ACIT, Ludhiana V. Sh. Sanjiv Talwar, Ludhiana

ITA 1299/CHANDI/2010

• Counselvise Citation: 129921514 RSA 2010
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAISHREE SHARMADR
• Keywords: Unexplained cash credit
• Section: 68; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO.1299/CHD/2010 (ASSESSMENT YEAR : 2007-08) THE A.C.I.T. VS. SH.SANJIV TALWAR CIRCLE 1, D-302, PHASE VII LUDHIANA. FOCAL POINT, LUDHIANA. PAN: AAPPT6246A (APPELLANT) (RESPONDENT) APPELLANT BY : SMT.JAISHREE SHARMA,DR RESPONDENT BY : NONE DATE OF HEARING : 30.8.2011 DATE OF PRONOUNCEMENT : 30.8.2011 O R D E R PER SUSHMA CHOWLA, J.M, : THE APPEAL FILED BY THE REVENUE IS AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME-TAX(APPEALS), DATED 20.08.20 10 RELATING TO ASSESSMENT YEAR 2007-08 AGAINST THE ORDER PASSED UN DER SECTION 143(3) OF THE I.T. ACT, 1961. 2. THE ONLY GROUND OF APPEAL RAISED BY THE REVENUE IS AS UNDER : 1. THAT THE LD. CIT(A) HAS ERRED IN LAW IN DELETIN G THE ADDITION OF RS.30,00,000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE INCOME TAX ACT, 1961 BY IGNORING THE FACT THAT THE ASSESSEE HAD FAILED TO ESTABLISH THE CREDITWORTHINESS OF SH.JAGMOHAN TALWAR AND GENUINENESS OF THE TRANSACTION DURING THE ASSESSMENT PROCEEDINGS. 3. THE ASSESSEE MOVED AN APPLICATION FOR ADJOURNMEN T WHICH WAS REJECTED AND THE LEARNED D.R. FOR THE REVENUE PUT F ORWARD HIS CONTENTIONS. 2 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST THE DELETION OF ADDITION MADE U/S 68 OF THE INCOME TAX ACT. 5. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSING OFFICER NOTED THE ASSES SEE TO HAVE RECEIVED RS.30 LACS FROM HIS FATHER SHRI JAGMOHAN TALWAR. T HE ASSESSEE FURNISHED COPY OF THE INCOME TAX RETURN FILED BY SH RI JAGMOHAN TALWAR RELATING TO ASSESSMENT YEAR 2007-08 ALONGWITH COPY OF BANK STATEMENT BEFORE THE ASSESSING OFFICER. IT WAS NOTED BY THE ASSESSING OFFICER THAT THERE WERE TWO CHEQUE DEPOSITS OF RS.10 LACS EACH C ASH DEPOSIT OF RS.9 LACS IN THE BANK ACCOUNT OF SHRI JAGMOHAN TALWAR. THE ASSESSEE WAS REQUISITIONED TO EXPLAIN THE ENTIRE TRAIL OF TRANSA CTION IN ORDER TO ESTABLISH THE CREDITWORTHINESS OF SHRI JAGMOHAN TAL WAR. THE REPLY OF THE ASSESSEE WAS THAT THE ISSUE BE DECIDED AS PER L AW. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD PROVI DED PROOF OF IDENTITY OF THE CREDITOR BUT HAD NOT OFFERED ANY EXPLANATION REGARDING THE CREDITWORTHINESS OF THE CREDITOR. ACCORDINGLY, THE SAID CREDIT OF RS.30 LACS WAS TREATED AS UNEXPLAINED CREDIT AND ADDED TO THE INCOME OF THE ASSESSEE U/S 68 OF THE INCOME TAX ACT. 6. BEFORE THE CIT (APPEALS) THE LEARNED A.R. FOR TH E ASSESSEE RELYING ON VARIOUS PROPOSITIONS LAID DOWN BY THE HON'BLE SU PREME COURT AND VARIOUS COURTS, AND ALSO THE RATIO LAID DOWN BY CHA NDIGARH BENCH OF THE TRIBUNAL IN ITA NO.415/CHANDI/2009 IN THE CASE OF S H.RAMAN KUMAR, PROP VS. ITO, KAITHAL POINTED OUT THAT IN THE PRESE NT CASE THE CREDITOR HAD BEEN IDENTIFIED AND IT WAS ALSO ESTABLISHED THA T THE MONEY WAS ADVANCED FROM HIS BANK ACCOUNT AND HE WAS AN EXISTI NG ASSESSEE WITH THE INCOME TAX DEPARTMENT. THE ONUS ENJOINED UPON THE ASSESSEE UNDER THE PROVISIONS OF SECTION 68 OF THE ACT WAS THUS DISCH ARGED AND QUERIES OF 3 THE ASSESSING OFFICER WITH REGARD TO SOURCE OF INCO ME OF THE CREDITOR WAS BEYOND THE SCOPE AND AMBIT OF SECTION 68 OF THE ACT. THE CIT (APPEALS) VIDE PARA 3.2 HELD AS UNDER : 3.2 I HAVE GONE THROUGH THE ASSESSMENT ORDER AND T HE SUBMISSIONS MADE BY THE A.R. BOTH DURING THE COURSE OF HEARING AND ALSO THE WRITTEN SUBMISSIONS FILED VIDE LETTER DATED 09.08.2010. IT IS A MATTER OF RECORD THAT TH E APE HAS DISCHARGED HIS PRIMARY ONUS WITH RESPECT TO THE INTRODUCTION OF CREDIT OF RS.30.00 LACS. FROM THE PERUSAL OF THE DOCUMENTS FILED, IT IS TRANSPIRES THAT THE C REDITOR IS AN EXISTING ASSESSEE AND THE ENTIRE TRANSACTION OF ADVANCE OF RS.30.00 LAC HAS BEEN ROUTED THROUGH HIS BANK AC COUNT. THE COPY OF BALANCE SHEET OF SH.JAGMOHAN TALWAR HAS BEEN FILED IN WHICH THE SAID AMOUNT OF RS.30.00 LAC STANDS DULY REFLECTED. AR HAS ALSO FILED COPY OF ASSESSME NT ORDER FOR THE ASSESSMENT YEAR 2007-08 OF SH.JAGMOHAN TALW AR AND IT IS SEEN THAT ASSESSMENT HAS BEEN COMPLETED U NDER SECTION 143(3) BY THE ITO WARD VII (1), LUDHIANA. I HAVE ALSO GONE THROUGH THE VARIOUS JUDGMENTS CITED BY TH E COUNSEL AND IN PARTICULAR THE JUDGMENT OF THE JURISDICTIONAL BENCH IN THE CASE OF SH.RAMAN KUMAR REFERRED SUPRA. THE FACTS OF THE CASE OF THE APE ARE SQUARELY COVERED BY THE RATIO OF JUDGMENT OF HON'BL E CHANDIGARH BENCH. AFTER GIVING A THOUGHTFUL CONSIDERATION OF THE FACTS OF THE CASE, IT CAN BE S AID THAT THE ASSESSEE HAS DISCHARGED HIS PRIMARY ONUS AND THEREFORE IT IS HELD THAT THE ADDITION MADE BY THE ASSESSING OFFICER AT RS.30.00 LAC CAN NOT BE SUSTAI NED AND THE SAME IS DELETED. 7. WE HAVE PERUSED THE RECORD AND HEARD THE LEARNED D.R. FOR THE REVENUE. THE ADDITION IN THIS CASE WAS MADE ON AC COUNT OF THE LOAN RECEIVED BY THE ASSESSEE FROM HIS FATHER SHRI JAGMO HAN TALWAR. THE CONFIRMATION OF SHRI JAGMOHAN TALWAR WAS FURNISHED BEFORE THE ASSESSING OFFICER AND COPY OF WHICH IS PLACED AT PA GE 10 OF THE PAPER BOOK. THE STATEMENT OF AFFAIRS OF SHRI JAGMOHAN TA LWAR AS ON 