V S ABDUL SALAM,ERNAKULAM vs. THE ITO NON CORPORATE WARD 2(4) & TPS, KOCHI

PER CHANDRA POOJARI, ACCOUNTANT MEMBER:

SP No.135/Coch/2023 V.S. Abdul Salam, Ernakulam Page 2 of 6 2. Originally the stay petition was posted before this bench on 10.6.2024. The Bench passed order sheet as follows:

2.1 However, this appeal No. ITA 611/Coch/2023 is not listed for hearing on 4.7.2024. In the cause list circulated by the bench, only the stay petition is listed for hearing for today. 2.2 Before us, ld. A.R. submitted that the appeal is already listed for hearing and the same may be taken up. Acceding to the request of the Counsel, we taken up the appeal for hearing.

SP No.135/Coch/2023 V.S. Abdul Salam, Ernakulam Page 3 of 6 4.1 At the time of hearing, the assessee explained before the assessing officer the source of investment and details were provided and the same is extracted in the assessment order itself. The assessee along with his brother and sister raised loans from Bank of India, Catholic Syrian Bank and other Zo-operative Societies for the purpose of purchase of land. The Assessing authority has not gone into the merits of the sources of investment produced by the assessee but made an assessment by determining the proportionate share of the assessee and deducting the loan obtained in the name of the assessee alone. The assessee had also utilised loans obtained in the name of his brother and sister for the purchase of the land which is not considered by the assessing authority. The assessee had obtained loan from Bank of India in the name of partnership firm "Jordan Ice Factory" in which assessee along with his brother and sister are partners and utilised the same towards the purchase of the land which is also not considered by the assessing authority. The assessing authority had also not verified the details of bank accounts held in the name of the assessee and his brother and sister and has also verified the withdrawals from the accounts. The assessee along with his brother Sadiq V.S. and his sister Seena Nazeer obtained loans from Banks and Co-operative Societies and these were not considered as source for the purchase of land. Instead, the Assessing Authority only considered the assessee's loan and his wife as cost of investment and arrived balance as unexplained investment. u/s 69 of the Act. The assessing Officer had completely ignored the withdrawals from the accounts of brother and sister of the assessee.

4.2 The assessee had also obtained loan from Bank of India in the name of the partnership firm 'Jordan Ice Factory' in which the assessee along with his brother and sister are partners and utilised the same towards purchase of the land, which was also not considered by the assessing officer. The details of the source of income for the purchase of the land is as follows:-

SP No.135/Coch/2023 V.S. Abdul Salam, Ernakulam Page 4 of 6 4.3 According to ld. A.R., it was clearly explained before the Hon'ble NFAC, the Hon'ble NFAC has only reduced the unexplained investment to Rs.26.92 lakhs as against Rs. 31.92 lakhs added by the assessing officer after giving credit for the Rs.5 lakhs contributed by the assessee's wife. Against this assessee is in appeal before us.

SP No.135/Coch/2023 V.S. Abdul Salam, Ernakulam Page 5 of 6 6.1 It was submitted that the assessee is in a position to explain the entire amount of Rs.29.62 lakhs, if an opportunity of hearing is given to the assessee before ld. AO. We accede to the request of the assessee and remit this issue of addition of Rs.26.92 lakhs to the file of ld. AO with a direction to the assessee to prove all the ingredients of section 68 of the Act. This issue is remitted to the file of ld. AO for fresh consideration.

SP No.135/Coch/2023 V.S. Abdul Salam, Ernakulam Page 6 of 6 7. In the result, appeal of the assessee is partly allowed for statistical purposes. 8. Since the appeal of the assessee is remitted to file of ld. AO, the stay petition filed by the assessee becomes infructuous and dismissed. 9. In the result, stay petition filed by the assessee is dismissed. Order pronounced in the open court on 4th July, 2024