Shri Vijay Kumar Ahuja, New Delhi V. ITO, New Delhi

ITA 1416/DEL/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5819 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 15-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI K. NARSIMHA CHARY, JUDICIAL MEMBER I.T.A.NO. 1416/DEL/2016 [ASSESSMENT YEAR: 2008-09] ORDER PER K. NARSIMHA CHARY, J.M. AGGRIEVED BY THE ORDER DATED 18.11.2015 IN APPEAL N O. 287/10- 11 FOR ASSESSMENT YEAR 2008-09 PASSED BY THE LD. CO MMISSIONER OF INCOME TAX (APPEALS)-12, NEW DELHI (FOR SHORT LEAR NED CIT(A)),ONE SHRI VIJAY KUMAR AHUJA (THE ASSESSEE) FILED THIS AP PEAL ON THE FOLLOWING GROUNDS:- I. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION O F RS. 10,60,647/- MADE BY LD. ASSESSING OFFICER ON ACCOUNT OF SUNDRY CREDITORS OF THE APPELLANT OUT OF ADDITION OF RS. 84,84,177/- MADE BY THE AO. SHRI VIJAY KUMAR AHUJA, BFH-72, SHALIMAR BAGH, DELHI-110088 PAN-AAFPA3625G VS INCOME TAX OFFICER, WARD-19(1), NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. ANIL JAIN, ADV RESPONDENT BY MS. ASHIMA NEB, SR.DR DATE OF HEARING 09.09.2019 DATE OF PRONOUNCEMENT 30.09.2019 2 II. THE ORDER OF THE LD. CIT(A) IS AGAINST LAW AND FACTS OF THE CASE. III. THE APPELLANT CRAVES THE RIGHT TO ADD, AMEND OR WITH DRAW ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. BRIEF FACTS OF THE CASE IN SO FAR AS THE ISSUE R ELATING TO THE ADDITION MADE ON ACCOUNT OF SUNDRY CREDITORS IS CON CERNED, LD. ASSESSING OFFICER ADDED A SOME OF RS. 84,84,177/- O N THE GROUND THAT THE ASSESSEE FAILED TO SUBMIT ANY DETAILS RELATING TO THE SUNDRY CREDITORS EXCEPT THE NAME. ACCORDING TO THE LEARNED ASSESSING OFFICER NO DETAILS OF ADDRESSES NOR CONFIRMATIONS WERE FILE D IN SPITE OF THE REPEATED OPPORTUNITIES AFFORDED TO THE ASSESSEES. 3. HOWEVER, LD. CIT(A) SOUGHT A REMAND REPORT AND T HE LD. ASSESSING OFFICER. LD. ASSESSING OFFICER IN THE RE MAND REPORT RECOMMENDED THAT THE SUBMISSIONS OF THE ASSESSEE AC CEPTED TO THE EXTENT OF RS. 65,93,207/- IN RESPECT OF WHICH HE OB TAINED THE CONFIRMATION OF THE CREDITORS. 4. LD. CIT(A) OBSERVED THAT IN RESPECT OF RUBY ELEC TRNOICS, MOVIEBOX RECORDED PRIVATE LTD., AND SPEED RECORDS A GGREGATING TO RS. 3,90,356/-, CONFIRMATIONS WERE SUBMITTED BY THE ASS ESSEE AND THEY WERE FOUND TO BE IN ORDER. THE LD. CIT(A) ACCEPTED THE SAME. 5. THEN WHAT REMAINS TO BE CONSIDERED IS THE CREDIT ORS TO THE TUNE OF RS. 10,60,647/-. IN RESPECT OF THESE CREDITORS, CASE OF THE ASSESSEE HAS BEEN THAT THESE ARE ON ACCOUNT OF OPENING BALAN CES AND, THEREFORE, THE SAME CANNOT BE ADDED DURING THE YEAR . LD. CIT(A), HOWEVER, OBSERVED THAT THE ASSESSEE HAD NOT BROUGHT ANYTHING ON 3 RECORD TO SHOW THAT THE CREDITORS OF RS. 10,60,647/ - IN RESPECT OF WHICH THE ASSESSEE CLAIMS THAT REPRESENT OPENING BALANCES WERE EXAMINED EARLIER AND ACCEPTED BY THE DEPARTMENT. HE, THEREFO RE, BY PLACING RELIANCE ON THE DECISION OF THE BANGALORE BENCH OF THE TRIBUNAL IN SURESH KUMAR T. JAIN IN ITA NO. 667/B/2009 DATED 8. 1.2010 REACHED A CONCLUSION THAT THE ASSESSING OFFICER HAS POWER TO EXAMINE THE GENUINENESS OF BROUGHT FORWARD CREDITORS AND IF THE APPELLANT FAILED TO ESTABLISH THE UNCLAIMED BALANCES IN THE NAME OF CRE DITORS, ADDITION CAN BE MADE BY ASSESSING OFFICER. ON THIS PREMISE, WHILE DELETING THE BALANCE CREDIT AMOUNT, THE LD. CIT(A) SUSTAINED THE ADDITION TO THE TUNE OF 10,60,647/-. 6. AGGRIEVED BY THIS, ASSESSEE PREFERRED THIS APPEA L STATING THAT THE OPENING BALANCES RELATING TO TRANSACTIONS OF SO ME EARLIER YEARS AND THEY DO NOT RELATE TO THE YEAR UNDER CONSIDERATION AND THEREFORE NO ADDITION CAN BE MADE BASING ON THE OPENING BALANCES . RELIANCE IS PLACED ON THE DECISION REPORTED IN CIT VS. USHA STU D AGRICULTURAL FARMS LIMITED 2008 301 ITR 384 DELHI. 7. LD. DR PLACED RELIANCE ON THE ORDERS OF THE LD. CIT(A). 8. IN VIEW OF THE FACTS NARRATED ABOVE, IT IS CLEAR THAT THE ONLY QUESTION THATFALLS FOR OUR CONSIDERATION IN THIS MA TTER IS WHETHER THE LD. CIT(A) IS JUSTIFIED IN SUSTAINING THE ADDITION OF THE AMOUNT WHICH REPRESENTS THE OPENING CREDIT BALANCES APPEAR IN TH E ACCOUNT OF THE ASSESSEE.IN USHA STUD AGRICULTURAL FARMS LIMITED (S UPRA) HONBLE JURISDICTIONAL HIGH COURT HELD IN UNEQUIVOCAL TERMS THAT IF THE CREDIT IN QUESTIONS REPRESENTS THE CREDIT BALANCE APPEARING I N THE ACCOUNTS OF 4 THE ASSESSEE IT DOES NOT PERTAIN TO THE YEAR UNDER CONSIDERATION AND, THEREFORE, THE ASSESSING OFFICER WOULD NOT BE JUSTI FIED IN MAKING THE ADDITION UNDER SECTION 68 OF THE ACT. IT IS, THEREF ORE, CLEAR THAT IF AT ALL THE SUM OF RS. 10,60,647/- REPRESENTS THE OPENING C REDIT BALANCE IN THE BOOKS OF ACCOUNTS OF THE ASSESSEES WHICH CANNOT BE ADDED UNDER SECTION 68 OF THE ACT AND HAS TO BE DELETED. 9. HOWEVER, THIS REQUIRES FACTUAL VERIFICATION AT T HE END OF THE LEARNED ASSESSING OFFICER. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER TO SUCH AN EXTENT AND REMANDED THE MATTER BACK TO T HE FILE OF THE ASSESSING OFFICER TO VERIFY WHETHER ITS AMOUNT OF R S. 10,60,647/- REPRESENTS THE OPENING CREDIT BALANCE IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND IF IT SO, TO DELETE THE SAME. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2019. SD/- SD/- (G.S. PANNU) (K. NARSIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER DATED: 30 TH SEP, 2019 SH COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASS ISTANT REGISTRAR 5 DRAFT DICTATED 14 .0 9 .2019 DRAFT PLACED BEFORE AUTHOR .09.2019 APPROVED DRAFT COMES TO THE SR.PS/PS ORDER SIGNED AND PRONOUNCED ON .09 .2019 FILE SENT TO THE BENCH CLERK .09.2019 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER. DATE OF UPLOADING ON THE WEBSITE 1 5 . 1 0 .2019