ACIT, Jaipur V. SH. DEEN DAYAL CHOUDHARY, Jaipur

ITA 1102/JPR/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82800 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-05-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 15-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA; SHUBHASH CHANDRA
• Assessee Lawyers: RAJIV SOGANI
• Keywords: Source of fund; Additional evidence
• Section: 131; 68; 6

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 1102/JP/2011 ASSTT. YEAR- 2008-09 PAN NO. AEBPC 4909 H THE A.C.I.T., SHRI DEEN DAYAL CHOUDHARY, CIRCLE-7, JAIPUR. VRS. 64, MAWANAN, MANGYAWAS, NEW SANGANER ROAD, MANSAROVER, JAIPUR. (APPELLANT) (RESPONDENT) DEPARTMENT BY :- SHRI D.C. SHARMA & SHUBHASH CHANDRA ASSESSEE BY :- SHRI RAJIV SOGANI. DATE OF HEARING : 16/09/2014 DATE OF PRONOUNCEMENT : 14/11/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 01/09/2011 OF THE LEARNED C.I.T.(A)-III, JAIPUR FOR THE A.Y. 2008-09. THE EFFECTIVE GROUNDS OF THE APPEAL ARE AS UNDER:- (I) THE CIT(A) HAS PASSED A PERVERSE ORDER IN ACCEPT ING THAT THE STATED CREDITS IN THE NAME OF SH. BANSHILAL, SH. KA NA RAM AND SH. KAILASH CHOUDHARY, MET WITH THE REQUISITE CO NDITIONS AS PRESCRIBED UNDER SEC. 68 OF THE ACT. ITA 1102/JP/2011 ACIT VS. DEEN DAYAL CHOUDHARY 2 (II) THE CIT(A) HAS PASSED A PERVERSE ORDER BY NOT C ONSIDERING THE REMAND REPORT OF THE A.O. DATED 11/07/2011, REC EIVED BY THE CIT(A) ON 12/07/2011, EVEN WHEN HE HAD CALLED FOR IT, REPEATEDLY, FROM THE A.O. (III) THE CIT(A) HAS PASSED A PERVERSE ORDER MORE SO, IN NOR PROVIDING OPPORTUNITY TO THE A.O. UNDER RULE 46A OF THE I.T. RULES IN RESPECT OF ALL THE DETAILS/EVIDENCE FILED BEFORE HIM. (IV) THE CIT(A) HAS PASSED A PERVERSE ORDER AND ERRE D IN ACCEPTING THE PLEA THAT FACT STATED BY SH. BANSHILA L IN HIS STATEMENT UNDER SEC. 131 WAS BY MISTAKE. (V) THE CIT(A) HAS PASSED A PERVERSE ORDER IN IGNORIN G THE FACT OF CHEQUE-BANDLI, APPARENT FROM THE DETAILS OF BANK ACCOUNT OF THE STATED CREDITORS AND THEIR INITIAL STATEMENT . (VI) THE CIT(A) HAS PASSED A PERVERSE ORDER IN OVERLO OKING THE CONTRIVED FINANCIAL CAPABILITY OF SH. KANA RAM. (VII) THE CIT(A) HAS THUS PASSED A PERVERSE ORDER AS IT IGNORED RELEVANT FACTS AND THEREBY DELETING THE ADDITION OF RS. 90 LAKHS MADE U/S 68. (VIII) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AME ND WITHDRAW OR INSERT ANY GROUND OR GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ITA 1102/JP/2011 ACIT VS. DEEN DAYAL CHOUDHARY 3 2. ALL THE SEVEN GROUNDS REVOLVING AROUND DELETION OF ADDITION BY THE LEARNED CIT(A) IN CASES OF SHRI BANSHILAL, SHRI KANA RAM AND SHRI KAILASH CHOUDHARY IN TOTAL RS. 90 LACS. THE ASSESSEE IS A LAND DEVELOPER AND CONTRACTOR. DURING THE YEAR, HE HAD TAKEN LOAN FROM SHRI BANSHILAL AT RS. 25 LACS. NOTICE U/S 131 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS ISSUED TO SHRI BANSHILAL BY THE ASSESSING OFFICE R DURING THE ASSESSMENT PROCEEDINGS FOR VERIFICATION OF LOAN. IT WAS FOUND BY THE ASSESSING OFFICER THAT LOAN WAS TAKEN BY THE ASSESSE E, RECEIVED THROUGH CHEQUE. THE ASSESSING OFFICER CONCLUDED THAT ORIGIN ALLY, THIS AMOUNT WAS GIVEN BY THE ASSESSEE I.E. DEENA DAYAL CHOUDHARY TO BANSHILAL, WHICH HAS BEEN RETURNED BACK TO THE ASSESSEE. THEREFORE, T HE LEARNED ASSESSING OFFICER ADDED THIS AMOUNT U/S 68 OF THE ACT. SIMILA RLY, LOAN OF RS. 25 LACS WAS TAKEN FROM SHRI KANA RAM. DURING THE ASSESSMENT PROCEEDINGS, NOTICE U/S 131 WAS ISSUED TO HIM, WHO HAD ADMITTED TH AT HE HAD GIVEN RS. 25 LACS ON 06/9/2007 FROM SBBJ, KISHAPOLE BRANC H BY CHEQUE AND RS. 20 LACS ON 25/10/2007 FROM SAME BANK ACCOUNT. THUS, TOTAL LOAN WAS IN THE NAME OF KANA RAM WAS AS RS. 45 LACS, WHICH WAS GIV EN BY HIM FROM 50 LACS CREDITED IN HIS ACCOUNT ON 23/8/2007 AND RS . 2 LACS ON 23/8/2008. AS PER ASSESSING OFFICER, THE ASSESSEE C OULD NOT EXPLAIN THE SOURCE OF CREDIT, THEREFORE, HE MADE ADDITION U/S 6 8 OF THE ACE TO THE TUNE OF RS. 45 LACS. FURTHER, THE ASSESSEE RECEIVED LOAN OF RS. 20 LACS ON ITA 1102/JP/2011 ACIT VS. DEEN DAYAL CHOUDHARY 4 27/12/2007 THROUGH CHEQUE FROM SHRI KAILASH CHOUDHA RY, STATEMENT U/S 131 OF THE ACT WAS ALSO RECORDED ON 03/12/2010, WHO H AD ADMITTED THAT HE HAD GIVEN RS. 10 LACS EACH THROUGH CHEQUE ON 27/ 12/2007 TO THE ASSESSEE. HE HAD ALSO EXPLAINED THE SOURCE OF FUND AVAILABLE WITH HIM, WHICH WAS FROM SALE PROCEEDS OF AGRICULTURAL LAND BUT HE COULD NOT PROVIDE ANY COGENT EVIDENCE BEFORE THE ASSESSING OF FICER, THEREFORE, HE TREATED THIS LOAN NON-GENUINE. ACCORDINGLY, THE ADD ITION WAS MADE. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A). A FTER CONSIDERING THE ASSESSEES REPLY AS WELL AS REMAND REPORTS RECEIVED FROM ASSESSING OFFICER, THE LEARNED CIT(A) OBSERVED THAT IN CASE OF SHRI KANA RAM, RS. 45 LACS WERE RECEIVED THROUGH CHEQUE. HE HAD FILED C OPY OF CONFIRMATION WITH PAN NUMBER, COPY OF ITR WITH COMPUTATION OF INCOM E AND BANK STATEMENT. MOREOVER, SHRI KANA RAM APPEARED BEFORE THE ASSESSING OFFICER U/S 131 OF THE ACT AND CONFIRMED THE LOAN G IVEN IN PERSON. THE LEARNED ASSESSING OFFICER ONLY MADE ADDITION BECAUS E OF NO EXPLANATION WAS GIVEN BY THE LOAN CREDITORS ABOUT CREDIT ENTRY B UT IN BANK ACCOUNT OF SHRI KANA RAM, THERE WAS NO CASH DEPOSITED. THEREFORE , THE ASSESSEE NEEDS NOT TO EXPLAIN SOURCE OF SOURCE AS REQUIRED B Y THE LAW. HE ALSO CONSIDERED VARIOUS CASE LAWS ON THIS ISSUE. THEREFOR E, HE FOUND THAT GENUINENESS OF THE TRANSACTIONS, CREDITWORTHINESS OF CREDITORS AND IDENTITY ITA 1102/JP/2011 ACIT VS. DEEN DAYAL CHOUDHARY 5 OF PERSONS HAS BEEN ESTABLISHED BY THE ASSESSEE. SI MILARLY, IN CASE OF KAILASH CHOUDHARY, IT HAS BEEN HELD THAT RS. 20 LAC S RECEIVED ON 27/12/2007 THROUGH BANKING CHANNEL. THE CASH CREDIT OR HAS FURNISHED COPY OF CONFIRMATION WITH PAN NUMBER, COPY OF ITR WITH COMPUTATION OF INCOME AND BANK STATEMENT. MOREOVER, SHRI KAILASH C HOUDHARY HIMSELF APPEARED BEFORE THE ASSESSING OFFICER U/S 131 OF TH E ACT AND CONFIRMED THE LOAN GIVEN IN PERSON. HE ALSO EXPLAINED THE SOU RCE OF LOAN OF RS. 20 LACS, WHICH WAS THROUGH THE SALE PROCEEDS OF AGRICULT URAL LAND BUT THE ASSESSING OFFICER MADE ADDITION BECAUSE OF NO EVIDE NCE WAS SUBMITTED BY SHRI KAILASH CHOUDHARY DURING THE COURSE OF ASSE SSMENT PROCEEDINGS. THE ASSESSEE RECEIVED RS. 25 LACS FROM SHRI BANSHILA L THROUGH ACCOUNT PAYEE CHEQUE. HE HAD FILED COPY OF CONFIRMATION WITH PAN NUMBER, AFFIDAVIT OF CREDITORS, COPY OF ITR WITH COMPUTATION OF INCOME AND BANK STATEMENT. MOREOVER, SHRI BANSHILAL APPEARED BEFORE THE ASSESSING OFFICER U/S 131 OF THE ACT AND CONFIRMED THE LOAN G IVEN IN PERSON. THE LEARNED ASSESSING OFFICER CONCLUDED THAT EARLIER TH IS AMOUNT WAS RECEIVED FROM THE ASSESSEE AND RETURNED BACK TO THE ASSESSEE THROUGH CHEQUE, THEREFORE, HE TREATED THIS TRANSACTION NON-GENUINE BUT ON VERIFICATION OF THE FACTS, THE LEARNED CIT(A) FOUND THAT THE ASSESS EE IS A DIRECTOR IN M/S KINJAL COLONISER PVT. LTD. THE COMPANY HAS ADVANCED RS. 25 LACS ON 22/6/2007 TO BANSHILAL, WHICH HAS BEEN REFLECTED BY THE COMPANY IN ITS ITA 1102/JP/2011 ACIT VS. DEEN DAYAL CHOUDHARY 6 BALANCE SHEET. THERE WAS A MISUNDERSTANDING DURING T HE ASSESSMENT PROCEEDINGS OF SHRI BANSHILAL. THEREFORE, HE ADMITTE D THE CHEQUE OF RS. 25 LACS WAS RECEIVED FROM ASSESSEE I.E. DEEN DAYAL C HOUDHARY BUT ACTUALLY WAS RECEIVED FROM THE COMPANY. THE LEARNED C IT(A) CONCLUDED THAT THE APPELLANT HAD DISCHARGED HIS ONUS CAST ON APPELLANT U/S 68 OF THE ACT AND PROVED THE IDENTITY, CAPACITY AND GENUI NENESS OF THE TRANSACTIONS. THEREFORE, HE DELETED THE ADDITION IN CASE OF THE LOAN CREDITORS. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. 5. THE LEARNED D.R. SUPPORTED THE ORDER OF THE LEARN ED ASSESSING OFFICER AND AT THE OUTSET, THE LEARNED A.R. FOR THE ASSESSEE REITERATED ALL THE ARGUMENTS MADE BEFORE THE LEARNED CIT(A) THAT S TATED THAT THE ORDER OF THE LEARNED CIT(A) IS A WELL REASONED, SPEAKING AND BASED ON PROPER APPRECIATION OF FACTS IN CORRECT PERSPECTIVE AND PR OPER CONSIDERATION OF JUDICIAL PROPOSITIONS IN RESPECT OF THE ADDITIONS U NDER SECTION 68. FURTHER RELIANCE IS PLACED ON A RECENT DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. JAI KUMAR BAKLIWAL (2014 ) 267 CTR 396. GROUND NO. (II) HAS NO BASIS AS THE REMAND REPORT H AS BEEN DULY CONSIDERED BY THE LEARNED CIT(A). GROUND NO. (III) H AS NO FORCE AS NO ADDITIONAL EVIDENCE UNDER RULE 46 OF THE I.T. RULES WERE ACCEPTED BY THE LEARNED CIT(A). OTHERWISE ALL SUBMISSIONS WERE SENT TO THE LEARNED ITA 1102/JP/2011 ACIT VS. DEEN DAYAL CHOUDHARY 7 ASSESSING OFFICER ON WHICH REMAND REPORT DATED 11/7/ 2011 WAS SENT BY THE LEARNED ASSESSING OFFICER AND NO WHERE THERE IS ANY WHISPER OF LEARNED ASSESSING OFFICERS COMMENTS ABOUT THE ADDI TIONAL EVIDENCE. IN VIEW OF THE ABOVE, THE ORDER OF THE LEARNED CIT(A) DE SERVES TO BE UPHELD BY DISMISSING THE APPEAL OF THE DEPARTMENT. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN ALL THE THREE CREDITORS , THE ASSESSEE HAS PROVED THE IDENTITY, GENUINENESS AND CREDITWORTHINES S OF THE CREDITORS BY FILING COPY OF CONFIRMATION WITH PAN NUMBER, COPY OF RETURN, COPY OF BANK STATEMENT AND ADMISSION BEFORE THE ASSESSING OFFICE R U/S 131 OF THE ACT. THE SOURCES HAVE BEEN EXPLAINED BY THE CASH CREDITOR S, THEREFORE, WE UPHOLD THE ORDER OF THE LEARNED CIT(A). THE LEARNED C IT(A) HAS CALLED REMAND REPORT FROM THE ASSESSING OFFICER, THEREFORE , NO VIOLATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 14/11/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 14 TH NOVEMBER, 2014 * RANJAN ITA 1102/JP/2011 ACIT VS. DEEN DAYAL CHOUDHARY 8 COPY FORWARDED TO :- 1. THE ACIT, CIRCLE-7, JAIPUR. 2. SHRI DEEN DAYAL CHOUDHARY, JAIPUR. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 1102/JP/2011) BY ORDER, AR ITAT JAIPUR.