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Income Tax Appellate Tribunal, BANGALORE BENCH A, BANGALORE
Before: SMT. ASHA VIJAYARAGHAVAN & SHRI. S. JAYARAMAN
PER S. JAYARAMAN, ACCOUNTANT MEMBER : These appeals filed by assessees , husband and wife respectively, are against the different orders of the Ld.CIT (A), Bengaluru -2, dt.07.09.2015, for the assessment year 2008-09.
ITA.1431 & 1432/Bang/2015 Page - 2
First, we shall take up the appeal in in the case of the husband. Facts apropos are that assessee, a proprietor of M/s. Bhaskar Departmental, has shown M/s. Gillete India Ltd , as a sundry creditor at Rs.17,20,084/- . However, M/s.
Gillete India Ltd has confirmed the outstanding balance at Rs.11,03,904/- only. Since the assessee could not satisfactorily explain the difference of Rs.6,16,180/-, the AO added it as unexplained cash credit u/s.68 of the Income-tax Act, 1961 (‘the Act’ in short).
3. On an appeal , from the particulars furnished by the appellant, the Ld. CIT (A) found that Rs.21,778/- represented excess amount charged for the relevant assessment year which has been rightly treated by the AO as income . For the balance of Rs.5,94,402/-, since the appellant had accepted that the creditor is due less by Rs.5,94,101/-and he had not furnished any reconciliation, the Ld CIT(A) accepted the finding of the AO . Further, the Ld. CIT (A) held that merely because the assessee had reduced the purchases on a subsequent date and that too without reconciliation, it did not alter the finding of the AO that Rs.6,16,180/- was chargeable to tax in the impugned assessment year.
ITA.1431 & 1432/Bang/2015 Page - 3
Before us , the effective grounds raised by the assessee are reproduced hereunder :
5. The Ld. AR strongly assailed the orders of the lower authorities, submitted a statement of account of Gillette India Ltd, which is reproduced hereunder and pleaded that it requires due consideration:
Per contra, the Ld. DR supported the orders of lower authorities.
ITA.1431 & 1432/Bang/2015 Page - 4
We have perused the orders and heard the rival contentions. It is not clear from the above, whether the additions made during the year are based on the current year entries or not, and hence we remit the matter to the AO to examine the issue afresh and pass an order in accordance with the law.
Now we consider the appeal of assessee, Mrs. Mallika Nagaraj, in ITA No.1432/Bang/2015. The AO noted that by an agreement of sale dt.20.03.2008, the assessee agreed to sell the flat at No.282, JP Nagar, 2nd Stage, Bengalure for Rs.29 lakhs. Though the possession of property was given to the buyer on 20.03.2008, the sale deed was registered only on 23.08.2008. Consideration was paid in instalments on various dates during the year ended 31.03.2008. Assessee originally claimed deduction u/s.54 F of the Act, but subsequently changed her position and claimed deduction u/s.54 of the Act on the ground that she had held the impugned property for more than three years, she started investing in the construction of the new residential property within one year before the sale of flat , though the construction of the new property was completed during the year ended 31.3.2008 ie in ay 2008-09. Since the assessee has taken ITA.1431 & 1432/Bang/2015 Page - 5 contrary stands etc, the AO did not accept the claim made u/s.54 of the Act.
2. Before the Ld CIT (A), the assessee relied on the decision of the Hon’ble Allahabad High Court in CIT v. H. K. Kapoor (Decd.) [234 ITR 753], wherein the decision of Hon’ble High Court of Karnataka in CIT v. J. R. Subramanya Bhat [165 ITR 571], was followed. The Ld CIT (A), found, inter alia, that although the initial claim was made on the plea that the construction was completed in A Y. 2006-07, later on, the assessee claimed that Rs.2,96,680/- was spent in A. Y.
2007-08. Evidently, it showed that the construction was completed after the date of sale. However, the appellant has not produced any evidence before the Ld CIT (A) to show that the said expenditure was incurred in A. Y. 2007-08. Further, the ld CIT(A) found that the said expenditure is claimed to be cash payments to plumbers, painting etc. Thus, the CIT (A) also found that the assessee had changed her stand to suit the claim without furnishing any evidence . Further, the CIT (A) held that the said house property was in the joint names of the assessee & her husband and therefore, if at all any deduction could be claimed u/s.54 , only 50% of the claim would be available.
Since the assessee did not fulfil the required condition, the Ld. CIT (A) did not allow the claim made u/s.54 of the Act.
ITA.1431 & 1432/Bang/2015 Page - 6
Aggrieved against the order of the Ld. CIT (A), the assessee is in appeal before this Tribunal. The effective grounds raised by the assessee are as under :
04 Before us, the Ld. AR strongly assailed the orders of the lower authorities and pleaded that the assessee’s plea require due consideration. Per contra, the Ld. DR supported the orders of the lower authorities.
We have perused the orders and heard the rival contentions. It is clear from the Ld CIT(A) order that there is no finding as to whether the appellant constructed the impugned property during the year or not . Further, the % of ownership also has not been ITA.1431 & 1432/Bang/2015 Page - 7 determined. In the facts and circumstances, we remit the matter to the AO to decide these issues, afresh, in accordance with law.
6. With regard to the ground relating to the difference in closing balance of the creditor at Rs.21,103/-, it is identical to the ground adjudicated by us in the case of assessee’s husband, wherein we have held that whether the additions made during the year are on the basis of current year entries or not, is not clear and hence we remitted the matter to the AO to examine the issue, afresh , and pass an order in accordance with the law. The same decision holds good in this case also. We hold accordingly.
In the result, the impugned appeals are treated as allowed for statistical purpose.
Order pronounced in the open court on 5th day of August, 2016.