DCIT, CIR-2, JALPAIGURI, Jalpaiguri V. Shri Jitendra Kumar Golcha, Coochbihar

ITA 1328/KOL/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4055 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 14-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROBIIN CHOUDHURY CITSRDR
• Assessee Lawyers: J M THARD
• Keywords: Gift; Corroborative evidences; Onus to prove
• Section: 143(3); 68; 10

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI, M. BALAGANESH, ACCOUNTANT MEMBER ITA NO. 1328 / KOL / 20 16 ASSESSMENT YEAR :2012-13 DCIT, CIRCLE-2, 2 ND FLOOR, C.R. BUILDING, RACE COURSE PARA, NAYA BASTY, JALPAIGURI, PIN-735101 V/S . SHRI JITENDRA KUMAR GOLCHA, PROP. OF M/S C.B. CRETION,1 ST FLOOR, UTTARAYAN BUILDING, BHABNIGANJ BAZAR, P.O. & DIST. COOCHBEHAR, PIN-736101 [ PAN NO.AHHPG 4588 M ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI ROBIIN CHOUDHURY, ADDL. CIT-SR-DR /BY RESPONDENT SHRI J.M. THARD, ADVOCATE /DATE OF HEARING 03-10-2018 /DATE OF PRONOUNCEMENT 10-10-2018 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS REVENUES APPEAL FOR ASSESSMENT YEAR 2012-13 A RISES AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-JALPA IGURIS ORDER DATED 27.04.2016 PASSED IN CASE NO.03/JAL/CIT(A)/JA L/2015-16 REVERSING THE ASSESSING OFFICERS ACTION ADDING THE TAXPAYERS UN SECURED LOANS OF 62 LAC FOLLOWED BY DISALLOWANCE OF INTEREST PAID THEREUPON OF 7,80,609 RESPECTIVELY INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO.1328/KOL/2016 A.Y. 201 2-13 DCIT, CIR-2 JAL. VS. SH JITENDRA KR. GOLCHA PAGE 2 2. BOTH THE LEARNED REPRESENTATIVES TAKE US TO CIT( A)S DETAILED DISCUSSION DELETING THE IMPUGNED(S) OF UNSECURED LO ANS AND INTEREST THEREUPON AS FOLLOWS:- 4. I HAVE DULY CONSIDERED THE SUBMISSION OF THE LD . AR AND THE DETAILS FILED IN THE FORM OF A PAPER BOOK. DURING THE F.Y 2 011-12, ASSESSEE HAD TAKEN LOANS FROM NINE FAMILY MEMBERS AND RELATIVES, OUT OF WHICH FOUR LOANS WERE TAKEN FOR THE FIRST TIME. FROM THE LOAN IT APPEARS THAT- (I) AGGREGATE OPENING BALANCE OF LOANS I.E B/F LOAN S) WAS RS.42,96,252/- (II) AGGREGATE ADO OF LOANS WAS RS.6322,00,000/- (III) AGGREGATE INTEREST LIABILITY WAS RS.7,80,609/ - AND TDS MADE WAS RS.70,160/-. (IV) AGGREGATE ;LOAN REPAYMENTS WAS RS.54,76,409/- AND (V) AGGREGATE CLOSING BALANCE OF LOAN WAS RS.57,30, 292/- IT PRIMA-FACIE APPEARS THAT THE AO MADE ADDITIONS O N ACCOUNT OF SOME SUCH LOANS WHICH WERE REPAID DURING THE YEAR. FOR E XAMPLE, EXCEPTING MS. REHMI GOLCHA, OTHER THREE NEW LOANS WERE REPAID WITH INTEREST. THE AO ALSO DISALLOWED SOME SUCH INTERESTS WHICH WERE A TTRIBUTABLE TO BROUGHT FORWARD LOANS, WITHOUT ASSIGNING ANY REASON . FROM THE ASSESSMENT ORDER IT ALSO APPEARS THAT THE AO POINTE D OUT SOME ALLEGED DISCREPANCIES IN THE ACCOUNTS OF FIVE CASES, BUT DI SALLOWED ENTIRE FRESH LOANS [FOUR NEW LOANS AND FIVE ADDITION TO LOANS] A GGREGATING TO RS.62,00,000/-.,FOR EXAMPLE, IN THE CASE OF SHRI MA HENDRA KUMAR GOLCHA, M/S MAHENDRA KUMAR GOLCHA & SONS (HF), M/S MAHENDRA KUMAR SURENDRA KUMAR AND M/S RAJENDRA KUMAR GOLCHA & SONS (HUF), AO HAS NOT POINTED OUT ANY DISCREPANCY. 