M/s. Tulsi Amrit Pvt. Ltd., Indore V. The ITO 2(2), Indore

ITA 135/IND/2014

• Counselvise Citation: 13522714 RSA 2014
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-11-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 11-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R R MEENA
• Assessee Lawyers: C P RAWKA
• Section: 131; 68

Judgement Text

TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 134 & 135/IND/2014 A.YS 2004-05 & 2005-06 M/S TULSI AMRIT PVT. LTD. INDORE ::: APPELLANT VS INCOME TAX OFFICER 2(2) INDORE ::: RESPONDENT APPELLANT BY SHRI C.P. RAWKA RESPONDENT BY SHRI R.R. MEENA DATE OF HEARING 6.11.2015 DATE OF PRONOUNCEMENT 7 .12 .2015 O R D E R PER SHRI B.C. MEENA, AM THERE IS A DELAY OF ONE DAY ON THE PART OF THE ASSESSE E IN FILING THESE APPEALS. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED AN APPLICATION FOR CONDONATION OF TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 2 DELAY EXPLAINING THAT THE APPEAL FEE WAS DULY DEPOSITED WITHIN TIME AND DUE TO CALCULATION ERROR, THIS DELAY H AS OCCURRED. HE, THEREFORE, REQUSTED FOR CONDONATION OF DELAY. AFTER CONSIDERING THE REQUEST OF THE ASSESSEE AND HEARI NG THE LEARNED DR, WE CONDONE THE DELAY AND ADMIT THESE APPEALS FOR HEARING. 2. THESE APPEALS BY THE ASSESSEE EMANATE FROM THE COMMON ORDER OF THE LEARNED CIT(A)-I, INDORE, DATED 1.11.2013. IN ITA NO. 134/IND/2014 THE ONLY ISSUE INVOLVED IS REGARDING SUSTAINING THE ADDITION MADE ON ACCOUNT OF UNSECURED LOAN OF RS.12 LAKHS. 3. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED A WRITTEN REPLY STATING THAT OUT OF 9 CREDI TORS FOR WHICH THE ASSESSING OFFICER ISSUED SUMMONS THRE E DID NOT ATTEND BEFORE HIM AND THE ASSESSING OFFICER MADE T HE ADDITION OF RS.12 LAKHS INCLUDING THE PERSONS WHO HAV E ATTENDED BEFORE HIM. IT WAS SUBMITTED BY THE LEARNED TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 3 COUNSEL FOR THE ASSESSEE THAT THE STATEMENTS OF THESE CREDITORS WERE RECORDED AT THE BACK OF THE ASSESSEE AND THE COPIES THEREOF WERE NOT PROVIDED TO HIM. HE SUBMITTED THAT THE INFERENCE DRAWN BY THE ASSESSING OFFICER IN RESPECT OF SIX CREDIORS WAS NOT CORRECT. ALL THESE CREDITORS WERE ASSESSED TO TAX AND HAVING THEIR PAN NUMBERS. THE ASSESSING OFFICER HELD THAT THESE PERSO NS WERE NOT OF MEANS. HE SUBMITTED THAT SUCH INFERENCE W AS UNJUSTIFIED. SHRI CHERIAN KOSHY FROM WHOM THE ASSESS EE RECEIVED RS. 2 LAKHS WAS THE DIRECTOR OF THE COMPANY. HE HAS ADMITTED THAT HE HAS ADVANCED MONEY TO THE ASSESSEE. HE SUBMITTED THAT THE ADVANCE GIVEN TO THE ASSESSEE REPRESENTS WITHDRAWAL FROM THE BANK, MATURITY FROM LIC, INCOME FROM AGRICULTURE BELONGING TO THE H UF AND SALE PROCEEDS OF GOLD. SIMILARLY IN THE CASE OF PRAM OD WAIKAR FROM WHOM THE ASSESSEE RECEIVED RS. 2 LAKHS, THE AMOUNT IN HIS BANK ACCOUNT CAME FROM HIS FATHER AS WELL TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 4 AS LOAN RAISED BY THE CREDITOR AMOUNTING TO RS.55,000/ -. IN RESPECT OF ACHYUT PADMAWAR FROM WHOM THE ASSESSEE RECEIVED RS.80,000/- . IT IS CLAIM THAT IT WAS OUT OF THE SALE OF FLAT ON 3.12.2013 AND THE ASSESSING OFFICER D ID NOT ACCEPT THIS CONTENTION ON THE BASIS THAT EVIDENCE OF S ALE OF FLAT WAS NOT PRODUCED BEFORE HIM. SIMILARLY, IN THE CAS E OF LAXMI JETHANI FROM WHOM ASSESSEE RECEIVED RS. 50,000/ - IS WIFE OF ONE OF THE DIRECTORS. IT IS SUBMITTED TH AT HER FINANCIAL MATTERS WERE HANDLED BY HER HUSBAND HENCE SHE COULD NOT EXPLAIN THE SAME. IN THE CASE OF POOJA JETHAN I IT WAS SUBMITTED THAT HER FINANCIAL MATTERS WERE LOOKED AFTE R BY HER BROTHER-IN-LAW, THEREFORE, SHE COULD NOT EXP LAIN. IN THE CASE OF ARTI SODANI FROM WHOM THE ASSESSEE RECEIVE D RS.1 LAKH, IT WAS SUBMITTED THAT SHE HAS RECEIVED RS. 70,000/- FROM DIVYA JYOGI LIMITED AND THE REMAINING RS . 30,000/- WAS HER MISCELLANEOUS INCOME. TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 5 4. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE SI DES AS ALSO THE CASE LAWS RELIED UPON. WE HAVE ALSO GONE THROUGH THE VARIOUS DOCUMENTS SUBMITTED BEFORE US. T HE LEARNED CIT(A) HAS CONFIRMED THE ADDITION OF RS.12 LAK HS FOR THE ASSESSMENT YEAR 2004-05 AND RS. 4,45,000/- FO R THE ASSESSMENT YEAR 2005-06 AND ALSO DISALLOWANCE OF INTEREST OF RS.3,34,553/- FOR THE ASSESSMENT YEAR 200 5-06 BY HOLDING AS UNDER :- 4. I HAVE SEEN THE ASSESSMENT ORDER, THE GROUNDS OF APPEAL AND THE SUBMISSIONS OF THE APPELLANT. 5. IN A.Y. 2004-05 APPELLANT HAS RECEIVED UNSECURED LOAN FROM 17 DEPOSITORS WHOSE NAMES ARE REPRODUCED IN A TABLE AT PAGE 2 OF TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 6 THIS ORDER. THE A.O. EXAMINED THIS ISSUE OF UNSECURED LOAN IN DETAILS IN A.Y. 2004-05 BY ISSUING SUMMONS TO ALL OF THESE DEPOSITORS. IN RESPONSE TO THE SUMMONS ISSUED U/S 131 OF THE IT ACT, THREE DEPOSITORS NAMESLY SMT. SAVITA WAIKAR, SMT. ARPANA JETHANI AND SHRI VIVEK JETHANI DID NOT APPEAR AND WHEN APPELLANT WAS ASKED TO PRODUCE THEM, APPELLANT FAILED TO DO SO, DESPITE THE FACT THAT ALL DEPOSITORS ARE RELATED TO DIRECTORS OF THE COMPANY. THEREFORE, THERE WAS HEAVY ONUS ON APPELLANT TO PRODUCE THEM. THEY WERE NOT PRODUCED FOR THE OBVIOUS REASON THAT WHY