THE ITO, TRIVANDRUM V. SHRI.XAVI MANO MATHEWS, TRIVANDRUM

ITA 26/COCH/2017

AI Insights

The case involves an appeal by the Income Tax Officer against the order of the CIT(A), which had deleted certain additions made by the Assessing Officer in the assessment of Shri Xavi Mano Mathews for the year 2008-2009. The additions pertained to unexplained credits and deemed dividends under sections 68 and 2(22)(e) of the Income Tax Act, respectively. The CIT(A)'s decision was based on the remand report from the Assessing Officer, which did not support the additions. The Tribunal, referencing precedents, concluded that the CIT(A)'s reliance on the remand report was justified and dismissed the appeal.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 31183 (ITAT-COCHIN)
• Duration Of Justice: 7 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-01-2021
• Assessment Year: 2008-2009
• Appeal Filed On: 30-01-2017
• Other Referred Cases: CIT vs. D.M. Purnesh [2020] 426 ITR 169 (Kar.), Smt. B. Jayalakshmi vs. ACIT [2018] 91 taxmann.com 486 (Mad.)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S. PANDIAN
• Assessee Lawyers: SURESH KUMAR
• Keywords: Set aside; Unexplained cash credit; Deemed dividend
• Section: 68; 2(22)(e)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH : COCHIN BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA.No.26/COCH./2017 Assessment Year 2008-2009 The Income Tax Officer, Ward-1(3), Room No.505, 5th Floor, Aayakar Bhavan, Kowdiar, TRIVANDRUM. KERALA. PIN – 695 003. vs. Shri Xavi Mano Mathews, TND-10, Panachikal House, Tagore Nagar, Vazhuthacaud, THIRUVANANTHAPURAM. PIN – 695 104. PAN AEWPM3853M (Appellant) (Respondent) For Revenue : Shri Dr. S. Pandian, CIT-DR For Assessee : Shri Suresh Kumar, C.A. Date of Hearing : 21.08.2024 Date of Pronouncement : 07.11.2024 ORDER PER SATBEER SINGH GODARA, J.M. This Revenue’s appeal, for the assessment year 2008- 2009, arise against the CIT(A), Trivandrum, Trivandrum’s order in ITA.No.104/TVM/CIT(A), TVM/2010-11, dated 25.11.2016, in proceedings u/sec.143(3) of the Income Tax Act, 1961 (in short the \"Act\"). Heard both the parties. Case file perused. 2 ITA.No.26/COCH./2017 2. The Revenue pleads the following substantive grounds in the instant appeal : 1. “The Learned CIT(A) erred in deleting additions made by the A.O towards unexplained credit u/s 68 of IT Act on the basis of evidence produced/explanation made during appeal proceedings and also erred in deleting a part of addition made by the A.O towards Deemed dividend u/s 2(22)(e) of IT Act 2. The deletion of Rs.1,98,86,558/- limited to the extend AO has conceded in remand report is without coming to a satisfaction regarding (a) identity (b) genuiness and (c) credit worthiness in view of recording by Lt. CIT(A) such as \"substantial amount\", \"could have been credited amount of money received from appellant's mother.....\", \"Rs.1,20,69,000/- to be received by 30.06.2007...\" in his order. The Ltd. CIT(A) ought to have noted that the onus is on assessee to conclusively establish the entire sequence of transaction resulting in the receipt of sums. The deletion based on probabilities and surmises is wrong. 3 ITA.No.26/COCH./2017 3. The Ld. CIT(A) ought to have sustained Rs.12,00,000/-, Rs.3,99,906/- and Rs.26,00,000/- out of addition of Rs.1,80,60,000/-, Rs.4,82,094/- and Rs.27,00,000/- respectively. 4. Deemed Dividend Lt.CIT(A) ought to have noted that as per section 2(22)(e) the dividend include any payment (total sum of receipt) made by the company by way of loan or advance to a shareholder holding not less than 10 percent of voting power w.r.t accumulated profit. CIT(A) restricted it to maximum amount of loan which is against the provisions of that section. The decision of Lt.CIT(A) is not in accordance with provisions of section 2(22)(e) in matters like maximum amount, sum claimed to be received by wife of appellant etc. 5. For these and other grounds that may be advanced at the time of hearing the order of the learned Commissioner of Appeals, Trivandrum on the above points may be set aside and that of the Assessing Officer restored.” 3. It emerges during the course of hearing with the able assistance coming from both the sides that there is hardly any much a need for us to delve deeper in the relevant factual matrix 4 ITA.No.26/COCH./2017 so far as the Revenue’s above extracted substantive grounds on merits are concerned. This is for the precise reason that learned CIT(A) had sought a remand report from the Assessing Officer which came to be filed on 08.05.2014 reading as under : 5 ITA.No.26/COCH./2017 6 ITA.No.26/COCH./2017 4. It is in this factual backdrop that the Revenue could hardly dispute that the CIT(A) has precisely acted on the basis of the Assessing Officer’s remand report only whilst deciding the corresponding issue(s) in assessee’sfavour. Faced with this situation, we quote CIT vs. D.M. Purnesh [2020] 426 ITR 169 (Kar.); Smt. B. Jayalakshmi vs. ACIT [2018] 91 taxmann.com 486 (Mad.) to conclude that once the learned assessing authority has itself accepted the assessee’s corresponding claim(s) in above terms, the Revenue could hardly be held to as an aggrieved party against the CIT(A)’s action deleting the impugned addition(s). Ordered accordingly. 5. This Revenue’s appeal is dismissed in above terms. 7 ITA.No.26/COCH./2017 Order pronounced in the open Court on 07.11.2024. Sd/- Sd/- [AMARJIT SINGH] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Cochin, Dated 7th November, 2024 VBP/- Copy to 1. The appellant 2. The respondent 3. The CIT, Cochin concerned 4. The D.R. ITAT, Cochin Bench, Cochin. 5. Guard File. //By Order// //True copy// Sr. Private Secretary, ITAT, Cochin Bench, Cochin "