M/s Sibar Educational Acadamy, Vijayawada, Hyderabad v. The DCIT Central Circle, Vijayawada

ITSSA 13/VIZ/2004 | misc
Pronouncement Date: 29-04-2010 | Result: Allowed

Appeal Details

RSA Number 1325316 RSA 2004
Bench Visakhapatnam
Appeal Number ITSSA 13/VIZ/2004
Duration Of Justice 6 year(s) 2 month(s) 1 day(s)
Appellant M/s Sibar Educational Acadamy, Vijayawada, Hyderabad
Respondent The DCIT Central Circle, Vijayawada
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 29-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 29-04-2010
Assessment Year misc
Appeal Filed On 27-02-2004
Judgment Text
ITA NO.13/VIZAG/2004 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO.13/VIZAG/2004 BP: ENDED ON 30-1-2001 SIBAR EDUCATIONAL ACADEMY VIJAYAWADA VS. DCIT CENTRAL CIRCLE VIJAYAWADA (APPELLANT) GIR NO.S-313 (RESPONDENT) APPELLANT BY: SHRI G.V.N. HARI CA RESPONDENT BY: SHRI G.S.S. GOPINATH DR ORDER PER SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT (A) ON VARIOUS GROUNDS WHICH ARE AS UNDER: I) THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS ) IS ERR5ONEOUS BOTH ON FACTS AND IN LAW II) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN CONFIRMING THE ADDITION OF RS.11 62 833/- MADE B Y THE ASSESSING OFFICER AS CASH PAYMENTS IN EXCESS OF CAS H BALANCE AVAILABLE IN THE BOOKS OF ACCOUNT. III) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN TREATING RS.5 LAKHS BEING THE ALLEGED UNEXPLAINE D CASH CREDIT AS THE UNDISCLOSED INCOME. IV) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN CONFIRMING THE TOTAL UNDISCLOSED INCOME ARRIVED AT BY THE ASSESSING OFFICER AT RS.16 62 830/- WITHOUT CON SIDERING VARIOUS EXPLANATIONS SUBMITTED. V) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERR ED IN CONFIRMING LEVY OF SURCHARGE OF RS.1 19 724/- 2. DURING THE COURSE OF HEARING OF THE APPEAL THE L D COUNSEL FOR THE ASSESSEE INVITED OUT ATTENTION TO THE ORDER OF THE CIT (A) AND THE GROUNDS ITA NO.13/VIZAG/2004 PAGE 2 OF 4 RAISED BEFORE HIM WITH THE SUBMISSION THAT THE ASSE SSEE RAISED A SPECIFIC GROUND WITH RESPECT TO GROUND NO.(II) RELATING TO A DDITION OF RS.11 62 833/- BUT THE CIT (A) DID NOT ADJUDICATE THE SAME. IN THE ENTIRE ORDER HE HAS DISCUSSED THE GROUND NO.(III) AND DID NOT MAKE EVEN A REFERENCE WITH RESPECT TO THE GROUND NO.(II) RAISED BEFORE THE TRI BUNAL. THIS FACTUAL ASPECT WAS NOT DISPUTED BY THE LD DR. 3. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT ( A) IN THE LIGHT OF THE RIVAL SUBMISSION WE FIND THAT THE ASSESSEE HAD RAI SED A SPECIFIC GROUND BEFORE THE CIT (A) AS GROUND NO.(I) WITH RESPECT TO THE ADDITION OF RS.11 62 833/- MADE BY THE AO AS CASH PAYMENT IN EX CESS OF CASH BALANCE AVAILABLE IN THE BOOKS OF ACCOUNTS BUT THE CIT (A) DID NOT ADJUDICATE IT IN HIS ORDER. WE THEREFORE OF THE VIEW THAT THE MATTER SHOULD BE RESTORED BACK TO THE CIT (A) FOR ADJUDICATION OF THE SAID ISSUE. IF WE ADJUDICATE THE ISSUE IT WOULD AMOUNT TO A DENIAL OF ONE OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ITS CASE BEFORE THE CIT (A). WE THEREFORE RESTORE THI S ISSUE TO THE FILE OF THE CIT (A) WITH THE DIRECTION TO ADJUDICATE THE ISSUE AFRESH BY PASSING A REASONED ORDER AFTER AFFORDING AN OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. 4. WITH REGARD TO THE GROUND NO.(III) IT IS NOTICED THAT THE ASSESSEE HAS TAKEN CONTRIBUTION FROM 5 PERSONS OF RS.5 00 000/- OF WHICH DETAILS ARE AS UNDER: I) SHRI YRSV PRASAD KATREMPADU RS.1 00 000 II) SHRI YRK MURTHY RS.2 00 000 III) SHRI G.RAVINDRANADH TAGORE GUNTUPALLI RS.1 00 000 IV) SRI GRK MURTHY RS.1 00 000 -------------- TOTAL RS.5 00 000 ======= ITA NO.13/VIZAG/2004 PAGE 3 OF 4 BEFORE THE AO THE ASSESSEE COULD NOT PLACE ANY EVID ENCE OF GENUINENESS OF THE ALLEGED CONTRIBUTION FROM THE ABOVE 4 PERSONS. THE AO ACCORDINGLY TREATED THIS AMOUNT TO THE UNDISCLOSED INCOME OF TH E ASSESSEE AND MADE AN ADDITION OF THE SAME U/S 68 OF THE ACT. BEFORE THE CIT (A) IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT THE ENTIRE AMOUNT OF RS.5 00 000/- WAS TAKEN FROM 3 PERSONS I.E. SHRI YRSV PRASAD SHRI YR K MURTHY SHRI G.RAVINDRANADH TAGORE. SINCE THE ASSESSEE HAS CHANG ED HIS VERSION CIT (A) WAS NOT CONVINCED WITH THE EXPLANATIONS OF THE ASSESSEE. CIT (A) HAS ALSO CALLED THE REMAND REPORT FROM THE AO AND THE A O OBSERVED THAT THERE WAS VARIATION IN THE STATEMENT OF THE ASSESSEE. THE CIT (A) ACCORDINGLY CONFIRMED THE DISALLOWANCE. 5. NOW THE ASSESSEE IS BEFORE US AND DURING THE COURSE OF HEARING IT WAS CONTENDED THAT IF THE EXPLANATIONS OF THE ASSESSEE WERE DOUBTED THE AO SHOULD HAVE SUMMONED THE CREDITORS OR THE DONORS IN ORDER TO VERIFY THE GENUINENESS OF THE CONTRIBUTION. THE LD COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT SINCE THE MATTER IS BEING SENT BACK TO THE CIT (A) FOR ADJUDICATION OF THE SAID GROUND NO.(II) THIS ISSUE MAY ALSO BE RESTORED TO THE AO FOR READJUDICATION BY SUMMONING THE CONTRIBUTORS /DONORS. THE LD DR DID NOT OBJECT TO THIS PROPOSAL. 6. HAVING HEARD THE RIVAL SUBMISSION AND ON A CAREF UL PERUSAL OF THE RECORD WE ARE OF THE VIEW THAT THE ISSUE WAS NOT PR OPERLY EXAMINED BY THE LOWER AUTHORITIES. WE THEREFORE SET ASIDE THIS ISS UE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR READJUDICATION IN THE INT EREST OF JUSTICE. THE AO IS ALSO DIRECTED TO AFFORD AN OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE BEFORE ADJUDICATING THE ISSUE. 7. GROUND NO.(V) IS A CONSEQUENTIAL AND DOES NOT RE QUIRE ANY INDEPENDENT ADJUDICATION. ITA NO.13/VIZAG/2004 PAGE 4 OF 4 8. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CI T (A) AND RESTORE THE MATTER TO THE LOWER AUTHORITIES FOR ADJUDICATION IN TERMS INDICATED ABOVE. 9. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 29-04-2010. SD/- SD/- (B R BASKARAN) (SUNIL KUMAR YADA V) ACCOUNTANT MEMBER JUDICIAL MEMBER PVV/SPS VISAKHAPATNAM DATE:29 TH APRIL 2010. COPY TO 1 M/S SIBAR EDUCATIONAL ACADEMY C/O SRI S. RAMA RA O ADVOCATE 3-6- 542/4 INDIRADEVI NILAYAM ST.NO.7 HIMAYATHNAGAR H YDERABAD 2 THE DCIT CENTRAL CIRCLE VIJAYAWADA 3 4 THE CIT (A) GUNTUR THE CIT GUNTUR 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM