Salim Ismail Shaikh, Nashik V. Income-tax Officer, Nashik

ITA 1390/PUN/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5820 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-09-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 01-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 143(3); 201

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE , BEFORE SHRI VIKAS AWASTHY, JM . / ITA NO . 1390 /P U N/201 7 / ASSESSMENT YEAR : 20 12 - 13 SHRI SALIM ISMAIL SHAIKH, PLOT NO. 28, GAT NO. 486, A/1, SHRIKRUSHNA NAGAR, SATPUR COLONY, NASHIK 422007 PAN : APIPS0584G ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 2(1), NASHIK / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 17 - 09 - 201 8 / DATE OF PRONOUNCEMENT : 05 - 1 2 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 2, NASHIK DATED 1 7 - 03 - 2017 FOR THE ASSESSMENT YEAR 20 12 - 13. THE ASSESSEE IN APPEAL HAS RAISED FOUR GROUNDS. 2 ITA NO . 1390/PUN/2017, A.Y. 2012 - 13 2. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT HE IS NOT PRESSING GROUND NOS. 3 AND 4 OF THE APPEAL. THUS, THE ONLY GROUND S IN APPEAL FOR ADJUDICATION ARE AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LOWER AUTHORITIES HAVE ERRED IN CONFIRMING AN ADDITION OF R S. 12,94,019/ - ON ACCOUNT OF SUNDRY C REDITORS BY DISREGARDING APPELLANT'S CONTENTION AND DOCUMENTARY EVIDENCES WITH RESPECT TO EACH OF THE SUNDRY CREDITORS, YOUR APPELLANT PRAYS FOR DELETION OF ENTIRE ADDITION. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LOWER AUTHO RITIES HAVE ERRED IN ACCEPTING A SUM OF R S.1 ,20,365/ - AS AGRICULTURE INCOME BY DISREGARDING APPELLANT'S CONTENTION. 2.1 THE LD. AR SUBMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF DEVELOPMENT OF LAND AND IS ALSO A SCRAP MERCHANT. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 30 - 09 - 2012 DECLARING TOTAL INCOME OF RS.6,30,155/ - . THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS. IN SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESS ING OFFICER OBSERVED THAT THE ASSESSEE HAS SHOWN SUNDRY CREDITORS TO THE TUNE OF RS.24,61,649/ - . DUE TO NON - AVAILABILITY OF THE DETAILS OF CREDITORS , THE GENUINENESS OF THE CREDITORS COULD NOT BE VERIFIED. THEREFORE, THE ASSESSING OFFICER MADE ADDITION O F THE AFORESAID AMOUNT TREATING THE SUNDRY CREDITORS AS NON - GENUINE. 2.2 AGGRIEVED BY THE ADDITIONS MADE IN ASSESSMENT PROCEEDINGS THE ASSESSEE FILED APPEAL AGAINST THE ASSESSMENT ORDER DATED 13 - 03 - 2015 PASSED U/S. 143(3) OF THE ACT. BEFORE THE COMMISS IONER OF INCOME TAX (APPEALS) THE ASSESSEE FURNISHED ADDRESS OF ALL THE FIVE CREDITORS. THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED THE GENUINENESS OF THREE CREDITORS I.E. (I) F.S. KHAN RS.2,56,500/ - , (II) ANNA BALAJI PURKAR 3 ITA NO . 1390/PUN/2017, A.Y. 2012 - 13 RS.9,09,480/ - AND (III) MEGATECH ENTERPRISES RS.1,650/ - TOTALING TO RS.11,67,630/ - . HOWEVER, IN RESPECT OF TWO CREDITORS I.E. MAHALAXMI CONSTRUCTION & CONTRACTOR RS. 5,23,700/ - AND PATHADE D F RS.7,70,319/ - AGGREGATING TO RS.12,94,019/ - , T HE COMMISSIONER OF INCOME TAX (APPEALS) C ONFIRMED THE ADDITION ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FURNISH CORRECT ADDRESS AND PAN DETAILS. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD FILED CONFIRMATION LETTERS FROM THE AFORESAID TWO CREDITORS , HOWEVER THE SAME WERE DISBELIEVED BY THE F IRST APPELLATE AUTHORITY. THE PAYMENTS WERE MADE TO THE AFORESAID SUNDRY CREDITORS IN APRIL, 2017. IN SUPPORT HIS SUBMISSIONS THE LD. AR FURNISHED A COPY OF BANK ACCOUNT STATEMENT FROM THE 1 ST APRIL, 2016 TO 31 ST MARCH, 2018. THE LD. AR POINTED THAT PAYMENT OF RS.5,23,7 59/ - WAS MADE TO MAHALAXMI CONSTRUCTION & CONTRACTOR ON 27 - 04 - 2017 THROUGH RTGS FROM THE BANK ACCOUNT WITH SHREE SAMARTH SA HAKARI BANK, NASHIK AND THE PAYMENT OF TO PATHADE D F RS.7,70,378/ - WAS MADE ON 24 - 04 - 2017 FROM THE SAME BANK ACC OUNT. THE LD. AR ALSO FURNISHED COPY OF B ANK ACCOUNT STATEMENTS OF MAHALAXMI CONSTRUCTION & CONTRACTOR AND P ATHADE D F TO SHOW THAT THE AMOUNTS WERE CREDITED TO THEIR ACCOUNTS ON THE SAME DATE OF TRANSFER. 3. SHRI SUDHENDU DAS REPRESENTING THE DEPARTME NT VEHEMENTLY DEFENDED THE IMPUGNED ORDER. THE LD. DR SUBMITTED THAT GENUINENESS OF CONFIRMATION LETTERS FROM SUNDRY CREDITORS I.E. MAHALAXMI CONSTRUCTION & CONTRACTOR AND P ATHADE D F COULD NOT BE ASCERTAINED AS THE ASSESSEE FAILED TO FURNISH THEIR COMPLE TE ADDRESS. THEREFORE, THE COMMISSIONER OF INCOME TAX (APPEALS) RIGHTLY SUSTAINED THE ADDITION QUA THE TWO SUNDRY CREDITORS. 4 ITA NO . 1390/PUN/2017, A.Y. 2012 - 13 4. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. THE GROUND NO. 1 OF THE APPEAL IS WITH RESPECT TO ADDITION OF R S.12,94,019/ - ON ACCOUNT OF NON - GENUINE SUNDRY CREDITORS. THE ASSESSING OFFICER HAD MADE ADDITION OF RS.24,61,649/ - IN RESPECT OF UNPROVED SUNDRY CREDITORS. IN FIRST APPELLATE PROCEEDINGS , THE ASSESSEE FURNISHED DETAILS OF SUNDRY CREDITORS. THE COMMISSI ONER OF INCOME TAX (APPEALS) AFTER CONSIDERING THE SAME GRANTED PART RELIEF TO THE ASSESSEE BY DELETING THREE SUNDRY CREDITORS. HOWEVER, IN RESPECT OF TWO SUNDRY CREDITORS I.E. MAHALAXMI CONSTRUCTION & CONTRACTOR AND P ATHADE D F THE COMMISSIONER OF INCOME TAX (APPEALS) WAS NOT SATISFIED WITH THE EVIDENCE S FURNISHED , HENCE, CONFIRMED THE ADDITION TO THE EXTENT OF SUNDRY CREDITORS SHOWN AGAINST THE ABOVE MENTIONED TWO PARTIES. AGAINST THE SAID ADDITIONS THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LD. AR POINTED THAT THE PAYMENTS WERE MADE TO THE ABOVE SAID PARTIES I.E. MAHALAXMI CONSTRUCTION & CONTRACTOR AND P ATHADE D F IN APRIL, 2017. TO SUBSTANTIATE THE SAME THE ASSESSEE HAS PLACED ON RECORD B ANK STATEMENTS OF ASSESSEE AND B ANK STATEMENTS OF THE CREDITORS FOR CORRESPONDING PERIOD AS ADDITIONAL EVIDENCE. A PERUSAL OF THE B ANK