DCIT, Pune V. M/s. Trimit Builders, Pune

ITA 1043/PUN/2010

• Counselvise Citation: 104324514 RSA 2010
• Duration Of Justice: 2 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 13-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.981/PN/2010 ASSESSMENT YEAR : 2006 - 07 TRIMIT BUILDERS, FLAT NO. 10, MASARA APTS. OFF UNIVERSITY ROAD, PUNE-411016 VS. ACIT CIRCLE-3, PUNE (APPELLANT) (RESPONDENT) PAN NO. AAAFT6769K ITA NO.1043/PN/2010 ASSESSMENT YEAR : 2006 - 07 ACIT CIRCLE-3, PUNE VS. TRIMIT BUILDERS, FLAT NO. 10, MASARA APTS. OFF UNIVERSITY ROAD, PUNE-411016 (APPELLANT) ( RESPONDENT ) PAN NO. AAAFT6769K A SSESSEE BY: SUNIL PATHAK RE VENUE BY: MUKESH VERMA DATE OF HEARING : 11-03-2013 DATE OF PRONOUNCEMENT : 29-04-2013 ORDER PER R.S. PADVEKAR, JM:- THESE TWO CROSS APPEALS, ONE BY ASSESSEE AND ANOTHE R BY REVENUE ARE FILED CHALLENGING THE IMPUGNED ORDER OF THE LD.CIT(A)-II, PUNE DATED 26-04-2010 FOR THE A.Y. 2006-07. WE FIRST TAKE UP THE A SSESSEES APPEAL BEING ITA NO. 981/PN/2010 FOR DISPOSAL. THE GROUND NO. 1 READS AS UNDER: THE LD CIT (A) ERRED IN NOT APPRECIATING THE FACT TH AT THE APPELLANT HAD FILED RETURN OF INCOME BY R.P.A.D. ON 31-10-2006 & HENCE, THE RETURN WAS FILED WITHIN THE DUE DATE & THUS THE ASSES SEE WAS ENTITLED TO CARRY FORWARD OF LOSS TO THE SUBSEQUENT YEARS. 2. WE HAVE HEARD THE PARTIES. LEARNED COUNSEL FAIRLY CO NCEDED THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE DECISIO N OF THE HON'BLE HIGH COURT OF BOMBAY IN THE CASE OF VISHWANATH GOPAL OIL MILL VS. S.C. PRASHAR 32 ITR 344 AS WELL AS BY THE DECISION OF HON'BLE HIGH COURT OF ALLAHABAD IN THE CASE OF VISHWANATH GOPAL OIL MILL (SUPRA). THE IR 2 ITA NOS.981 & 1043/PN/2010, TRIMIT BUILDERS, PUNE LORDSHIPS HAVE HELD THAT POST OFFICE IS A AGENT OF THE ASSE SSEE AND NOT OF THE ASSESSING OFFICER. THE SAID PRINCIPLES ARE APPLICABLE TO G ROUND NO. 1. WE THEREFORE FOLLOWING THE PRINCIPLES LAID DOWN IN THE CASE OF VISHWANATH GOPAL OIL MILL (SUPRA) DISMISS THE GROUND NO.1. 3. THE ASSESSEE HAS FILED ADDITIONAL GROUNDS IN THE FORM O F REVISED GROUNDS TO CORRECT THE MISTAKES IN THE ORIGINAL GROUNDS. THE LEARNED COUNSEL SUBMITS THAT AS THE ADDITIONAL GROUND IS ONLY CUR ATIVE THE SAME MAY BE CONSIDERED. THE LD. DR HAS NO OBJECTION. WE, TH EREFORE ADMIT THE ADDITIONAL GROUNDS WHICH ARE ONLY CURATIVE AND ALSO S UBSTITUTE ORIGINAL GROUND NOS. 2 AND 3. THE REVISED/ADDITIONAL GROUN DS ARE READ AS UNDER: 1. THE LD CIT (A) ERRED IN NOT APPRECIATING THE FACT T HAT THE APPELLANT HAD FILED RETURN OF INCOME BY R.P.A.D. ON 31-10-2006 & HENCE, THE RETURN WAS FILED WITHIN THE DUE DATE & THUS THE ASSESSEE WAS ENTITLED TO CARRY FORWARD OF LOSS TO THE SUBSEQUENT YEAR S. 2. THE LD CIT (A) ERRED IN NOT APPRECIATING THE FACT T HAT THE SUBJECT OF ADDITION U/S.68 OF THE INCOME TAX ACT WAS IN RESPECT OF LOAN OF RS.2,11,71,950/- FROM B.R. AGARWAL (HUF) ONLY & HE F URTHER ERRED IN NOT APPRECIATING THAT THERE WAS NO ADDITION IN RESPECT OF ANY OTHER LOAN CREDITORS BY THE LD A.O. IN HIS ORDER. 