Income Tax Appellate Tribunal - Hyderabad
Ashok Kumar Agarwal, Hyderabad vs Asst. Commissioner Of Income Tax, ... on 31 July, 2018
1
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "A" (SMC), HYDERABAD
BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER
I.T.A. No. 145/HYD/2018
Assessment Year: 2001-2002
Ashok Kumar Agarwal, ACIT,
Hyderabad. Vs Circle-6(1),
[PAN: ABQPA 5317 B] Hyderabad.
(Appellant) (Respondent)
For Assessee : Shri P. Murali Mohan Rao
For Revenue : Shri Rajeev Benjwal, DR
Date of Hearing : 25.07.2018
Date of Pronouncement : 31.07.2018
ORDER
PER B. RAMAKOTAIAH, AM.
This is an appeal by assessee against the order of CIT(A)-12, Hyderabad dated 04.09.2017. The issue in this appeal is with reference to bringing to tax an amount of opening capital shown by the assessee to an extent of Rs. 4,10,128/-.
2. Brief facts of the case are that there were search and seizure operations in the case of the assessee on 07.11.2007, during the course of which assessee was shown to have invested Rs. 3,26,000/- in a property at Fateh Nagar, Hyderabad. Assessee filed return of income for the A.Y. 2001-02 on 04-12-2001 originally admitting taxable income at Rs. 70,000/- mainly consisting of Lorry hire income and interest receivable. Assessing Officer issued notice u/s 148 of the Act for examining the investment made. Assessee filed a statement of affairs 2 by admitting the investment of Rs. 3,50,000/- in the property, the statement of which was extracted by the A.O. at para 3 of the assessment order. The assessee has shown capital balance at Rs. 8,06,172/- for the year and the opening balance of Rs. 7,47,086/-. Assessee has given explanation showing source of capital, which was extracted by the A.O. in para 3.1 of the assessment order. A.O. has enquired about the cash on hand shown at Rs. 4,10,128/- which was explained by the assessee that an investment was made in Kisan Vikas Patras (KVPs) way back in the year 1995 and matured in 2000 and admitted that those details were not available but interest has accrued and offered in the earlier years. In the absence of any evidence, the A.O instead of treating the investment for which assessment was reopened, treated the opening balance as income of the assessee and brought to tax.
3. Before the Ld. CIT(A), assessee has furnished various evidence in support of the contention. Ld. CIT(A) after remanding the matter to the A.O, surprisingly did not accept the contentions by stating as under:-
"5.3. I have carefully perused the submissions of the appellant, the order of the Assessing Officer, the additional evidence furnished as well as the comments of the Assessing Officer thereon. The Assessing Officer has rightly observed that the so-called 'additional evidence' was furnished at the time of assessment proceedings and considered by the Assessing Officer. Since no new evidence has been filed, the 'additional evidence' filed is not admitted. The evidence filed during the assessment proceedings has been dealt with by the A.O. in detail in his assessment order, and I find no reason to interfere with the A.O.'s findings on the subject".
Hence the present appeal.
34. One more issue is with reference to the claim under section 80U of the Act. Assessing Officer noticed that AR was asked about the genuineness of the Certificate issued for which AR has agreed to withdraw the claim. However, assessee preferred an appeal before the CIT(A), who confirmed that the AR agreed to withdraw the claim and filed a letter to this effect, accordingly the same was accepted by the A.O. Assessee was also aggrieved on this issue.
5. After considering the rival contentions, I am of the opinion that the addition of Rs. 4,10,128/- is not correct on the facts of the case. Assessee has furnished evidences with reference to having own capital. Assessee has also stated he was an assessee on record and has been filing returns in the earlier years and even in this year, as seen from the income shown in the statements, there was interest received to the extent of Rs. 15,000/- and interest on SB Account at Rs. 273/- which indicates that there was enough capital for investment. Added to that assessee owns a lorry and income was also estimated. Since interest was already accepted, it cannot be said that assessee does not have any opening cash balance. Moreover, the proceedings were initiated to examine the investment of Rs. 3,26,000/- for the property at Fateh Nagar, Hyderabad, whereas Assessing Officer deviated from that and made an addition of Rs. 4,10,128/- being the opening cash balance shown by the assessee. The opening cash balance cannot be brought to tax unless the entire amount was invested during the year and there is a doubt about opening cash balance claim. Assessee has shown an investment of Rs. 3,50,000/- and still has cash on hand at Rs. 1,41,352/- and there were incomes during the year which were also accepted by the A.O. from the Lorry hire. Considering the facts of the case, I am of the opinion that assessee has sufficient cash balances, as shown in the statement of affairs, and accordingly the addition of Rs.
44,10,128/- being opening cash balance is not warranted. A.O. is directed to delete the same. The relevant grounds on this issue are allowed.
6. With reference to the claim of deduction u/s 80U of the Act, if assessee has claimed deduction u/s 80U for physical disability and furnished a Certificate by the Civil Surgeon at Government Hospital, it is for the Assessing Officer to examine the genuineness of the Certificate but he cannot simply deny claim u/s 80U, unless the physical disability claimed by the assessee is disproved. In view of that, I allow the grounds taken by the assessee and restore the issue to the file of the A.O. to examine the claim afresh and also examine the earlier year's record and later year's record, whether deduction u/s 80U was allowed to the assessee. Matter is restored to the file of the A.O. for fresh adjudication.
7. In the result, appeal is considered as allowed for statistical purposes.
Order pronounced in the open court on 31st July, 2018.
Sd/-
(B. RAMAKOTAIAH)
ACCOUNTANT MEMBER
Hyderabad, Dated: 31st July, 2017
OKK, Sr.PS
Copy to
1. P. Murali & Co, Chartered Accountants, 6-3-655/2/3, 1st Floor, Somajiguda, Hyderabad-82.
2. ACIT, Circle-6(1), Hyderabad.
3. CIT(A)-12, Hyderabad.
4. Principal Commissioner of Income Tax-12, Hyderabad.
5. D.R. ITAT, Hyderabad.
6. Guard File