Sh. Ravindra Kumar Jain, Gwalior V. I.T.O.-3(1), Gwalior

ITA 104/AGR/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67485 (ITAT-AGRA)
• Duration Of Justice: 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 29-07-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: K C AGARWAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA(SMC) BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER MBER ITA NO. 104/AGRA/2013 ASSTT. YEAR : 2007-08 SHRI RAVINDRA KUMAR JAIN, VS. THE INCOME-TAX OFFI CER, S/O SHRI MANIKCHAND JAIN, 3(1), GWALIOR. BASANTI MASTER KI GALI, LOHAMANDI, GWALIOR. (PAN: AERPJ 6180 K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. AGARWAL, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 03.12.2013 DATE OF PRONOUNCEMENT OF ORDER : 03.12.2013 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), GWALIOR DATED 09.01.2013 FOR THE ASSESSMENT YEAR 20 07-08. 2. EARLIER, THIS APPEAL WAS DISMISSED FOR DEFAULT V IDE ORDER DATED 29.07.2013. THE ASSESSEE MOVED M.A. NO. 30/AGRA/2013 EXPLAINING THE REASONS FOR NON- APPEARANCE ON THE DATE OF HEARING. ON SATISFYING WI TH THE EXPLANATION OF THE ASSESSEE, EARLIER ORDER OF THE TRIBUNAL DATED 29.07 .2013 WAS RECALLED AND APPEAL WAS RE-FIXED FOR HEARING ON MERITS ON 03.12.2013. ITA NO. 104/AGRA/2013 2 3. I HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL AV AILABLE ON RECORD. 4. ON GROUND NO. 1, THE ASSESSEE CHALLENGED THE ADD ITION OF RS.1,13,000/- U/S. 68 OF THE IT ACT ON ACCOUNT OF UNSECURED LOAN RECEI VED FROM MANIK CHAND JAIN, WHO IS STATED TO BE FATHER OF THE ASSESSEE. IT WAS FOUND THAT CREDITOR MANIK CHAND JAIN WAS NOT ASSESSED TO TAX AND SOURCE OF THE LOAN WAS NOT PROVED. THE AO ALSO NOTED THAT SINCE CREDITOR MANIK CHAND JAIN WAS NOT PRODUCED, THEREFORE, THE ADDITION WAS MADE U/S. 68 OF THE IT ACT. 5. ON CONSIDERATION OF THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, I AM OF THE VIEW THAT THE ADDITION IS WHOLL Y UNJUSTIFIED. THE ASSESSEE EXPLAINED BEFORE THE AO THAT RS.1,13,000/- WAS RECE IVED THROUGH TWO CHEQUES OF RS.18,000/- AND RS.95,000/-. THE LD. COUNSEL FOR TH E ASSESSEE REFERRED TO DEATH CERTIFICATE OF THE CREDITOR, MANIK CHAND JAIN WHO H AS EXPIRED ON 18.05.2007 (PB- 10). THEREFORE, THERE WAS NO QUESTION OF HIS APPEAR ANCE BEFORE THE AO. THE CONFIRMATION LETTER WAS, THEREFORE, CORRECTLY FILED BY THE LEGAL HEIR OF THE CREDITOR SHRI RAJ MAL JAIN (SON). THE BANK PASSBOOK OF CREDI TOR IS FILED AT PAGE 13 OF THE PAPER BOOK, WHICH SHOWS THAT RS.18,000/- WAS GIVEN TO THE ASSESSEE OUT OF ITA NO. 104/AGRA/2013 3 PENSION AND RS.95,000/- WAS GIVEN ON TRANSFER OF RS .95,000/- FROM M/S. SYADWAD CONSTRUCTION LTD. GWALIOR. THEIR CONFIRMATION AT PA GE 11 IS ALSO FILED. THESE EVIDENCES ON RECORD CLEARLY PROVE THE IDENTITY OF T HE CREDITOR, HIS CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION IN THE MATTER. T HE ASSESSEE, THEREFORE, IS ABLE TO EXPLAIN TAKING OF GENUINE LOAN. I, THEREFORE, SE T ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELETE THE ADDITION OF RS.1,1 3,000/-. 