5. LEARNED. AR HAS CONTENDED THAT ALL THE LOANS WER E RECEIVED BY THE ASSESSEE FORM HIS CLOSE FAMILY MEMBERS AND FAMILY C ONCERNS; ALL LOANS WERE RECEIVED AND REPAYMENTS WERE MADE THROUGH ACCO UNT PAYEE CHEQUES; INTEREST WERE ALSO PAID BY ACCOUNT PAYEE C HEQUES AFTER DEDUCTION OF TAX AT SOURCE AS AND WHERE APPLICABLE; ALL THE LENDERS WERE ASSESSED TO TAX AND DULY CONFIRMED THE TRANSACTIONS . THE AO HAS NOT DISPUTED THESE FACTS AND THE LD. AR HAS FILED ALL T HE DOCUMENTS AGAIN ALONGWITH HIS SUBMISSION. THUS THE ASSESSEE EXPLICI TLY DISCHARGED THE REQUIREMENTS U/S 68 OF THE ACT AND THAT ONUS, I.E. INITIAL BURDEN OF PROOF SHIRTED UPON THE AO AS THE ONUS TO PROVE THAT THE A PPARENT IS NOT REAL IS ON THE PARTY WHO CLAIMS IT TO BE SO. SINCE THE AO A LLEGED THAT THE LOANS WERE BOGUS, BURDEN LIES UPON THE AO TO PROVE THE SA ME BY LAYING EVIDENCE. LET US SEE WHAT DISCREPANCY AO FOUND OUT IN THE ACCOUNTS OF FIVE LOAN CREDITORS. 6.1 SHRI ANUVHAV GOLCHA: SHRI ANUBHAV HAD GIVEN FRE SH LOAN OF RS.11,60,00/- AS MENTIONED BY THE AO. LD AR HA STAT ED THAT FRESH LOANS OF RS.6,80,00/- WERE GIVEN [THERE WERE ONE RETURNED CHEQUE OF RS.4,80,000/-), WHICH APPEARS TO BE CORRECT FROM TH E DETAILS FILED. THE ITA NO.1328/KOL/2016 A.Y. 201 2-13 DCIT, CIR-2 JAL. VS. SH JITENDRA KR. GOLCHA PAGE 3 DOUBTS RAISED BY THE AO THAT A PERSON HAVING TOTAL INCOME OF RS.3,45,494/- AND HAVING CAPITAL BALANCE OF RS.8.79 LAKHS COULD NOT PROVIDE LOANS IS PREPOSTEROUS. LOANS ALSO CAN BE GI VEN BY TAKING LOANS FROM OTHERS. THE AO THOUGH POINTED OUT ABOUT SOME S USPICIOUS TRANSACTION IN HIS BANK ACCOUNT, BUT NO SPECIFIC DI SCUSSIONS HAS BEEN MADE. ON THE OTHER HAND, ASSESSEE HAS GIVEN EXPLANA TION FOR EACH AND EVERY CREDIT AMOUNTS (IN THE BOOKS OF LENDER) USED FOR PROVIDING LOANS WITH SUPPORTING EVIDENCES. THUS, THE ADDITION MADE IN THIS REGARD IS NOT MAINTAINABLE. 6.2 SHRI RAJENDRA KUMAR GOLCHA: SRI GOLCHA HAD GIVE N FRESH LOAN OF RS.7,43,000/- AS MENTIONED BY THE AO LD AR HAS STAT ED THAT FRESH LOANS OF RS.5,08,000/- WERE GIVEN [THREE WERE TWO R ETURNED CHEQUES TOTALING TO RS.2,35,000/), WHICH APPEARS TO BE CORR ECT FROM THE DETAILS FILED. HERE ALSO AO RAISED DOUBT THAT A PERSON HAVI NG TOTAL INCOME OF RS.5,23,986/- COULD NOT PROVIDE LOANS. LOANS ALSO C AN BE GIVEN BY TAKING LOANS FROM OTHERS AND FROM ACCUMULATED CAPIT AL. THE AO THOUGH POINTED OUT ABOUT SOME SUSPICIOUS TRANSACTION IN HI S BANK ACCOUNT, BUT NO SPECIFIC DISCUSSION HAS BEEN MADE. ON THE OTHER HAND, ASSESSEE HAS GIVEN EXPLANATION FOR EACH AND EVERY CREDIT AMO UNTS (IN THE BOOKS OF LENDER) USED FOR PROVIDING LOANS WITH SUPPORTING EVIDENCES. THUS, THE ADDITION MADE IN THIS REGARD IS ALSO NOT MAINTAINAB LE. 6.3 SHRI MOHAN LAL GOLCHA (PROP. OF CHUNILAL BHAWAR LAL): FROM SHRI MOHAN LAL, ASSESSEE HAD RECEIVED LOANS OF RS.26.00 LAKHS, WHICH WERE ALSO REPAID DURING THE YEAR. IN THIS CASE, AO FOUND THAT ASSESSEE HIMSELF HAD GIVEN LOAN OF RS.5,00,000/- TO THE LEND ER ON 04/04/2011 AND ALSO RECEIVED BACK THE SAME ON 03/06/2011. THE AO, THEREFORE, OF THE OPINION THAT A PERSON WHO HAD EARLIER PROVIDED LOAN S TO ANOTHER PERSON COULD NOT TAKE LOANS FROM THAT PERSON SUBSEQUENTLY AND ACCORDINGLY, DISALLOWED THE LOANS OF RS.26.00 LAKHS. THIS IS ABS URD. ADDITION CANNOT BE MADE ON MERE SUSPICIONS AND SURMISES. LD AR HAS FILED EXPLANATION FOR EACH AND EVERY CREDIT AMOUNTS (IN THE BOOKS OF LENDER) USED FOR PROVIDING LOANS WITH SUPPORTING EVIDENCES. THUS, TH E ADDITION MADE IN THIS REGARD IS ALSO NOT MAINTAINABLE. 6.4 SHRI SURENDRA KUMAR GOLCHA AND SONS (HUF): THIS HUF HAD GIVEN FRESH LOAN OF RS.50,000/-. HERE ALSO AO RAISED DOUB T THAT A PERSON HAVING TOTAL INCOME OF RS.51,030/- COULD NOT PROVID E LOANS. LOANS ALSO CAN BE GIVEN BY TAKING LOANS FROM OTHERS AND FROM A CCOUNTABLE CAPITAL. THE AO THOUGH POINTED OUT ABOUT SOME SUSPICIOUS TRA NSACTION IN HIS BANK ACCOUNT, BUT NO SPECIFIC DISCUSSION HAS BEEN M ADE. ON THE OTHER HAND, ASSESSEE HAS GIVEN EXPLANATION FOR EACH AND E VERY CREDIT AMOUNTS (IN THE BOOKS OF LENDER) USED FOR PROVIDING LOANS WITH SUPPORTING EVIDENCES. THUS, THE ADDITION MADE IN TH IS REGARD IS ALSO NOT MAINTAINABLE. 6.5 SMT. RESHMSI GOLCHA: THE ASSESSEE HAD TAKEN NEW LOAN OF RS.3,35,000/- FROM SMT. RESHMI GOLCHA. SOURCE WAS E XPLAINED AS ACCUMULATED CASH GIFTS RECEIVED IN HER MARRIAGE CER EMONY. THE AO ITA NO.1328/KOL/2016 A.Y. 201 2-13 DCIT, CIR-2 JAL. VS. SH JITENDRA KR. GOLCHA PAGE 4 DOUBTED THAT A PERSON HAVING ANNUAL INCOME OF R.42 ,412/- WAS NOT IN A POSITION OF PROVIDING LOAN OF RS.3,35,000/-., THE A O ALSO DOUBTED THAT WHEN THE MARRIAGE OF THE LENDER WAS CELEBRATED ON 3 1.05.2010, WHY THE CASH GIFT WAS DEPOSITED IN HER BANK ACCOUNT ON 14-1 5/11/2011 AND ACCORDINGLY DISALLOWED THE SAME. LD AR INFERRED THA T IT IS A COMMON PRACTICE IN THE MAWARI SOCIETY TO CELEBRATE MARRIAG E THROUGHOUT THE YEAR, WHEN THE BRIDE GETS VARIOUS GIFTS, INCLUDING CASH GIFTS FROM FAMILY MEMBER AND RELATIVES. LD AR HAS FILED COPY OF BALAN CE SHEETS OF THE FAMILY MEMBERS EVIDENCING THAT AMONG OTHERS GIFTS T OTALING TO RS.1.11 LAKHS WERE RECEIVED FROM HER FAMILY MEMBERS. THOSE ACCUMULATED CASH GIFTS WERE DEPOSITED IN HER BANK ACCOUNT IN THE MAR RIAGE ANNIVERSARY YEAR. IN THIS CASE ALSO, ASSESSEE EXPLICITLY DISCHARGED T HE REQUIREMENTS U/S 68 OF THE ACT BY FILING LOAN CONFIRMATION, ACKNOWLE DGEMENT OF INCOME TAX RETURN AND BANK STATEMENT OF THE LENDERS, WHO I S OTHERWISE HIS CLOSE FAMILY MEMBER. WHEN THE AO DOUBTED ABOUT CASH DEPOS ITS IN LENDERS BANK ACCOUNT, ACTION LIED IN THE CASE OF THE LENDER . THE LENDER COULD HAVE BEEN SUMMONED AND INTERROGATED TO ESTABLISH TH AT SOURCE OF SAID CASH WAS ASSESSEES OWN. IN ABSENCE OF TAT ADDITION MADE ON MERE SUSPICION, CANNOT BE SUSTAINED. THE ORDINARY PRESUM PTION OF LAW IS THAT THE APPARENT STATE OF AFFAIRS IS REAL UNLESS THE CO NTRARY IS PROVED. THE AO HAD NOT BROUGHT ANY POSITIVE MATERIAL OR EVIDENC E WHICH WOULD INDICATE THAT THE ADDITION/DISALLOWANCE AS MADE WER E ALL CORRECT. LAW IS SETTLED THAT THE FATE OF THE ASSESSEE CANNOT BE DEC IDED BY THE REVENUE ON THE BASIS OF SURMISES, SUSPICION OR POSSIBILITIE S. 6.6 IN THE LIGHT OF ABOVE DISCUSSION, ENTIRE ADDITI ON OF RS.62,00,000/- MADE U/S 68 OF THE ACT IS NOT MAINTAINABLE HENCE DE LETED. CONSEQUENTLY, ADDITION OF RS.7,80,609/- MADE BY DIS ALLOWING INTEREST ON SUCH LOANS IS ALSO DELETED. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. MR. CHOUDHURY VEHEMENTLY CONTENDS DURING THE COURSE OF HEARING THAT THE ASSESSEES CREDITORS IN ISSUE HAVE MEGURE SOURCE OF INCOME AND THERE ARE MANY FACTUAL INCONSISTENCIES AS WELL AS SO FAR AS 1 0 FAMILIES MEMBERS / CREDITORS INCLUDING THREE HUFS ARE CONCERNED. WE FI ND NO MERIT IN REVENUES INSTANT ARGUMENTS. IT HAS COME ON RECORD THAT THE A SSESSEE HAS OBTAINED ITS UNSECURED LOANS OF 62 LAC FROM TEN FAMILY MEMBERS INCLUDING THREE RELA TED HUFS. WE FIND FROM THE CORRESPONDING TABULATION IN THE CASE FILE THAT SIX OF THE SAID PARTIES INVOLVED OPENING BALANCES AS WELL. THI S MEANS THAT THE ASSESSEE HAS CARRIED FORWARD PRECEDING YEARS CLOSING BALANCE OF LOANS IN THIS IMPUGNED ASSESSMENT YEAR. THE VERY LOANS HAD ATTAINED FINALI TY THEREFORE AS THE ITA NO.1328/KOL/2016 A.Y. 201 2-13 DCIT, CIR-2 JAL. VS. SH JITENDRA KR. GOLCHA PAGE 5 ASSESSING OFFICER NOWHERE RAISED ANY OBJECTION IN E ARLIER ASSESSMENT YEARS. WE NOTICE THAT TAXPAYER HAS PLACED ON RECORD NOT ON LY HIS CREDITORS CONFIRMATIONS BUT ALSO THEIR ENTIRE DETAILED EVIDEN CE IN THE NATURE OF INCOME TAX RETURNS, COMPUTATION, CAPITAL ACCOUNT, BALANCE- SHEET, BANK STATEMENT, AFFIDAVITS ETC. ALL OF THEM ARE STATED TO BE ASSESS ED IN THE SAME JURISDICTION. THE ASSESSEE HAS ALSO REPAID THE IMPUGNED LOANS IN EIGHT CASES IN FULL / PART ALONGWITH INTEREST INVOLVING TDS DEDUCTION. WE TAKE INTO ACCOUNT ALL THESE VOLUMINOUS DEBTORS TO CONCLUDE THAT THE CIT(A) HAS RIGHTLY DELETED THE IMPUGNED UNSECURED LOANS AND INTEREST AS THE ASSESS EE SATISFIED ALL THE RELEVANT PARTICULARS OF IDENTITY, GENUINENESS AND C REDITWORTHINESS OF HIS CREDITORS / FAMILY MEMBERS. 4. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 10/ 10/2018 SD/- SD/- ( %) (' %) (M.BALAGANESH) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP, SR.P.S (- 10 / 10 /201 8 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DCIT, CIR-2, 2 ND FL, C.R. BUILDING, RACE COURSE PARA, NAYA BASTY, JALPAIGUR -735101 2. /RESPONDENT-SHRI JITENDRA KR. GOLCHA, PROP. OF M/S C.B. CREATION, 1 ST FLOOR UTARYAN BUILDIN G, BHABNIGANJ BAZAR, P.O.& DIST. COOCHBEHAR-736101 3. 3 4 / CONCERNED CIT KOLKATA 4. 4- / CIT (A) KOLKATA 5. 7 ''3, 3, / DR, ITAT, KOLKATA 6. < / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY, HEAD OF OFFICE/DDO 3,