M Muralidhara Rao, Secunderabad vs Assessee

These are cross-appeals by Assessee and Revenue against the Order of Ld. CIT(A)-VI, Hyderabad dated 28.12.2012. Since, common issues are involved in these appeals, these are heard together and decided by this common order.

2. Briefly stated, assessee is an individual in the business of trading in surgical items in the name and style of M/s. Sri Krishna Surgicals, a proprietary concern. Survey was conducted on 03.11.2008, in the business premises of 2 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

the appellant along with the business premises of M/s. Fair Deal Enterprises, a proprietrix concern of Mrs. M. Sailaja, wife of assessee. During the course of the survey proceedings, certain lose sheets/documents were found and impounded, noticing certain investments including the investments in immovable properties. Based on the said findings, the following additions were made.

a) Unexplained investments/loans Rs.5,00,000 advanced

b) Unexplained investments in Rs.24,12,341 construction of house at Kavuri Hills

c) Unexplained investments in the form Rs.5,45,000 of donations to political parties

3. Before Ld. CIT(A) assessee contested these additions and furnished additional evidence. Ld. CIT(A) called for remand reports and examined the contentions. He confirmed the additions of advance to Mr. Navin Chand and payment to political party and directed A.O. to examine the bank account while allowing the ground on investment made. Assessee is aggrieved on the additions confirmed while Revenue is aggrieved on the direction of Ld. CIT(A) on the issue of investment in house.

ITA.No.355/Hyd/2013 :

4. Assessee raised 5 grounds out of which grounds No. 1, 4 and 5 are general in nature.

5. Ground No.2 is on the issue of addition of Rs. 5 lakhs supposed to have advanced to one Mr. Navin Chand. During the course of survey proceedings conducted on 3.11.2008, certain documents were found and impounded.

3 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

Among them, page 63 and 68 of annexure A/FDE/02, indicate the possession of a promissory note furnished by one Mr. Naveen Chand of Tandur, for obtaining loan/advance of Rs.5,00,000 from the assessee, along with a blank cheque also for an amount of Rs. 5,00,000. During the examination on oath as well as' during the course of the survey and post-survey proceedings, the Assessing Officer found the explanation of the assessee i.e. Mr. Muralidhar Rao to be not consistent with the information found in the impounded material. Hence, the AO disbelieved the submissions of the assessee that assessee does not know why Mr. Naveen Chand of Tandur executed a promissory note along with a blank cheque for Rs. 5 lakhs, while admitting simultaneously the identity of the party/loanee. Accordingly, A.O treated the amount of Rs.5,00,000 as mentioned in the promissory note and reflected in the blank cheque, as the unexplained investment of the assessee.

6. Before Ld. CIT(A), assessee had objected for such addition and submitted that assessee could not trace whereabouts of Mr. Naveen Chand who might have shifted his address from Tandur, and his present whereabouts were not known. It was contended that no such loan of Rs. 5 lakh was given by assessee to Mr. Naveen Chand.

7. Ld. CIT(A), however, confirmed the addition by stating as under :

"6.3 Perused the findings of the Assessee and the submissions of the appellant made during the assessment proceedings as well as the appellate proceedings. As per the information brought on record, a promissory note, shown to have been signed and furnished by one Mr. Naveen Chand, resident of Tandur 4 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

for Rs. 5 lakhs accompanied by a blank cheque for the same amount, was found in the possession of the appellant during the survey proceedings which was impounded. The information indicated, the promissory note and blank cheque for Rs. 5 lakh were found to be signed by the same person and this clearly indicates the transaction involved in this regard and reveals the untold truth related to it. It was for the appellant to substantiate further that the transaction embedded in the documents do not really relate to him and such explanation should have been a reasonable one to explain the transaction which would be acceptable to the assessing officer. However, it is clear that the appellant failed to explain the said transaction both at the stage of the assessment proceedings as well as the appellate proceedings with the help of the required evidence. The argument of the appellant that one Mr. Naveen Chand might have signed the promissory note and handed over blank cheque to him, in anticipation of the loan from the appellant, is not tenable in real terms. No person issues a promissory note and blank cheque, both executable and enforceable instruments, in anticipation of loan amount. Further, the onerous responsibility lied on the appellant to discharge his responsibility in explaining the contents of the documents that was found and impounded during the survey proceedings. Due to his failure to do so, will confirm the presumptions and conclusions drawn by the assessing officer that the amount of Rs. 5 lakh was lent by the appellant to Mr. Naveen Chand for which the promissory note and the blank cheque were obtained as security, which were found in the possession of the appellant. Thus, the failure on the part of the appellant to explain the contents of the promissory note accompanied by the blank cheque, supports the stand taken by the assessing officer that the said amount represent unexplained investments of the appellant as per the provisions of Sec. 69 of the Income-tax Act. Accordingly, the addition of Rs. 5 lakh is sustained. The appellant fails on this ground of appeal."

8. Learned A.R. contended that there is neither the date nor year, nor evidence that assessee advanced any amount. In fact, impounded documents are in possession of department which indicates that no monies are advanced and there is no validity to the documents. It was further submitted 5 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

that no other advances were found in survey and assessee is not doing any money lending activity. Learned D.R. relied on the order of authorities.

9. Having perused the copies of documents placed on record and considering the contentions, we are of the opinion that no addition can be made on the basis of such dumb documents. There is no evidence that assessee is in the money lending activity. The document does not contain any date so that the same can be taxed in the year under consideration. Moreover, Mr. Navin Chand is not available to verify. Department also did not take any steps to trace out the details from the cheque impounded like the Bank account details and further whereabouts of Mr. Navin Chand. In the absence of any corroborative evidence, the statement made by assessee has to be accepted. The documents can only be termed as dumb documents. Hence, the addition cannot be sustained on the basis of same. Assessee ground is allowed.

10. Ground No.3 is payment to a political party. The facts leading to the addition are that during survey proceedings, it was noticed that certain notings were made in the lose sheets found and impounded as A/FDE/01 to 09 and one among such noting was shown to be the payment of Rs. 5,45,000 made by assessee to a political party. Since, assessee did not offer the proper explanation in spite of the statements recorded on 15.12.2011 and the questionnaires issued on 3.11.2011 and 28.12.2011, the said amount was treated as unexplained investment in the hands of assessee for the year under reference.

6 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

11. Before the Ld. CIT(A), assessee objected to such addition. While furnishing the written submission dt. 16.05.2012 and 10.09.2012, it was only referred to the statement of the facts (para 5), furnished along with the grounds of appeal wherein it was merely mentioned that payment towards the same was denied and no such payment was made by assessee. No further elaboration was made by assessee on this issue.

12. Ld. CIT(A) confirmed the addition stating as under:

"8.3. Perused the observations of the AO and submissions of the appellant. As could be seen from the record (page No. 1 to 22 of A/FDE/04) there is an indication on the payments of Rs. 5,45,000/- made by the appellant to a political party. No clear explanation was offered by the appellant either at the stage of the survey proceedings or post survey proceedings. During the assessment proceedings, it was briefly explained that the amounts were paid subsequently and recorded in the cash book. However, no cash book was furnished before the AO and as such the same was treated as unexplained investment in the hands of the appellant. During the appellate proceedings, the appellant did not elaborate on the issue, except referring to the statement of the fact where in it was merely mentioned that payments were denied. No further explanation was offered as regards to the payments if the same, to a political party. In the absence of a clear explanation with required evidence, the argument of the appellant is not acceptable. Thus, in absence of a clear explanation and substantiation with the necessary evidence as regards to the nature and details of the amount referred to in the impounded material, it can be inferred that the amounts were not explained by the appellant. Based on the facts, rather the amounts could have been treated as unexplained expenditure. Regardless of the nature the amount stand as an outflow of the cash from the hands of the appellant for which the sources are not explained, as such the addition made by the assessing officer stands 7 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

sustained. This ground of appeal is therefore, dismissed".

13. Nothing was brought on record to counter the findings of Ld. CIT(A). In the absence of any explanation from assessee, we confirm the same. Ground is rejected.

