V.U.Siddique, Muvattupuzha v. ACIT, Ernakulam

ITA 368/COCH/2010 | 2002-2003
Pronouncement Date: 30-12-2011 | Result: Allowed

Appeal Details

RSA Number 36821914 RSA 2010
Assessee PAN AKNPS0382G
Bench Cochin
Appeal Number ITA 368/COCH/2010
Duration Of Justice 1 year(s) 6 month(s) 30 day(s)
Appellant V.U.Siddique, Muvattupuzha
Respondent ACIT, Ernakulam
Appeal Type Income Tax Appeal
Pronouncement Date 30-12-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-12-2011
Assessment Year 2002-2003
Appeal Filed On 31-05-2010
Judgment Text
1 ITA 367 & 368/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHI BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI SANJAY ARO RA (AM) I.T.A. NO.367&368/COCH/2010 (ASSESSMENT YEARS 2001-02 & 2002-03) V.U. SIDDIQUE VS ASSIST.COMMISSIONER OF INCOME- TAX V.U. EXPORT & IMPORT CENT.CIR.1 ERNAKULAM PUTHUPPADY MUVATTUPUZHA PAN : AKNPS0382G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MATHEW JOSEPH RESPONDENT BY : SHRI S.R. SENAPATI DATE OF HEARING : 24-11-2011 DATE OF PRONOUNCEMENT: 30-12-2011 O R D E R PER N.R.S. GANESAN (JM) THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST THE INDEPENDENT ORDERS OF COMMISSIONER OF INCOME-TAX(A)-I KOCHI BOTH DATE D 15-02-2010 AND PERTAIN TO ASSESSMENT YEARS 2001-02 AND 2002-03. 2. THERE IS A DELAY OF 09 DAYS IN FILING THE APPEAL S. THE ASSESSEE IN HIS AFFIDAVIT SWORN IN ON 31-05-2010 AFFIRMS THAT THE O RDER OF THE COMMISSIONER OF INCOME-TAX(A) WAS RECEIVED BY THE ASSESSEE ON 23-03 -2010 HOWEVER THE ACCOUNTANT OF THE ASSESSEE HAS INADVERTENTLY OMITTE D TO FORWARD THE SAME TO THE TAX CONSULTANT FOR PREPARING AND FILING THE APPEAL BEFORE THE TRIBUNAL. AND THAT AS SOON AS THE FACT WAS REVEALED THE ASSESSEE HURRIED AND THE APPEAL WAS FILED ON 31- 05-2010. ON THESE GROUNDS THE ASSESSEE PRAYS FOR CONDONATION OF DELAY IN FILING THE APPEAL. AFTER HEARING THE PARTIES WE ARE SATI SFIED THAT THE ASSESSEE WAS PREVENTED BY A SUFFICIENT AND REASONABLE CAUSE FROM FILING THE APPEAL WITHIN THE TIME PROVIDED. THEREFORE WE CONDONE THE DELAY IN FILING THE APPEAL. 2 ITA 367 & 368/COCH/2010 3. SHRI MATHEW JOSEPH THE LD.REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDITION OF RS.11 50 000 FOR THE ASSESSMENT YEAR 2001-02 AND RS.10 LAKHS FOR THE ASS ESSMENT YEAR 2002-03. ACCORDING TO THE LD.REPRESENTATIVE THE ASSESSING O FFICER MADE ADDITION OF RS.11 50 000 LAKHS IN RESPECT OF SHRI P.A. ABBAS AN D C.Z. NISSAR FOR THE ASSESSMENT YEAR 2001-02 AND RS. 10 LAKHS FOR THE AS SESSMENT YEAR 2002-03 IN RESPECT OF SHRI P.A. ABBAS TOWARDS UNEXPLAINED CASH CREDITS. ACCORDING TO THE LD.REPRESENTATIVE THE ASSESSEE COULD NOT FILE ALL THE DETAILS BEFORE THE ASSESSING OFFICER. DURING APPELLATE PROCEEDINGS THE COMMISS IONER OF INCOME-TAX(A) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER. THE ASSESSEE HAS FILED ALL THE DETAILS BEFORE THE ASSESSING OFFICER LIKE PASSPORT COPY OF BANK ACCOUNT AND LETTER FROM BANK ETC. REFERRING TO THE REMAND REPORT THE LD. REPRESENTATIVE SUBMITTED THAT THE ASSESSING OFFICER AFTER EXAMINING THE DETAILS AND OTHER MATERIALS FILED BY ASSESSEE ADMITTED THAT THE ASSESSEE HAS EXPLAINED THE SOURCE OF CREDIT SATISFACTORILY. ACCORDING TO THE LD.REPRESENTATIVE WHEN THE COMMIS SIONER OF INCOME-TAX(A) CALLED FOR THE REMAND REPORT ON THE BASIS OF THE MA TERIAL FILED BY THE ASSESSEE THE ENQUIRY REPORT AND THE FINDINGS RECORDED BY THE ASS ESSING OFFICER HAS TO BE CONSIDERED BY THE COMMISSIONER OF INCOME-TAX(A) WHI LE DISPOSING OF THE APPEAL. SINCE THE ASSESSING OFFICER BEING THE RESPONDENT I N THE APPEAL FOUND THAT THE ASSESSEE HAS SATISFACTORILY EXPLAINED THE CREDIT T HE COMMISSIONER OF INCOME- TAX(A) CANNOT CONFIRM THE ADDITION ON THE BASIS OF THE ASSESSMENT ORDER IGNORING THE REMAND REPORT FILED BY THE ASSESSING OFFICER. 4. ON THE CONTRARY MS. VIJAYAPRABHA THE LD.DR SUB MITTED THAT THE ASSESSEE HAS NOT ESTABLISHED THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. REFERRING TO THE ASSESSMENT ORDER TH E LD.DR SUBMITTED THAT THE ASSESSEE HAS NOT FILED CONFIRMATION LETTER FROM THE SE CREDITORS. THE COMMISSIONER OF INCOME-TAX(A) FOUND THAT THE ASSESSEE HAS NOT ES TABLISHED THE GENUINENESS OF THE CREDIT. SINCE THERE IS NO STIPULATION FOR PAYM ENT OF INTEREST ACCORDING TO THE LD. DR THE TRANSATION OF LOAN IS NOT GENUINE. 3 ITA 367 & 368/COCH/2010 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS ON EITHER S IDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFI CER MADE ADDITION OF RS.25 50 000 FOR THE ASSESSMENT YEAR 2001-02 AND RS .10 75 000 FOR THE ASSESSMENT YEAR 2002-03 AS UNEXPLAINED CASH CREDITS . THE SUBJECT MATTER OF APPEAL BEFORE THIS TRIBUNAL IS ONLY IN RESPECT OF A DDITION OF RS.11.50 LAKHS (RS.1 50 000 FROM SHRI PA ABBAS AND RS.10 LAKHS FRO M SHRI C.S. NISSAR) FOR THE ASSESSMENT YEAR 2001-02 AND RS.10 LAKHS RECEIVED FR OM SHRI P.A. ABBAS FOR THE ASSESSMENT YEAR 2002-03. DURING THE APPELLATE PROC EEDINGS BEFORE THE COMMISSIONER OF INCOME-TAX(A) THE ASSESSEE HAS FILE D COPY OF BANK ACCOUNTS AND LETTER FROM THE BANK TO PROVE THE GENUINENESS OF TH E LOAN TRANSACTIONS. ON THE BASIS OF THE MATERIAL FILED BY THE ASSESSEE THE COM MISSIONER OF INCOME-TAX(A) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER . THE ASSESSING OFFICER AFTER EXAMINING THE DETAILS FILED BEFORE HIM REPORTED THA T THESE CREDITS ARE PROPERLY EXPLAINED. THE COMMISSIONER OF INCOME-TAX(A) HOWE VER FOUND THAT THE TRANSACTION IS NOT GENUINE MAINLY ON THE GROUND TH AT THERE IS NO STIPULATION FOR PAYMENT OF INTEREST. THE FACT THAT THE ASSESSEE HA S FILED THE PASSPORT BANK ACCOUNT LETTER OF THE BANK IS NOT IN DISPUTE. THE FINDING OF FACT BY THE ASSESSING OFFICER IN THE REMAND REPORT HAS NOT BEEN DISPUTED BY THE COMMISSIONER OF INCOME-TAX(A). THE COMMISSIONER OF INCOME-TAX(A) S IMPLY PROCEEDED ON THE NOTION THAT THE ASSESSEE HAS NOT ESTABLISHED THE CR EDIT DURING THE REMAND PROCEEDINGS ALSO. AS WE HAVE ALREADY OBSERVED THE FACT IS OTHERWISE. THE ASSESSEE HAS ESTABLISHED THE CREDITS AND THE ASSESS ING OFFICER HAS ALSO BEEN SATISFIED. THE CIT(A) HAS PROCEEDED MAINLY ON THE BASIS OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME-TA X VS P MOHANAKALA (2007) 291 ITR 278 (SC). 6. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF T HE APEX COURT IN THE CASE OF SHRI P MOHANAKALA. IN THE CASE BEFORE THE APEX COURT THE ASSESSEE HAS RECEIVED CREDITS / GIFTS FROM NRI. THE DONOR CLAIM ED THAT HIS FATHER WAS A TAXI DRIVER AND WAS VERY POOR. ONE SRINIVASAN AND HIS FAMILY WAS SUPPORTING HIM WHEN HE WAS IN INDIA. HE HAS GIVEN GIFT TO THE ASS ESSEE OF A HUGE SUM. ON 4 ITA 367 & 368/COCH/2010 EXAMINATION THE REVENUE AUTHORITIES FOUND THAT THE RE ARE INCONSISTENCIES IN THE STATEMENTS MADE BY DIFFERENT PERSONS. IT WAS ALSO NOTICED THAT THE GIFTS WERE RECEIVED FROM ARIAVAN THOTAN AND SUPROTOMAN. ON FU RTHER ENQUIRY IT WAS FOUND THAT BOTH ARIAVAN THOTTAN AND SUPROTOMAN ARE ONE AN D THE SAME PERSON. THE ORIGINAL NAME OF THE DONOR WAS SAMPATHKUMAR. THE A SSESSING OFFICER AFTER EXAMINATION FOUND THAT THE SAID SAMPATHKUMAR MIGHT HAVE RECEIVED COMPENSATORY PAYMENT INTER-ALIA GIFT MADE BY HIM. ON THOSE FACTS THE APEX COURT FOUND THAT THE FINDING RECORDED BY THE ASSESS ING OFFICER AND THE TRIBUNAL ARE NOT IMAGINARY AS SOUGHT TO BE CONTENDED. THE DOUBT FUL NATURE OF THE TRANSACTION AND THE MANNER IN WHICH THE SUMS WERE CREDITED IN T HE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE SHOWED THAT THE TRANSACT IONS WERE NOT REAL ONES. 7. IN THE CASE BEFORE US THE FACTS ARE ENTIRELY ON DIFFERENT FOOTING. THE ASSESSEE CLAIMED THAT CREDIT WAS IN THE NAME OF SHR I P.A. ABBAS AND C.Z. NASSAR. THE COMMISSIONER OF INCOME-TAX(A) CALLED FOR A REMA ND REPORT ON THE BASIS OF THE MATERIAL FILED BY THE ASSESSEE. THE ASSESSING OFFICER AFTER EXAMINATION FOUND THAT THE ASSESSEE HAS SATISFACTORILY EXPLAINED THE CREDIT. NO OTHER MATERIAL WAS AVAILABLE BEFORE THE COMMISSIONER OF INCOME-TAX(A) FOR RECORDING CONTRARY FINDING THAN THE ONE BY THE ASSESSING OFFICER. THE ASSESSING OFFICER AFTER DETAILED EXAMINATION CAME TO THE CONCLUSION THAT THE ASSESSE E HAS SATISFACTORILY EXPLAINED THE CREDIT. THEREFORE THE OBSERVATION OF THE COMM ISSIONER OF INCOME-TAX(A) THAT THE ASSESSEE HAS NOT FILED ANY DETAILS EVEN IN THE REMAND PROCEEDINGS IS CONTRARY TO THE FACTS ON RECORD. THE COMMISSIONER OF INCOME -TAX(A) HAS NOT DOUBTED THE IDENTITY OF THE CREDITOR OR CREDITWORTHINESS. THE COMMISSIONER OF INCOME-TAX(A) DOUBTED THE GENUINENESS OF THE TRANSACTION MERELY B ECAUSE THERE IS NO STIPULATION FOR PAYMENT OF INTEREST. IN OUR OPINION MERELY BE CAUSE THERE IS NO STIPULATION FOR PAYMENT OF INTEREST THAT ALONE CANNOT BE A REASON T O DOUBT THE GENUINENESS OF THE TRANSACTION 8. THEREFORE THIS TRIBUNAL IS OF THE OPINION THAT THE COMMISSIONER OF INCOME-TAX(A) IS NOT JUSTIFIED IN CONFIRMING THE AD DITION CONTRARY TO THE FINDING 5 ITA 367 & 368/COCH/2010 RECORDED BY THE ASSESSING OFFICER IN THE REMAND REP ORT. IN VIEW OF THE ABOVE DISCUSSION THE ORDERS OF THE COMMISSIONER OF INCOM E-TAX(A) IS SET ASIDE AND THE ADDITIONS OF RS.11.5 LAKHS FOR THE ASSESSMENT YEAR 2001-02 AND RS.10 LAKHS FOR THE ASSESSMENT YEAR 2002-03 FOR THE ASSESSMENT YEAR 2002-03 ARE DELETED. 11. IN THE RESULT THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER 2012 SD/- SD/- (SANJAY ARORA) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER ERNAKULAM DT : 30 TH DECEMBER 2012 PK/ COPY FORWARDED TO: 1. V.U. SIDDIQUE V.U. EXPORTS & IMPORT PUTHUPPADY M UVATTUPUZHA 2. ASSIST.COMMISSIONER OF INCOME-TAX CENT.CIR.1 ERN AKULAM 3. THE COMMISSIONER OF INCOME-TAX(A)-I KOCHI 4. THE COMMISSIONER OF INCOME-TAX KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR INCOME-TAX APPELLATE TRIBUNAL COCHIN