M/s Abhay Mishra Contractor, V. Income Tax Officer I,

ITA 121/JAB/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1051 (ITAT-JABALPUR)
• Duration Of Justice: 6 year(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 21-05-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 06-05-2013
• Court: TRIBUNAL
• Department Lawyers: D R LATHORIYA
• Assessee Lawyers: A P SHRIVASTAVA
• Keywords: Unexplained investment; Income from undisclosed sources; Source of fund
• Section: 143(3); 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.121/JAB/2013 A.Y. : 2005-06 M/S.ABHAY MISHRA CONTRACTOR, WHITE HOUSE, ARJUN NAGAR, REWA VS INCOME - TAX OFFICER - I, REWA APPELLANT RESPONDENT PAN NO. : AAHFA8856F APPELLANT BY : SHRI A.P.SHRIVASTAVA, ADV. RESPONDENT BY : SHRI D.R.LATHORIYA, DR DATE OF HEARING : 2 1 . 0 5 .201 5 DATE OF PRONOUNCEMENT : 10 . 0 6 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, JABALPUR, DATED 15.02.2013 FOR THE ASS ESSMENT YEAR 2005-06. 2. THE ONLY EFFECTIVE GROUND TAKEN BY THE ASSESSEE IS REGARDING CONFIRMATION OF ADDITION OF RS. 5,09,500/ -BY THE CIT(A) ON ACCOUNT OF LOAN CREDITOR WITHOUT APPRECI ATING THE FACTS OF THE CASE. 3. THE ASSESSEE FIRM IS A CIVIL CONTRACTOR. THE ASSESSMENT WAS MADE U/S 143(3) OF THE INCOME-TAX AC T, 1961. DURING THE ASSESSMENT PROCEEDINGS, THE AO HAS VERIF IED THE SCHEDULE D ATTACHED TO BALANCE SHEET AS ON 31.3.2 005 AND ASSESSEE FIRM HAS SHOWN FOLLOWING UNSECURED LOANS : - -: 3: - 3 S.NO. NAME OF THE CREDITOR AMOUNT 1. SHRI SHIV KUMAR MISHRA 50000.00 2. SHJ HARI SHANKAR 72000.00 3. SHRI O.P. DWIVEDI 75000.00 4. SHRI SANTOSH KUMAR 78500.00 5. SHRI SHIVENDRA 78500.00 6. SHRI VIJAY MISHRA 75000.00 7. MR.DINESH KUMAR 8,35,641.29 8. MR.NAVEEN CHAND VYAS 5,46,627.04 9. MR.SACHIN DWIVEDI 8,30,641.27 10. MR.VIPIN DWIVEDI 8,30,641.32 11. SHRI VIJAY PANDEY 75,000.00 4. THE AO HAS TRIED TO VERIFY THE DETAILS OF UNSECURED LOAN. THE ASSESSEE WAS REQUESTED TO FURNISH THE CREDITWORTHINESS OF THE CREDITORS BY PRODUCING BANK STATEMENTS AND OTHER MATERIALS. THE AO HAS VERIFIED ALL THE CREDITORS BUT THE AO FOUND THAT IN RESPECT OF SEVEN CREDITORS THEY WERE NOT OF JABALPUR. THE ASSESSEE DID NOT SHO W THE SOURCES OF THEIR INCOME AND DEPOSITS. THE ASSESSEE HAS OFFERED TO SURRENDER THE AMOUNT OF RS. 5,09,500/- AS INCOME FROM UNDISCLOSED SOURCES. 5. THIS MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) H AS DISMISSED THE APPEAL BY OBSERVING AS UNDER :- -: 4: - 4 8. THE NEXT GROUND OF APPEAL IS RELATED TO ADDITIO N OF RS 5,09,500/- MADE BY THE ASSESSEE IN RESPECT O F LOAN CREDITORS. DURING THE COURSE OF HEARING, THE L D. COUNSEL FOR THE ASSESSEE ARGUED THAT THESE CREDITS ARE RELATING TO EARLIER YEARS AND NOT TO THE PRESEN T ASSESSMENT YEAR AND ARE CREDITS IN RESPECT OF UNPAI D SALARIES, ETC. HOWEVER, FROM