A. Venkatesh, Malur v. ITO, Kolar

ITA 531/BANG/2009 | 2005-2006
Pronouncement Date: 12-02-2010 | Result: Allowed

Appeal Details

RSA Number 53121114 RSA 2009
Bench Bangalore
Appeal Number ITA 531/BANG/2009
Duration Of Justice 8 month(s) 17 day(s)
Appellant A. Venkatesh, Malur
Respondent ITO, Kolar
Appeal Type Income Tax Appeal
Pronouncement Date 12-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 12-02-2010
Date Of Final Hearing 11-02-2010
Next Hearing Date 11-02-2010
Assessment Year 2005-2006
Appeal Filed On 25-05-2009
Judgment Text
PAGE 1 OF 6 ITA NO.531/B/09 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI GEORGE GEORGE K J.M. AND SHRI A MOHAN ALANKAMONY A.M ITA NO.531/BANG/2009 (ASSESSMENT YEAR 2005-06) SHRI A VENKATESH SONNUR LAKKUR HOBLI MALUR TQ. - APPELLANT VS THE INCOME TAX OFFICER WARD-1 KOLAR. - RESPONDENT APPELLANT BY : SHRI R CHANDRASHEKAR RESPONDENT BY : SMT. V S SREELEKHA ORD ER PER GEORGE GEORGE K : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF LEARNED CIT(A)-V BANGALORE DATED 16TH MARCH 2009. THE ASST. YEAR CONCERNED IS 2005-06. 2. THE EFFECTIVE GROUNDS RAISED READS AS FOLLOWS:- I) THE LEARNED ASSESSING AUTHORITY ERRED IN TREATING THE DEPOSITS MADE IN JOINT BANK ACCOUNT WITH CANARA BANK AS THE INCOME OF THE APPELLANT. II) THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) AS WELL THE LEARNED ASSESSING AUTHORITY PAGE 2 OF 6 ITA NO.531/B/09 2 HAVE TAKEN THE DEPOSITS MADE ON VARIOUS DATES AS INCOME OF THE APPELLANT IGNORING THE WITHDRAWALS WHICH WERE AVAILABLE FOR RE-DEPOSIT. III) THE LEARNED CIT(A) HAS NOT CONSIDERED THE INCOME FROM MINI GOODS VEHICLE AND INDICA CAR AND ALSO AGRICULTURAL RECEIPTS TO THE EXTENT OF RS.5 36 188/- WHICH WERE AVAILABLE FOR DEPOSITS MADE IN THE BANK ACCOUNT. IV) THE LEARNED CIT(A) OUGHT TO HAVE CONSIDERED THE AMOUNTS WITHDRAWN FROM IN EARLIER YEARS WERE AVAILABLE FOR DEPOSIT. V) THE ORDER OF ASSESSMENT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE APPELLANT BEING AN AGRICULTURIST IS OPPOSED TO PRINCIPLES OF NATURAL JUSTICE. THE LEARNED ASSESSING AUTHORITY ERRED IN MAKING AN ASSESSMENT BASING ONLY ON DEPOSITS MADE IN BANK ACCOUNT WITHOUT HAVING ANY OTHER MATERIAL TO HOLD THE DEPOSITS AS INCOME OF THE APPELLANT. VI) THE DETERMINATION OF INCOME LIABLE TO TAX IS WITHOUT ANY MATERIAL ON RECORD AND IS ALSO EXCESSIVE. VII) THE LEVY OF INTEREST U/S 234A AND 234B OF THE ACT IS OPPOSED TO LAW AND UNWARRANTED. 3. BRIEFLY STATED THE FACTS ARE AS FOLLOWS:- THE ASSESSEE IS AN INDIVIDUAL. FOR THE CONCERNE D ASST. YEAR THE ASSESSING OFFICER ISSUED A NOTICE U/S 142( 1) OF THE ACT CALLING UPON THE ASSESSEE TO FILE HIS RETURN OF INC OME. SINCE THERE WAS NO RESPONSE TO THE SAME A LETTER DATED 4.12.20 07 WAS ISSUED TO THE ASSESSEE COMMUNICATING THE PROPOSED LINE OF ASSESSMENT. AS THERE WAS NO RESPONSE TO THE LETTER ASSESSMENT U/S 144 OF THE ACT WAS COMPLETED DETERMINING THE INCOME OF THE APPELLA NT AT PAGE 3 OF 6 ITA NO.531/B/09 3 RS./13 05 700/- BASED ON THE DEPOSITS MADE IN THE B ANK ACCOUNT AS INCOME FROM OTHER SOURCES. 4. BEING AGGRIEVED ON APPEAL BEFORE THE CIT(A) I T WAS CONTENDED THAT NON-COMPLIANCE TO NOTICE ISSUED U/S 142(1) WAS UN- INTENTIONAL SINCE THE ASSESSEE IS PRIMARILY AN AGRIC ULTURIST AND NOT A REGULAR ASSESSEE TO INCOME TAX. IT WAS SUBMITTED T HAT THE RETURN OF INCOME WAS FILED DISCLOSING THE TRUE INCOME. HO WEVER THE SAME WAS NOT TAKEN INTO ACCOUNT. IT WAS SUBMITTED THAT THE DEPOSITS IN THE BANK ARE OUT OF SALE PROCEEDS OF BUSINESS AND I S AGRICULTURAL RECEIPTS. IT WAS FURTHER SUBMITTED SOME OF THESE DEPOSITS ARE OUT OF WITHDRAWALS. IT WAS ALSO CONTENDED THE ASSESSI NG OFFICER WAS NOT JUSTIFIED IN BRINGING THE ENTIRE AMOUNT OF DEPO SITS SINCE THE BANK ACCOUNT WAS HELD JOINTLY. 5. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE ASSESSING OFFICER PASSED U/S 144 OF THE ACT. THE RELEVANT PORTION OF THE CIT(A)'S ORDE R IS REPRODUCED BELOW:- 'I HAVE CONSIDERED THE FACTS OF THE CASE AND THE WRITTEN SUBMISSIONS FURNISHED BY THE APPELLANT. THE CONTENTION OF THE APPELLANT THAT THE RETURN OF INCOME WAS FILED ON 27.12.2008 IS NOT DISPUTED BUT IT WAS FILED AFTER THE COMPLETION OF THE ASSESSMENT. THE SAME CANNOT BE CONSIDERED AND ACCEPTED AS EVIDENCE BEFORE THE AO SINCE NO SUCH RETURN WAS FILED IN COMPLIANCE TO THE PAGE 4 OF 6 ITA NO.531/B/09 4 NOTICE ISSUED U/S 142(1) OF THE ACT. I DO NOT AGREE WITH THE STAND TAKEN BY THE APPELLANT. THE APPELLANT WAS GIVEN OPPORTUNITY OF BEING HEARD BUT DID NOT AVAIL. THE PRINCIPLE OF NATURAL JUSTICE IS NOT VIOLATED IN THIS CASE. THE APPELLANT HAS NOT DISPUTED THE CASH DEPOSITS OF RS.13 44 376/- FOR THE PERIOD 01.04.04 TO 31.3.05. THE AR BEFORE ME HAS NO EVIDENCE OR MATERIAL ON RECORD TO JUSTIFY THE CLAIM OF THE APPELLANT THAT THERE WAS BUSINESS AND AGRICULTURAL INCOME DURING THE YEAR. IT IS NOTICED THAT THERE WAS A DIFFERENCE OF RS.39 676/- FROM THE TOTAL DEPOSITS AS PER THE AO AND THE BANK STATEMENT. THE AO IS DIRECTED TO LOOK INTO THIS MATTER AND IF THE DISCREPANCY NOTICED IS CORRECT NECESSARY REMEDIAL MEASURE TO ENHANCE THE INCOME MAY BE TAKEN FROM HIS END. IN VIEW OF THIS THE ASSESSMENT MADE BY THE AO U/S 144 NEEDS NO DISTURBANCE AND HENCE THE SAME IS HEREBY CONFIRMED. THE APPEAL FAILS'. 6. BEING AGGRIEVED BY THE CIT(A)'S ORDER THE ASSES SEE IS IN SECOND APPEAL BEFORE US. IT WAS CONTENDED THAT THE ASSESSEE IS NOT A REGULAR INCOME TAX ASSESSEE AND IS PRIMARILY A N AGRICULTURIST. IT WAS SUBMITTED THAT THE DEPOSITS IN THE BANK ACCO UNT ARE OUT OF AGRICULTURAL RECEIPTS AND ALSO OUT OF SMALL BUSINES S TRANSACTION CARRIED OUT BY THE ASSESSEE. IT WAS SUBMITTED THAT THE AUTHORITIES BELOW ERRED IN BRINGING TO TAX THE ENTIRE AMOUNT OF RS.13 05 700/- IN THE HANDS OF THE ASSESSEE SINCE THE BANK ACCOUN T WAS JOINTLY HELD WITH ANOTHER PERSON. THE ASSESSEE HAS ALSO FU RNISHED COPY OF THE RETURN FILED COPY OF BANK ACCOUNT PROOF WITH R EGARD TO PAGE 5 OF 6 ITA NO.531/B/09 5 AGRICULTURAL HOLDING AND ALSO COPIES OF THE BILLS F OR HAVING SOLD AGRICULTURE PRODUCE. IT WAS PRAYED BY THE LEARNED AR THE PROOF WITH REGARD TO AGRICULTURAL HOLDING AND COPIES OF S ALE BILLS OF AGRICULTURE PRODUCE WERE NOT PRODUCED BEFORE THE AU THORITIES BELOW AND IN THE INTEREST OF SUBSTANTIAL JUSTICE T HE SAME MAY BE ADMITTED ON RECORD. 7. THE LEARNED DR ON THE OTHER HAND SUPPORTED THE FINDINGS OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAD FURNISHED CER TAIN DETAILS WITH REGARD TO AGRICULTURAL HOLDINGS IN HIS NAME AN D ALSO SALE INVOICES WITH REFERENCE TO AGRICULTURE PRODUCE. TH E ASSESSEE WE FIND IS UNEDUCATED AND IS MAINLY AN AGRICULTURIST. TAKING INTO ACCOUNT THE TOTALITY OF FACTS AND CIRCUMSTANCES OF T HE CASE IN THE INTEREST OF JUSTICE AND FOR PROPER ADJUDICATION OF THE MATTER THE EVIDENCES PRODUCED WITH REFERENCE TO AGRICULTURAL H OLDING AND THE SALE INVOICES WITH RESPECT TO AGRICULTURE PRODUCE A RE ADMITTED ON RECORD. FOR ADVANCEMENT OF SUBSTANTIAL CAUSE THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER AND H E SHALL PASS FRESH ORDERS TAKING INTO ACCOUNT ALL THE RELEVANT M ATERIAL AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. PAGE 6 OF 6 ITA NO.531/B/09 6 9. IN THE RESULT THE APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT ON 12TH FEBRUARY 2010 . SD/- SD/- (A MOHAN ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE DATED :12/2/2010 COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONCERNED. 4. THE CIT(A) CONCERNED. 5. DR 6. GF 7. GF ITAT NEW DELHI. MSP/11/2/ BY ORDER ASST. REGISTRAR ITAT BANGALORE.