Sri. R. Srinivasa, Bangalore v. ITO, Bangalore

ITA 701/BANG/2014 | 2007-2008
Pronouncement Date: 30-09-2016 | Result: Dismissed

Appeal Details

RSA Number 70121114 RSA 2014
Assessee PAN ATJPS1930P
Bench Bangalore
Appeal Number ITA 701/BANG/2014
Duration Of Justice 2 year(s) 4 month(s) 8 day(s)
Appellant Sri. R. Srinivasa, Bangalore
Respondent ITO, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 30-09-2016
Date Of Final Hearing 09-06-2016
Next Hearing Date 09-06-2016
Assessment Year 2007-2008
Appeal Filed On 22-05-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC B BENCH : BANGALORE BEFORE SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NOS.700 & 701/BANG/2014 ASSESSMENT YEARS : 2005-06 & 2007-08 SHRI R. SRINIVASA NO.29 ST. MARTHAS HOSPITAL ROAD UTTARAHALLI SUBRAMANYA PURA POST BANGALORE 560 061. PAN: ATJPS 1930P VS. THE INCOME TAX OFFICER WARD 10(2) BANGALORE. APPELLANT RESPONDENT APPELLANT BY : MS. PRATHIBHA ADVOCATE RESPONDENT BY : SHRI TSHERING ONGOLA JT. CIT(DR) DATE OF HEARING : 11.08.2016 DATE OF PRONOUNCEMENT : 30.09.2016 O R D E R BOTH THESE APPEALS OF THE ASSESSEE ARE DIRECTED A GAINST THE COMBINED ORDER OF LD. CIT (APPEALS) LTU BANGALORE DATED 19.3.2014 FOR THE ASSESSMENT YEARS 2005-06 & 2007-08. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE OF CONVENIENCE. 2. THE GROUNDS RAISED BY THE ASSESSEE IN A.Y. 2005 -06 ARE AS UNDER:- 1. THE LEARNED CIT (APPEALS) ERRED IN PASSING THE ORDER IN THE MANNER HE DID. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT (APPEALS) OUGHT TO HAVE ACCEPTED THE EX PLANATION OF THE APPELLANT IN FULL WITH REGARD TO THE OPENING CA PITAL AND OUGHT ITA NO. 700 & 701/BANG/2014 PAGE 2 OF 7 TO HAVE REFRAINED FROM CONFIRMING THE IMPUGNED ADDI TION OF RS.L5 55 477/-. 3. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.4 35 801/- TOWARDS THE INVESTMENT IN VADDARAPALYA VILLAGE UTTARAHALLI HOBLI BANGALORE SOUTH TALUK J OINTLY ALONG WITH 6 OTHER PERSONS. 4. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE APPELLANT HAD ADEQUATE RESOURCES FOR INVESTMENT AND ACCORDINGLY HE OUGHT TO HAVE DELETED THE ADDITION A S MADE BY THE ASSESSING OFFICER. 5. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE TRANSACTIONS DID NOT PERTAIN TO THE APPELLANT I NDIVIDUALLY BUT WERE REQUIRED TO BE CONSIDERED IN THE HANDS OF THE AOP IN WHICH THE APPELLANT WAS A MEMBER WITH L/7 TH SHARE. 6. THE LEARNED CIT (APPEALS) HAVING PERUSED THE AGRE EMENT OF THE AOP OUGHT TO HAVE APPRECIATED THAT THERE WA S A VALID AOP IN EXISTENCE WHICH CARRIED ON THE TRANSACTIONS AS B USINESS TRANSACTIONS/ADVENTURE IN THE NATURE OF TRADE AND A CCORDINGLY THE AOP ALONE WAS LIABLE TO TAX AND NO PART OF THE INCO ME IF ANY OF THE AOP WAS LIABLE TO BE TAXED IN THE HANDS OF THE APPELLANT. 7. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE TRANSACTIONS DID NOT YIELD INCOME WHICH HAD END ED UP IN LOSS AND EVEN IF THE APPELLANT WAS LIABLE TO BE ASSESSED ON HIS SHARE WHICH WAS LOSS WHICH WAS REQUIRED TO BE CONSIDERED FOR SET-OFF AGAINST HIS OTHER INCOME. 8. WITHOUT PREJUDICE THE IMPUGNED ADDITIONS AS CONF IRMED BY THE LEARNED CIT (APPEALS) ARE OPPOSED TO LAW IN THAT NO ADEQUATE OPPORTUNITY WAS GIVEN TO THE APPELLANT TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND THE FINANCIAL R ESULTS THERE FROM BESIDES THE SOURCE FOR INVESTMENT. 9. WITHOUT PREJUDICE THE ADDITIONS AS CONFIRMED BY THE LEARNED CIT (APPEALS) ARE ARBITRARY EXCESSIVE UNR EASONABLE AND OUGHT TO BE DELETED IN TOTO. 10. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE LEVY OF INTEREST CHARGED UNDER SECTIONS 234A 234B & 234C O F THE ACT. ITA NO. 700 & 701/BANG/2014 PAGE 3 OF 7 11. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING THE APPELLANT PRAYS THAT THE APPEA L MAY BE ALLOWED. 3. SIMILARLY GROUNDS RAISED IN A.Y. 2007-08 ARE AS UNDER:- 1. THE LEARNED CIT (APPEALS) ERRED IN PASSING TH E ORDER IN THE MANNER HE DID. 2. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE ADDITION TOWARDS SHORT TERM CAPITAL GAIN OF RS.22 7 1 901/- IN THE HANDS OF THE APPELLANT. 3. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE TRANSACTIONS DID NOT PERTAIN TO THE APPELLANT I NDIVIDUALLY BUT WERE REQUIRED TO BE CONSIDERED IN THE HANDS OF THE AOP IN WHICH THE APPELLANT WAS A MEMBER WITH L/7 TH SHARE. 4. THE LEARNED CIT (APPEALS) HAVING PERUSED THE AGRE EMENT OF THE AOP OUGHT TO HAVE APPRECIATED THAT THERE WA S A VALID AOP IN EXISTENCE WHICH CARRIED ON THE TRANSACTIONS AS B USINESS TRANSACTIONS/ADVENTURE IN THE NATURE OF TRADE AND A CCORDINGLY THE AOP ALONE WAS LIABLE TO TAX AND NO PART OF THE INCO ME IF ANY OF THE AOP WAS LIABLE TO BE TAXED IN THE HANDS OF THE APPELLANT. 5. THE LEARNED CIT (APPEALS) OUGHT TO HAVE APPRECIAT ED THAT THE TRANSACTIONS DID NOT YIELD INCOME WHICH HAD END ED UP IN LOSS AND EVEN IF THE APPELLANT WAS LIABLE TO BE ASSESSED ON HIS SHARE WHICH WAS LOSS WHICH WAS REQUIRED TO BE CONSIDERED FOR SET-OFF AGAINST HIS OTHER INCOME. 6. THE LEARNED CIT (APPEALS) OUGHT TO HAVE GIVEN ADE QUATE OPPORTUNITY TO THE APPELLANT FOR PROVIDING THE DETA ILS WITH REGARD TO SOURCE FOR PURCHASE OF LAND AND INCOME THERE FRO M ON SALE AND ACCORDINGLY HE OUGHT TO HAVE DELETED THE ADDITION A S MADE BY THE ASSESSING OFFICER. 7. WITHOUT PREJUDICE THE IMPUGNED ADDITIONS AS CONF IRMED BY THE LEARNED CIT (APPEALS) ARE OPPOSED TO LAW IN THAT NO ADEQUATE OPPORTUNITY WAS GIVEN TO THE APPELLANT TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND THE FINANCIAL R ESULTS THERE FROM BESIDES THE SOURCE FOR INVESTMENT. ITA NO. 700 & 701/BANG/2014 PAGE 4 OF 7 8. WITHOUT PREJUDICE THE ADDITIONS AS CONFIRMED BY THE LEARNED CIT (APPEALS) ARE ARBITRARY EXCESSIVE UNR EASONABLE AND OUGHT TO BE DELETED IN TOTO. 9. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING THE LEVY OF INTEREST CHARGED UNDER SECTIONS 234A 234B & 234C O F THE ACT. 10. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING THE APPELLANT PRAYS THAT THE APPEA L MAY BE ALLOWED. 4. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE T HAT IN AY 2005-06 GROUND NO.2 IS THE MAIN GRIEVANCE OF THE ASSESSEE B ECAUSE OUT OF OPENING CAPITAL AS ON 1.4.2004 CLAIMED BY THE ASSESSEE OF R S.38 29 203.52 THE AO HAS ACCEPTED ONLY RS.22 73 726 AND MADE ADDITION OF THE BALANCE AMOUNT OF RS.15 55 477 AND THIS ADDITION HAS BEEN UPHELD B Y THE CIT(APPEALS). IT WAS SUBMITTED THAT THE ENTIRE AMOUNT OF OPENING CAP ITAL SHOULD HAVE BEEN ACCEPTED. AT THIS JUNCTURE THE BENCH WANTED TO KN OW AS TO WHAT IS THE EVIDENCE WITH ASSESSEE THAT THIS MUCH OF OPENING CA PITAL WAS AVAILABLE AS ON 1.4.2004. THE BENCH WANTED TO KNOW AS TO WHEN VARIOUS LANDS OF THE VALUE OF RS.69 370 RS.1 71 714 RS.1 76 132.50 RS .3 42 145 AND VEHICLE OF RS.5 52 500 TOTALLING TO RS.13 11 887.50 WERE AC QUIRED BY THE ASSESSEE AND IF THE ASSESSEE CAN SHOW THAT THESE LANDS AND V EHICLES WERE ACQUIRED PRIOR TO 1.4.2004 THEN THE CLAIM OF ASSESSEE CAN B E ACCEPTED ABOUT OPENING CAPITAL OF RS.38 29 203.52. 5. IN REPLY IT WAS SUBMITTED BY THE LD. AR OF ASSE SSEE THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING O FFICER FOR FRESH DECISION TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE AND IF THIS IS DONE THE ITA NO. 700 & 701/BANG/2014 PAGE 5 OF 7 ASSESSEE CAN PLACE EVIDENCE REGARDING ACQUISITION O F THESE PROPERTIES WHICH WERE ACQUIRED PRIOR TO 1.4.2004 BECAUSE THE A O HAD ALSO NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT THESE PROPE RTIES WERE ACQUIRED BY THE ASSESSEE AFTER 1.4.2004. 6. REGARDING GROUND NO.3 OF ASSESSEES APPEAL IN A. Y. 2005-06 AND REGARDING ASSESSEES APPEAL FOR A.Y. 2007-08 THE L D. AR OF ASSESSEE COULD NOT PLACE ANY EVIDENCE ON RECORD TO POINT OUT ANY MISTAKE IN THE ORDERS OF AUTHORITIES BELOW. 7. THE LD. DR SUPPORTED THE ORDERS OF AUTHORITIES B ELOW. 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. REGARD ING GROUND NO.2 IN A.Y. 2005-06 IN RESPECT OF ADDITION OF RS.15 55 477 I AM OF THE CONSIDERED OPINION THAT THE ASSESSEE DESERVES ONE MORE OPPORTU NITY TO ESTABLISH THAT VARIOUS PROPERTIES IN QUESTION WHICH ARE NOT ACCEPT ED BY THE AO AS HAVING BEEN ACQUIRED BY THE ASSESSEE PRIOR TO 1.4.2004 IS ACQUIRED ON WHICH DATE. IF THE ASSESSEE CAN ESTABLISH THAT THESE PROPERTIES WERE ACQUIRED BY THE ASSESSEE PRIOR TO 1.4.2004 THEN IT HAS TO BE ACCEP TED THAT OPENING CAPITAL WAS MORE BY THAT AMOUNT OVER AND ABOVE THE OPENING CAPITAL ACCEPTED BY THE AO. I FEEL SO BECAUSE THE AO HAS ALSO NOT ESTA BLISHED THAT THESE PROPERTIES IN QUESTION WERE IN FACT ACQUIRED BY THE ASSESSEE AFTER 1.4.2004. HENCE ON THIS ISSUE I SET ASIDE THE ORDER OF THE C IT (APPEALS) AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER FO R FRESH DECISION. THE ASSESSEE HAS TO ESTABLISH THAT THESE PROPERTIES IN QUESTION OF RS.69 370 ITA NO. 700 & 701/BANG/2014 PAGE 6 OF 7 RS.1 71 740 RS.1 76 132.50 RS.3 34 145 AND RS.5 5 2 500 WERE ACQUIRED BY THE ASSESSEE BEFORE 1.4.2004. IF ALL OF THE PRO PERTIES OR SOME OF THEM WERE ACQUIRED BY THE ASSESSEE BEFORE 1.4.2004 AND A SSESSEE IS ABLE TO ESTABLISH THIS THEN THE VALUE OF SUCH PROPERTY SHO ULD ALSO BE CONSIDERED AS PART OF OPENING CAPITAL OVER AND ABOVE THE AMOUNT O F OPENING CAPITAL ACCEPTED BY THE AO OF RS.22 73 726. THE AO SHOULD PASS NECESSARY ORDER AS PER LAW AS PER ABOVE OBSERVATIONS AFTER PR OVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORD INGLY GROUND NO.2 OF THE ASSESSEES APPEAL FOR A.Y. 2005-06 IS ALLOWED F OR STATISTICAL PURPOSES. 9. THE OTHER ISSUE INVOLVED IN THE APPEAL OF ASSESS EE FOR AY 2005-06 IS REGARDING ADDITION OF RS.4 38 801 TOWARDS THE IN VESTMENT IN VADDARAPALYA VILLAGE ALONG WITH 6 OTHER PERSONS. I T WAS THE CLAIM OF ASSESSEE THAT INVESTMENT IN PURCHASE OF LAND WAS MA DE OUT OF ADVANCE RECEIVED BUT THE ASSESSEE COULD NOT BRING ANY EVIDE NCE IN SUPPORT OF THIS CLAIM OF ADVANCES RECEIVED AND THEREFORE I FIND NO REASON TO INTERFERE IN THE ORDER OF CIT(APPEALS) ON THIS ISSUE. ACCORDING LY GROUND NO.3 OF ASSESSEES APPEAL FOR AY 2005-06 IS REJECTED. 10. THE REMAINING GROUNDS IN AY 2005-06 AND GROUNDS OF APPEAL IN AY 2007-08 ARE REGARDING CLAIM OF ASSESSEE THAT PROFIT IN RESPECT TRANSACTIONS IN PURCHASE AND SALE OF LAND IS NOT TAXABLE IN THE HANDS OF ASSESSEE BUT THE SAME IS TAXABLE IN THE HANDS OF AOP BUT NO ARGUMENT WAS ADVANCED BY THE LD. AR OF ASSESSEE ON THIS ISSUE. IT IS ALSO SEEN IN THE ORDERS OF AUTHORITIES ITA NO. 700 & 701/BANG/2014 PAGE 7 OF 7 BELOW THAT THIS ISSUE IS DECIDED AFTER CONSIDERING ALL THE FACTS AND CONTENTIONS OF THE ASSESSEE AND I FIND NO INFIRMITY THEREIN AND THEREFORE I DECLINE TO INTERFERE IN THE ORDER OF CIT(APPEALS) O N THIS ISSUE IN BOTH OF THESE YEARS. 11. IN THE RESULT THE APPEAL OF THE ASSESSEE FOR A Y 2005-06 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES WHEREAS THE APPEA L OF ASSESSEE FOR AY 2007-08 IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF SEPTEMBER 2016. SD/- (A.K. GARODIA ) ACCOUNTANT MEMBER BANGALORE DATED THE 30 TH SEPTEMBER 2016. /D S/ COPY TO: 1. AP PELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT BANGALORE.