6. ON GROUND NO.2, THE ASSESSEE HAS CHALLENGED THE ADDITION OF RS.25,000/- U/S. 68 ON ACCOUNT OF UNSECURED LOAN RECEIVED FROM MALAY PAL. THE ASSESSEE DID NOT PRODUCE THE CREDITOR BEFORE THE AO. ACCORDING T O THE LD. COUNSEL FOR THE ASSESSEE, ONLY CONFIRMATION OF THE CREDITOR WAS FIL ED (PB-15) IN WHICH IT WAS EXPLAINED THAT THE LOAN WAS GIVEN THROUGH CHEQUES A ND HE WAS ASSESSED TO TAX. HOWEVER, NO EVIDENCE OF HIS CREDITWORTHINESS HAS BE EN FILED. IT IS WELL SETTLED LAW THAT MERE FILING OF CONFIRMATION LETTER AND THAT TH E TRANSACTIONS WERE MADE THROUGH CHEQUES ARE NOT SUFFICIENT TO PROVE THE IDE NTITY AND CREDITWORTHINESS OF THE CREDITOR AND THUS, THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION. I RELY UPON THE DECISIONS OF HONBLE C ALCUTTA HIGH COURT IN THE CASE OF BHARTI PVT. LTD. VS. CIT, 111 ITR 951, CIT VS. U NITED COMMERCIAL & INDUSTRIAL COMPANY, 187 ITR 596 AND CIT VS. PRECISI ON FINANCE (P) LTD., 208 ITR 465. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, RELIED UPON THE DECISION OF ITA NO. 104/AGRA/2013 4 M.P. HIGH COURT IN CASE OF CIT BARJATIYA CHILDREN T RUST, 225 ITR 640, WHICH CASE WOULD NOT SUPPORT THE CASE OF ASSESSEE IN ABSE NCE OF ANY EVIDENCE OF CREDITWORTHINESS OF THE CREDITOR. GROUND NO. 2 OF A PPEAL OF THE ASSESSEE IS, ACCORDINGLY DISMISSED. 7. ON GROUND NO. 3, THE ASSESSEE CHALLENGED THE ADD ITION OF RS.33,000/- ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWALS. THE AO FOUND THAT THE ASSESSEE HAS SHOWN WITHDRAWALS AT RS.27,000/- WHICH WERE FOUND T O BE VERY LOW AND CONSIDERING THE LIFE STYLE OF THE ASSESSEE, HOUSEHO LD EXPENSES WERE ESTIMATED AT RS.60,000/- AND THEREFORE, THE ADDITION OF RS.33,00 0/- WAS MADE. THE ASSESSEE EXPLAINED THAT FIVE OF HIS FAMILY MEMBERS ARE ASSES SED TO TAX AND HAVE SHOWN THEIR SEPARATE HOUSE HOLD WITHDRAWALS AS NOTED IN T HE APPELLATE ORDER, BUT THE LD. CIT(A) DID NOT CONSIDER THE SAME AND CONFIRMED THE ADDITION. 8. ON CONSIDERATION OF THE HISTORY OF THE ASSESSEE AND THAT OTHER FAMILY MEMBERS ARE ALSO ASSESSED TO TAX WOULD PROVE THAT T HE ADDITION AGAINST THE ASSESSEE IS EXCESSIVE. ACCORDINGLY, THE ADDITION OF RS.33,000/- IS MODIFIED TO 15,000/- BECAUSE THE ASSESSEE HAS SHOWN VERY MEAGER HOUSEHOLD EXPENSES AT RS.27,000/- THE ASSESSEE THUS, WOULD BE ENTITLED TO GET RELIEF OF RS.18,000/- OUT ITA NO. 104/AGRA/2013 5 OF ADDITION OF RS.33,000/- AND ADDITION WOULD NOW B E RESTRICTED TO RS.15,000/- IN ALL. IN THE RESULT, GROUND NO.3 OF APPEAL OF THE AS SESSEE IS PARTLY ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY