Income Tax Officer, Ward - 5(3)(1), Bengaluru

MA 65/BANG/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0823 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 13-10-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 68; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES “SMC-C”, BANGALORE Before Shri George George K, Judicial Member MA No.65/Bang/2022 : Asst.Year 2009-2010 (Arising out of ITA No.2379/Bang/2019) Sri.H.S.Abdul Hakeem No.35B, 4 th Cross, Anepalya Bangalore – 560 030. PAN : AAPPH3609H. v. The Income Tax Officer Ward 5(3)(1) Bangalore. (Applicant) (Respondent) Applicant by : Sri.E.G.Venkatesh Kumar, AR Respondent by : Sri.Ganesh R.Gale, Standing Counsel Date of Hearing : 14.10.2022 Date of Pronouncement : 14.10.2022 O R D E R This miscellaneous application at the instance of the assessee is seeking to recall the order of the ITAT in ITA No.2379/Bang/2019 (order dated 11.10.2021). 2. The learned AR submitted that the Tribunal has restored the matter to AO to examine the source of cash deposit. It was stated by the learned AR that the Tribunal has failed to adjudicate the legality of addition u/s 68 of the I.T.Act. It was submitted that the bank statement cannot be considered as books of account, and consequently, the addition made u/s 68 of the I.T.Act cannot be sustained. It is also submitted by the learned AR that the Tribunal cannot take recourse of provisions of section 69A of the I.T.Act. In this regard, the learned AR relied on the judgment of the Hon’ble Allahabad High Court in the case of Smt.Sarika Jain v. CIT reported in MA No.65/Bang/2022. Sri.H.S.Abdul Hakeem 2 407 ITR 254, wherein the Hon’ble High Court took the view that the Tribunal does not have power to sustain addition u/s 69A of the I.T.Act (when addition was made u/s 68 of the I.T.Act). 3. The learned Standing Counsel, on the other hand, submitted that the Tribunal in case of Shri G.Nataraj v. ITO in ITA No.2198/Bang/2019 (order dated 18.02.2021) by following the judgment of the Hon’ble Karnataka High Court in the case of M/s.Fidelity Business Services India Pvt. Ltd. v. ACIT in ITA No.512/2017 (judgment dated 23.07.2018) has taken a view that the Tribunal has such powers. It was also pointed out that the Hon’ble Karnataka High Court did not follow the ratio laid down by the Hon’ble Allahabad High Court in the case of Smt.Sarika Jain (supra). 4. I have heard rival submissions and perused the material on record. I am of the view that the impugned addition can be examined within the parameters of section 69A of the I.T.Act as that would be the proper provision of law applicable in the present case. As rightly contended by the learned Standing Counsel, the Hon’ble Karnataka High Court has not chosen to follow the ratio laid down by the Hon’ble Allahabad High Court in the case of Smt.Sarika Jain (supra) and has upheld powers of the Tribunal in an appeal as encompassing very wide range. The relevant finding of the Tribunal in case of Shri G.Nataraj v. ITO (supra), which had followed the dictum MA No.65/Bang/2022. Sri.H.S.Abdul Hakeem 3 laid down by the Hon’ble jurisdictional High Court judgment, cited supra, reads as follows:- “6. I have given a careful consideration to the rival submissions and I am of the view that the impugned addition can be examined within the parameters of section 69A of the Act as that would be the proper provision of law applicable in the present case. As rightly contended by the learned DR, the Hon’ble Karnataka High Court has not chosen to follow the ratio laid down by the Hon’ble Allahabad High Court in the case of Smt.Sarika Jain (supra) and has upheld powers of Tribunal in an appeal as encompassing very wide range.” 5. Therefore, even assuming without admitting that the addition cannot be sustained u/s 68 of the I.T.Act, necessarily, addition needs to be retained u/s 69A of the I.T.Act. It is ordered accordingly. 6. In the result, the miscellaneous application filed by the assessee is dismissed. Order pronounced on this 14 th day of October, 2022. Sd/- (George George K) JUDICIAL MEMBER Bangalore; Dated : 14 th October, 2022. Devadas G* Copy to : 1. The Applicant. 2. The Respondent. 3. The CIT(A)-2, Bangalore. 4. The Pr.CIT-5, Bengaluru. 5. The DR, ITAT, Bengaluru. 6. Guard File. Asst.Registrar/ITAT, Bangalore