DCIT CEN CIR 8(1), MUMBAI V. RAMAKANT GAGGAR, MUMBAI

ITA 1286/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2952 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 05-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, ITA NO.1286/MUM/2015 ASSESSMENT YEAR: 2005-06 DCIT, CC-8(1), ROOM NO.656, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 / VS. SHRI RAMAKANT GAGGAR, 302, GAURAV APART. GOKULDHAM, GOREGAON (EAST), MUMBAI-400063 / REVENUE / ASSESSEE P.A. NO . ABKPG9952C $ / REVENUE BY SHRI OM PRAKASH MEENA-DR $ / ASSESSEE BY NONE / DATE OF HEARING 24/06/2016 / DATE OF ORDER: 24/06/2016 ITA NO.1286/MUM/2015 RAMAKANT GAGGAR 2 / O R D E R THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 02/12/2014 OF THE LD. FIRST APPELLATE AUTHORI TY, MUMBAI. THE ONLY GROUND RAISED IN THE PRESENT APPEA L IS WITH RESPECT TO DELETING THE ADDITION MADE U/S 68 O F THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) ON ACCOU NT OF LOANS CLAIMED TO HAVE BEEN ACCEPTED FROM AARTI TANN A (RS. 74,000/-), SHRI DEEPAK TANNA (RS.2 LAKH), NIRANJAN TANNA (RS.10,80,000/-), POLYGON SOLUTIONS PVT. LTD. (RS.6 LAKH) AND M/S SURYA TRADING COMPANY (RS. 14,88,088/-). 2. DURING HEARING, SHRI O.P. MEENA, LD. SR. DR, STRONGLY DEFENDED THE ADDITION BY CONTENDING THAT T HE ASSESSEE HAS NOT ESTABLISHED ALL THE THREE INGREDIE NTS I.E. GENUINENESS OF TRANSACTIONS, IDENTITY OF THE PARTIE S AND THEIR CREDITWORTHINESS, THEREFORE, THE LD. COMMISSI ONER OF INCOME TAX (APPEAL) UNJUSTIFIABLY DELETED THE ADDIT ION. IT WAS ALSO CONTENDED THAT ADDITIONAL EVIDENCE WAS ADM ITTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WHIC H IS IN VIOLATION OF RULE-46A OF THE INCOME TAX RULES. 2.1. ON THE OTHER HAND, NOBODY WAS PRESENT FOR THE ASSESSEE IN SPITE OF ISSUANCE OF REGISTERED AD NOTI CE. THE ASSESSEE NEITHER PRESENTED HIMSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE IS NOT INTERESTED TO PURSUE ITS APPEAL, THEREFORE, I HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE, AND TEND TO ITA NO.1286/MUM/2015 RAMAKANT GAGGAR 3 DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVA ILABLE ON RECORD. 2.2. I HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE F ACTS, IN BRIEF, ARE THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON GAGGAR GROUP ON 06/10/2010 OF WHICH THE ASSESSEE IS ONE OF THE MEMBERS. AS PER THE REVENUE , DURING SEARCH OPERATION, CERTAIN INCRIMINATING DOCU MENTS WERE SEIZED. HOWEVER AS PER THE ASSESSEE, NOTHING W AS UNEARTHED EXCEPT UN-RECONCILED JEWELLERY. THE ASSES SEE DECLARED INCOME OF RS.1,18,240/- ON 31 ST OCTOBER, 2005 ALONG WITH COMPUTATION OF TOTAL INCOME, BALANCE SHE ET, PROFIT & LOSS ACCOUNT, TDS CERTIFICATE AND OTHER SU PPORTING DOCUMENTS FOR CLAIMING DEDUCTIONS. SUBSEQUENTLY, ASSESSMENT PROCEEDINGS WERE INITIATED WITH THE ISSU ANCE OF NOTICES ALONG WITH QUESTIONNAIRE. THE ASSESSEE W AS ASKED TO FURNISH THE DETAILS OF LOAN/DEPOSITS RECEI VED FROM VARIOUS PERSONS. AS PER PARA 6.2 OF THE ASSESSMENT ORDER, THE ASSESSEE SUBMITTED THE DETAILS VIDE LETTER DATE D 27/08/2012 INCLUDING DETAILS OF THE PARTIES FROM WH OM THE LOANS/DEPOSITS/ADVANCES WERE RECEIVED ALONG WIT H CONFIRMATION FROM THE CONCERNED PARTIES. THE DETAIL S OF LOANS HAVE BEEN REPRODUCED IN PARA 6.2 OF THE ASSES SMENT ORDER. THE LD. ASSESSING OFFICER MADE ADDITION U/S 68 OF THE ACT. 2.3. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL), THE FACTUAL MATRIX WAS CONSIDE RED ITA NO.1286/MUM/2015 RAMAKANT GAGGAR 4 ALONG WITH THE OBSERVATION MADE IN THE ASSESSMENT O RDER. IT IS NOTED THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL) HAS DEALT WITH THE EACH LOAN TRANSACTION A ND FINALLY CONCLUDED THAT HE VERIFIED THE DOCUMENTS WI TH RESPECT TO EACH LOAN AND FOUND THAT THE ASSESSEE HA S DISCHARGED THE ONUS CAST UPON HIM INCLUDING GENUINE NESS OF THE TRANSACTION, IDENTITY OF THE PARTIES AND CREDITWORTHINESS, ETC. IT HAS BEEN ALSO MENTIONED T HAT THE ASSESSING OFFICER NEVER ASKED THE ASSESSEE TO EXPLA IN THE POSITION AND EVEN PROPER OPPORTUNITY OF BEING HEARD WAS NOT PROVIDED TO EXPLAIN THE GENUINENESS OF THE LOAN TRANSACTIONS. AS MENTIONED EARLIER, THERE IS NO DIS PUTE (AS ADMITTED IN THE ASSESSMENT ORDER ALSO) TO THE FACT THAT REQUISITE DETAILS ALONG WITH CONFIRMATION FROM THE CONCERNED PARTIES WERE FILED BY THE ASSESSEE. IF TH E LD. ASSESSING OFFICER WAS APPREHENSIVE ABOUT THE GENUINENESS OF THE TRANSACTION, NOTHING PREVENTED H IM TO MAKE NECESSARY ENQUIRY, WHEREAS, THERE IS CATEGORIC AL FINDING IN THE IMPUGNED ORDER THAT NECESSARY DOCUME NTS WERE VERIFIED BY THE LD. FIRST APPELLATE AUTHORITY AND THE ASSESSEE DISCHARGED THE ONUS. 2.4. I AM AWARE THAT FOR MAKING ADDITION U/S 68 OF THE ACT BURDEN IS UPON THE ASSESSEE TO PROVE THE SO RUCE OF THE RECEIPT AS WAS HELD IN ROSHAN DI HATTI VS CIT 1 07 ITR 938 (SC). WHERE THE ASSESSEE FAIL TO PROVE SATISFAC TORILY THE SOURCE AND NATURE OF THE CREDIT ENTRIES IN HIS BOOKS, THE ASSESSEE HAS TO DISCHARGED THE ONUS, HOWEVER, I FIND ITA NO.1286/MUM/2015 RAMAKANT GAGGAR 5 THAT THE ASSESSEE NOT ONLY DISCLOSED THE DETAILS OF THE PARTIES BUT ALSO FILED CONFIRMATORY LETTERS FROM TH EM, THUS, THE ADDITION MADE BY THE LD. ASSESSING OFFICER CAN NOT BE JUSTIFIED. THE RATIO LAID DOWN IN JALAN TIMBERS VS CIT (223 ITR 11) (GUW.) SUPPORTS MY VIEW. IT IS SETTLED LAW THAT WHILE CONSIDERING THE QUESTION, WHERE THE ALLEGED L OAN WERE TAKEN BY THE ASSESSEE WAS GENUINE TRANSACTION, THE INITIAL BURDEN OF PROVING THE SAME IS UPON THE ASSE SSEE AND ONCE, IT IS DISCHARGED, THE ONUS SHIFTS UPON T HE REVENUE/ASSESSING OFFICER. THE RATIO LAID DOWN IN S .K. BOTHRA & SONS HUF VS ITO (2011) 203 TAXMAN 436 (KOL ) SUPPORTS MY VIEW. SINCE THE ASSESSEE HAS DISCHARGED HIS ONUS, THEREFORE, IN THE ABSENCE OF ANY CONTRARY MA TERIAL, I DONT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL). IT IS AFFIRMED . THUS, THE APPEAL OF THE REVENUE IS DISMISSED. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN IN THE PRESENCE OF LD. DR AT THE CONCLUSION OF THE HEARING ON 24/06/2016. SD/- (JOGINDER SINGH) ! ' / JUDICIAL MEMBER MUMBAI; DATED : 24/06/2016 F{X~{T? P.S / ! $ )!*+ ,+-* / COPY OF THE ORDER FORWARDED TO : ITA NO.1286/MUM/2015 RAMAKANT GAGGAR 6 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. ) ) * ( '#$ ) / THE CIT, MUMBAI. 4. ) ) * / CIT(A)- , MUMBAI 5. -./ ' , ) '#$ ' 1 , / DR, ITAT, MUMBAI 6. /2 3$ / GUARD FILE. / BY ORDER, (-# ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI