Dy.CIT, Cir-3, Pune, V. Shree Vishnu Promoters & Builders, Pune, Pune

ITA 1448/PUN/2010

• Counselvise Citation: 144824514 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-04-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 13-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Corroborative evidences
• Section: 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES, A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, J.M. AND SHRI G.S. PANNU, A.M. I.T.A. NO. 1448/PN/2010 : A.Y. 2006-07 DY. CIT CIR. 3, PUNE .. APPELLANT VS. SHREE VISHNU PROMOTERS & BUILDERS 11 CHITRALEKHA CHAMBERS, IDEAL COLONY, PAUD ROAD, PUNE-411 038 PAN ABCFS 4134 Q .. RESPONDENT APPELLANT BY: MS ANN KAPTH UAMA RESPONDENT BY: SHRI SUNIL GANOO DATE OF HEARING : 11-04-2012 DATE OF PRONOUNCEMENT: 18-4-2012 ORDER PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-II PUNE DATED 27 TH SEPTEMBER 2010 FOR A.Y. 2006-07 ON THE POINTS OF (1 ) ALLOWING THE COMMISSION OF RS. 5,00,000/- PAID TO SMT. SARIKA BACHHEWAR AND (2) DELETING THE ADDITION OF RS. 55,35,973/- MADE U/S 68/69D OF THE ACT. 2. THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF BUILDERS, DEVELOPERS, CONTRACTORS AND LEASING OF RESIDENTIAL FLATS. IN THE FIRST GROUND THE ASSESSE E ITA NO. 1448/PN/2010 VISHNU PROMOTERS & BUILDERS A.Y. 2006-07 2 CONTESTED THE DISALLOWANCE OF RS. 5,00,000/- ON ACCOUNT OF COMMISSION PAID TO M/S. PRATHAMESH ENTERPRISES. SINCE THE ASSESSEE DID NOT PRODUCE SUPPORTING EVIDENCE THE ASSESSING OFFICER DISALLOWE D THE EXPENDITURE AMOUNTING TO RS. 5,00,000/-. ON APPEAL, THE CIT(A) DELETED THE SAME. THE SAME HAS BEEN OPPOSED BEFORE US BY THE REVENUE. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS FILED DOCUMENTARY EVIDENCES VERIFYING THE PAYMENT OF COMMISSION BY THE ASSESSEE WHICH HAS BEEN ADMITTED BY THE ASSESSING OFFICER. IT WAS EXPLAINED THAT THE IMPUGNED AMOUNT WAS PAID TO THE PAYEES HUSBAND AS PER HER DIRECTIONS. IN THIS VIE W OF THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A). THE SAME IS ACCORDINGLY UPHEL D. 4. THE NEXT ISSUE IS WITH REGARDS TO ADDITION OF RS . 55,35,973/- ON ACCOUNT OF LOAN TAKEN FROM YOGESHWAR NAGARI SAHAKARI PATPEDHI LTD., WHICH WAS ADDED U/S 69D AND 68 OF THE ACT. THE ASSESSEE HAS RAISED UNSECURED LOANS FROM (1) SUNANDATAI KELA PATSANSTHA AND (2) YOGESHWAR NAGARI PATSANSTHA. THE ASSESSING OFFICER NOTICED THAT THE LOANS FROM THE SAID PATSANSTHAS WERE RAISED IN CASH . THE ASSESSING OFFICER HAS ALSO NOTICED THAT THE LOA NS WERE TRANSFERRED FROM THE PATSANSTHAS TO THE SAVING S BANK ACCOUNTS OF TWO OF THE PARTNERS OF THE FIRM ITA NO. 1448/PN/2010 VISHNU PROMOTERS & BUILDERS A.Y. 2006-07 3 FROM WHERE IT WAS GIVEN IN CASH TO THE ASSESSEE. IN VIEW OF THIS, APPLYING THE PROVISIONS OF SECTION 69 D OF THE ACT, THE ASSESSING OFFICER ADDED THIS AMOUNT TO THE ASSESSEES INCOME. 5. ON APPEAL, THE CIT(A) AFTER CONSIDERING THE VARIOUS SUBMISSIONS MADE BEFORE HIM, ON BEHALF OF THE ASSESSEE, DELETED THE IMPUGNED ADDITION. THE SAME HAS BEEN OPPOSED BY THE REVENUE BEFORE US. 6. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT IT IS A CASE WHEN THE AMOUNT WAS TAKEN AS A LOAN FROM THE TWO PATSANSTHAS AND TRANSFERRED THE SAME TO THE PARTNERS SAVING BANK ACCOUNTS AND FROM THERE THE AMOUNTS WERE WITHDRAWN IN CASH AND WERE DEPOSITED INTO THE BOOKS OF THE FIRM. THOUGH THE ENTIRE TRANSACTION OF LOAN WAS IN CASH BUT THAT DOES NOT IMPLY THE APPLICABILITY OF PROVISIONS OF SECTION 69D/68 OF THE ACT. THE REPERCUSSION OF ACCEPTING LOAN IN CASH IS BY WAY OF TAKING THE REMEDIAL ACTIO N AS PROVIDED ELSEWHERE UNDER THE ACT AND NOT BY APPLYING SECTION 69D OF THE ACT. AS REGARDS APPLICATION OF SECTION 68, IT IS CLEAR THAT THE ASSESSING OFFICER HAS HIMSELF ACCEPTED THAT THE SOURCE OF DEPOSITS IN CASH IN THE ASSESSEE FIRM WAS FROM A LOAN FROM TWO PATSANSTHAS ROUTED THROUGH THE SAVINGS BANK ACCOUNTS OF THE PARTNERS. IN THE CIRCUMSTANCES THEREFORE, THE IDENTITY AND CREDIT ITA NO. 1448/PN/2010 VISHNU PROMOTERS & BUILDERS A.Y. 2006-07 4 WORTHINESS OF THE CREDITORS HAS BEEN FULLY EXPLAINE D AND ESTABLISHED BY THE ASSESSEE. THEREFORE, THERE WAS NO CASE OF ANY ADDITION EVEN U/S 68 OF THE ACT. ON THE FACTS AND CIRCUMSTANCES, THEREFORE, THE CIT(A) WAS JUSTIFIED IN DELETING THE IMPUGNED ADDITION. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. DECISION IS PRONOUNCED IN THE OPEN COURT ON 18 TH APRIL 2012. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED THE 25 TH APRIL 2012. ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-(A) II PUNE 4. THE CIT II PUNE 4. THE D.R, ITAT PUNE BENCH, PUNE 6. GUARD FILE BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL