Dr. Jagadish Mahananda Medical Officer, Bargarh v. ITO, Bargarh

ITA 168/CTK/2008 | 2003-2004
Pronouncement Date: 27-07-2010

Appeal Details

RSA Number 16822114 RSA 2008
Assessee PAN ACKPM3468M
Bench Cuttack
Appeal Number ITA 168/CTK/2008
Duration Of Justice 2 year(s) 1 month(s) 28 day(s)
Appellant Dr. Jagadish Mahananda Medical Officer, Bargarh
Respondent ITO, Bargarh
Appeal Type Income Tax Appeal
Pronouncement Date 27-07-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 27-07-2010
Date Of Final Hearing 20-07-2010
Next Hearing Date 20-07-2010
Assessment Year 2003-2004
Appeal Filed On 29-05-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE HONBLE SHRI D.K.TYAGI JUDICIAL MEMBER. /AND HONBLE SHRI K.K.GUPTA ACCOUNTANT MEMBER . / I.TA.NO S . 168 AND 169/CTK/2008 / ASSESSMENT YEARS 2003 - 04 AND 2005 - 06 DR. JAGADISH MAHANAND MEDICAL OFFICER AT/P.O. CHC BARPALI DIST. BARGARH. PAN - ACKPM 3468 M - - - VERSUS - . INCOME - TAX OFFICER BARGARH / A PPELLANT RESPONDENT FOR THE APPELLANT : SHRI P.R.MOHANTY AR FOR THE RESPONDENT : SHRI A.S.MONDAL DR / ORDER SHRI K.K.GUPTA ACCOUNTANT MEMBER . THESE TWO APPEALS BY THE ASSESSEE FOR THE AYS 2003 - 04 AND 2005 - 06 RAISE COMMON GROUNDS WHICH ARE BEING DEALT WITH TOGETHER AS ARGUMENTS AND FACTS PUTFORTH BY THE LEARNED COUNSEL ARE COMMON TO EACH. 2. AT THE OUTSET TH E LEARNED COUNSEL OF THE ASSESSEE HAS PROPOSED TO WITHDRAW THE MODIFIED GROUNDS FILED EARLIER TO CONTINUE HIS ARGUMENT IN THE ORIGINAL GROUNDS RAISED IN THE MEMORANDUM OF APPEAL FILED BEFORE THE REGISTRY. IT HAS BEEN NOTED BY HIM THAT THE MODIFIED GROUNDS ARE BEING WITHDRAWN. WITH RESPECT TO THE COMMON GROUNDS RELATING TO CLAIM OF DEDUCTION U/S.80DDB AND INCOME FROM PRIVATE PRACTICE ENHANCED HE PRAYED THE SAME TO BE NOT PRESSED FOR ARGUMENT. THIS FACT HAS ALSO BEEN NOTED IN OUR ORDER SHEET WHEN THE GROUN DS RELATING TO THESE TWO ISSUES FOR THE IMPUGNED ASSESSMENT YEARS ONLY RELATED TO THESE TWO ISSUES HAVE BEEN WITHDRAWN BY THE LEARNED COUNSEL OF THE ASSESSEE FOR PROSECUTION. 3. IN VIEW THEREOF APPEAL FOR THE ASSESSMENT YEAR 2005 - 06 HAVING ONLY THESE ISS UES STANDS DISMISSED AS WITHDRAWN. / I.TA.NOS . 168 AND 169/CTK/2008 2 4. ON PROCEEDING TO HEAR THE APPEAL FOR THE ASSESSMENT YEAR 2003 - 04 GROUNDS NO.3 AND 4 ARE DISMISSED AS NOT PRESSED BY THE LEARNED COUNSEL. 