14. In the result, appeal of assessee is partly allowed.

ITA.No.429/Hyd/2013 :

15. In this appeal, Revenue has raised the following grounds :

"2. The Ld. CIT(A) ought to have appreciated the fact that the assessee failed to produce the books of accounts and other relevant information during the course of assessment proceedings and failed to discharge the onus of substantiating the claims made with corroborative evidences.

3. The learned CIT(A) ought to have allowed or dismissed the grounds of the assessee and would not have directed the A.O. for verification of the issues along with the books of account and other information, particularly after the amendment in section 251(1) of the I.T. Act w.e.f. 01.06.2001."

16. Both are on the issue of deletion of investment in house. The facts leading to the addition are that while computing the taxable income of assessee, the AO made a addition of Rs.24,12,341 being the amount representing 50% of the investments made jointly by assessee and his wife Mrs. Sailaja in the property at Kavuri Hills, Hyderabad, holding that such investment was not explained with reference to the sources and with the help of the books of account. As per the assessing officer, certain notings were found in the impounded material (Page No.1 to 10 of 8 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

Annexure-A/FDE/05), indicating certain amounts written against various names, pointing out to the payments made towards the investment in property at Kavuri Hills and during the assessment proceedings assessee and his wife failed to explain the sources of the same except saying that the said investments are duly accounted in the financial year 2008-09 and were met out of the withdrawals made from M/s. Fair Deal Enterprises (proprietrix - M. Sailaja) and M/s. Sri Krishna Surgicals (Proprietor Mr. M. Muralidhar Rao). In the absence of clear explanations as regards to the sources of the investment, specially with reference to the books of account, the AO treated the amounts of Rs. 48,24,683 invested during the financial year 2008-09, as unexplained investment and 50% of such investments were treated as unexplained investments in the hands of assessee.

17. Before the Ld. CIT(A), assessee furnished additional evidence and the same was sent to A.O. on remand. A.O. made various submissions after partial enquiry. Ld. CIT(A) examined the contentions from para 7.3 to 7.8 of his order in detail and in para 8 extracted the statement and bank details of assessees regarding investments. Finally he concluded as under :

"Under the circumstances, it may be concluded that the information furnished as regard to the sources of the investment in the hands of Mr. Muralidhar Rao & Mrs. M. Sailaja, are explainable through the bank accounts maintained by them and for the same reason, the A.O. is directed to examine the same with reference to the sources for the amounts in their bank accounts as well as the 9 ITA.No.355/Hyd/2013 & ITA.No.429/Hyd/2013 Mr. M. Muralidhara Rao, Secunderabad.

books of account referred by them and accept the claim of the appellants on being explained through the books of account and bank accounts that are ordered to be produced before the A.O. now. On this account, the appeal of the appellant is treated as allowed subject to the verification of the bank accounts and books of account.

18. After perusing the detailed order of Ld. CIT(A) and submission by learned D.R. and A.R., we are of the opinion that Ld. CIT(A) should have deleted the additions himself without directing the A.O. to examine and allow. If A.O. refuses to examine/consider the evidence furnished by assessee when matter was remanded by CIT(A), there is no point in directing the A.O. again. Be that as it may, we do not find any merit in Revenue contentions. Assessee has placed on record the consequential order passed by A.O. wherein A.O. accepted the investments. Therefore, on facts there is no merit in Revenue contentions. Grounds are dismissed.

19. In the result, assessee appeal is partly allowed and Revenue appeal is dismissed.

Order pronounced in the open court on 02nd January, 2015.

Sd/- Sd/- (SAKTIJIT DEY) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated 02nd January, 2015 VBP/- Copy to

1. Mr. M. Muralidhara Rao, Sri Krishna Surgicals, H.No.6-1-190/25/2, Padmarao Nagar, Secunderabad.

2. Income Tax Officer, Ward 10(4), Hyderabad.

3. CIT(A)-VI, Hyderabad.

4. The CIT-V, Hyderabad.

5. The DR - 'B' Bench, ITAT, Hyderabad