4. SO FAR AS THE REVENUES APPEAL IS CONCERNED I.E. ITA N O. 1043 THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUND: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEALS) GROSSLY ERRED IN DELETING THE ADDIT ION OF RS.2,04,22,959/- MADE BY THE ASSESSING OFFICER, U/S.68 OF T HE INCOME-TAX ACT, 1961, TOWARDS UNEXPLAINED LOAN SHOWN B Y THE ASSESSEE FROM VARIOUS PARTIES. 5. IN SUM AND SUBSTANCE, THE REVENUE AS WELL AS ASSESS EES GROUNDS ARE CROSS GROUNDS WHICH ARE ARISING OUT OF THE ADDITION O F RS.2,11,71,950/- MADE BY THE ASSESSING OFFICER U/S.68 OF THE INCOME- TAX ACT. THE FACTS WHICH ARE REVEALED FROM THE RECORD A RE AS UNDER. THE ASSESSEES FIRM WHICH FILED THE RETURN OF INCOME FOR THE A.Y. 2006-07 DECLARING LOSS OF RS.1,96,76,783/-. THE ASSESSEES ASSESSME NT WAS COMPLETED U/S.144 BY THE ASSESSING OFFICER. THE ASSESSING OFFICER MADE THE ADDITION OF RS.2,11,71,950/- TOWARDS UNEXPLAINED CASH CR EDIT U/S.68 3 ITA NOS.981 & 1043/PN/2010, TRIMIT BUILDERS, PUNE OF THE INCOME-TAX ACT. THE ASSESSEE CHALLENGED THE ASS ESSMENT ORDER BEFORE THE LD.CIT(A). THE ASSESSEE FILED THE ADDITIONAL EVIDE NCE BEFORE THE LD.CIT(A) IN THE FORM OF CONFIRMATION LETTERS FROM THE DIFFER ENT CREDITORS. THE LD.CIT(A) ASKED FOR THE REMAND REPORT OF T HE ASSESSING OFFICER ON THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND ASSESSING OFFICER SUBMITTED HIS REPORT VIDE LETTER DATED 22-02-2010 . THE LEARNED ASSESSING OFFICER STATED IN THE REPORT THAT ADDITION OF RS.2,11,71,950/- IS PERTAINING TO THE FOLLOWING PARTIES FROM WHOM THE ASSESSEE HAS TAKEN UNEXPLAINED LOANS. 1. B.R. AGARWAL (HUF) RS.1,49,93,670/- 2. BOMBAY WOOLEN HOUSE RS.2,79,289/- 3. SUBHASH GOEL RS.13,50,000/- 4. UMESH GOEL RS.24,00,000/- 5. RAJENDRA GOEL RS.14,00,000/- AND OTHER CREDITORS RS.7,48,991/-. THE ASSESSING OFFICER ST ATED IN THE REMAND REPORT THAT TO VERIFY THE CREDITWORTHINESS OF B.R . AGARWAL (HUF) THE STATEMENT OF SHRI RAJKUMAR B. AGARWAL, WHO IS THE KA RTA OF HUF WAS RECORDED ON OATH ON 19-02-2010. IT IS STATED IN THE RE MAND REPORT THAT B.R. AGARWAL (HUF) HAS FILING ITS RETURNS OF INCOME WITH ACIT, C ENTRAL CIRCLE-2(3), PUNE AND DURING THE YEAR UNDER CONSIDERATION, A N AMOUNT OF RS.1.40 CRORES WAS GIVEN AS LOAN TO THE ASSESSEE. B.R. AG ARWAL (HUF) FILED THE COPY OF THE RETURN OF INCOME FOR A.Y. 2006-07 AS W ELL AS THE BALANCE SHEET AS ON 31-03-2006. IN RESPECT OF THE OTH ER CREDITORS THE ASSESSING OFFICER REPORTED THAT THE ASSESSEE HAS NOT FUR NISHED CONFIRMATION LETTERS TO EXTENT OF RS.7,48,991/-. THE LD.CIT (A) ON THE BASIS OF THE REMAND REPORT OF THE ASSESSING OFFICER RESTRICTED THE ADD ITION TO THE EXTENT OF RS.7,48,991/- AND DELETED THE ADDITION T O THE EXTENT OF RS.2,04,22,959/-. AGAINST THE DELETION OF THE ADDITION THE RE VENUE IS IN APPEAL BEFORE US AND FOR PARTLY SUSTAINING ADDITION, THE A SSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RECORD. LEARNED COUNSEL SUBMITS THAT IN THE REMAND REP ORT THE 4 ITA NOS.981 & 1043/PN/2010, TRIMIT BUILDERS, PUNE ASSESSING OFFICER HAS FINALLY ADMITTED THAT THE LOANS TAKEN FROM ALL THE 5 PARTIES INCLUDING B.R. AGRAWAL (HUF) ARE GENUINE LOANS AND REQ UIRED VERIFICATION WAS ALSO MADE BY THE ASSESSING OFFICER. HE SUBM ITS THAT SO FAR AS THE ADDITION OF RS.7,48,991/- THE SAID AMOUNT PERTAIN S TO THE INTEREST AS WELL AS OPENING BALANCE AND IN FACT THERE IS NO ACTUAL LOAN TAKEN BY THE ASSESSEE. THE LEARNED COUNSEL TOOK US TH ROUGH THE PAPER BOOK WHERE THE COPY OF THE CONFIRMATION ACCOUNT IS FILED AT PAGE NOS. 42 TO 44. HE FURTHER ARGUES THAT NOTHING HAS BEEN BROUGH T ON RECORD BY BOTH THE AUTHORITIES BELOW IN RESPECT OF THE ALLEGED LOAN C REDITORS OF RS.7,48,991/-. 6.1 PER CONTRA THE LD.CIT DR SUPPORTED THE ORDER OF TH E ASSESSING OFFICER AND VEHEMENTLY ARGUED THAT THE LD.CIT(A) SHOULD NO T HAVE DELETED THE ADDITION TO THE EXTENT OF RS.2,04,22,959. 7. ON PERUSAL OF THE ASSESSMENT ORDER, IT IS SEEN THAT T HE LD.CIT(A) CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER AND ASSESSING OFFICER EXAMINED THE KARTA OF THE B.R. AGRAWAL (HUF) IN THE REMAND PROCEEDINGS. THE CONFIRMATION WAS ALSO SOUGHT AND ALL THE PARTIES ARE ASSESSED TO THE INCOME-TAX AND THE BALANCE SHEET WER E ALSO FILED BEFORE THE ASSESSING OFFICER. IN OUR OPINION, THE ASSESSEE HAS DIS CHARGED HIS BURDEN BY PROVING THE IDENTITY, CREDITWORTHINESS OF THE LOAN CREDITORS AND GENUINENESS OF THE TRANSACTIONS AND THAT IS VERY MU CH CLEAR FROM THE REMAND REPORT OF THE ASSESSING OFFICER. WE THEREFORE , FIND NO REASONS TO INTERFERE WITH THE ORDER OF THE LD.CIT(A) FOR D ELETING THE ADDITION OF RS.2,04,22,959/- 8. SO FAR AS THE GRIEVANCE OF THE ASSESSEE FOR SUSTAINING THE ADDITION OF RS.7,48,991/- WE FIND THAT THERE IS NO CLARITY OF THE LOAN CREDITOR. IN FACT THE ASSESSING OFFICERS REMAND REPORT IS ALSO VERY MU CH SILENT WHO IS THE LOAN CREDITOR AND HOW THE SAID BALANCE IS REFLECTED AS RIGHTLY ARGUED BY THE LEARNED COUNSEL. THERE IS NO SUCH INDEPEN DENT CREDITOR TO THE EXTENT OF RS.7,48,991/-. MOREOVER IT IS SEEN THAT SAID DIFFERENCE IS 5 ITA NOS.981 & 1043/PN/2010, TRIMIT BUILDERS, PUNE ARISING FROM INTEREST ENTRIES AND OPENING BALANCES OF ABOVE PARTIES A/CS. WE ACCEPT THE ARGUMENT OF THE LEARNED COUNSEL THAT LD.C IT(A) ALSO IS SILENT ON WHO ARE THE LOAN CREDITORS. WE THEREFORE, FIND NO REASONS TO SUSTAIN THE SAID ADDITION. ACCORDINGLY, THE ADDITION OF RS . 7,48,991/- SUSTAINED BY THE LD.CIT(A) IS DELETED. 9. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED AND THE REVENUES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 29-04-2013 SD/- SD/- (G.S. PANNU) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER RK/PS PUNE, DATED: 29 TH APRIL, 2013 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - II, PUNE 4 THE C CIT , PUNE 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE