SANJAY KUMAR JAISWAL, Jaipur V. ITO, BEHROR

ITA 1075/JPR/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4209 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA CIT DHK
• Keywords: Deemed to accrue or arise in india; Additional evidence
• Section: 43B; 143(3); 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES B, JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA -@ ITA NO. 1075/JP/2016 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2009-10 SHRI SANJAY KUMAR JAISWAL, N.H.8, DELHI ROAD, BEHROR, DISTT.- ALWAR (RAJ). CUKE VS. I.T.O., BEHROR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: ADUPJ 3796 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI SATISH GUPTA (CA) & SHRI VEDANT AGARWAL (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 09/05/2019 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 10/05/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A), ALWAR DATED 28/09/2016 FOR THE A.Y. 2009-10 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR ADDITION OF RS. 5,00,000/- MADE U/S 68 OF THE ACT. 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. FROM THE RECORD WE FOUND THAT THIS IS THE SECOND ROUND OF APPEAL. IN THE FIRST ROUND ITA 1075/JP/2016_ SHRI SANJAY KR. JAISWAL VS ITO 2 OF APPEAL, THE ADDITION OF RS. 5.00 LACS MADE U/S 68 OF THE ACT WAS RESTORED TO THE FILE OF THE LD. CIT(A) WITH CERTAIN DIRECTIONS AS UNDER: 4.5 HON'BLE ITAT, JAIPUR BENCH IN ITS ORDER DATED 09/03/2016, WHILE RESTORING THE ISSUE OF ADDITION OF RS.5 LAKHS BACK MADE BY THE A.O UNDER SECTION 68 OF THE ACT TO THE FILE OF THE CIT(A) HAS OBSERVED AS UNDER; 8. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES I AM OF THE CONSIDERED OPINION THAT ONE OF THE IMPORTANT FACT THAT THE AMOUNTS IN QUESTION WERE REPAID BY THE ASSESSEE HAVE NOT BEEN TAKEN INTO ACCOUNT BY THE REVENUE AUTHORITIES, RATHER IT WAS NOT ADJUDICATED UPON. THE ARGUMENTS APPEAR TO BE LOGICAL THAT IF THE ASSESSEE HAD TAKEN LOAN FROM AGRICULTURISTS, THEN NATURALLY, HE WAS UNDER OBLIGATION TO REPAY THE LOAN. ACCORDING TO HIS SUBMISSION, A TEMPORARY LOAN WAS ARRANGED BUT THE SAME WAS REPAID. IF WE EXAMINE THIS FACT ON THE ANALOGY OF THE PROVISIONS OF SECTION 41(1) OF THE ACT, IF AN EXPENDITURE HAS BEEN CLAIMED IN THE PAST OR LIABILITY WAS TAKEN INTO ACCOUNT BUT, LATER ON IT WAS FOUND THAT SUCH TRADING LIABILITY OR EXPENDITURE CEASE TO EXIST, THE BENEFIT OF WHICH HAD ALREADY BEEN TAKEN, SHOULD BE HELD AS INCOME OF THE YEAR IN WHICH THE AMOUNT FOUND TO BE NO MORE IN EXISTENCE AS LIABILITY. IN MY HUMBLE OPINION IF THE SAME ANALOGY IS APPLIED IN THIS REGARD THAT LOAN WAS TAXED U/S 68OF THE ACT BY HOLDING THAT THE LOAN WAS THE DEEMED INCOME THEN, IN THE YEAR IN WHICH THE LOAN WAS REPAID THE CORRESPONDING BENEFIT SHOULD BE GRANTED TO THE ASSESSEE. IN ONE MORE SECTION THE STATUTE HAS ADOPTED THE SAME ANALOGY I.E. SECTION 43B OF THE IT ACT WHICH PRESCRIBES THAT CERTAIN DEDUCTIONS ARE TO BE ALLOWED ONLY ON ACTUAL