Vishwas Bheemrao Zadke, Latur V. Income-tax Officer,

ITA 1427/PUN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1515 (ITAT-PUNE)
• Duration Of Justice: 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 04-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . . , BEFORE SHRI R.K. PANDA, AM . / ITA NO.1427/PN/2016 / ASSESSMENT YEAR : 2011-12 VISHWAS BHEEMRAO ZAKDE, PROP. BALAJI MACHINERY STORES, AT & POST : MURUD, TAL : NILANGA, DIST. LATUR PAN NO.AAFPZ4625F . / APPELLANT V/S ITO, WARD - 3(3), LATUR . / RESPONDENT / APPELLANT BY : SHRI P.P. KULKARNI / RESPONDENT BY : SHRI HITENDRA NINAWE / ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 13-04-2016 OF THE CIT(A)-II, AURANGABAD RELATING T O THE ASSESSMENT YEAR 2011-12. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 22-11-2011 DECLAR ING TOTAL INCOME OF RS.2,10,360/-. DURING THE COURSE OF ASSESS MENT PROCEEDINGS THE AO NOTED THAT ASSESSEE HAS SHOWN OUT STANDING UNSECURED LOAN OF RS.2,85,000/- IN THE NAME OF THE FOLLOWIN G PERSONS : S.NO. NAME OF THE CREDITORS UNSECURED LOAN AMOUNT 1 SHRI SHIVAJI MALI RS.50,000/ - 2 SHRI AMAR NADE RS.1,00,000/ - 3 H.R. MUTHA RS.25,000/ - 4 SHRI RAMDAS NADE RS.40,000/ - 5 SHRI BHIMRAO ZADKE RS.50,000/ - 6 MEENA ZADKE RS.20,000/ - / DATE OF HEARING :28.07.2016 / DATE OF PRONOUNCEMENT:29.07.2016 2 ITA NO.1427/PN/2016 3. FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE HE OBSERVED THAT ASSESSEE HAS OBTAINED LOAN OF RS.1,70,000/- FROM PERSONS MENTIONED AT SL.NOS. 1 TO 4 DURING THE YEAR. HE , THEREFORE, ASKED THE ASSESSEE TO EXPLAIN THE IDENTITY AND CREDIT WO RTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS. IN R ESPONSE TO THE SAME, THE ASSESSEE FILED CONFIRMATIONS, COPY OF PAN CARD AND BANK STATEMENTS ETC. FROM THESE DOCUMENTS, THE AO NO TED THAT ALMOST ALL LOANS EXCEPT RS.20,000/- FROM SHRI RAMDAS NADE H AVE BEEN ACCEPTED THROUGH CHEQUE. FROM THE BANK STATEME NTS IT WAS NOTICED THAT CASH WAS DEPOSITED BEFORE ISSUING THE CHEQU E BY THE CREDITORS. HE, THEREFORE, ISSUED SUMMONS U/S.131 TO THE CREDITORS TO VERIFY THEIR CREDIT WORTHINESS. HE RECORDED THEIR STA TEMENTS EXCEPT THAT OF SMT. H.R. MUTHA WHO HAD GIVEN LOAN AGAINST LOAN TAKEN BY HER AGAINST FIXED DEPOSIT. IN CASE OF THE REM AINING 3 PERSONS, HE NOTICED THAT THEY ARE NOT ASSESSED TO INCO ME-TAX AND THEIR INCOME IS MAINLY FROM AGRICULTURE. SINCE NONE OF THE PARTIES PRODUCED 7/12 EXTRACTS FOR THE LAND HOLDING AND SINCE TH ESE PERSONS HAVE DEPOSITED CASH INTO THE BANK ACCOUNT IMMEDIATELY B EFORE ISSUE OF THE CHEQUES AND THEY COULD NOT PRODUCE ANY OTHER EVIDENCE FOR THE CASH DEPOSIT IN THE BANK ACCOUNT EXCEPT STATING TH AT THE SOURCE IS AGRICULTURE INCOME, THE AO DISBELIEVED THE CREDIT WORTHINESS OF THE ABOVE PERSONS AND MADE ADDITION OF RS.1,70,000/- U/S.68 O F THE I.T. ACT. 4. IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF THE AO HO LDING THAT THE ASSESSEE COULD NOT PROVE THE CREDIT WORTHINES S OF THE CREDITORS. 3 ITA NO.1427/PN/2016 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH T HE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PA PER BOOK FILED ON BEHALF OF THE ASSESSEE. I FIND THE LD.CIT(A) IN THE INSTAN T CASE HAS PASSED AN EXPARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE. FROM THE GROUNDS OF APPEAL IT IS SEEN THAT THE CASE WAS FIXED FOR HEARING FOR SIX TIMES AND THE ADVOCATE OF THE ASSESSEE HAD APPEARED BEFORE HIM ON TWO OCCASIONS AS MENTIONED BY THE CIT(A). THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENC H TO THE ABOVE FACTS AND SUBMITTED THAT THE REASON FOR NOT ATTE NDING ON THE OTHER DATES IS DUE TO THE FACT THAT THE COPY OF THE ST ATEMENTS RECORDED BY THE THEN AO WAS NOT PROVIDED TO THE ASSE SSEE AND HE HAS ASKED FOR CERTIFIED COPIES OF THE SAME. IT IS ALSO THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPOR TUNITY HE CAN SUBSTANTIATE THE CREDIT WORTHINESS OF THE LOAN CREDITORS. 7. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSU E TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY T O THE ASSESSEE TO SUBSTANTIATE HIS CASE. GROUNDS RAISED BY T HE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29-07-2016. SD/- ( R.K. PANDA ) ACCOUNTANT MEMBER PUNE ; DATED :29 TH JULY, 2016. 4 ITA NO.1427/PN/2016 '# $# / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // // $ % //UE &' % * / SR. PRIVATE SECRETARY *, / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT (A) - 2, AURANGABAD 4. THE CIT-2, AURANGABAD 5. $ %%* , * , SMC BENCH / DR, ITAT, SMC BENCH PUNE; 6. 2 / GUARD FILE.