M/s. Earth Stone Infraspace Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-2(1)(1), Ahmedabad

ITA 1437/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6941 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 13-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P SRIVASTAVA LD
• Assessee Lawyers: CHAJJED
• Section: 68

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO. 1437/AHD/2017 / ASSESSMENT YEAR: 2012-13 M/S.EARTH STONE INFRASPACE P.LTD. 56-B, STHANAK VASI JAIN SOC USMANPURA AHMEDABAD 380 013. PAN : AANCS 0645 P VS ITO, WARD-2(1)(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI CHAJJED, AR REVENUE BY : SHRI B.P. SRIVASTAVA, LD.DR / DATE OF HEARING : 01/05/2019 /DATE OF PRONOUNCEMENT : 03/05/2019 O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-2, AHMEDABAD DATED 21.03.2017 PASSED FOR THE ASSTT.YEAR 2012-13. 2. SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CI T(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.7,51,000/- WHICH WAS ADDED BY THE AO WITH THE AID OF SECTION 68 OF THE INCOME TAX ACT, 1 961. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, I HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECO RD THAT DURING THE COURSE OF SCRUTINY ASSESSMENT THE LD.AO NOTICED THA T CASH CREDIT APPEARING AGAINST NINE PERSONS/ENTITIES AMOUNTING T O RS.49,01,000/-. HE MADE ADDITION OF THE ABOVE AMOUNT WITH THE AID O F SECTION 68 OF THE ITA NO.1437/AHD/2017 - 2 - ACT. THE ASSESSEE HAS SUBMITTED VARIOUS DETAILS WH ICH HAVE BEEN GONE THROUGH BY THE LD.CIT(A) AND REMAND REPORT WAS CALL ED FOR. THE LD.CIT(A) IN DETAILED ORDER EXAMINED ALL CASH CREDI TS AND THEREAFTER CONFIRMED THE ADDITION QUA THREE CREDITORS ONLY. THE FINDING RECORDED BY THE LD.CIT(A) READS AS UNDER: (VI) THE APPELLANT HAS SHOWN THE DEPOSIT OF RS.5,00 ,000/- FROM SHRI BIPIN KUMAR TRIVEDI. IN THE APPELLATE PROCEEDINGS, THE APPELLANT HAS NEITHER SUBMITTED THE CONFIRMATION NOR THE BANK STA TEMENT AND ITR COPY OF THE AFORESAID DEPOSITOR. SIMPLY THE LEDGER ACCOU NT COPY FROM THE BOOKS OF APPELLANT AND APPELLANTS BANK STATEMENT COPY HA S BEEN PRODUCED WHICH DOES NOT PROVE ANY OF THE INGREDIENTS OF SECT ION 68 OF THE ACT. IN SPITE OF GRANTING THE SUFFICIENT TIME, EVEN THE APP ELLANT HAS FAILED TO SUBMIT THE COPIES OF THE AFORESAID RECORDS AS AN AD DITIONAL EVIDENCE WHICH CONCLUSIVELY PROVE THAT THE APPELLANT WAS UNABLE TO PROVE SUCH CREDITS. EVEN IN THE BANK STATEMENT OF THE APPELLANT, THE CR EDIT OF RS.5,00,000/- WAS WITH THE NARRATION OF CLEARING ONLY AND NAME OF THE DEPOSITOR IS EVEN NOT FOUND MENTIONED THEREIN. THUS, IT IS NOT KNOWN WHETHER THE SAID CHEQUE HAS COME FROM THE BANK ACCOUNT OF THE APPELL ANT OR FROM OTHERS. IN ABSENCE OF SUCH VERIFICATION, THE ADDITION MADE BY THE AO IS FOUND CORRECT AND JUSTIFIED AND HENCE THE SAME IS CONFIRMED. (VII) THE APPELLANT HAS SHOWN THE CREDIT OF RS.50 ,000/- IN THE NAME OF KALPANA TRIVEDI AND IN SUPPORT THE APPELLANT HAS ON LY SUBMITTED THE CONFIRMATION WITHOUT ANY PAN. EVEN NO BANK STATEMEN T COPY AND ITR COPY HAVE BEEN SUBMITTED BY THE NAME OF JYOTINDR A PRASAD OZA APPELLANT. SINCE THE APPELLANT HAS FAILED TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE DEPOSITOR, THEREFORE, THE THREE CONDITIONS OF SECTION 68 DOES NOT GET FULFILLED AND HENCE, THE ADDITION MODE BY THE AO IS FOUND CORRECT AND JUSTIFIED AND S AME IS CONFIRMED. (VIII) THE APPELLANT HAS SHOWN THE CREDIT OF RS.2 ,01,000/- IN THE CONFIRMATION HAS BEEN SIGNED BY JYOTINDRA PRASAD OZA/CHAITALI TRIVEDI. HOWEVER, CONFIRMATION HAS BEEN SIGNED BY JYOTINDRA P RASAD OZA AND NOT BY CHAITALI TRIVEDI FROM WHOM THE APPELLANT HAS SHO WN THE LOAN. NO PAN NUMBER / ITR COPY HAS BEEN SUBMITTED OF THE DEP OSITOR, THEREFORE, THE IDENTITY AND GENUINENESS IS NOT PROVED BY THE A PPELLANT. EVEN THE APPELLANT HAS SUBMITTED THE BANK STATEMENT OF SHRI JYOTINDRA PRASAD OZA IN WHICH NOWHERE THE DEPOSIT AMOUNT OF RS.2,01,000/ - HAS BEEN DEBITED. THEREFORE, THE GENUINENESS OF THE DEPOSITS REMAINED UNPROVED. EVEN THE ITA NO.1437/AHD/2017 - 3 - AO HAS OBSERVED THAT THIS UNSECURED LOAN HAS BEEN T AKEN FROM CHAITALI TRIVEDI BUT THE CONFIRMATION HAS BEEN GIVEN BY SHRI JYOTINDRA PRASAD OZA ALONG WITH HIS BANK STATEMENT. THEREFORE, THERE WAS NO NEXUS BETWEEN THE DEPOSITS SHOWN AND THE DETAILS SUBMITTE D BY THE APPELLANT. FOR WANT OF PROOF IN RESPECT OF IDENTITY, GENUINENE SS AND CREDITWORTHINESS, THE ADDITION IN RESPECT OF THIS U NSECURED LOAN IS FOUND CORRECT AND JUSTIFIED AND HENCE THE SAME IS CONFIRM ED. 3.10. HERE IT IS WORTH TO MENTION THAT IN RESPECT O F DEPOSITOR NAMELY BIPIN KUMAR TRIVEDI, KALPANA TRIVEDI, JYOTINDRA PRAS AD OZA AS DISCUSSED ABOVE, THE RESPECTIVE DEPOSITORS HAVE FAI LED TO SUBMIT EVEN THEIR BANK STATEMENT COPY AND ITR COPY AND THE SAME HAS B EEN ADVERSELY OBSERVED BY THE AO IN HIS REMAND REPORT. A COPY OF SUCH REMAND REPORT HAS BEEN PROVIDED TO THE APPELLANT IN THE PRESENT A PPELLATE PROCEEDINGS FOR HIS REJOINDER. BUT BY MISREPRESENTING THE FACTS, TH E APPELLANT ONCE AGAIN WROTE IN THE REJOINDER ABOUT THE SUBMISSION OF THE AFORESAID DETAILS WHICH IS FACTUALLY INCORRECT. NEITHER IN THE WRITTEN SUBM ISSION NOR IN THE REJOINDER THE APPELLANT HAS SUBMITTED THE AFORESAID COPIES OF THE DOCUMENTS WHICH HAVE BEEN BROUGHT ON RECORD BY THE AO IN THE REMAND REPORT BUT THE ASSESSEE HAS ATTEMPTED TO MISLEAD TH E FACTS WHICH ARE AGAINST AND OBSERVED WHILE TAKING THE DECISION IN T HE PRECEDING PARAS. 4. A PERUSAL OF THE ABOVE WOULD INDICATE THAT THE L D.CIT(A) HAS CONFIRMED THE ADDITION ON THE GROUND THAT THE ASSES SEE FAILED TO DISCHARGE ONUS PUT UPON IT BY VIRTUE OF SECTION 68 OF THE INCOME TAX ACT. SECTION 68 CONTEMPLATES THAT WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YE AR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE T HEREOF, OR THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT, IN THE OPINION OF THE AO SATISFACTORY, THEN THE SUM SO CREDITED IN THE ACCOU NTS MAY BE TREATED AS INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. 5. QUESTION BEFORE ME IS, WHETHER THE ASSESSEE HAS FAILED TO EXPLAIN INGREDIENTS OF SECTION 68 OR NOT? THE LD.COUNEL FO R THE ASSESSEE DREW MY ATTENTION TOWARDS PAGES NO.40 TO 58 OF THE PAPER BO OK WHEREIN ITA NO.1437/AHD/2017 - 4 - CONFIRMATION FROM ALL THESE THREE CREDITORS ALONG W ITH BANK STATEMENTS WERE PLACED ON RECORD. THESE CONFIRMATIONS ARE ON THE LEDGER ACCOUNT OF THE ASSESSEE. IN OTHER WORDS, THE BALANCE SHOWN IN THE ASSESSEES ACCOUNT HAVE BEEN CONFIRMED BY THE CREDITORS. APAR T FROM THE ABOVE, THE ASSESSEE HAS DEMONSTRATED THAT THESE AMOUNTS HA VE BEEN REPAID TO THEM IN SUBSEQUENT YEARS THROUGH ACCOUNT PAYEE CHEQ UE. FOR EXAMPLE, RS.5 LAKHS WAS PAID TO BIPINKUMAR TRIVEDI ON 22.2.2 013 THROUGH CHEQUE NO.57401. COPY OF THE BANK STATEMENT OF THE ORIENT AL BANK OF COMMERCE HAS BEEN PLACED ON RECORD. SIMILARLY, ON 23.2.2013 A SUM OF RS.2.50 LAKHS WERE PAID TO KALPANA TRIVEDI. AFTER TAKING INTO CO NSIDERATION THESE EVIDENCES, COUPLED WITH CONFIRMATION GIVEN BY THE C REDITORS, I AM SATISFIED THAT THE ASSESSEE HAS FULFILLED ALL THE I NGREDIENTS OF SECTION 68. MERE NON-SUBMISSION OF THE COPY OF THE INCOME-TAX R ETURN SHOULD NOT BE A GROUND FOR REJECTING THE EXPLANATION OF THE ASSES SEE, WHEN IT HAS DEMONSTRATED THAT LOANS HAVE ALREADY BEEN REPAID. THEREFORE, I ALLOW THIS GROUND AND DELETE THE IMPUGNED ADDITION. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 3 RD MAY, 2019. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 03/05/2019 ! / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT. 3. && ' / CONCERNED CIT 4. ' ( ) / THE CIT(A) 5. *+, $-- , , / DR, ITAT, AHMEDABAD 6. ,./ 0 / GUARD FILE.