THE ASSESSMENT ORDER O F THE AO (PG. 4), IT IS CLEAR THAT THE ASSESSEE HAD SURRENDERED THIS AMOUNT OF RS 5,09,500/- IN RESPEC T OF 7 CREDITORS DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IF THAT BE THE CASE, NO INTERFERENCE I S WARRANTED IN THE ORDER OF THE AO. WHEN THESE FACTS WERE BROUGHT TO THE NOTICE OF LD. COUNSEL FOR THE ASSESSEE, THEY DID NOT PRESS THE ISSUE FURTHER. ACCORDINGLY, THE ADDITION OF RS. 5,09,500/- MADE BY THE ASSESSING OFFICER IS CONFIRMED AND THIS GROUND OF APPEAL IS DISMISSED. -: 5: - 5 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS TAKEN CONTENTION BEFORE THE AO THAT HE IS NOT ABLE TO GIVE THE DETAILS REGARDING SEVEN SUNDRY CREDITORS, THEREFORE, HE HAS SURRENDERED RS. 5,09,5 00/-. BEFORE THE AO, THE ASSESSEE WAS ASKED TO PRODUCE THE SUNDR Y CREDITORS AND THEIR ADDRESSES, BUT THE ASSESSEE COU LD NOT PRODUCE BEFORE THE AO. THEREFORE, THE ASSESSEE HAS SURRENDERED THIS AMOUNT BEFORE THE AO. BEFORE US, T HE ASSESSEE HAS TAKEN THE CONTENTION THAT AS PER THE D ECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. PRAMESHWAR BOHRA, (2008) 301 ITR 0404 (RAJ) AND SUB MITTED THAT THE AMOUNT WHICH WAS CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE IN THE PRECEDING YEAR CANNOT BE TREATE D UNEXPLAINED INVESTMENT U/S 68 AND 69 IN THE RELEVAN T ASSESSMENT YEAR. WE FIND THAT IN THAT CASE, THE HON 'BLE RAJASTHAN HIGH COURT HAS HELD THAT THE TRIBUNAL HAS COME TO THE CONCLUSION THAT THIS IS NOT A CASE OF CASH CRED IT ENTERED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE DURING THE YEA R, BUT IT IS A CASE IN WHICH THE ASSESSEE HAS INVESTED THE CAPIT AL IN -: 6: - 6 BUSINESS AND THIS AMOUNT WAS SHOWN AS CLOSING CAPIT AL AS ON 31.3.1992 AND ON 1 ST MARCH, 1992, IT WAS OPENING BALANCE. BUT IN THIS CASE, THE FACTS ARE DIFFERENT. IN THIS CASE, THE ASSESSEE HAS SHOWN THESE CREDITORS, BUT IN THIS CAS E, THE ASSESSEE WAS REQUESTED TO ESTABLISH THE IDENTITY OF THE CREDITORS, THEIR SOURCES OF INCOME AND GENUINENESS OF THE TRANSACTIONS AND IN RESPONSE TO THESE, THE ASSESSEE HAS SURRENDERED THE AMOUNT OF RS. 5,09,500/-. WE FIND T HAT THE BURDEN IS UPON THE ASSESSEE TO PROVE THAT THE SEVEN CREDITORS ARE ALSO SUNDRY CREDITORS IN THE PREVIOUS YEAR. THE ASSESSEE HAS NOT SUBMITTED ANY EVIDENCE TO SHOW THAT THESE C REDITORS ARE SUNDRY CREDITORS WHICH ARE APPEARING IN PREVIOU S YEAR. THEREFORE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS NOT DISCHARGED HIS ONUS AND ASSESSEE DID NOT PROVIDE AN Y DOCUMENTARY EVIDENCE BEFORE US TO, SHOW THAT IT WAS THE OPENING BALANCE OF PREVIOUS CREDITORS. THEREFORE, W E DISMISS THE APPEAL OF THE ASSESSEE. -: 7: - 7 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 10TH JUNE, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 10 TH JUNE , 2015. CPU* 496