Sh. Neel Chand Thakur, Kullu V. ITO, Kullu

ITA 142/CHANDI/2015

• Counselvise Citation: 14221514 RSA 2015
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-12-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 06-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: R R THAKUR
• Keywords: Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NO. 142/CHD/2015 (ASSESSMENT YEAR: 2006-07) SH. NEEL CHAND THAKUR, VS THE INCOME TAX OFFICER, C/O HOTEL NEW KENIL WORTH KULLU.(HP). INTERNATIONAL, MANALI, DISTT. KULLU (HP) PAN NO.: AAOPT1291J (APPELLANT) (RESPONDENT) APPELLANT BY : SH. R.R. THAKUR RESPONDENT BY : SH. MANJIT SINGH, DR DATE OF HEARING : 01.12.2015 DATE OF PRONOUNCEMENT : 23.12.2015 O R D E R PER RANO JAIN, A.M. : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INC OME TAX (APPEALS), SHIMLA DATED 29.12.2014 FOR ASSESSMENT YEAR 2006-07. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 AS ON 30.10.2010 DECLARING INCOME OF RS.2,59,432/- PLUS AGRICULTURAL INCOME OF RS.4,91,1 97/-. DURING THE YEAR UNDER CONSIDERATION HE HAD RAISED 2 UNSECURED LOAN OF RS. 10,00,000/- BEING 5,00,000/- EACH FROM ONE SH. MAN CHAND AND ONE SH. DAMBE RAM. SINCE AS PER THE ASSESSING OFFICER, ASSESSEE COULD NOT PR OVE THE CREDIT WORTHINESS OF THESE TWO UNSECURED LOANS W ITH DOCUMENTARY EVIDENCES, THE ADDITION OF RS. 10,00,00 0/- WAS MADE U/S 69 OF THE ACT. 3. BEFORE THE LD. CIT(A), IT WAS SUBMITTED THAN AN UNSECURED LOAN OF RS. 5,00,000/- WAS RECEIVED FROM SH. MAN CHAND OF V&PO ALEO, TEHSIL MANALI, DISTT. KULLU AS ON 28.07.2005. SH. MAN CHAND HAS FILED AN AFFIDAVIT STATING THAT HE HAD GIVEN THIS AMOUNT OUT OF COMPEN SATION OF LAND ACQUIRED BY A.D. HYDRO PROJECT PVT. LTD. DE POSITED IN PUNJAB NATIONAL BANK, MANALI. THERE WAS A CASH DEPOSIT OF RS. 5,00,000/- ON THE SAME DAY IN THE SA ID BANK ACCOUNT, REGARDING WHICH THE REPLY OF SH. MAN CHAND WAS THAT RS. 5,00,000/- WAS LYING AT HIS HOME OUT OF HIS AGRICULTURAL INCOME AND SALE PROCEEDS OF SH EEPS WHICH HE HAS SOLD DURING THE YEAR UNDER CONSIDERATI ON FOR RS. 1,00,000/-. THE STATEMENT OF SH. MAN CHAND WAS RECORDED BY THE ASSESSING OFFICER TO THIS EFFECT. R EGARDING RS. 5,00,000/- RECEIVED FROM SH. DAMBE RAM, IT WAS SUBMITTED BEFORE THE CIT(A) THAT SH. DAMBE RAM SINC E DIED, AN AFFIDAVIT OF SH. GANTHU RAM S/O SHRI DAMBA RAM AND ONE OF HIS WIFE SMT. DEI WERE PRODUCED BEFORE THE ASSESSING OFFICER, WHEREBY THEY ACCEPTED THE FACT O F GIVING LOAN TO THE ASSESSEE. THE STATEMENT OF SH. GANTHU R AM AND SMT. DEI WERE ALSO RECORDED BY THE ASSESSING OF FICER. 3 THE MONEY HAD GENERATED FROM COMPENSATION RECEIVED IN CONSEQUENCE OF ACQUISITION OF LAND BY A.D. HYDRO PROJECT PVT. LTD. TEHSIL MANALI, WHICH WAS DEPOSITED IN THE KCC BANK KHAKHNAL. TRANSACTION IN BOTH THE CASES BEING MADE THROUGH BANKS, THE CONTENTION OF THE ASSESSEE WAS THAT HE HAS PROVED THE IDENTITY AND CREDIT WORTHINE SS OF THE LOANERS AS WELL AS THE GENUINENESS OF THE TRANS ACTION. HOWEVER, CIT(A) DID NOT FIND HIMSELF IN AGREEMENT W ITH THE SUBMISSION OF THE ASSESSEE AND DISMISSED THE APPEAL ON THE GROUND THAT THE FACT THAT TRANSACTION WAS THROU GH BANKING CHANNEL DOES NOT DISCHARGE THE ONUS OF THE ASSESSEE TO HAVE THE CREDIT OF THE LOAN. 4. AGGRIEVED BY THIS, THE ASSESSEE HAS COME IN APPEAL BEFORE US. LD. COUNSEL OF THE ASSESSEE, WHIL E ARGUING TOOK US TO VARIOUS PAGES OF THE PAPER BOOK FILED BY THE ASSESSEE. AS REGARDS RS. 5 LACS RECEIVED FRO M SH. MAN CHAND OUR ATTENTION WAS INVITED TO PAPER BOOK P AGE 3, WHEREBY AN AFFIDAVIT OF SHRI MAN CHAND WAS FILED TO THE EFFECT THAT HE HAS GIVEN MONEY TO THE ASSESSEE AND FURTHER THE MONEY HAS BEEN PAID OUT OF COMPENSATION FOR LAN D ACQUISITION RECEIVED FROM A.D. HYDRO PROJECT PVT. L TD. STARTING FROM PAPER BOOK PAGE 4 IN THE COPY OF BANK ACCOUNT OF SH. MAN CHAND, IN WHICH AT PAGE 5, THE WITHDRAWAL OF RS. 5,00,750/- HAS BEEN MADE TO PAY TO THE ASSESSEE. FROM PAGE 6 ONWARDS IN THE COPY OF STATE MENT OF SH. MAN CHAND RECORDED BY THE ASSESSING OFFICER, WHEREBY AT PAGE 7, IN ANSWER TO A QUESTION HE ACCEP TED 4 THE FACT OF GIVING LOAN TO THE ASSESSEE AND IN ANSW ER TO ANOTHER QUERY HE STATED THAT THE MONEY HAS EARMARKE D IN THE FORM OF LAND COMPENSATION RECEIVE BY HIM FROM A .D. HYDRO PROJECT. AS REGARDS CASH DEPOSIT OF RS. 5 LAC S MADE ON THE SAME DATE ON WHICH THE MONEY WAS PAID TO TH E ASSESSEE, IN ANSWER TO A QUESTION AT PAPER BOOK PAG E 10, SH. MAN CHAND CLARIFIED THAT THIS AMOUNT WAS OUT OF COMPENSATION, SOME OUT OF SALE PROCEEDS OF APPLE A ND ALSO OUT OF SALE PROCEEDS OF 30-35 SHEEPS, WHICH HE HAD SOLD DURING THE YEAR. 5. AS REGARDS THE MONEY RECEIVED FROM SH. DAMBE RAM, OUR ATTENTION WAS INVITED TO PAPER BOOK PAGE 1 4, WHERE THE COPY OF STATEMENT OF SH. GANTHU RAM S/O S H. DAMBE RAM IN ENCLOSED, IN WHICH HE HAS STATED THAT HIS FATHER HAD GIVEN MONEY TO THE ASSESSEE. HIS FATHER GIVEN MONEY TO THE ASSESSEE OUT OF COMPENSATION FOR LAND ACQUISITION RECEIVED FROM A.D. HYDRO PROJECTS. AN A FFIDAVIT OF SH. GANTHU RAM STATING THE SOME FACTS HAS ALSO B EEN ENCLOSED AT PAPER BOOK PAGE 17. SIMILARLY, A COPY O F STATEMENT OF SMT. DEI W/O SH. DAMBE RAM IS AT PAPER BOOK PAGE 18 WHILE THE COPY OF BANK ACCOUNT FROM WH ICH PAYMENT WAS MADE IN PLACED AT PAPER BOOK PAGE 19. I N THIS WAY IT WAS SUBMITTED BY THE LD. COUNSEL OF THE ASSESSEE THAT THE IDENTITY OF THE LOANS ARE NOT IN QUESTION AND ALSO CREDITWORTHINESS OF LOAN AND GENUINENESS O F TRANSACTION IS PROVED THROUGH THESE EVIDENCE. IN TH IS MANNER, PRAYER WAS MADE TO DELETE THE ADDITION. 5 6. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED THE ORDER OF ASSESSING OFFICER AND CIT(APPEALS). 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. FROM THE PERUSAL OF EVIDENCES BROUGHT TO OUR NOTICE , WE OBSERVE THAT THERE CANNOT BE ANY QUESTION ON THE ID ENTITY OF LOANERS. SINCE ONE OF THEM HIMSELF AND LEGAL HEI RS OF THE OTHER WERE PRODUCED BEFORE THE ASSESSING OFFICE R. BOTH HAVE ACCEPTED THE FACT OF GIVING LOAN TO THE ASSESS EE. FURTHER, BOTH HAVE EXPLAINED THE SOURCE OF MONEY TO BE OUT OF COMPENSATION FOR LAND ACQUISITION RECEIVED F ROM D.P. PROJECTS. A CERTIFICATE FROM D.P. PROJECT IS A LSO PLACED ON RECORD. EVEN THE AFFIDAVITS OF THE LOANERS ARE A LSO PLACED ON RECORD. THE CONTENTION OF THE ASSESSING O FFICER AS REGARD CASH DEPOSITS ON THE SAME DATE IN THE CAS E OF SH. MAN CHAND WAS CLARIFIED BY HIM DURING THE COURS E OF RECORDING OF STATEMENT. THE ASSESSING OFFICER DID N OT RAISE BEFORE HIM ANY FURTHER QUERY IN THIS REGARD AND DID NOT CARRY OUT ANY FURTHER INVESTIGATION TO REMOVE ANY D OUBTS, IF HAD ARISEN IN HIS MIND. AS REGARDS THE OTHER P AYER, THE SOURCE IS SAID TO BE OUT OF THE LAND COMPENSATION, FOR WHICH ALSO A CERTIFICATE IS ON RECORD. MONIES HAVE COME FROM THE BANKING CHANNEL. IN VIEW OF ALL THESE EVI DENCES, WE ARE CONVINCED THAT THE ASSESSEE HAS DISCHARGED H IS ONUS TO PROVE THE IDENTITY AND CREDIT WORTHINESS OF THE PAYERS AS WELL AS THE GENUINENESS OF TRANSACTION. 6 8. ON THE BASIS OF THE ABOVE, WE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF DECEMBER, 2015. SD/- SD/- (H.L. KARWA) (RANO JAIN) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 23 RD DECEMBER, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH