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Income Tax Appellate Tribunal, CUTTACK BENCH CUTTACK
Before: SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM
Per L.P.Sahu, AM: This appeal filed by the assessee against the order of CIT(A)-2, Bhubaneswar, dated 10.11.2017 for assessment year 2008-2009, on the following grounds :- 1) For that the orders of the Forums below are illegal, arbitrary, unjust and excessive in the facts and circumstances of the case. 2) For that the Learned CIT(A) should have allowed the appeal in full, but in twisting the facts he has allowed the appeal in part, which is liable to be modified/set-aside. 3) For that the appellant has got sufficient source to explain the investment of Rs.25,78,715/-,but the First CIT(A) allowed Rs.5,00,000/- and Second CIT(A) allowed Rs. 12,38,363, thus totaling Rs.17,38,363/-, hence the balance Rs.8,40,352/- being explainable should be allowed in toto. 4) For that out of total addition of Rs.20,75,715/-, which remained for consideration of the Learned CIT(A), he allowed only Rs.12,38,363/- although all the material facts were before him, hence for explaining the balance of Rs.8,40,352/- the appeal is liable to be set-aside.
2 5) For that the Learned CIT(A) failed to allow sufficient opportunity to the appellant to explain the balance addition of Rs.8,40,352/-, hence for the sake of natural justice the appeal is liable to be set-aside. 6) For that the addition at Rs.8,40,352/- is liable to be deleted in appeal and return figure of the appellant should be accepted in toto. 7) For that other grounds will be urged at the time of hearing of appeal.
Ground No.1 & 7 are general in nature, therefore, do not require
any adjudication.
Now, the grounds remained i.e. ground Nos.2 to 6, which relate to sustenance of the addition of Rs.8,40,352/- by the CIT(A).
Brief facts of the case are that the case was reopened
u/s.147/148 of the Act and in response to notice u/s.148 of the Act, the assessee filed his return of income on 30.05.2011 disclosing income of Rs.1,67,027/- and other statutory notices were issued to the assessee.
The assessee was a Government salaried employee and he had made
share transactions through M/s Karvey Stock Broking Limited, Sahid
Nagar, Bhubaneswar of Rs.25,78,715/-. The AO completed the reassessment at an income of Rs.27,78,340/-. Against this order the assessee filed appeal before the CIT(A) and he partly allowed the appeal of the assessee. Aggrieved from the order of CIT(A), the assessee preferred appeal before the Income Tax Appellate Tribunal.
The coordinate bench of the Tribunal has decided the case on 26.05.2015 and it was remanded back to the CIT(A) and the CIT(A)
after calling remand report from the AO and giving opportunity of 3 being heard to the assessee, he sustained Rs.8,40,352/- and partly
allowed the appeal of the assessee.
Ld. AR before us reiterated the submissions made before the lower authorities and also filed his written synopsis. The relevant part
of the written submissions filed by the ld. AR of the assessee read as under :-
That the appellant above named is a salaried employee and at present working as Addl. Secretary, Science & Technology Department, Govt, of Odisha.
That the appellant has made some investments in shares during the year under appeal.
That the appellant had filed his return of income originally on 05/01/2011 declaring Total Income at Rs. 1,67,027/-.
That in response to Notice U/s.148 of I.T.Act’61, the appellant filed return of income on 30/05/2011 disclosing income at Rs. 1,67,027/-. He then in response to Notice U/s. 142(1) appeared before the Learned Assessing Officer (in short LAO) and produced the copies of Bank Account(s) relating to UCO Bank (No.06640100936081), State Bank of India (No.30241861687) and ICICI Bank(No.006101024289) but could not produce the copy of Axis Bank Account (No.024010100001562) since it was not available with him. He has tried his level best to get it from the concerned bank but the officials of the aforesaid bank could not supply the same to the appellant at that point of time.
That the LAO was not convinced with the submission of the appellant and finally amongst all other small additions he added a sum of Rs.25,78,715/- to the income of the appellant being un- explain investment U/s.69 of the Act as the said amount was invested by the appellant in purchasing shares from M/s. Karvy Stock Broking Ltd, Sahid Nagar, Bhubaneswar and passed order of assessment accordingly on 26/03/2013. Copy of assessment order is enclosed here with and marked as ANNEXURE-1. 06. That being aggrieved with the order of the LAO dated:- 26/03/2013 the appellant filed First Appeal before the Learned CIT(A)-I, Bhubaneswar on 23/04/2013. 07. That in course of hearing before the Learned CIT(A) the appellant filed a petition on 23/05/2014 to accept additional evidences,
4 which were not filed before the LAO as he was prevented to file them as the same was beyond his control and requested to send back the same to the LAO to examine afresh as the additional evidences and inform the Learned CIT(A) in form of a remand report.
That in the course of hearing the appellant produced bank reconciliation statement, cash flow statement and copies of bank accounts maintained with ICICI Bank, Axis Bank (A/c No. 024010100001562) in order to explain the sources of investment at Rs. 25,78,715/- in shares with M/s Karvy Stock Broking Ltd.
That the Learned CIT(A) neither sent the above additional evidence to the LAO for examination nor examined the same at his level before coming to a conclusion.
That the Learned CIT(A) at Para-3.1 of his order observed as under.- “The appellant submits that he has been filing return showing . income from salary. His wife was also getting salary income and filed return. The assessee used to get income from agriculture. The source of investment is also proceeds from sale of shares received from Karvy Stock Broking Ltd. The appellant has produced copy of bank account in Axis Bank showing payments and purchase of shares in addition to Rs.5 lacs paid through ICICI bank account as found by the AO. The appellant also filed copy of ICICI bank account which showed proceeds received from Karvy Stock Broking Ltd. on account of sale of shares”.
That the Learned CIT(A) passed the order deleting addition of Rs.5,00,000/- only out of Rs.25,78,715/- and confirming the addition of balance Rs.20,78,715/- with a silly comment which is reproduced hereunder for better appreciation of the facts:-
Para-3.2: “However, the balance amount i.e. Rs.20,78,715/- (25,78,715 – 5,00,000) has been paid to Karvy Broking Ltd. from deposits in the Axis Bank account are mostly in cash and source of said deposits have not been examined and remain unexplained since the Axis Bank account was not revealed during assessment proceeding. In view of the same, the source of investment to the extent of Rs.20,78,715/- is unexplained. Accordingly, the addition of Rs.25,78,715/- is confirmed to the extent of Rs.20,78,715/- and the appellant get relief of Rs.5 lacs”. A copy of the First Appeal order is enclosed herewith and marked as ANNEXURE-2. 12. That the appellant as against the order of Learned CIT(A) filed Second Appeal at this Forum and the Hon’ble Tribunal vide order dated-26/05/2015 in ITA No.412/CTK/2014 set aside the matter to the file of the CIT(A) with the following observation: -
5 “We accordingly set aside the order of CIT(A) and restore the matter back to his file with a direction to re-adjudicate the issue afresh in the light of the bank account of the Axis Bank after calling a remand report from the AO in this regard. The CIT(A) is also directed to adjudicate the appeal on merit by passing a speaking order. The assessee is also directed to produce all the relevant documents before the CIT(A) on the impugned issues and extend all the sorts of cooperation to him. Accordingly, appeal of the assessee stands allowed for statistical purposes.” A copy of the above order of IT AT is enclosed herewith and marked as ANNEXURE-3.”
That the appellant is enclosing herewith the copies of acknowledgments of Income Tax returns filed by him from the Assessment Year-2004-05 to 2011-12 together with computation of income and marked as ANNEXURE-7-SERIES.
That the wife of the appellant Mrs. Jabin Banu was also an Income Tax assessee bearing PAN-AFWPB5327E. Copies of acknowledgments of Income Tax returns filed from the Assessment Year-2001-02 to 2007-08 together with computation of income are enclosed herewith and marked as ANNEXURE-8-SERIES.
That the appellant is also producing the details of landed properties at his native place Bhuban, Dist-Dhenkanal which were sold by his brothers and he has received the sale proceeds of his share and out of the same invested in purchasing the shares. The copies of ROR(s) of the alleged landed properties are enclosed herewith and marked as ANNEXURE-9-SERIES.
That it is not out of place to mention here that the appellant joined Odisha Administrative Service (OAS) on 01/11/1988. He married to Mrs. Jabin Banu on 29.12.1989. He was blessed with a daughter on 12.03.1992. Thus the appellant has a small family and income of both the couples were available with the appellant together with sale proceeds of landed property at his native place and relinquishment of rights by his wife from the paternal properties of his in-laws, which was invested in purchase of shares.
That the appellant therefore humbly submits that the CIT(A) while framing the First Appeal order has not considered all these aspects put forth by the appellant before him. He then sustained the addition of Rs.8,40,352/- without applying his judicial mind.
That the appellant has got fair chance of success in this appeal and therefore prays before this Forum to consider the above aspect and allow the appeal in full or else set aside the matter to the LAO for fresh adjudication and grant relief to the appellant accordingly, otherwise the appellant would suffer irreparable loss and substantial injury.
6 In addition to the above submissions, he also submitted that assessee
had sufficient source of income to meet out his daily expenses and his
wife was also income tax payee, he has only one child, therefore, there
is no question of excess household expenses. He also submitted that there was a family settlement for which his brother has paid
Rs.2,50,000/- on different dates and his wife was also got money as gift
of relinquishment of his rights from the parental property which has been deposited on different dates into his bank account. Therefore, he
had sufficient source of income for depositing the cash into the bank
account.
On the other hand, ld. DR relied on the order of lower authorities
and submitted that this is second round of proceedings before the Tribunal and both the authorities below have given due opportunity to the assessee for production of evidence in support of investments
made by the assessee through M/s Karvy Stock Broking Ltd. and source
of deposit in his bank account. The remand report called from the AO
by the CIT(A) was also confronted to the assessee. In the second
innings the assessee had submitted additional evidence, in this regard,
he submitted that he requested before the bench that the addition
evidence should not be accepted at this stage and he also pointed out
that had the documents was available with the assessee, which has been notorised by the Public Notary on 15.12.2008, why he did not 7 submit during the course of all the proceedings in the case of the assessee.
After hearing both the sides and perusing the entire material
available on record and the orders of authorities below, we noted that the assessee could not substantiate in regard to the amount of Rs.2.5
lakhs received from his brother with cogent material for source of deposit of cash into his bank account as well as in respect of Rs.3.5
lakhs received by his wife from the relinquishment of rights on her
parental house. Further in case of remaining additions, there was no any legitimate documentary evidence so that the deposit of cash into his bank account can be accepted. We also gone through the English
Translation of the agreement deed dated 15.12.2008, copy of which is placed in the paper book at pages 31 to 34 and found that there is not a single word mentioned relating to any quantification of the said
amount which was given to his wife as a settlement of the parental
property. On perusal of the order of the CIT(A) we find that the assessee was also failed to furnish any credible evidence regarding the source of investment in purchase of shares, therefore, the CIT(A)
sustained the addition to the extent of Rs.8,40,352/- observing as under :-
6 I have carefully considered the submissions of the appellant, remand report and rejoinder. My learned brother has already given relief of Rs. 5,00,000/- to the appellant and sustained addition of Rs. 20,78,715/-. I find that receipt of Rs. 12,38,363/- on sale of shares,
8 purchased earlier, is not in dispute and therefore this amount was available to the appellant for purchasing the sharejin the current year. Since the source of purchases to the extent of Rs. 12,38,363/-, is explained the remaining addition is of Rs. 8,40,352/-. The appellant has stated this amount can be explained out of his savings, savings of his wife, receipt of Rs. 2.5 lacs by him from his brothers for relinquishing his rights in ancestral property and receipt of Rs.3.5 lacs by his wife from her sister for relinquishing her rights on their parental house. It is seen from the details filed that the income disclosed by the appellant for the year under consideration is of Rs. 1,67,027/-and his spouse is of Rs. 1,08,000/-, aggregating to Rs. 2,75,027/-. In the earlier years also the appellant has been purchasing shares. Therefore, it is not possible for the appellant to have made savings of Rs. 3,14,499/-, specifically considering the regular expenditure of the year under consideration. Regarding cash receipt of Rs. 2.5 lacs by him from his brothers and cash of Rs. 3.5 lacs by his spouse from her sister, there is not an iota of evidence. Therefore, it is held that the appellant has failed to furnish any creditable evidence regarding the source of investment in purchase of shares of Rs. 8,40,352/- (Rs. 20,78,715/- - Rs. 12,38,363/- ). Accordingly, the addition made by the assessing officer to the extent of Rs. 8,40,352/- is sustained. The ground of appeal is partly allowed.
Ld. AR of the assessee has requested at this juncture for the acceptance
of the additional evidence, which is not acceptable. The assessee was not prevented any opportunity in the earlier proceedings for submitting any documents. Therefore, we do not see any good reason
to interfere in the findings recorded by the CIT(A) in this regard.
Accordingly we uphold the same and dismiss the grounds of appeal
raised by the assessee.
In the result, appeal of the assessee is dismissed.
Order pronounced in the open court on 20/01/2020. (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनांक Dated 20/01/2020 Prakash Kumar Mishra, Sr.P.S.
9 आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीलाथी / The Appellant-
Mr.Rasid Khan, Flat no.A-3/5, Chandrama Apartment, Unit-3, Kharvel Nagar, Bhubaneswar-751001 प्रत्यथी / The Respondent-
ITO, Ward-3(4), Bhubaneswar आयकि आयुक्त(अऩील) / The CIT(A), 3. आयकि आयुक्त / CIT 4. ववभागीय प्रनतननधध, आयकि अऩीलीय अधधकिण, कटक / DR, ITAT,
Cuttack गार्ा पाईल / Guard file. 6. सत्यावऩत प्रनत //// आदेशािुसार/ BY ORDER,
(Senior Private Secretary) ITAT Cuttack Bench, Cuttack