ITO, Kolar v. Shri. K.V. Krishne Gowda, Bangarpet

ITA 691/BANG/2009 | 2005-2006
Pronouncement Date: 22-01-2010 | Result: Dismissed

Appeal Details

RSA Number 69121114 RSA 2009
Bench Bangalore
Appeal Number ITA 691/BANG/2009
Duration Of Justice 6 month(s) 13 day(s)
Appellant ITO, Kolar
Respondent Shri. K.V. Krishne Gowda, Bangarpet
Appeal Type Income Tax Appeal
Pronouncement Date 22-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 22-01-2010
Date Of Final Hearing 18-01-2010
Next Hearing Date 18-01-2010
Assessment Year 2005-2006
Appeal Filed On 09-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE A BENCH BANGALORE BEFORE SHRI K.P.T.THANGAL VICE PRESIDENT AND SHRI N.L.KALRA AM ITA NO.691(BANG.)/2009 (ASSESSMENT YEAR : 2005-06) THE INCOME-TAX OFFICER WARD-2 KOLAR. APPELLANT VS SHRI K.V.KRISHNA GOWDA HULKUR VILLAGE BETHAMANGALA HOBLI BANGARAPET TALUK KOLAR DISTRICT. RESPONDENT REVENUE BY : SHRI JASON P BOAZ APPELLANT BY : SHRI N.P.VALLINATH O R D E R PER SHRI N.L.KALRA AM: THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER O F LEARNED CIT(A)-V BANGALORE DATED06-05-2009. THE REVENUE HA S RAISED THE FOLLOWING GROUNDS IN ITS APPEAL; 1. THE ORDER OF CIT(A-V BANGALORE IS ERRONEOUS AND BAD IN LAW TO THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 2. THE CIT(A) HAS GRANTED RELIEF ON INSUFFICIENT DA TA ON ORAL SUBMISSION OF THE ASSESSEE. 3. THE CIT(A) ERRED IN ALLOWING THE ASSESSEES APPE AL WITHOUT EVIDENCE. WITH REGARD TO CASH WITHDRAWALS S O ITA NO.691(B)/09 2 FREQUENTLY ANDS STATED TO HAVE BEEN RE-DEPOSITED EXCEPT STATING THAT THE PURCHASE TRANSACTION WAS POSTPONED. 4. THE CIT(A) OUGHT TO HAVE DIRECTED THE AO FOR FURTHER VERIFICATION SINCE THE LAND WAS PURCHASED BY THE ASSESSEE FOR RS.24 LAKHS BY MAKING THE PAYMENT IN CHEQUE. 5. THE CIT(A)OUGHT NOT TO HAVE GIVEN FULL RELIEF. INSTEAD AT LEAST PEAK CREDIT SHOULD HAVE BEEN WORKE D OUT AND SUSTAINED. 2. THE ASSESSEE RECEIVED INFORMATION FROM CIT(CIB) BANGALORE AND ON THAT BASIS THE AO ISSUED NOTICE U/S 142(1) O N 22-09-2007 WHEREIN THE ASSESSEE WAS REQUIRED TO FURNISH DETAIL S OF DEPOSIT MADE IN KARNATAKA BANK LTD. FOR THE PERIOD FROM 01-04-2 004 TO 31-03- 2005. NO REPLY WAS FILED BY THE ASSESSEE. THE AO PROVIDED ANOTHER OPPORTUNITY TO THE ASSESSEE AND THE ASSESSEES AUTH ORIZED REPRESENTATIVE INTIMATED THAT THE REQUIRED INFORMA TION WILL BE GIVEN BUT SUCH INFORMATION WAS NOT FILED TILL THE DATE WH EN THE ASSESSMENT WAS GOING TO BE FINALIZED AS THE SAME WAS BARRING B Y LIMITATION ON OR BEFORE 31-12-2007 THE DATE WHEN THE ASSESSMENT WAS BEING BARED BY LIMITATION. THE AO TREATED THE DEPOSITS MADE IN THE BANK ACCOUNT AS UNEXPLAINED AND THE ENTIRE SUM WAS TREAT ED AS TOTAL INCOME OF THE ASSESSEE. ITA NO.691(B)/09 3 3. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE ASS ESSEE IS AN AGRICULTURIST CARRYING ON AGRICULTURAL ACTIVITIES A ND THE FAMILY OWNS 45 ACRES OF LAND. ALL THE FAMILY MEMBERS OF THE AS SESSEE ARE ENGAGED IN AGRICULTURAL ACTIVITIES EXCEPT SHRI MUN EGOWDA IS BROTHER OF ASSESSEE WHO IS A DOCTOR BY PROFESSION AND SET TLED IN USA. SHRI MUNEGOWDA WAS SENDING MONEY TO THE ASSESSEE FOR VAR IOUS PURPOSES INCLUDING PURCHASE OF LAND. THE MONEY WAS SENT THROUGH BANKING CHANNEL TO THE ASSESSEES ACCOUNT. THE ASSE SSEE WITHDREW THE MONEY FOR PURCHASE OF LAND AND SOMETIME THE DEA L DID NOT TAKE PLACE AND THE MONEY WAS REMITTED BACK INTO THE ACCO UNT. THE ASSESSEE EXPLAINED HE TRANSACTION BEFORE THE LEARNE D CIT(A) AND IT WAS SUBMITTED THAT THE ASSESSEE HAD FURNISHED EVIDE NCE BUT THE AO HAS NOT ACCEPTED SUCH EVIDENCES. 4. THE LEARNED CIT(A) REQUIRED THE AO TO SUBMIT TH E REMAND REPORT AS THE ASSESSEE HAS EXPLAINED THE TRANSACTI ON AS APPEARING IN THE BANK ACCOUNT. THE LEARNED CIT(A) OBSERVED IN PARA-6 O HIS ORDER THAT THE AO HAS VERIFIED THE LETTER SENT BY D R.MUNEGOWDA AND THEREFORE THE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE MAY NOT BE ASSESSEES INCOME. THE AO ASKED THE LEA RNED CIT(A) TO DISPOSE OF THE APPEAL ON MERIT. 5. THE LEARNED CIT(A) VIDE PARA-7 OF HIS ORDER WH ICH IS REPRODUCED HERE UNDER DELETED THE ENTIRE ADDITION MADE BY THE AO. ITA NO.691(B)/09 4 I HAVE CONSIDERED THE FACTS OF THE CASE AND GO NE THROUGH THE REMAND REPORT AND THE SUBMISSIONS OF THE APPELLANT. IT IS SEEN THAT THE APPELLANT CLAIM ED TO HAVE FURNISHED THE DETAILS BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. FROM THE ASSESSMENT ORDER IT APPEARS THAT THE APPELLANT DID NOT COOPERATE AND THE ASSESSMENT WAS COMPLETED EX- PARTE U/S 144 ON 31-12-2007. THE WRITTEN SUBMISSION AND THE DETAILS WERE FORWARDED TO THE AO FOR REMAND REPORT. THE AO VERIFIED THE SAID DETAIL S AND ALSO COMMENTED UPON THE ISSUES INVOLVED. I HAVE ALSO EXAMINED THE BANK STATEMENT AND THE ANALYSIS OF BANK TRANSACTION FOR THE PERIOD 01-04- 2004 TO 31-03-2005 AND OBSERVED THAT THE APPELLANT DEPOSITED RS.35 00 000/- ON 01-04-2004 AND THEN MADE CASH WITHDRAWALS ON DIFFERENT DATES. THESE CASH WITHDRAWALS WERE AGAIN DEPOSITED INTO THE BANK ACCOUNT. THE APPELLANT ALSO DEPOSITED RS.8 00 000/ - ON 07-09-2004 AND RS.15 00 000/- ON 02-03-2005. THE SOURCES OF THESE DEPOSITS ARE FROM HIS BROTHER SHRI MUNEGOWDA WHO IS ABROAD. THE TRANSACTIONS ARE THOUGH BANKING CHANNELS AND CONFIRMATION TO THIS EXTENT IS ALSO FILED BY DR.MUNEGOWDA. THE AO ALSO VERIFIED ALL THE DOCUMENTS AND CONCLUDED THAT THESE AMOUNTS DEPOSITED IN THE BANK ACCOUNT OF THE APPELLANT ARE NOT HIS INCOME. IN THE REMAND REPORT THE AO HAS ACCEPTED THE CONTENTIONS OF THE APPELLANT. IN VIEW OF THIS I AM OF THE CONSIDERED OPINION THAT THE ADDITION MADE BY THE AO IS NOT ITA NO.691(B)/09 5 JUSTIFIED. THE AO IS DIRECTED TO DELETE THE DISALLOWANCE MADE BY HIM. THE APPELLANTS GROUND SUCCEEDS AND HE GETS RELIEF OF RS.1 02 86 169/- ACCORDINGLY. 6. WE HAVE HEARD BOTH PARTIES. WE HAVE ALSO GONE T HROUGH THE COPY OF THE REMAND REPORT SENT BY THE AO VIDE LETTE R DATED 16-03- 2009 TO THE LEARNED CIT(A)-V BANGALORE. THE AO HA S ADMITTED THAT THE BOTHER OF ASSESSEE HAS SENT MONEY TO THE ACCOUN T OF ASSESSEE AND SUCH AMOUNTS HAVE BEEN RECEIVED THROUGH BANKING CHANNELS. THE ASSESSEE HAS ALSO DEPOSITED AGRICULTURAL INCOME IN THE BANK ACCOUNT. ON THE BASIS OF THE DETAILS FILED BY THE ASSESSEE THE AO WAS OF THE OPINION THAT THE AMOUNTS DEPOSITED IN TH E BANK ACCOUNT OF THE ASSESSEE MAY NOT BE TREATED AS ASSESSEES IN COME. THE REVENUE HAS NOT REBUTTED THE CONTENTION OF THE LEAR NED AR THAT THE ASSESSEE IS AN AGRICULTURIST AND CARRYING ON AGRICU LTURAL ACTIVITIES. THE ASSESSEE IS NOT HAVING ANY OTHER SOURCE OF INCO ME EXCEPT THE AGRICULTURAL INCOME. FOR TREATING THE DEPOSITS AS INCOME OF THE ASSESSEE U/S 69 OF THE IT ACT THE AO HAD A DISCRET ION TO EXPLAIN SUCH DEPOSITS AS UNEXPLAINED IN THE HANDS OF THE AS SESSEE BECAUSE THE WORD MAY IS MENTIONED IN SEC.69 OF THE IT ACT . THE HONBLE APEX COURT IN THE CASE OF CIT VS P.K.NOORJAHAN REPO RTED IN 237 ITR 572 HELD THAT THE WORD MAY IN SEC.69 CANNOT BE H ELD AS SHALL. MOREOVER IN THE INSTANT CASE THE ASSESSEE HAS FIL ED SUFFICIENT ITA NO.691(B)/09 6 EVIDENCES AND THE AO WAS SATISFIED AS PER HIS REMAN D REPORT. THEREFORE THERE WAS NO CASE OF TREATING THE DEPOSI TS IN THE BANK ACCOUNT AS UNEXPLAINED. WE WERE ALSO INFORMED BY T HE LEARNED AR THAT NO PROCEEDINGS HAVE BEEN TAKEN AGAINST THE ASS ESSEE FOR THE SUBSEQUENT YEARS. THIS SHOWS THAT THE DEPARTMENT H AS ACCEPTED THAT THE ASSESSEE IS AN AGRICULTURIST AND WAS NOT H AVING ANY OTHER INCOME EXCEPT THE AGRICULTURAL INCOME. HENCE WE FE EL THAT THE LEARNED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITI ON MADE BY THE AO IN HIS ORDER. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON22-01-2010 (K.P.T.THANGAL (N.L.KALRA) VICE PRESIDENT ACCOUNTANT MEMBER PLACE: BANGALORE DATED: AM* COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) 7. GF(DELHI) BY ORDER AR ITAT BANGALORE