Sh. Manjeet Singh Malik, Aligarh V. I.T.O., Ward-2, Aligarh

ITA 12/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0642 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 4 month(s) 8 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-05-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 08-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARIOM SINGH
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.12/AGRA/2013 ASSESSMENT YEAR: 2006-07 SHRI MANJEET SINGH MALIK, VS. COMMISSIONER OF IN COME TAX, C/O. SHRI SANJEEV GUPTA, C.A., ALIGARH. 2/327A, NIRANJAN PURI, RAMGHAT ROAD, ALIGARH. (PAN : AYNPS 6244 D). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI HARIOM SINGH, JR. D.R. DATE OF HEARING : 10.05.2013 DATE OF PRONOUNCEMENT : 17.05.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30.10.2012 PASSED BY THE LD. CIT(A), MUZAFFARNAGAR FOR THE ASS ESSMENT YEAR 2006-07. 2 ITA NO.12/AGRA/2013 A.Y. 2006-07 2. THE GROUNDS RAISED IN THE APPEAL IS IN RESPECT O F ADDITION OF RS.1,00,000/- ON ACCOUNT OF UNEXPLAINED DEPOSIT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER). 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF TRADING OF COSMETICS AND ARTIFICIAL JEWELLERY. DUR ING THE ASSESSMENT PROCEEDINGS, THE A.O. NOTICED THAT THE ASSESSEE HAS TAKEN LOAN O F RS.2,00,000/- FROM SHRI SAHIL MALIK. THE ASSESSEE DID NOT FURNISH DETAILS AND DO CUMENTS, THEREFORE, THE A.O. MADE THE ADDITION ON THE GROUND THAT THE ASSESSEE H AS FAILED TO PROVE THE IDENTITY AND GENUINENESS OF THE SALES TRANSACTIONS AND CREDI TWORTHINESS OF THE LENDER. 4. THE CIT(A) RESTRICTED THE ADDITION TO THE EXTENT OF RS.1,00,000/- AND RS.1,00,000/- HAS BEEN DELETED. BEFORE THE CIT(A), IT WAS SUBMITTED BY THE ASSESSEE THAT THE NAME OF THE DEPOSITOR IS NOT SHRI SAHIL MALIK BUT SMT. SHAILEY MALIK. IT WAS FURTHER SUBMITTED THAT RS.1,00,000/- WAS TAKEN TOWARDS CONSTRUCTION OF THE HOUSE TILL 31.03.2005 AND DURING THE YEARS 2 006-07 FURTHER RS.1,00,000/- WAS TAKEN AS LOAN TOWARDS THE CONSTRUCTION OF THE RESID ENTIAL HOUSE. THE LOAN WAS TAKEN FROM SMT. SHAILEY MALIK, WIFE OF THE ASSESSEE. THE CIT(A) CALLED THE REMAND REPORT FROM THE A.O. THE A.O. FURNISHED THE REMAND REPORT STATING THAT THE ASSESSEE HAS FURNISHED FRAMED REPLY. THE REPLY SUB MITTED BY THE ASSESSEE IS AFTER 3 ITA NO.12/AGRA/2013 A.Y. 2006-07 THOUGHT AS DURING THE ASSESSMENT PROCEEDINGS THE AS SESSEE HAS NEVER DISCLOSED THE SAME. IN REJOINDER, THE ASSESSEE SUBMITTED THAT TH E A.O. HAS TAKEN WRONG NAME OF THE DEPOSITOR. THE A.O. HAS FAILED TO APPRECIATE T HAT SMT. SHAILEY MALIK IS A REGULAR INCOME TAX ASSESSEE AND HAS ALSO SHOWN LOAN TO THE ASSESSEE IN HER BALANCE SHEET FILED WITH THE RETURN OF INCOME FOR A .Y.S 2005-06 & 2006-07 AND AFFIDAVIT ON OATH OF THE DEPOSITOR WAS FILED. THE CIT(A) FOUND THAT LOAN OF RS.1,00,000/-, RS.60,000/-, RS.20,000/-, RS.20,000/ -, TOTAL RS.2,00,000/- WAS RAISED FROM ASSESSEES WIFE SMT. SHAILEY MALIK DURING THE A.Y. 2006-07 AND 2005-06, 2003-04 AND 2000-01 RESPECTIVELY. THE CIT(A) FOUND THAT THE MISTAKE IN THE NAME CANNOT BE CONSTRUED AS AFTER THOUGHT AS SUBMITTED B Y THE A.O. THE CIT(A) WHILE CONFIRMING ADDITION OF RS.1,00,000/- OBSERVED THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE BASIC ONUS OF FURNISHING COPIES OF AC COUNT AND CASH FLOW STATEMENT OF THE CREDITOR AND CREDITWORTHINESS AND GENUINENESS O F THE TRANSACTIONS. 5. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. WE NOTICE THAT THE ASSESSEE HAS FURNISHED THE DETAI LS BEFORE THE CIT(A) AND THE CIT(A) HAS CALLED REMAND REPORT. THE A.O. INSTEAD OF EXAMINING THE CASE AT THE TIME OF REMAND REPORT MADE A GENERAL PRESUMPTIVE SU BMISSION THAT THE SUBMISSION OF THE ASSESSEE WAS AFTER THOUGHT. IN OTHER WORDS, THE A.O. FURNISHED THE REMAND REPORT WITHOUT VERIFYING THE DOCUMENTS FILED BY THE ASSESSEE. THE ASSESSEE HAS 4 ITA NO.12/AGRA/2013 A.Y. 2006-07 FURNISHED COPIES OF ACKNOWLEDGEMENT OF RETURN FOR A .Y. 2004-05, 2005-06 AND 2006-07 OF THE DEPOSITOR SMT. SHAILEY MALIK ALONG W ITH COPIES OF BALANCE SHEET FOR THE ABOVE PERIODS. THE ASSESSEE HAS ALSO FURNI SHED AN AFFIDAVIT FROM THE DEPOSITOR THAT SHE IS REGULARLY ASSESSED BY PAN AKO PM 0439P. THE SOURCE OF INCOME OF THE DEPOSITOR WAS RENT FROM SHOP AND INCO ME FROM BEAUTY PARLOUR. THE DEPOSITOR HAS SHOWN IN HER BOOKS OF ACCOUNT LOAN GI VEN TO THE ASSESSEE IN DIFFERENT YEARS AS UNDER :- A.Y. AMOUNT 2000-01 20000.00 2003-04 20000.00 2005-06 60000.00 2006-07 10000.00 TOTAL 200000.00 6. THERE IS NO DISPUTE ABOUT THE FACT THAT THE DEPO SITOR IS WIFE OF THE ASSESSEE AND SHE IS REGULARLY ASSESSED TO TAX. COPIES OF BA LANCE SHEET AND FINANCE STATEMENT HAVE BEEN FURNISHED SUPPORTED BY AFFIDAVI T OF WHICH COPIES ARE PLACED FROM PAGE NOS.8 TO 12 OF THE ASSESSEES PAPER BOOK. AT THE TIME OF HEARING, THE LD. AUTHORISED REPRESENTATIVE REFERRED VARIOUS PAGES OF PAPER BOOK INCLUDING THE ABOVE MENTIONED PAGES AND DEMONSTRATED THAT THE ASS ESSEE HAS FURNISHED SUFFICIENT EVIDENCE IN SUPPORT OF ALL THE FACTS THAT THE ASSES SEE HAS DISCHARGED THE BURDEN IN THIS REGARD I.E. IDENTITY, CREDITWORTHINESS AND GEN UINENESS OF THE TRANSACTIONS. THE 5 ITA NO.12/AGRA/2013 A.Y. 2006-07 A.O. INSTEAD OF SUBMITTING COMMENTS AFTER EXAMINING DOCUMENTS FILED BY THE ASSESSEE IN THE REMAND REPORT, PUT A GENERAL REMARK THAT ALL THESE WERE AFTER THOUGHT. WHEN THE A.O. IS NOT EXAMINING DOCUMENT F ILED BY THE ASSESSEE, AN ADVERSE VIEW CAN BE TAKEN AGAINST REVENUE PARTICULA RLY UNDER THE CIRCUMSTANCES WHEN THE ASSESSEE HAS FURNISHED SUFFICIENT EVIDENCE S AND MATERIALS IN SUPPORT OF THE FACT THAT THE ASSESSEE HAS DISCHARGED THE BURDE N IN THIS REGARD, I.E. IDENTITY CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S, WE ARE OF THE VIEW THAT THE ADDITION IS NOT WARRANTED. IN THE LIGHT OF THE FAC T, ADDITION OF RS.1,00,000/- SUSTAINED BY THE CIT(A) IS DELETED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY