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JOSE KURUVINAKUNNEL, KOTTAYAM Versus THE COMMISSIONER OF INCOME TAX, KOTTAYAM

2015 (6) TMI 938 - KERALA HIGH COURT

Unexplained deposit in the bank account - Held that:- When the burden is on the assessee to prove the aforesaid factual question, it was the assessee's burden to make available Sri.Francis Joseph for cross examination. In this context, we should also record that the assessing officer had repeatedly issued summons to Sri.Francis Joseph, and that though he stood by his statement, he declined to appear for cross examination for one reason or the other. This was despite the fact that the burden was .....

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d the amounts available therein. According to the assessee, Annexure G assessment order has also become final. Assessee has placed reliance on the judgment of the Apex Court in Income Tax Officer, A Ward, Lucknow v. Bachu Lal Kapoor Kewal Ram [1965 (12) TMI 24 - SUPREME Court] and submitted that the Act does not envisage taxation on the same income twice over. The principle that assessment should be in the hands of the right person and that there cannot two assessments for the same income, are t .....

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ill reconsider the liability of the assessee on this account, duly adverting to Annexure G order in the name of Sri.Francis Joseph and with notice to the assessee.

Deposit of ₹ 5,60,000/- in the name of the assessee in the capital account of the firm Hotel Mariya, of which he is a partner - Held that:- Though this addition was confirmed by the Appellate Commissioner and the Tribunal, contention raised by the counsel for the appellant is that when ₹ 5,60,000/- was shown to .....

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firm and this amount was not reflected in the cash flow statement filed by him before the assessing officer. This, therefore, shows that ₹ 5,60,000/- deposited by him in his capital account is an unexplained investment made by the assessee attracting Section 69 of the Income Tax Act. Facts being so, we do not find any illegality in the order of the Tribunal confirming the said addition.

Addition of ₹ 4,00,000/- allegedly borrowed by the assessee from one George Joseph - He .....

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cash flow statement could be treated as the account of the assessee. Therefore, in such circumstances, we cannot accept the case of the assessee. - I.T.A.Nos.149, 150, 153 & 154 of 2014 - Dated:- 8-6-2015 - MR.ANTONY DOMINIC AND MR. SHAJI P.CHALY, JJ. FOR THE APPELLANT : SRI.RAMESH CHERIAN JOHN FOR THE RESPONDENT : SRI.P.K.R.MENON,SR.COUNSEL AND SRI.JOSE JOSEPH JUDGMENT Antony Dominic, J. These appeals are filed by the assessee challenging the order of the Income Tax Appellate Tribunal, Coch .....

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econd one is the unexplained credit of ₹ 5,60,000/- in the capital account of the firm Hotel Mayura of which the assessee is a partner and the third one is relating to a loan of ₹ 4,00,000/- taken by the assessee from one Mr.George Joseph. 3. In so far as the addition of deposit of ₹ 3,00,000/- in the bank account of Mr.Francis Joseph is concerned, facts show that Sri.Francis Joseph is the brother-in-law of the assessee. Sri.Francis Joseph had given a statement to the DDIT (Inv .....

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d by the assessee in response to the notice issued to him, ₹ 3,00,000/- was added to the income of the assessee during the assessment year in question. This addition was confirmed by the Commissioner of Income Tax Appeals and the Tribunal. 4. Learned counsel for the assessee contended before us that when the Department proceeded to initiate action on the basis of the statement of Sri.Francis Joseph, Department should have made available Sri.Francis Joseph for cross examination and that it .....

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ding to him, the addition made was perfectly legal. 5. We have considered the rival submissions made. It is true that as held in the judgment in P.S.Abdul Majeed v. Agricultural Income Tax and Sales Tax Officer and others [209 ITR 821] when the Department is proceeding against an assessee on the basis of the statement of a third party, it is necessary that the Department should make available that third party for cross examination and the burden to prove the allegation is also on the Department. .....

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that the bank documents, such as cheque leaves and pay in slips, etc. contained his signature. 6. This therefore shows that the fact that the assessee had operated the bank account of Sri.Francis Joseph, was admitted by the assessee himself. If that be so, the further question that remained was whether he was acting for and on behalf of Sri.Francis Joseph as claimed by him. The burden to prove a factual assertion made is upon the person makes the assertion. Therefore, the burden to prove that h .....

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her. This was despite the fact that the burden was that of the assessee to produce him for examination. Therefore, in the facts of this case, we are unable to find fault with the Department for not making available Sri.Francis Joseph for cross examination. 7. In so far as the judgment of the Apex Court in Commissioner of Income Tax v. K.Chinnathamban [292 ITR 682] (SC), relied on by the counsel for the assessee is concerned, it is true that the principle laid down in the judgment is that when pr .....

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y Annexure G assessment order,Sri.Francis Joseph himself was assessed to income tax for the year 1997-98, merits consideration. That assessment order also makes reference to the aforesaid bank account in the name of Sri.Francis Joseph and the amounts available therein. According to the assessee, Annexure G assessment order has also become final. 9. Learned counsel for the assessee has placed reliance on the judgment of the Apex Court in Income Tax Officer, A Ward, Lucknow v. Bachu Lal Kapoor Kew .....

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was neither raised nor considered by the assessing officer nor was this issue properly dealt with by the Tribunal. Since, prima facie, there is force in what is argued, this is an issue that needs to be considered by the Assessing Officer, who will reconsider the liability of the assessee on this account, duly adverting to Annexure G order in the name of Sri.Francis Joseph and with notice to the assessee. 11. Second issue that arises for consideration is regarding the deposit of ₹ 5,60,000 .....

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judgment in Commissioner of Income Tax v. Shiv Shakti Timbers [229 ITR 505]. However,as rightly contended by the learned Standing Counsel for the Department, ₹ 5,60,000/- was shown as the deposit made by the assessee in the capital account of the firm and this amount was not reflected in the cash flow statement filed by him before the assessing officer. This, therefore, shows that ₹ 5,60,000/- deposited by him in his capital account is an unexplained investment made by the assessee a .....

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1,00,000/- was from his personal savings. According to the learned counsel, George Joseph is having substantial landed properties and agricultural income and therefore, he having explained the source of the amount advanced to the assessee, the addition ought not have been made. 13. He also contended that the assessing officer himself and the Tribunal having come to a conclusion that the assessee is not maintaining books of accounts, the addition could not have been made under Section 68 of the I .....

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