Sri Sanjay Lodha, Dhanbad V. Pr comm,I.T, Dhanbad

ITA 104/RAN/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0331 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 29-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: M K CHOUDHARY; MANAV PODDAR
• Keywords: Unexplained cash credit; Question of law
• Section: 234B; 68

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI SMC BENCH, RANCHI BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 104 / RAN /201 8 ASSESSMENT YEAR : 2013 - 14 GYARSI LAL GOYAL, SHREE BALAJI NIKETAN, GYAN RANAJAN PATH, BURDWAN COMPOUND, RANCHI. VS. DCIT, CIRCLE - 1, RANCHI PAN/GIR NO. (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI M.K.CHOUDHARY AND MANAV PODDAR , ADV REVENUE BY : SHRI A.K.MOHANTY, JCIT DATE OF HEARING : 29 / 11 / 2018 DATE OF PRONOUNCEMENT : 30 / 11 / 2018 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A), RANCHI, D ATED 20..12.2017 FOR THE ASSESSMENT YEAR 2013 - 14. 2. IN GROUND NO.1 OF APPEAL, THE GRIEVANCE OF THE ASSESSE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.10 LAKHS UNDER THE HEAD UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSE RVED THAT THE ASSESSE HAS RECEIVED UNSECURED LOAN OF RS.10,00,000/ - FROM M/S. VENKETESHWARA BUILDER PVT LTD., DURING ITA NO.104/RAN/2018 ASSESSMENT YEAR : 2013 - 14 P A G E 2 | 5 THE YEAR UNDER CONSIDERATION. THERE WAS NO SUFFICIENT BALANCE IN THE BANK ACCOUNT. THERE WAS A DEPOSIT OF RS.10 LAKHS ON 7.6.2012 VIDE RT GS IN HDFC BANK AND PAYMENT WAS MADE SUBSEQUENTLY ON 9.6.2012 OF THE SAME AMOUNT. THEREFORE, HE TREATED THE LOAN AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT AND ADDED THE SAME TO THE INCOME OF THE ASSESSE. 4. ON APPEAL, THE CIT(A) CONFIRMED THE SAME ON THE GROUND THAT THE SUDDEN DEPOSIT IN THE BANK AND ITS IMMEDIATE WITHDRAWAL FOR LENDING TO THE ASSESSE DID NOT SEEM TO BE IN THE NATURAL COURSE OF THE ALREADY RUNNING BUSINESS. 5. LD AUTHORISED REPRESENTATIVE OF THE ASSESSE SUBMITTED THAT THE LOAN WAS ROUT ED THROUGH BANKING CHANNEL. THE ASSESSE FILED BEFORE THE ASSESSING OFFICER BANK STATEMENT AND CONFIRMATION OF THE LOAN CREDITOR. THE CREDITWORTHINESS WAS PROVED FROM THE BANK STATEMENT OF THE CREDITOR AND THERE WAS NO CASH DEPOSIT BY THE CREDITOR IN THE BANK ACCOUNT BEFORE ISSUE OF CHEQUE TO THE ASSESSE. BY REFERRING TO THE LOAN CONFIRMATION FILED AT PAGE 1 OF PAPER BOOK, HE SUBMITTED THAT THE LOAN WAS RECEIVED FROM M/S. VENKATESHWARA BUILDERS PVT LTD., FROM WHOM THE ASSESSE HAD TAKEN LOAN IN THE EARLIER YEAR OF RS.6,39,290/ - , WHICH WAS ACCEPTED BY THE DEPARTMENT. THUS, IN THE YEAR UNDER CONSIDERATION, THE DEPARTMENT ITA NO.104/RAN/2018 ASSESSMENT YEAR : 2013 - 14 P A G E 3 | 5 CANNOT SAY THAT THE LOAN RECEIVED FROM M/S. VENKATESHWARA BUILDERS PVT LTD., WAS NOT GENUINE. 6. LD DEPARTMENTAL REPRESENTATIVE RELIED ON T HE ORDERS OF LOWER AUTHORITIES. 7. IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, I FIND THAT THE ASSESSE HAD RECEIVED LOAN OF RS.10,00,000/ - FROM M/S. VENKATESHWARA BUILDERS PVT LTD., FROM WHOM IT HAD RECEIVED LOAN OF RS.6,39,290/ - IN THE IMMEDIATELY P RECEDING ASSESSMENT YEAR, WHICH WAS ACCEPTED BY THE DEPARTMENT. THUS, THE IDENTITY OF THE CREDITOR IS NOT IN DOUBT OR DEBATE. FURTHER, THE LOAN WAS RECEIVED THROUGH BANKING CHANNEL, WHICH IS EVIDENT FROM THE BANK STATEMENT OF M/S. VENKATESHWARA BUILDERS PVT LTD., FILED BY THE ASSESSE. THERE IS NO CASH DEPOSIT IN THE BANK ACCOUNT BY THE SAID LOAN CREDITOR BEFORE ISSUING CHEQUE TO THE ASSESSE AND THUS, THE CREDITWORTHINESS OF THE LOAN CREDIT WAS PROVED FROM THE BANK STATEMENT OF THE ASSESSE AND THE GENUIN ENESS OF THE TRANSACTION IS ALSO PROVED FROM THE BANK STATEMENT FILED BY THE ASSESSE. THEREFORE, I AM OF THE CONSIDERED VIEW THAT THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.10 LAKHS U/S.68 OF THE ACT UNDER THE HEAD UNEXPLAINED CASH CRED IT. I, THEREFORE, DELETE THE ITA NO.104/RAN/2018 ASSESSMENT YEAR : 2013 - 14 P A G E 4 | 5 ADDITION OF RS.10 LAKHS AND ALLOW THE GROUND OF APPEAL OF THE ASSESSE. 8 . IN GROUND NO.2 OF APPEAL, THE GRIEVANCE OF THE ASSESSE IS THAT THE CIT(A) IS NOT JUSTIFIED IN NOT GIVING DIRECTION FOR CHARGING OF INTEREST U/S.234B ON TAX PAYABLE ON RETURNED INCOME INSTEAD OF TAX PAYABLE ON ASSESSED INCOME. 9 . AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE ORDERS OF LOWER AUTHORITIES BELOW, WE FIND THAT THE HON'BLE JHARKHAND HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA (SUPRA) HELD AS UNDER: - 23. LEARNED COUNSEL FOR THE APPELLANT SUBMITTED THAT IT HAS BEEN ORDERED BY THE A.O. THAT INTEREST BE CHARGED AS PER RULE. INTEREST CAN BE LEVIED UNDER SECTIONS 234A & 234B OF THE ACT. IT IS SUBMITTED THAT IN VIEW OF THE JUDGMENT OF FULL BENCH OF RANCHI BENCH OF PATNA HIGH COURT DELIVERED IN THE CASE OF SMT. TEJ KUMARI VS. CIT REPORTED IN (2001) 114 TAXMAN 404 (PAT) (FB), THE INTEREST CANNOT BE LEVIED OVER THE ASSESSED INCOME AND IT CAN BE LEVIED ONLY ON THE INCOME DECLARED IN THE RETURN. THE REVENUE PREFERRE D S.L.P. BEFORE THE HON'BLE SUPREME COURT AGAINST THE SAID JUDGMENT OF THE FULL BENCH OF PATNA HIGH COURT WHICH WAS DISMISSED BY THE HON'BLE SUPREME COURT ON MERITS VIDE ORDER DATED 01/08/2000 BY SAYING THAT THERE IS NO MERIT IN THE APPEAL. 24. LEARNED C OUNSEL FOR THE REVENUE COULD NOT DISPUTE THIS LEGAL POSITION. THEREFORE, SO FAR AS QUESTION OF LAW INVOLVED IN THIS APPEAL THAT WHETHER THE INTEREST COULD HAVE BEEN LEVIED AGAINST THE ASSESSED INCOME OF THE ASSESSEE UNDER SECTION 234A & 234B IS CONCERNED, IN VIEW OF THE FULL BENCH JUDGMENT OF RANCHI BENCH OF PATNA HIGH COURT DELIVERED IN THE CASE OF SMT. TEJ KUMARI, THE REVENUE CAN LEVY THE INTEREST ONLY ON THE TOTAL INCOME DECLARED IN THE RETURNS AND NOT ON THE INCOME ASSESSED AND DETERMINED BY THE A.O. T O THAT EXTENT. THE ORDERS PASSED BY THE AUTHORITIES BELOW ARE ACCORDINGLY MODIFIED AND INTEREST SHALL BE CHARGEABLE IN THE LIGHT OF THE FULL BENCH JUDGMENT REFERRED ABOVE. ITA NO.104/RAN/2018 ASSESSMENT YEAR : 2013 - 14 P A G E 5 | 5 10 . THEREFOR E, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF AJAY PRAKASH VERMA (SUPRA), WE DIRECT THE ASSESSING OFFICER TO CHARGE THE INTEREST ON THE INCOME DECLARED IN THE RETURN AND NOT ON ASSESSED INCOME AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSE FOR ALL THE ASSESSMENT YEARS UNDER APP EAL. 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED ORDER PRONOUNCED ON 30 / 11 /2018. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER RANCHI ; DATED 30 / 11 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT.SECRETARY, ITAT, RANCHI ON TOUR 1. THE APPELLANT : GYARSI LAL GOYAL, SHREE BALAJI NIKETAN, GYAN RANAJAN PATH, BURDWAN COMPOUND, RANCHI 2. THE RESPONDENT. DCIT, CIRCLE - 1, RANCHI 3. THE CIT(A) - RANCHI 4. PR.CIT - RANCHI 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//