MAHAVEER PD AGARWAL, Jaipur V. ITO, Jaipur

ITA 103/JPR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54199 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 04-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Section: 68

Judgement Text

1 ITA 103-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 103/JP/2011 ASSTT. YEAR : 2005-06. SHRI MAHAVEER PRASAD AGARWAL, VS. THE INCOME-TAX O FFICER, PROP. M/S. SHIVAM ENTERPRISES, WARD 2(1), JEEV RAJ BHATI KI GALI, DARA MARKET, JAIPUR. HALDIYON KA RASTA, JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH AGARWAL RESPONDENT BY : SHRI K.C. MEENA DATE OF HEARING : 20.9.2011 DATE OF PRONOUNCEMENT : 30.09.2011 ORDER DATE OF ORDER : 30/09/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2005-06. 2. THE ONLY ISSUE IN THE APPEAL OF THE ASSESSEE IS AGAINST SUSTAINING THE ADDITION OF RS. 5.42 LACS MADE UNDER SECTION 68 OF THE IT ACT. 3. NO CONFIRMATION OR DETAILS WERE FILED BEFORE AO. THEREFORE, IN VIEW OF PROVISIONS OF SECTION 68 IMPUGNED ADDITION WAS MADE BY THE AO. CONFIRMATIONS FROM M/S. BHARAT GRAPHICS FOR RS. 3,00,000/- AND SHRI VINOD KUMAR FO R RS. 1 LAC WERE FILED BEFORE LD. CIT (A). IN RESPECT OF SHRI F.L. LODHA, PAY-IN-SLIP OF BANK WAS FILED AS THE EVIDENCE OF DEPOSITING THE CHEQUE. AS THE CONFIRMATIONS WERE F RESH EVIDENCE, THEY WERE FORWARDED TO THE AO FOR HIS REMAND REPORT. IN THE REMAND PROCEE DINGS NO COMPLIANCE OF THE AOS 2 LETTER WAS MADE AS NOTED BY LD. CIT (A). THE LD. C IT (A), THEREFORE, DREW AN INFERENCE THAT ASSESSEE FAILED TO PROVE THE IDENTITY AND CRED ITWORTHINESS OF THE CREDITORS ALONG WITH GENUINENESS OF THE TRANSACTION. THEREFORE, HE CONFI RMED THE ACTION OF THE AO. 4. THE LD. COUNSEL OF THE ASSESSEE WHO APPEARED BEF ORE THE TRIBUNAL FILED A BRIEF WRITTEN NOTE AND IT WAS SUBMITTED THAT DUE TO UNAVO IDABLE REASON THE COMPLIANCE OF NOTICE OF AO COULD NOT BE MADE. IT WAS FURTHER SUBMITTED T HAT ALL THE CREDITORS ARE ASSESSED TO TAX AND THEY HAVE FILED THEIR CONFIRMATIONS, THEREF ORE, THE LD. CIT (A) SHOULD HAVE EXAMINED THOSE CONFIRMATIONS AND THEN SHOULD HAVE D ECIDED THE ISSUE ON MERIT. HOWEVER, THE SAME HAS NOT BEEN DECIDED. THEREFORE, IT WAS R EQUESTED THAT MATTER SHOULD BE SENT BACK TO THE AO TO CONSIDER THE CONFIRMATIONS FILED BEFORE LD. CIT (A). 5. ON THE OTHER HAND, THE LD. D/R OBJECTED IN SENDI NG THE MATTER BACK AS AMPLE OPPORTUNITY HAS ALREADY GIVEN BY AO IN REMAND PROCE EDINGS. 6. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT TO MEET THE ENDS OF JUSTICE THE MATTE R SHOULD GO TO THE FILE OF AO TO ALLOW FURTHER OPPORTUNITY TO THE ASSESSEE TO PROVE THE GE NUINENESS AND CREDITWORTHINESS OF THE CREDITOR. IT IS STATED THAT IN THE CONFIRMATION CH EQUE NUMBER AND PAN ARE MENTIONED AND THEY CAN BE VERIFIED EASILY. THEREFORE, THE AO IS R EQUIRED TO EXAMINE THESE DETAILS ONCE AGAIN AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE A ND PASS A FRESH ORDER. WE ORDER ACCORDINGLY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER 3 JAIPUR, D/- COPY FORWARDED TO :- SHRI MAHAVEER PRASAD AGARWAL, JAIPUR. THE ITO WARD 2(1), JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 103/JP/2011) AR ITAT JAIPUR.