BENJAMIN MARCUS,CHENNAI vs. ACIT, CHENNAI

PDF · subscribers
ITA 98/CHNY/2016Status: DisposedITAT Chennai31 January 2017AY 2008-094 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the assessee should be given an opportunity to explain the difference after being furnished a copy of the Annual Information Report. The matter was remitted back to the Assessing Officer for fresh examination.

What were the facts?

The assessee, a small trader, deposited sale proceeds in a bank. The Assessing Officer made an addition based on an Annual Information Report from the bank, stating it did not tally with the bank passbook. A copy of this report was not provided to the assessee.

What were the issues?

Whether an addition under Section 68 can be sustained without providing the assessee with the Annual Information Report used for making the addition, and whether the assessee was given a proper opportunity to explain the discrepancies.

Which sections of the Income-tax Act were involved?

Section 68

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI

Before: SHRI N.R.S. GANESAN & SHRI D.S. SUNDER SINGH

For Respondent: Shri B. Sahadevan, JCIT
Hearing: 04.01.2017Pronounced: 31.01.2017

आदेश /O R D E R

PER N.R.S. GANESAN, JUDICIAL MEMBER:

1.

This appeal of the assessee is directed against the order of the Commissioner of Income Tax (Appeals) – 5, Chennai, dated 29.12.2015 and pertains to assessment year 2008-09.

2.

The only issue arises for consideration is addition of `22,25,550/- under Section 68 of the Income-tax Act, 1961 (in short 'the Act').

3.

Shri T.N. Seetharaman, the Ld.counsel for the assessee, submitted that the assessee is a small time trader and he deposited sale proceeds in M/s Kotak Mahendra Bank Ltd. The Assessing Officer, on the basis of the so-called Annual Information Report said to be filed by M/s Kotak Mahendra Bank Ltd., made an addition of `20,72,500/-. The Assessing Officer made the addition only on the ground that the statement in the bank passbook does not tally with Annual Information Report received by him. According to the Ld. counsel, a copy of the Annual Information Report was not furnished to the assessee, therefore, the assessee was not able to explain how the same does not tally with bank statement. Therefore, the Ld.counsel prayed that an opportunity may be given to the assessee to explain the bank deposit before the Assessing Officer.

4.

On the contrary, Shri B. Sahadevan, the Ld. Departmental Representative, submitted that the Assessing Officer found that there was a cash deposit of `20,72,500/- in M/s Kotak Mahendra Bank Ltd. The assessee has also returned an income of `1,53,050/-. After addition of `20,72,500/-, the total income of the assessee was computed at `22,25,550/-. Since the CIT(Appeals) found that the assessee could not explain the identity of the creditor, capacity of the creditor to advance the money and genuineness of the transaction, he confirmed the addition made by the Assessing Officer.

5.

We have considered the rival submissions on either side and perused the relevant material available on record. The Assessing Officer on the basis of the Annual Information Report said to be received from M/s Kotak Mahendra Bank Ltd., made an addition of `20,72,500/- under Section 68 of the Act. The Assessing Officer observed in the assessment order that the bank statement does not tally with the Annual Information Report. Therefore, this Tribunal is of the considered opinion that an opportunity should be given to the assessee to explain the difference, if any, after furnishing a copy of the Annual Information Report received by the Assessing Officer from M/s Kotak Mahendra Bank Ltd. Since admittedly a copy of the Annual Information Report was not furnished to the assessee, this Tribunal is of the considered opinion that the matter needs to be reconsidered. Accordingly, the orders of the lower authorities are set aside and the entire issue is remitted back to the order of the Assessing Officer. The Assessing Officer shall re-examine the matter afresh after furnishing a copy of the Annual Information Report said to be received in respect of the assessee and thereafter decide the same, in accordance with law, after giving a reasonable opportunity to the assessee.

6.

In the result, the appeal filed by the assessee is allowed for statistical purposes.

Order pronounced on 31st January, 2017 at Chennai.

More judgments on Section 68

All 29,931 judgments and leading authorities on Section 68 →

Recent GST High Court judgments

Search GST case law →