Y. Jyothirmoy, Hyderabad v. DCIT, Warangal

ITA 403/HYD/2010 | 2003-2004
Pronouncement Date: 30-03-2012 | Result: Dismissed

Appeal Details

RSA Number 40322514 RSA 2010
Assessee PAN AAOPY7315A
Bench Hyderabad
Appeal Number ITA 403/HYD/2010
Duration Of Justice 2 year(s) 13 day(s)
Appellant Y. Jyothirmoy, Hyderabad
Respondent DCIT, Warangal
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-03-2012
Date Of Final Hearing 27-01-2011
Next Hearing Date 27-01-2011
Assessment Year 2003-2004
Appeal Filed On 17-03-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B HYDERABAD BEFORE SHRI D.KARUNAKARA RAO ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY JUDICIAL MEMBER. ITA NO.399/HYD/2010 : ASSESSMENT YE AR 1999-2000 ITA NO.400/HYD/2010 : ASSESSMENT YE AR 2000-01 ITA NO.401/HYD/2010 : ASSESSMENT YE AR 2001-02 ITA NO.402/HYD/2010 : ASSESSMENT YE AR 2002-03 ITA NO.403/HYD/2010 : ASSESSMENT YE AR 2003-04 DY. COMMISSIONER OF INCOME- TAX CIRCLE 1 WARANGAL. V/S SHRI Y.JYOTHIRMOY HYDERABAD (PAN - AAOPY 7315 A ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. RAMA RAO RESPONDENT BY : SHRI B.V.PRASAD REDDY DATE OF HEARING 26 3.2012 DATE OF PRONOUNCEMENT 30.3.2012 O R D E R PER D.KARUNAKARA RAO ACCOUNTANT MEMBER: THESE FIVE APPEALS BY THE ASSESSEE ARE DIRECTED A GAINST TWO ORDERS OF THE CIT(A) VIJAYAWADA VIZ. A COMMON ORDE R DATED 21.12.2009 FOR THE ASSESSMENT YEARS 1999-2000 TO 2002-03 AND A SEPARATE ORDER DATED 21.12.2009 FOR THE ASSESSMENT YEAR 2003-04. S INCE COMMON ISSUES ARE INVOLVED THESE APPEALS ARE BEING DISPOS ED OFF WITH THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ONLY GROUND RAISED IN THE APPEAL FOR ASSESS MENT YEAR 2003-04 VIZ. ITA NO403/HYD/2010 WHICH IS ALSO COM MON IN THE APPEALS FOR ASSESSMENT YEAR 1999-2000 TO 2002-03 VIZ. ITA NOS.399 TO 402/HYD/2010 AS TAKEN FROM ITA NO.399/HYD/2010 RE ADS AS FOLLOWS- ITA NO.399-403/HYD/2010 SHRI Y.JYOTHIRMOY HYDERABAD 2 THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ER RED IN HOLDING THAT THE ASSESSING OFFICER I.E. DY. COMMIS SIONER OF INCOM E-TAX CIRCLE 1 WARANGAL POSSESSES JURISDICTION OVE R THE APPELLANT HEREIN AND FURTHER ERRED IN HOLDING THAT THE ASSESSMENT WAS CORRECTLY MADE BY THE SAID OFFICER. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THIS GROUND. IT IS ACCORDINGLY REJECTED AS NOT PRESSED. 3. THE NEXT GROUND WHICH EXCEPT FOR THE AMOUNT I NVOLVED IS COMMON IN ALL THESE APPEALS RELATES TO THE ADDITION S MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) UNDER S.69 OF THE ACT. 4. BRIEF FACTS OF THE CASE FOR THE ASSESSMENT YEAR 1999-2000 TO 2002-03 IN RELATION TO THE ISSUE RELATING TO ADDITI ONS MADE UNDER S.69 OF THE ACT ARE THAT THE ASSESSEE IS AN INDIVIDUAL DER IVING INCOME FROM PROPERTY OTHER SOURCES BESIDES FROM XEROX BUSINES S. RETURNS FILED BY THE ASSESSEE FOR THE YEARS UNDER CONSIDERATION WERE PROCESSED UNDER S.143(1) OF THE ACT INITIALLY. ON THE BASIS OF INF ORMATION THAT THE ASSESSEE HAD MADE SEVERAL CASH DEPOSITS AND WITHDRA WALS IN HIS BANK ACCOUNTS THE DEPARTMENT ON VERIFICATION FOUND THAT THE ASSESSEE HAD MADE DEPOSITS IN CASH DURING THE RELEVANT PERIODS FOR ALL THE YEARS UNDER CONSIDERATION IN CANARA BANK KUNDANBAGH BRANCH HYD ERABAD. THE CASES WERE REOPENED BY ISSUE OF NOTICES U/S. 148 OF THE A CT. DURING THE RE- ASSESSMENT PROCEEDINGS THERE WERE NO COMPLIANCES F ORM THE ASSESSEE TO THE STATUTORY NOTICES WHICH FINALLY RESULTED IN THE ASSESSMENTS BEING COMPLETED UNDER S.144 READ WITH S.147 OF THE ACT. HOWEVER IN THE ASSESSMENT PROCEEDINGS SUMMONS U/S. 131 OF THE ACT WAS ISSUED AND A STATEMENT WAS RECORDED FROM THE ASSESSEE ON 24.3.20 05. IN HIS STATEMENT ASSESSEE ADMITTED THAT THE DEPOSITS IN T HE BANK ACCOUNTS WERE NOT REFLECTED IN THE BOOKS OF ACCOUNT AND THAT HE WAS NOT IN A POSITION TO EXPLAIN THE SOURCES FOR THE SAID DEPOSI TS. SUBSEQUENTLY THE ASSESSEE FILED REVISED RETURNS FOR ALL THE YEARS BY SUBSTANTIALLY REVISING ITA NO.399-403/HYD/2010 SHRI Y.JYOTHIRMOY HYDERABAD 3 THE INCOME UPWARDS AFTER TAKING INTO ACCOUNT THE DE POSITS MADE IN THE BANK ACCOUNT. HOWEVER THE ASSESSING OFFICER OBSER VED THAT THE REVISED RETURNS DID NOT TOTALLY COVER THE ENTIRE CASH DEPOS ITS IN THE BANK ACCOUNTS. HE ACCORDINGLY MADE SUITABLE ADDITIONS T O BRING TO TAX THE BALANCE AMOUNTS OF DEPOSITS NOT OFFERED TO TAX AND ACCORDINGLY COMPLETED THE ASSESSMENT. 5. PARTICULARS OF CASH DEPOSITS IN THE ASSESSEES BANK ACCOUNTS INCOMES RETURNED ADDITIONS MADE AND THE INCOME ASS ESSED FOR THE RELEVANT YEARS FROM 1999-2000 TO 2002-03 AS TABUL ATED BY THE CIT(A) IN PARA -01 OF THE IMPUGNED ORDER IS REPRODUCED FO R READY REFERENCE- RS. ASSESSMENT YEAR DEPOSITS IN BANK INCOM E RETURNED AS PER ORIGINAL RETURN INCOM E RETURNED AS PER REVISED RETURN ADDITIONS MADE U/S. 69 OF THE ACT. INCOM E ASSESSED 1999-00 10 49 150 7 57 352 13 07 352 4 99 150 18 06 502 2000-01 11 04 496 7 95 280 16 95 278 2 04 496 18 99 774 2001-02 20 15 500 8 32 890 26 02 887 2 45 500 28 48 387 2002-03 15 60 000 9 61 542 22 01 542 3 20 000 25 21 542 6. ON APPEAL THE CIT(A) UPHELD THE ADDITIONS THU S MADE BY THE ASSESSING OFFICER. HENCE ASSESSEE PREFERRED THE PR ESENT APPEALS BEFORE US. 7. AT THE OUTSET THE LEARNED COUNSEL FOR THE ASSE SSEE MENTIONED THAT THE ISSUE RAISED IN THESE APPEALS ARE IDENTIC AL. ESSENTIALLY IT RELATES TO CONFIRMING THE ADDITIONS MADE UNDER S.69 OF THE ACT. THE DETAILS OF THE SAME ARE TABULATED BY THE CIT(A) (EXTRACTED HER EIN ABOVE). TAKING CUE FROM THE PARTICULARS RELATING TO THE ASSESSMENT YEAR 1999-200 THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER FOUND CASH DEPOSITS AMOUNTING TO A SUM OF RS.10 49 150 AND OTHER AMOUNTS FOR OTHER YEARS. IN THE RE-ASSESSMENT PROC EEDINGS THE ASSESSEE FILED REVISED RETURN OFFERING PART OF THE ABOVE AMOUNTS VIZ. ITA NO.399-403/HYD/2010 SHRI Y.JYOTHIRMOY HYDERABAD 4 RS.5.5 LAKHS FOR ASSESSMENT YEAR 1999-2000 AND NOT THE WHOLE OF THE CASH DEPOSITS OF RS.10 49 150 AS INCOME OF THE ASSE SSEE. ASSESSEE SUBMITTED THAT THE DIFFERENCE OF AMOUNT I.E. RS.4 99 150 FOR THE ASSESSMENT YEAR 1999-2000 SHOULD BE GIVEN TELESCOP ING WHILE WORKING OUT THE PEAK CREDITS. IN THAT CASE THE ADDITION O F RS.4 99 150 IS UNCALLED FOR. THE ASSESSING OFFICER REJECTED THE ASSESSEES REQUEST FOR SUCH MANNER OF COMPUTATION OF PEAK CREDIT AND PROCEEDED TO MAKE THE SAID ADDITION OF RS.4 99 150 AND SIMILAR AMOUNTS FOR OTH ER YEARS. 8. IN THE ABOVE BACK GROUND THE LEARNED COUNSEL ARGUED RELYING ON THE STATEMENT PROCURED FROM THE IMPUGNED BANK ACCOUNT STATING THAT THE CASH WITHDRAWALS AMOUNTING TO RS.4 99 150 HAVE THE SOURCES IN THE CASH WITHDRAWALS MADE PRIOR TO THOS E CASH DEPOSITS AMOUNTING TO RS.4 99 150. THEREFORE IT IS SETTLED POSITION THAT THE CASH WHICH IS WITHDRAWN EARLIER IN TIME WILL EXPLAIN THE CASH DEPOSITS MADE IN THE LATER POINT OF TIME IN THE SAME BANK ACCOUNT. T HE LEARNED COUNSEL MADE A CATEGORICAL STATEMENT STATING THAT THE SAID CASH WITHDRAWALS WERE NOT SPENT ANY WHERE ELSE OR FOR ANY IDENTIFIABLE PU RPOSES. IN SUCH CASES THE CASH WITHDRAWALS ARE AVAILABLE IN THE SYSTEM W HICH GOES TO EXPLAIN THE CASH DEPOSITS. 9. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REP RESENTATIVE FOR THE REVENUE ARGUED STATING THAT THE ONUS IS ON THE ASSESSEE TO EXPLAIN THAT CASH WITHDRAWAL IS AVAILABLE FOR SUBSE QUENT DEPOSITING IN THE BANK ACCOUNT. IN VIEW OF THE FAILURE OF THE ASSESSE E IN THIS REGARD HE JUSTIFIED THE ADDITIONS MADE BY THE ASSESSING OFFIC ER AND CONFIRMED BY THE CIT(A) IN THE YEARS CONSIDERATION. 10. WE HEARD BOTH THE PARTIES AND PERUSED THE ORD ERS OF THE REVENUE AUTHORITIES AND CONSIDERED THE CITATIONS RE LIED UPON BY THE PARTIES TO THE LITIGATION. WE HAVE EXAMINED FROM TH E PAPERS FURNISHED ITA NO.399-403/HYD/2010 SHRI Y.JYOTHIRMOY HYDERABAD 5 BEFORE US FROM PAGES 37 ONWARDS THAT UNDISPUTEDLY T HERE ARE CASH DEPOSITS WHICH ARE OFFERED BY THE ASSESSEE DURING T HE RE-ASSESSMENT PROCEEDINGS. AT THE SAME TIME THERE ARE CASH WITH DRAWALS ALSO. THESE CASH WITHDRAWALS ARE ALSO FOUND TO BE SUBSEQUENT TO THE AMOUNTS OF CASH CREDITS. NOW THE QUESTION IS WHETHER THESE CASH WI THDRAWALS ARE UTILIZED IF NOT FOR DEPOSITING THEM IN THE BANK ACCOUNT. E ITHER THEY MUST HAVE BEEN UTILISED BY THE ASSESSEE FOR ANY OTHER IDENTI FIABLE PURPOSES OR THEY SHOULD BE AVAILABLE IN THE SYSTEM FOR CIRCULATION INCLUDING FOR DEPOSITING OR REDEPOSITING IN THE BANK ACCOUNT. PRIMA-FACIE WE FIND THAT IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEES CASH WITHDR AWALS WERE UTILISED FOR ANY OTHER PURPOSES OTHER THAN FOR DEPOSITING IN CASH IN THE BANK ACCOUNT IN QUESTION. AS SUCH IN THE MATTERS OF A DDITIONS UNDER S.69 OF THE ACT THE ONUS IS ON THE ASSESSING OFFICER TO CL EARLY POINT OUT THAT THE AMOUNTS ARE BEING DIVERTED FOR OTHER PURPOSES. IN SUCH CIRCUMSTANCES THE VIEWS EXPRESSED IN THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) ARE NOT IN TUNE WITH THE SETTLED POSITION OF LAW. T HE PROVISIONS OF S.69 ARE TAX AVOIDANCE PROVISIONS AND THE ONUS IS ON THE ASS ESSING OFFICER. OF COURSE BASIC FACTS HAVE TO BE SUPPLIED BY THE ASSE SSEE. IN VIEW OF THE ABOVE WE ARE OF THE OPINION THAT THE ASSESSEE IS E NTITLED FOR THE BENEFIT TELESCOPING. HOWEVER THE ASSESSING OFFICER IS DIR ECTED TO EXAMINE THE CHRONOLOGY OF THE CASH DEPOSITS/CASH WITHDRAWALS T O ARRIVE AT THE CORRECT AMOUNT OF PEAK CREDIT WHICH ALONE IS THE AMOUNT WH ICH IS LIABLE FOR ANY ADDITION. FOR THIS LIMITED PURPOSE ORDERS IMPUGNE D IN THESE FOUR APPEALS ARE SET ASIDE AND THE MATTER IS RESTORED TO THE FIL E OF THE ASSESSING OFFICER FOR ALL THE FOUR YEARS UNDER CONSIDERATION FOR RE-EXAMINING THIS ISSUE IN THE LIGHT OF OUR ABOVE OBSERVATIONS IN AC CORDANCE WITH LAW AND AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO T HE ASSESSEE. CONSEQUENTLY GROUNDS OF THE ASSESSEE ON THIS ISSUE ARE ALLOWED PRO TANTO. ITA NO.399-403/HYD/2010 SHRI Y.JYOTHIRMOY HYDERABAD 6 11. IN THE RESULT WHILE APPEAL ITA NO.403/HYD/201 0 FOR ASSESSMENT YEAR 2003-04 IS DISMISSED THE REMAINING FOUR APPEALS VIZ. ITA NO.399 TO 402./HYD/2010 FOR ASSESSMENT YEARS 1 999-2000 TO 2002- 03 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30.3.2012 SD/- SD/- (SAKTIJIT DEY) (D.KARUNAKARA R AO ) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 30TH MARCH 2012 COPY FORWARDED TO: 1. SHRI Y.JYOTHIRMOY C/O. SHRI S.RAMA RAO ADVOCATE 3-65-643 SHRIYAS ELEGANCE FLAT NO.102 ST. NO.9 HIMAYATNAAR HYDERABAD. 2. DY. COMMISSIONER OF INCOME - TAX CIRCLE _I WARANGAL. 3. 4. COMMISSIONER OF INCOME-TAX(APPEALS) VIJAYAWADA COMMISSIONER OF INCOME-TAX VI HYDERABAD 5 . THE DEPARTMENTAL REPRESENTATIVE ITAT HYDERABAD B.V.S.