The ITO, 2 (2), v. Shri Ashok Balwantrao Mahashabde,

ITA 214/IND/2008 | misc
Pronouncement Date: 04-05-2010 | Result: Dismissed

Appeal Details

RSA Number 21422714 RSA 2008
Assessee PAN ACYPM1477B
Bench Indore
Appeal Number ITA 214/IND/2008
Duration Of Justice 1 year(s) 11 month(s) 26 day(s)
Appellant The ITO, 2 (2),
Respondent Shri Ashok Balwantrao Mahashabde,
Appeal Type Income Tax Appeal
Pronouncement Date 04-05-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 04-05-2010
Date Of Final Hearing 28-04-2010
Next Hearing Date 28-04-2010
Assessment Year misc
Appeal Filed On 09-05-2008
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA NO.214/IND/08 A.YS. 2005-06 INCOME TAX OFFICER 2(2) BHOPAL APPELLANT VS SHRI ASHOK BALWANTRAO MAHASHABDE BHOPAL PAN ACYPM 1477B RESPONDENT APPELLANT BY : SMT. APARNA KARAN SR. DR RESPONDENT BY : SHRI S.S. DESHPANDE CA O R D E R PER JOGINDER SINGH JM THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED IST FEBRUARY 2008 ON THE FOLLOWING GR OUNDS :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN 1. ADMITTING FRESH EVIDENCE IN THE FORM OF DETAILS OF PAYMENT OF RS. 7 08 930/- WITHOUT AFFORDING ANY OPPORTUNITY TO THE A.O. TO 2 INVESTIGATE THE DETAILS OF THE PAYMENTS MADE BY THE ASSESSEE IN VIOLATION OF RULE 46A OF THE IT RULES 1962. 2. DELETING THE ADDITION OF RS.7 00 000/- MADE BY T HE A.O. ON ACCOUNT OF EXPENDITURE INCURRED OUT OF UNDISCLOSED SOURCES OF INCOME PARTICULARLY WHEN THE SOURCES OF INCOME WAS NEVER EXPLAINED BEFORE THE A.O. DURING THE APPELLATE PROC EEDINGS DESPITE OF BEING GIVEN SUFFICIENT OPPORTUNITY. 3. HOLDING THAT THE SOURCE OF RS. 7 00 000/- AND IT S REPAYMENT WAS EXPLAINED CLEARLY EVEN THOUGH SEVERAL ANOMALIES WER E POINTED OUT BY THE ASSESSING OFFICER IN THE EVIDENCE PRODUC ED BEFORE THE A.O. AND THE CIT(A). DURING HEARING OF THIS APPEAL WE HAVE HEARD SMT. A PARNA KARAN LEARNED SENIOR DR AND SHRI S.S. DESHPANDE LD. COUN SEL FOR THE ASSESSEE. THE CRUX OF ARGUMENTS ON BEHALF OF THE R EVENUE IS THAT THE NECESSARY DETAILS WERE NOT FURNISHED BY THE ASSESSE E BEFORE THE ASSESSING OFFICER AND ONLY FOR THE FIRST TIME WERE FILED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) THEREFORE TH IS IS A FRESH EVIDENCE FOR WHICH NO OPPORTUNITY WAS GIVEN TO THE ASSESSING OFFICER TO INVESTIGATE THESE DETAILS CONSEQUENTLY IT IS A VI OLATION OF RULE 46A OF THE INCOME TAX RULES 1962. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE STRONGLY DEFENDED THE IMPUGNED ORDER BY CO NTENDING THAT NECESSARY DETAILS WERE FILED BY THE ASSESSEE AND EV EN THE MONEY WAS 3 RETURNED THROUGH BANKING CHANNEL AS THEY ARE BANK E MPLOYEES. OUR ATTENTION WAS INVITED TO THE MODE/QUANTITY OF PAYME NT (PAGE 3 OF THE IMPUGNED ORDER). THE CRUX OF ARGUMENTS ON BEHALF O F THE ASSESSEE IS THAT THE FULL DETAILS OF AMOUNT RECEIVED ITS UTILI ZATION AND EVIDENCES OF BANK ACCOUNT WERE DULY FURNISHED BY THE ASSESSEE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. BRIEF FACTS ARE THAT THE ASSESSEE IS A RETIRED BANK EMPLOYEE RECEI VED RS. 7 LACS FROM HIS FRIEND SHRI ASHOK VANCHU WHO WAS ALSO A BANK EM PLOYEE IN STATE BANK OF INDIA AND LATER ON WENT TO USA. AS PER THE ASSESSEE AT THE RELEVANT TIME THERE WAS A BOOM IN THE REAL ESTATE HENCE SHRI ASHOK VANCHU GAVE A CHEQUE OF RS. 7 LACS DATED 7.2.2005 T O THE ASSESSEE FROM HIS ACCOUNT WITH HDFC BANK FOR PURCHASE OF LAN D AT BHOPAL ON HIS BEHALF. SINCE THE DEAL COULD NOT BE MATERIALIZED THE ASSESSEE INVESTED THE SAID AMOUNT IN MUTUAL FUNDS ON 8.2.2005 THEREF ORE THE FUNDS WERE REDEEMED ON 8.1.2006 AS SHRI ASHOK VANCHU WAS NOT I NTERESTED IN THE INVESTMENT IN MUTUAL FUNDS. THE AMOUNT PAID BY THE ASSESSEE AS PER THE INSTRUCTION OF SHRI ASHOK VANCHU IS AS UNDER :- S.NO. DATE CHALLAN NO. AMOUNT (IN RS.) 1 30.01.2006 162895 1 00 350 2 30.01.2006 162891 1 00 000 4 3 30.01.2006 162892 1 00 000 4 30.01.2006 162894 50 000 5 24.02.2006 162900 1 30 000 6 09.06.2006 085995 2 28 580 TOTAL 7 08 930 IT WAS ALSO CLAIMED BY THE LD. COUNSEL FOR THE AS SESSEE THAT THE E-MAIL COMMUNICATION SENT BY SHRI ASHOK VANCHU WAS ALSO FURNISHED TO THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEED INGS THEMSELVES AS PER WHICH THE RECEIPT AND INVESTMENT WAS AS PER HIS DIRECTION. THE WHOLE ADDITION WAS MADE ON THE OBSERVATION THAT THE NECESSARY DETAILS WERE NOT FILED BY THE ASSESSEE. IN VIEW OF THESE F ACTS THAT TOO IN THE ABSENCE OF ANY CONTRARY MATERIAL WE OF THE CONSIDE RED OPINION THAT SINCE THE PAYMENT WAS RECEIVED/REPAID THROUGH BANKI NG CHANNEL AND THE E-MAIL WAS SUBMITTED DURING THE ASSESSMENT STAGE IT SELF CORROBORATING THE STAND OF THE ASSESSEE THEREFORE THERE IS NO I NFIRMITY IN THE STAND OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). AS FAR AS THE CONTENTION OF THE DR IS THAT IT IS A VIOLATION OF R ULE 46A OF THE IT RULES IS ALSO NOT SUPPORTED WITH ANY EVIDENCE RATHER THE NEC ESSARY DETAILS WERE FURNISHED DURING ASSESSMENT STAGE AS WELL AS BEFORE THE APPELLATE STAGE THEREFORE ON THIS PLEA ALSO THERE IS NO MER IT IN THE STAND OF THE REVENUE. 5 RESULTANTLY THIS APPEAL OF THE REVENUE IS HAVING N O MERIT THEREFORE DISMISSED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF L EARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 28 TH APRIL 2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MAY 4TH 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DBN/