WERE NOT HAVING CREDITWORTHINESS TO EXTEND SUCH LOANS & CASH WOULD HAVE BEEN DEPOSITED IN THEIR BANK ACCOUNTS JUST BEFORE ISSUE OF CHEQUES TO APPELLANT COMPANY AAS WAS FOUND TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 7 BY A.O. IN CASE OF MANY OTHER DEPOSITORS. CONSIDERING THE AFORESAID FACTS, IT IS HELD THAT APPELLANT FAILED TO ESTABLISH IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THESE THREE DEPOSITORS NAMELY SAVITA WAIKAR, ARPANA JETHANI AND VIVEK JETHTANI. 6. REGARDING BALANCE 14 DEPOSITORS WHO APPEARED BEFORE A.O., A.O. MADE DETAILED INVESTIGATION & RECORDED THEIR STATEMENTS. THEREAFTER A.O. CAME TO CONCLUSION THAT DEPOSITS RECEIVED FROM EIGHER PERSONS WERE EXPLAINED PROPERLY IN CASE OF SAMPAT NYATI (IND._, SMAPAT NYATI (HUF), VIJAY JETHANI, M/S PHARMAWELL CENTRE, KIRAN TANWAR, ANSHUL NYATI, RAJESH RAMANUJACHARYA AND ASHOK TANWAR. TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 8 7. THE DEPOSITS RECEIVED FROM REST OF THE SIX PERSON WAS HELD AS UNEXPLAINED FOR SPECIFIC REASON NOTED IN EACH CAASE BY A.O. IN CASE OF CHERIAN KOSHY LARGE NUMBER OF CASH DEPOSITS WERE FOUND IN HIS BANK ACCOUNT WHICH HE COULD NOT EXPLAIN SATISFACTORILY. WHEN HE WAS ASKED TO EXPLAIN SOURCE OF SUCH CASH DEPOSITS, HE GAVE EVERY SOURCE UNDER THE SUM FROM AGRICULTURAL INCOME TO BORROWING TO SALE OF GOLD. WHY WILL A PERSON INDULGE IN SO MANY TRANSACTIONS JUST TO GIVE LOAN TO APPELLANT ? BESIDES HE FAILED TO ADDUCE ANY PROOF OF ANY OF SUCH SOURCE OF CASH CLAIMED BY HIM. SIMILARLY IN BANK A/C OF PRAMOD WAIKER CASH DEPOSITS WERE FOUND, SOURCE OF WHICH HE EXPLAINED AS RECEIVED FROM HIS FATHER & FROM VARIOUS DEPOSITORS BUT HE COULD NEITHER EXPLAIN SOURCE TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 9 OF INCOME OF HIS FATHERNOR COULD HE GIVE NAMES OF HIS DEPOSITORS. SIMILARLY CASH DEPOSITS WERE FOUND IN BANK A/C OF ACHYUT PADMAWAR, WHO EXPLAINED THAT SUCH CASH WAS RECEIVED AGAINST SALE OF FLAT BUT HE COULD NEITHER SUBMIT ANY DOCUMENT SHOWING SALE OF FLAT NOR EXPLAIN WHY ENTIRE AMOUNT ON SALE OF FLAT WAS RECEIVED IN CASH. HUGE CASH DEPOSITS WERE FOUND IN BANK A/C OF SMT. AARTI SODANI, SOURCE OF WHICH SHE COULD NOT EXPLAIN. SMT. LAXMI JETHANI & SMT. POOJA JETHANI WERE IGNORANT ABOUT GIVING ANY SUCH DEPOSIT TO APPELLANT COMPANY. THESE DETAILS CLEARLY ESTABLISH THAT ALL THE RELATED PERSON OF DIRECTORS WERE USED TO ROUTE UNACCOUNTED CASH SINCE HUGE CASH WAS FOUND DEPOSITED IN THEIR BANK A/C JUST BEFORE ISSUE OF CHEQUES TO APPELLANT COMPANY & AS NARRATED TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 10 ABOVE, THESE DEPOSITORS FAILED TO PROPERLY EXPLAIN SOURCE OF SUCH CASH BEFORE A.O. AS WELL BEFORE UNDERSIGNED. 8. IN VIEW OF THE ABOVE DISCUSSION I UPHOLD THE ADDITION U/S 68 OF UNSECURED LOANS RECEIVED FROM 9 PERSONS LISTED ON TABLE GIVEN ON PAGE 7 OF THIS ORDER, THE TOTAL OF WHICH IS RS. 12 LAKH. IN THIS REGARD RELIANCE OF AO ON DECISIONS IN CAASE OF SREELEKHA BANERJEE (1963) 49 ITR 112(SC), SHANKAR INDUSTRIES (1978) 114 ITR 689 (CAL) ETC. IS CORRECT AS APPELLANT FAILED TO ESTABLISH GENUINENESS & CREDITWORTHINESS OF SUCH DEPOSITORS. IF SUCH DEPOSITS WERE RECEIVED FROM INTIMATELY CONNECTED PERSONS AND YET REMAINED UNEX[PLAINED, THEIR ADDITION WAS HELD TO BE JUSTIFIED IN CASE OF KRISHNA IND. CORP. P. LTD. (1970) 119 ITR 341. AS A RESULT THIS TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 11 ADDITION OF RS.12 LAKH MADE U/S 68 OF THE IT ACT IS CONFIRMED IN A.Y. 2004-05. FURTHER LOAN RECEIVED FROM 5 OF THESE DEPOSITORS NAMELY SMT. SAVITA WAIKER, SMT. ARPANA JETHANI, SH. VIVEK JETHANI, SMT. LAXMI JETHANI & SMT. POOJA JETHANI OF TOTAL OF RS.5,45,000/- IN A.Y. 2005-06 IS ALSO CONFIRMED BECAUSE IN THAT YEAR ALSO HUGE CASH DEPOSITS WERE FOUND IN BANK A/C OF THESE PERSONS BEFORE ISSUE OF CHEQUES TO APPELLANT & APPELLANT FAILED TO ESTABLISH THEIR GENUINENESS & CREDITWORTHINESS. ON THE BASIS OF THESE ARGUMENT, THE DISALLOWANCE OF INTEREST CREDITED TO THESE PERSONS IN A.Y. 2005-06 OF RS.2,34,553/- IS ALSO CONFIRMED. 9. THE OTHER ADDITION IN A.Y. 200-05 AND A.Y. 2005-06 AS A RESULT OF DISALLOWANCE FROM VARIOUS EXPENSES ARE DELETED BECAUSE SUCH TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 12 DISALLOWANCES WERE MADE PURELY ON ADHOC BASIS WITHOUT FINDING ANY DEFECT INC CORRESPONDING VOUCHERS AND WITHOUT APPRECIATING THE FACT THAT IN CASE OF A COMPANY WHOSE ACCOUNTS ARE AUDITED, SUCH ADHOC DISALLOWANCE SHOULD NOT BE DONE. 6. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED A WRITTEN REPLY WITHOUT ANY SUPPORTING DOCUMENTS. THE LEARNED AR COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIMS MADE IN WRITTEN SUBMISSIONS AND ORAL PLEADINGS. THERE IS NO MATERIAL ON RECORD TO CONTROVERT THE FINDINGS RECORDE D BY THE LEARNED CIT(A). WE, THEREFORE, FIND NO MERIT I N THESE PLEADINGS OF THE LEARNED COUNSEL FOR THE ASSESSEE AND DISMISS BOTH THE APPEALS OF THE ASSESSEE. 7. IN THE RESULT, THESE APPEALS OF THE ASSESSEE STAND DISMISSED. TULSI AMRIT PVT. LTD. ITA NOS. 134 & 135/IND/2014 13 PRONOUNCED IN OPEN COURT ON 7 TH DECEMBER, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 7 TH DECEMBER, 2015 DN/-