31.3.2007 IS PLACED AT PAGE 11 OF THE PAPER BOOK AND WAS ALSO FILED BEFORE THE AUTHORITIES BELOW. FURTHER THE ASSESSEE HAS PLACED ON RECORD COPY OF THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT IN T HE CASE OF SHRI JAGMOHAN TALWAR RELATING TO ASSESSMENT YEAR 2007-08 AT PAGE 12 OF THE PAPER BOOK UNDER WHICH THE RETURNED INCOME FILED BY SHRI JAGMOHAN 4 TALWAR HAS BEEN ACCEPTED AND NO ADDITION ON ANY OTH ER ACCOUNT HAS BEEN MADE. 8. THE REQUIREMENTS OF SECTION 68 OF THE ACT ARE TH AT THE ASSESSEE IN WHOSE BOOKS OF ACCOUNT OR BANK THERE IS CREDIT OF A NY AMOUNT WHICH IS CLAIMED TO HAVE RECEIVED FROM A CREDITOR, THE ONUS IS UPON THE ASSESSEE TO ESTABLISH THE IDENTITY OF THE CREDITOR AND ALSO TO ESTABLISH ITS CREDITWORTHINESS IN ORDER TO PROVE THE GENUINENESS OF THE TRANSACTION ENTERED UPON. THE ASSESSEE BEFORE US HAD FURNISHED CONFIRMATION OF THE CREDITOR WHO IS THE FATHER OF THE ASSESSEE AND IS A SSESSED TO TAX. THE SAID LOAN HAS BEEN RECEIVED THROUGH BANKING CHANNEL S THOUGH THERE WAS CASH DEPOSIT IN THE ACCOUNT OF THE CREDITOR. THE A SSESSMENT FOR THE RELEVANT ASSESSMENT YEAR OF SHRI JAGMOHAN TALWAR HA S BEEN COMPLETED U/S 143(3) OF THE ACT. WE FIND NO MERIT IN THE OBS ERVATIONS OF THE ASSESSING OFFICER IN THIS REGARD. THE INITIAL ONUS UPON THE ASSESSEE STANDS DISCHARGED. THE ASSESSEE HAS PRODUCED THE M ATERIAL TO SHOW THE AVAILABILITY OF FUNDS FROM WHERE THE CREDITOR HAD A DVANCED THE AFORESAID AMOUNT TO THE ASSESSEE. THE ASSESSING OFFICER, APA RT FROM DOUBTING SUCH MATERIAL, HAS NOT BROUGHT ON RECORD ANY ADVERSE EVI DENCE TO REJECT OR CONTROVERT THE MATERIAL BROUGHT ON RECORD BY THE AS SESSEE. WE ARE OF THE VIEW THAT IN VIEW OF THE DOCUMENTS/MATERIAL FILED B Y THE ASSESSEE, THE ONUS WITHIN THE AMBIT OF SECTION 68 OF THE ACT UPON THE ASSESSEE STANDS DISCHARGED AS PROVING THE SOURCE OF SOURCE IS BEYON D THE SCOPE OF SECTION 68 OF THE ACT. WE ALSO FIND SUPPORT FROM T HE RATIO LAID DOWN BY CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF SH. RAMAN KUMAR, PROP VS. ITO (SUPRA) AND THE RELEVANT FINDINGS OF THE TR IBUNAL ARE REPRODUCED BY THE CIT (APPEALS) AT PAGES 7 TO 9 OF THE APPELLA TE ORDER AND THE SAME ARE NOT BEING REPRODUCED FOR THE SAKE OF BREVITY. UPHOLDING THE ORDER OF 5 THE CIT (APPEALS) WE DISMISS THE GROUND OF APPEAL R AISED BY THE REVENUE. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF AUGUST, 2011. SD/- SD/- (MEHAR SINGH) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH AUGUST, 2011 RATI COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. TRUE COPY BY ORDER ASSISTANT REGISTRAR, ITAT, CHANDIGARH