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TMI Blog2013 (10) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 1 - SUPREME Court]. - Decided against the revenue. - I.T.A. No. 61 /Coch/2009 - - - Dated:- 20-9-2013 - Shri N. R. S. Ganesan, JM And B. R. Baskaran, AM,JJ. For the Petitioner : Smt. S. Vijayaprabha, Jr, DR and Shri Anil Kumar, CIT (DR) For the Respondent : Shri N. Unnikrishnan, CA ORDER Per B. R. Baskaran, Accountant Member:- The appeal filed by the revenue is directed against the order dated 28.11.2008 passed by Ld CIT(A)-II, Kochi and it relates to the assessment year 1997-98. 2. The revenue is assailing the decision of Ld CIT(A) in deleting the assessment of bank deposits amount of Rs.10,55,500/- as income of the assessee. 3. The facts relating to the same are stated in brief. The assessee herein is brothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by Shri J.K. Accordingly, the Ld CIT(A) directed the Assessing Officer to delete the addition of Rs.10,55,500/- made in the hands of the assessee herein. Aggrieved by the order of the Ld. CIT(A) , the Revenue has filed this appeal before us. 4. We have heard the rival contentions and perused the record. This bench of the Tribunal in the case of Jose Kuruvinakunnel has considered this issue in detail in ITA No.429-433/Coch/2005 relating to assessment years 1996-97 to 2000-01 and the Tribunal has given a finding that the bank account, referred above, actually belonged to Shri Jose Kuruvinakunnel only. The relevant discussions made by the Tribunal are extracted below for the sake of convenience: "10. We have heard the rival contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be main contention of the assessee. 10.3 It cannot be disputed that under the income tax proceedings, strict rule of evidence need not applied, i.e., the assessing officer can proceed to decide an issue on the basis of human probabilities and surrounding circumstances. In the instant case, the assessee herein is carrying on business as one of the partners of M/ Mayoora Bar. According to the information available with the department, he has constructed a palatial building having en extent of about 6000 Sq. Ft. and has also purchased about 165 acres of land in Tamilnadu. He is also assessed to income tax. These facts reveal the credit worthiness of the assessee. On the other hand, Shri Francis Joseph is not assessed to income tax. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defies the logic for more than one reason, i.e., (a) the necessity of opening a bank account in a place where Shri Francis Joseph was not residing/carrying on business was not explained and (b) the nature of business transactions alleged to have been carried out by Shri Francis Joseph, which enabled him to make huge deposits and withdrawals in the said bank account was also not stated. The assessing officer has pointed out that the assessee, being a man enjoying high status, could not have acted as a messenger, as claimed. The inference so drawn by the AO is supported by the financial status of the assessee vis- -vis the investments made by him. All these factors suggests that the assessee herein only could have operated the bank account s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncis Joseph more than one time, but the said person declined to appear before the AO, as he was scared of the assessee. Thus, in our view, it cannot be said that the AO did not offer opportunity of cross examination, but the external circumstances blocked the AO to provide such an opportunity to the assessee. It is also pertinent to note that the assessee, being brother in law of Shri Francis Joseph, could not produce him before the AO to retract the statements already given by him before DDIT. On the contrary, Shri Francis Joseph, despite the alleged threat from the assessee, has firmly stood by his statement that the impugned bank account belongs to the assessee only. Accordingly, we are of the view that decision of the AO might not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity in the decision of Ld CIT(A) in confirming the assessment of deposits found in the bank account standing in the name of Shri Francis Joseph, in the hands of the assessee." Accordingly, the assessment of deposits found in the above said bank account in the hands of Shri Jose Kuruvinakunnel was upheld by the Tribunal. 5. There should not be any dispute that the income has to be assessed in the hands of right person. In this regard, useful reference may be made to the decision rendered by Hon'ble Supreme Court in the case of ITO Vs. Ch. Atchiah (218 ITR 239)(SC). In view of the finding given by the Tribunal in the case of Shri Jose Kuruvinakunnel, referred above, we are of the view that the Ld. CIT(A) was justified in directing the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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