5. THIS HAS LEFT THE BENCH TO CONSIDER THE ONLY ISSUE REMAINED TO BE ARGUED BY THE LEARNED COUNSEL IS WITH RESPECT TO ADDITION OF RS.5 LAKHS AS UNEXPLAINED INVESTMENT N THE HOUSE CONSTRUCTED BY THE DOCTOR - ASSESSEE. 6. THE LEARNED COUNSEL SUBMITTED THAT THE ASSESSING OFFICER IN HIS DETAILED ORDER UNDER THE PROVISIONS OF SECTION 143(3 )/147 CONSIDERED THE CASH FLOW STATEMENT AND FINANCIAL AFFAIRS FOR THE EARLIER SIX YEARS LEADING TO FINANCE AVAILABILITY OF AMOUNTS TO BE INVESTED IN THE CONSTRUCTION OF HOUSE IN THE IMPUGNED ASSESSMENT YEAR WHEN HE OBSERVE THAT THE ASSESSEE HAS ONLY RS.7 20 128 CAPITAL FROM WHERE HE COULD NOT HAVE INVESTED THE SUM OF RS.5 LAKHS IN THE CONSTRUCTION OF THE PROPERTY. THE LEARNED COUNSEL ARGUED THAT IT WAS THE ASSESSING OFFICER S OBSERVING THE CASH FLOW IN VIEW OF THE FACT THAT HE HAD NOTED THAT THE SAVINGS BA NK ACCOUNT CREDIT AND DEBIT SUMMATIONS WERE RS.2 72 516 AND RS.2 20 506 RESPECTIVELY. AS THE ASSESSEE HAD PURCHASED THE HOUSE FROM M/S.SARASWATI BUILDERS AND DEVELOPERS AND HAD OBTAINED LOAN OF RS.9 LAKHS FROM THE BANK THE SAME HAD NOT BEEN INCORPORATED I N THE CASH FLOW STATEMENT WHICH THE ASSESSING OFFICER DID NOT TAKE NOTE OF. 7. AGGRIEVED THE ASSESSEE APPEALED BEFORE THE FIRST APPELLATE AUTHORITY. THE LEARNED CIT(A) CONSIDERED THE FACTS AS BROUGHT ON RECORD BY THE ASSESSING OFFICER TO THE EXTENT THA T THE ASS ESSEE HAD ONLY SALARY AND PRIVATE PRACTICE AS SOURCE OF INCOME THEREFORE COULD NOT HAVE SUFFICIENT FUNDS TO ME E T THE INVESTMENT IN THE PROPERTY. HE ALSO DESCRIBED THE ASSESSEES EFFORTS IN JUSTIFYING THE INVESTMENT ON THE BASIS OF CASH FLOW STATEM ENT WHEN HE SOUGHT TO MAKE OBSERVATION THAT WERE NOT PERTINENT TO THE ISSUE N DISPUTE BEFORE HIM. HE PERUSED THE ORDER OF THE LEARNED CIT(A) WHEREIN HAVING BROUGHT ON RECORD CASE LAWS THAT WOULD NOT HAVE HELP ED TO THE ASSESSEE TO THE EXTENT THAT THE ASSE SSEES BASIC CONTENTION OF HAVING INVESTED THE AMOUNT UNDER CONSTRUCTION FROM A LOAN AMOUNT DULY CERTIFIED BY THE BANK WAS NOT PART OF THE ASSESSEES CASH FLOW STATEMENT OR CLAIM OF INTEREST AS THE ASSESSEE HAD NOT CLAIMED / I.TA.NOS . 168 AND 169/CTK/2008 3 INCOME FROM HOUSE PROPERTY TILL THEN . HE POINTED OUT THAT THIS BEING THE SOLE REASON THE ASSESSEE HAD INSTRUCTED HIM TO WITHDRAW HIS CLAIM OF ENHANCEMENT OF INCOM E FROM PRIVATE PRACTICE AND DEDUCTION UNDER SECTION 80DDB. FOR READY REFERENCE HE FURNISHED THE COPY OF THE BALANCE SHEET RETURNS BANK STATEMENTS AND LOAN CERTIFICATE WHICH ENT ITLE THE ASSESSEE TO HAVE SUFFICIENT FUNDS FOR INVESTMENT IN THE HOUSE PROPERTY WITHOUT BEING SUBJECT TO TAX U/S.69A. 8. THE LEARNED DR OBJECTED TO THE ASSESSEES SUBMISSION ON THIS ISSUE IN SO FAR AS NEITHER OF THE AUTHORITIES BELOW WERE SUBJEC TED TO SUBMISSION OF THE ASSESSEE HAVING INVEST ED THE LOAN FOR HOUSE BUILDING AS INVESTMENT OF PROPERTY. HE PRAYED THAT THIS BEING A FRESH DOCUMENT MAY BE CONSIDERED BY THE ASSESSING OFFICER ON RESTORATION TO HI S FILE AS THE BENCH DEEMS FIT. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON OUR CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEES INABILITY TO JUSTIFY THE INVESTMENT OF RS.5 LAKHS W HICH HE ADMITTED TO HAVE DONE SO FROM THE LOAN AMOUNT WAS ON THE BASIS OF INSTALLMENTS DIRECTLY PAID TO THE BUILDER THEREFORE COULD NOT PARTICIPATE IN THE ASSESSEES CASH FLOW ST ATEMENT. THE BANK ACCOUNT ALSO AS VERIFIED BY THE ASSESSING OFFICER DID NOT IN DICATE THE RECEIPT OF PAYMENT RELATING TO THE LOAN AND INVESTMENT THEREFORE REQUIRE D VERIFICATION BY THE ASSESSING OFFICER AS NOW PUT FORTH BY THE LEARNED COUNSEL BEFORE US. IN THE INTEREST OF JUSTICE WE DEEM IT FIT TO RESTORE THE ISSUE OF THE ADDITION OF RS.5 LAKHS TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE ON THE BASIS OF FACTUAL MATRIX OF AVAILABILITY OF FUNDS FROM LOAN WHICH HAVE REMAINED UNVERIFIED BY THE ASSESSING OF FICER. AS RIGHTLY POINTED OUT BY THE LEARNED COUNSEL OF THE ASSESSEE THE CLAIM OF DEDUCTION UNDER SECTION 80DDB AND ENHANCEMENT ON ACCOUNT OF INCOME FROM PRIVATE PRACTICE AS NOT BEING PRESSED FOR ARGUMENT IN THE IMPUGNED ASSESSMENT YEAR AS WELL AS IN ASSES SMENT YEAR 2005 - 0 6 THE ONLY ISSUE TO BE CONSIDERED BY THE LEARNED ASSESSING OFFICER IS THE ADDITION OF RS.5 LAKHS UNEXPLAINED INVESTMENT IN THE CORE HOUSE. ORDER ED ACCORDINGLY. / I.TA.NOS . 168 AND 169/CTK/2008 4 10. IN THE RESULT THE APPEAL FOR THE ASSESSMENT YEAR 2003 - 04 FILED BY THE AS SESSEE IS PARTLY ALLOWED AND THAT FOR THE ASSESSMENT YEAR 2005 - 06 IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 27.07.2010 SD/ - SD/ - ( ) D.K.TYAGI JUDICIAL MEMBER (K.K.GUPTA) ACCOUNTANT MEMBER. DATE: 27.07.2010 - COPY OF THE ORDER FORWARDED TO : / THE A PPELLANT : DR. JAGADISH MAHANAND MEDICAL OFFICER AT/P.O. CHC BARPALI DIST. BARGARH. / THE RESPONDENT : INCOME - TAX OFFICER BARGARH THE CIT THE CIT(A) DR CUTTACK BENCH GUARD FILE TRUE COPY BY ORDER [ ] SENIOR PRIVATE SECRETARY ( /) H.K.PADHEE SENIOR.PRIVATE SECRETARY.