PAYMENT. THEREFORE, IN A PARTICULAR YEAR BECAUSE OF NON-PRODUCTION OF CHALLANS OR NON-PAYMENT, DISALLOWANCE HAS BEEN MADE, THEN THAT CLAIM SHOULD BE ALLOWED IN THE PREVIOUS YEAR IN WHICH THE LIABILITY IS DISCHARGED. BECAUSE OF THIS REASON, I DEEM IT PROPER TO RESTORE THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) WHO IS ALREADY IN POSSESSION OF THE ENTIRE RECORD OF THE ASSESSEE AS WELL AS DETAILS COLLECTED BY THE A.0 WHILE SUBMITTING THE REMAND REPORT. I ALSO CONSIDER IT NECESSARY TO DIRECT THE ASSESSEE TO CO-OPERATE WITH THE PROCEEDINGS BEFORE THE LD. CIT(A) BY DISCHARGING THE PRIMARY ONUS AS PRESCRIBED UNDER SECTION ITA 1075/JP/2016_ SHRI SANJAY KR. JAISWAL VS ITO 3 68 OF THE ACT. WITH THESE DIRECTIONS, THE GROUND OF APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF THE CIT(A) FOR DE NOVO CONSIDERATION. 4. HOWEVER, WITHOUT FOLLOWING THE DIRECTIONS, THE LD. CIT(A) HAS AGAIN CONFIRMED THE ADDITIONS. WE FOUND THAT DURING THE FIRST ROUND OF APPEAL, THE LIST OF CASH CREDITORS WAS PRODUCED BEFORE LEARNED ASSESSING OFFICER. IT WAS ALSO SUBMITTED THAT THE CREDITORS BELONGS TO VILLAGE LAWANA & NEARBY AREA FROM WHERE THE ASSESSEE BELONGS. IT WAS ALSO SUBMITTED THAT MOST OF THEM ARE AGRICULTURIST. SINCE THE ASSESSEE HAS REPAID THE LOANS, THEY ARE NOT CO-OPERATING. 5. WE ALSO FOUND THAT NO ENQUIRY WAS MADE BY LEARNED ASSESSING OFFICER, ASSESSEE SUBMITTED THE AFFIDAVITS OF ALL PERSONS ALONG WITH PROOF OF IDENTITY & CREDIT WORTHINESS BEFORE LD. CIT(A) AS AN ADDITIONAL EVIDENCE. 6. WE ALSO FOUND THAT THE AMOUNT TAKEN WAS REPAID BY THE ASSESSEE WHICH HAS BEEN ACCEPTED BY THE CREDITORS IN THEIR AFFIDAVIT. LD CIT(A) HAS REPRODUCED THE LIST OF CREDITORS TOTAL 28 PERSONS. FROM THE PERUSAL OF ABOVE LIST IT IS CLEAR THAT THE ASSESSEE HAS SUBMITTED THE NAME, ADDRESSES, AMOUNT OF LOAN, ID PROOF, CREDIT WORTHINESS OF CREDITOR AND THE YEARLY INCOME OF CREDITOR. SUMMONS WERE ISSUED TO 10 CREDITORS ONLY OUT OF TOTAL 28 CREDITORS. OUT OF 10 SUMMONS 5 WERE SERVED & 5 COULD NOT BE SERVED AS NO PROPER ADDRESS WAS MENTIONED BY A.O. IN THE SUMMONS. ITA 1075/JP/2016_ SHRI SANJAY KR. JAISWAL VS ITO 4 NAME OF VILLAGE WAS MENTIONED WRONG. FATHER'S NAME WAS NOT MENTIONED. 7. IN VIEW OF THE ABOVE DISCUSSION AND KEEPING IN VIEW THE SUBSTANTIAL INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR MAKING ENQUIRY IN TERMS OF OUR ABOVE DIRECTIONS. NEEDLESS TO SAY, THE ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY OF HEARING BEFORE DECIDING THE ISSUE AFRESH. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH MAY, 2019. SD/- SD/- FOT; IKY JKO JES'K LH 'KEKZ (VIJAY PAL RAO) (RAMESH C SHARMA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10 TH MAY, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SANJAY KUMAR JAISWAL, BEHROR (ALWAR). 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., BEHROR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1075/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR