ITA Nos. 661 and 662/Bang/09 (Asst. years 2002-03 and 2005-06) and C.O. Nos. 45 and 46/B/09 (Asst. years 2002-03 and 2005-06). Case: 1. ACIT, 2. Sri Rakesh Singh Vs 1. Sri Rakesh Singh, 2. ACIT, [Alongwith ITA Nos. 843, 844, 845 and 846/Bang/09 (Asst. years 2001-02, 2003-04, 2004-05 and 2006-07)]. ITAT (Income Tax Appellate Tribunal)

Issuing Organization:ITAT (Income Tax Appellate Tribunal)
Resolution Date:April 21, 2011
Party Name:1. ACIT, 2. Sri Rakesh Singh Vs 1. Sri Rakesh Singh, 2. ACIT, [Alongwith ITA Nos. 843, 844, 845 and 846/Bang/09 (Asst. years 2001-02, 2003-04, 2004-05 and 2006-07)]
Case:ITA Nos. 661 and 662/Bang/09 (Asst. years 2002-03 and 2005-06) and C.O. Nos. 45 and 46/B/09 (Asst. years 2002-03 and 2005-06)
Ley aplicable:Income Tax Act
Judges:George George K., J.M. and A. Mohan Alankamony, A.M.
 
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Order:

(In the ITAT Bangalore 'A' Bench)

  1. These appeals instituted by the Assessee as well as the Revenue are directed against the orders of the Ld. CIT (A)-VI, Bangalore in ITA Nos. 380, 381, 382, 383, 384 and 385/ACIT(CC-2)/BLR/CIT(A)- VI/2007-08 dated: 31.3.2009 for the assessment years 2001-02, 2002-03, 2003-04, 2004-05, 2005-06 and 2006-07 respectively.

    1. ITA Nos: 843, 844, 845 & 846/09 - AYS 2001-02, 03-04, 04-05 & 06-07 -

    1.1. By the Assessee: A.Y. 2001-02 (ITA No. 843/09)

  2. The Assessee had raised six grounds, in which, ground No. 1 & ground No. 6 are general in nature and no specific adjudication is called for, hence the same are dismissed. In ground Nos: 2 & 3, the Assessee had challenged the validity of the impugned order passed Under Section 153C rws 143(3) of the Act and also for assuming jurisdiction Under Section 153 of the Act which were totally absent and, thus, the order in question deserves to be cancelled. However, during the course of hearing before this Bench, the Ld. AR came up with a submission that ground Nos. 2 and 3 were not pressed and, accordingly, they are dismissed as not pressed. Ground No. 5 is regarding charging of interest Under Section 234A, 234B and 234C. The levy of interest Under Section 234A, 234B and 234C are mandatory and consequential in nature; hence, this ground is dismissed as not maintainable. The lone ground survived for adjudication is that -

    the authorities below were not justified in making an addition of Rs. 3.5 lakhs being the amount payable to Smt. Arathy Shetty, as a cash credit Under Section 68 of the Act.

    A.Y. 2003-04 (ITA No. 844/09):

    2.1. For this AY too, the Assessee had raised six grounds, out of which, except ground No. 4, the other grounds were identical to that of the grounds raised in the immediately previous AY referred above, and, thus, the reasons recorded thereto hold good for this AY too. Thus, the lone ground requires adjudication is that -

    Ground No. 4. The CIT(A) erred in treating Rs. 2.92 lakhs out of total credit of Rs. 14.62 lakhs in respect of M/s Srinivasa Agencies as unexplained cash credit Under Section 68 of the Act.

    A.Y. 2004-05 (ITA No. 845/09):

    2.2. For this AY also, the Assessee had raised six grounds, out of which, except ground No. 4, the other grounds were identical to that of the grounds raised in the immediately previous AY referred above, and, thus, the reasons recorded thereto hold good for this AY too. Thus, the lone ground requires to be adjudicated is that -

    Ground No. 4. The CIT(A) ought not to have upheld the additional income offered under an erroneous and mistaken appreciation of facts with regard to investment of Rs. 3.95 lakhs made in Gejjagadalahalli property.

    A.Y. 2006-07 (ITA No. 846/09):

    2.3. For this assessment year, the Assessee had raised 5 grounds, out of which, ground Nos. 1 & 5 are general in nature and it doesn't survive for consideration. In the remaining grounds, the substances of the issues raised are reformulated, in a concise manner, as under:

    (i) the CIT (A) was not justified in upholding the additional income of Rs. 16.98 lakhs offered by the Assessee under a mistaken and erroneous appreciation of the issue involved under the facts of the Assessee's case;

    (ii) the authorities were not justified in not adjusting the cash of Rs. 15.5 lakhs and the fixed deposits seized from the Assessee's residence and by ignoring the letter dt.31.10.2006 filed by the Assessee's father and A.R; &

    (iii) the Assessee denies himself liable to be charged to interest Under Section 234A, 234B and 234C of the Act

    ITA Nos: 661 & 662/09 - AYS 2002-03 and 2005-06 By the Revenue:

  3. For the AY 2002-03 (ITA No. 661/09), the Revenue had raised seven grounds, in which, ground Nos. 1 and 7 being general and no specific issues involved, they have become non-consequential. In the remaining grounds, the substance of the issue raised was that -

    the CIT (A) erred in deleting the addition made towards investment of Rs. 9.5 lakhs Under Section 69 of the Act without properly appreciating the issue.

    3.1. For the A.Y 2005-06 (ITA No. 662/09) too, the Revenue had raised eleven grounds in an illustrative and narrative manner, in which ground Nos. 1 and 11 being general, they do not survive for adjudication. In the remaining grounds, the crux of the issue was that the Ld. CIT (A) erred in telescoping and deleting the addition of Rs. 6.90 lakhs (out of Rs. 20.80 lakhs) added towards unexplained investment Under Section 69 of the Act.

    C.O Nos: 45 & 46/09 - AYS 2002-03 & 05-06 - By the Assessee:

    A.Y 2002-03 (C.O. No. 45/09):

    3.2. The Assessee had raised seven grounds, in which, ground No. 1 & 7 being general, they do not survive for adjudication. In ground Nos: 2 & 3, the Assessee had challenged the validity of the impugned order passed Under Section 153C rws 143(3) of the Act and also for assuming jurisdiction Under Section 153 of the Act which were totally absent and, thus, the order in question deserves to be cancelled. However, during the course of hearing before this Bench, the Ld. AR came up with a submission that ground Nos. 2 and 3 were not pressed and, accordingly, they are dismissed as not pressed. Ground No. 6 is not maintainable as charging of interest Under Section 234A, 234B and 234C being mandatory and consequential in nature, this ground is dismissed as not maintainable. In the remaining grounds, the essences of the issues raised are reproduced, in a concise manner, as under:

    (i) the Ld. CIT (A) was not justified in holding that Rs. 2 lakhs payable to Dr. Ashok kumar of New Delhi was assessable as unexplained cash credit Under Section 68 of the Act; &

    (ii) also the CIT (A) was not justified in upholding the addition of Rs. 3.6 lakhs out of the total credit of Rs. 5.4 lakhs payable to M/s. Srinivasa Agencies as unexplained cash credit Under Section 68 of the Act.

    A.Y 2005-06 (C.O. No. 46/09):

    3.3. Likewise for this A.Y also, the Assessee had raised seven grounds, out of which, ground No. 1 & 7 being general, they have become non-consequential. In ground Nos: 2 & 3, the Assessee had challenged the validity of the impugned order passed Under Section 153C rws 143(3) of the Act and also for assuming jurisdiction Under Section 153 of the Act which were totally absent and, thus, the order in question deserves to be cancelled. However, during the course of hearing before this Bench, the Ld. AR came up with a submission that ground Nos. 2 and 3 were not pressed and, accordingly, they are dismissed as not pressed. Ground No. 6 is not maintainable as charging of interest Under Section 234A, 234B and 234C being mandatory and consequential in nature, this ground is dismissed as not maintainable. In the remaining grounds, the substances of the issues raised are reproduced, in a concise manner, as under:

    (i) the Ld. CIT (A) was not justified in upholding the additional income of Rs. 5.48 lakhs mistakenly offered under the facts of the case; &

    (ii) also the CIT (A) was not justified in upholding the addition of Rs. 13.8 lakhs considered as unexplained investments Under Section 69 of the Act.

  4. As most of the issues involved in these appeals being identical and inter-linked, for the sake of convenience and clarity, they were heard, considered together and disposed off in this common order.

  5. Before venture to look into the grievances of the either party, we find that the appeals preferred by the Assessee for the A Ys 2001-02, 2003-04, 2004-05 and 2006-07 were hit by limitation. During the course hearing, the Assessee had furnished affidavits separately, however, with identical reasoning that -

    - the appeals against the said appellate orders came to be instituted before the Hon'ble Tribunal on 19/8/2009 and, thus, there was a delay of 55 days in filing the appeals. The reason for the delay in filing these appeals were explained that the appellate orders were handed over to the Assessee's father Lakhan Singh who was conversant with the facts of the issue for needful. As he had maintained indifferent health consequent to heart surgery, he could not be able to take further action in the matter in time. As the delay, it was pleaded, due to reasons beyond his control and the delay caused neither intentional nor deliberate, the same be condoned.

    5.1. After due consideration of the submission of the Assessee, the delay in preferring the appeals for the assessment years referred above was condoned and the Registry was suitably directed to take those appeals of the Assessee on record.

  6. We shall now proceed to adjudicate the issues raised by the Assessee in a chronological manner after due consideration of the rival submissions made during the course of hearing, meticulous perusal of the relevant case records as well as the documentary evidences produced by the Ld. A R in the shape of voluminous paper books listed as P.B I, II and III.

    A.Y 2001-02 (ITA No. 843/09):

  7. The issue, in brief, was that the Assessee, an individual, admitted his income at Rs. 2.85 lakhs. Subsequently, there was an action Under Section 132 of the Act on 30.9.2005 in the residential premises of the Assessee's father Lakhan Singh and during the search, according to the Revenue, incriminating documents such as investments in immovable properties made by the Assessee were unearthed. The Assessee was slapped with a notice Under Section 153C of the Act requiring him to furnish a return of income and in compliance; the Assessee had furnished his return, admitting Rs. 2.85 lakhs as originally returned.

    7.1. During the course of reassessment proceedings, the AO had, among others, noticed that the Assessee had shown one Smt. Arathy Shetty as a sundry creditor for Rs. 3.5 lakhs. As the Assessee had failed to furnish either the address or confirmation letter from the alleged sundry creditor, the same was treated by the AO as cash credit Under Section 68 of the Act and added to the Assessee's income.

    7.2. When the Assessee had failed to produce any documentary proof at the...

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