STATEMENT OF ASSESSEE FROM SHREE SAMARTH SAHAKARI BANK, NASHIK REVEAL THAT PAYMENT OF RS.7,70,378/ - WAS MADE BY THE ASSESSEE TO PATHADE D F THROUGH RTGS ON 24 - 04 - 2017 AN D PAYMENT OF RS.5,23,759/ - TO MAHALAXMI CONSTRUCTION & CONTRACTOR WAS MADE THROUGH RTGS ON 27 - 04 - 2017. THE BANK STATEMENT OF MAHALAXMI CONSTRUCTION & CONTRACTOR HAVING BANK ACCOUNT WITH NASHIK JILHA MAHILA SAHKARI BANK LTD. AND THE BANK STATEMENT OF PATHA DE D F HAVING BANK ACCOUNT WITH BANK OF BARODA INDICAT E THAT THE AMOUNTS WERE DULY CREDITED TO THEIR RESPECTIVE ACCOUNT S . 5 ITA NO . 1390/PUN/2017, A.Y. 2012 - 13 THE LD. DR HAS FAILED TO CONTROVERT THESE DOCUMENTS . THUS, IN VIEW OF THE EVIDENCES FILED BY THE ASSESSEE, I FIND THAT THE SUNDRY CR EDITORS APPEARING IN THE BOOKS OF ASSESSEE WERE GENUINE. THE ADDITION S CONFIRMED BY THE COMMISSIONER OF INCOME TAX (APPEALS) IN RESPECT OF ABOVE TWO CREDITORS ARE DELETED AND GROUND NO. 1 OF THE APPEAL IS ALLOWED. 6. IN GROUND NO. 2 OF THE APPEAL , THE ASSESSEE HAS ASSAILED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN NOT ACCEPTING RS.1,20,365/ - AS AGRICULTURE INCOME OF THE ASSESSEE. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE ASSESSEE IS CLAIMING TO BE OWNER OF AGRICULTURE LAND ADMEASURING 2 .02 HECTORS I.E. ABOUT 5 ACRES. THE ASSESSEE ALLEGEDLY CULTIVATED B AJARI CROP O N THE SAID LAND. THE ASSESSEE DISCLOSED RS.2,45,635/ - AS AGRICULTURAL INCOME IN THE RETURN OF INCOME. THE ASSESSING OFFICER IN THE ABSENCE OF ANY SUPPORTING DOCUMENT INDICATI NG OWNERSHIP OF AGRICULTURE LAND, CULTIVATION OF CROP, SALE OF CROP ETC. TREATED THE ENTIRE AGRICULTURE INCOME AS B USINESS I NCOME OF THE ASSESSEE. THE COMMISSIONER OF INCOME TAX (APPEALS) ESTIMATED THE INCOME FROM SALE OF B AJARI @ 25,000/ - PER ACRE AND TH US, GAVE RELIEF TO THE ASSESSEE TO THE EXTENT OF RS.1,2 5,000/ - AND CONFIRMED THE BALANCE ADDITION OF RS.1,20,635/ - . IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE SUBSTANTIATING OWNERSHIP OF LAND, CULTIVATION AND SALE OF CROP , I AM OF CONSIDERED OPINION THAT THE COMMISSIONER OF INCOME TAX (APPEALS) WAS QUITE GENEROUS IN GRANTING RELIEF OF RS.1,25,000/ - TO THE ASSESSEE. I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). ACCORDINGLY, GROUND NO. 2 OF THE APPEAL IS DISM ISSED. 6 ITA NO . 1390/PUN/2017, A.Y. 2012 - 13 7. THE LD. AR OF THE ASSESSEE HAS STATED AT THE BAR THAT HE IS NOT PRESSING GROUND NOS. 3 AND 4 RAISED IN THE APPEAL. ACCORDINGLY, THE SAME ARE DISMISSED AS NOT PRESSED. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED IN THE TERMS AFORESAID. ORDER PRONOUNCED ON WEDNESDAY, THE 05 TH DAY OF DECEMBER, 201 8 . SD/ - ( / VIKAS AWASTHY) / JUDICIAL MEMBER / PUNE; / DATED : 05 TH DECEMBER, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2, NASHIK 4. THE PR. COMMISSIONER OF INCOME TAX - 2, NASHIK 5. , , - , / DR, ITAT, SMC BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE