IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO. 1517/AHD/2009 ASSESSMENT YEARS :2005-06 YADUNANDAN COTTON PVT. LTD. 119, NUTAN NAGAR, OPP. VYAYAM MANDIR, MAHUVA V/S . THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, BHAVNAGAR PAN NO. AA ACY2262R (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI S.N. SOPARKAR, SR. ADV. WITH MS. URVASHI SHODHAN, A.R. /BY RESPONDENT SHRI Y. P. VERMA, SR. D.R. /DATE OF HEARING 18 . 1 0.2012 /DATE OF PRONOUNCEMENT 07.12.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHI CH HAS EMANATED FROM THE ORDER OF CIT(A)-XX, AHMEDABAD, ORDER DATED 30.01.2009 FOR A.Y. 2005-06. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UN DER: 2.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S)-XX, AHMADABAD [HEREINAFTER REFERRED TO AS THE CIT(A)] ERRED ON FACTS AS ALSO IN LAW IN CONFIRMING THE ADDITIONS MADE U/S. 68 OF THE ACT IN RESPECT OF DEPOSITS OF RS.3,2 0,000/- ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 2 AND SHARE APPLICATION MONEY/CAPITAL OF RS.12,50,000 /-. THE ADDITIONS MAY KINDLY BE DELETED. 3.0 THE LEARNED CIT(A) ERRED ON FACTS AS ALSO IN LA W IN CONFIRMING DISALLOWANCE OF RS.62,130/- MADE OUT OF INSURANCE EXPENSE. THE DISALLOWANCE MAY KINDLY BE DELETED. 2. THE ASSESSEE IS ENGAGED IN COTTON GINNING ACTIVI TY. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD INCREASED THE SHARE CAPITAL AND ACCEPTED NEW LOAN. THE ASSESSEE WAS ASKED TO FILE CONFIRMATION OF SHARE MONEY & LOAN CREDITOR WITH THEIR NAME, PAN & ADDRES S. THE ASSESSEE FILED DETAILS OF SHARE HOLDERS AND LOAN CREDITORS BUT VAR IOUS DEFECTS WERE FOUND IN CASE OF DEEPABEN RUPESH KUMAR, PETHALJI JADAVBHAI K ALASARIYA, MANJULABEN MANOHARKUMAR KALASARIYA, MANOJKUMAR JADAVBHAI KALSA RIYA, RADHABEN RAVINDRAKUMAR KALASARIYA, RANIBEN JADAVBHAI KALASAR IYA, URMILABNEN PETHALJIBHAI KALASARIYA & RAVJIBHAI BALUBHAI LADUMO R. 2.1. THE NOTABLE FEATURES WHICH ARISE OUT OF THE AB OVE SUBMISSION OF THE ASSESSEE AND WHICH BEARS MENTION ARE AS UNDER: A. ALL THE CONFIRMATORY LETTERS FILED BY THE ASSESS EE IN CASE OF ALL THE ABOVE EIGHT PARTIES ARE IN THE SAME HAND WRITING. B. THE STAMP PAPERS UTILIZED FOR PREPARING THE AFFI DAVITS OF THE PARTIES AND CONFIRMATORY LETTRS OF RELATIVES ARE AL L FOUND TO BE PURCHASED EITHER FROM MUKESH G. KATARIYA VARACHA ROAD, SURAT OR J. B. VANIYA, VARACHA ROAD, SURAT. C. CONFIRMATORY LETTERS ON STAMP PAPER FILED BY REL ATIVES OF URMILABEN PETHALJIBHAI, RADHABEN RAVINDRAKUMAR, MAN OJKUMAR ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 3 JADAVBHAI, MANJULABEN MANOHARKUMAR ALSO BEAR THE SA ME HAND WRITING. D. NONE OF THE AFFIDAVITS HAVE BEEN EXECUTED BEFORE NOTARY/EXECUTIVE MAGISTRATE. E. SIMILAR ADDRESS I.E. YADUNANDAN, 119, NUTANNAG AR, HOSPITAL ROAD, OPP VYAYAM MANDIR, MAHUVA IS SHOWN IN THE CAS E OF ALL THE PARTIES EXCEPT SHRI RAVJIBHAI BALUBHAI. F. THEY ARE ALL RELATIVES FO THE DIRECTORS NAMELY J ADAVBHAI G. KALASARIYA AND PETHALBHAI J KALASARIYA. THE ASSESSEE HAD NOT PROVED GENUINENESS OF TRANSACT ION, CREDITWORTHINESS OF CASH CREDITOR AND IDENTIY OF THE CASH CREDITOR FOR SHARE AS WELL AS LOANS. THUS, THE A.O. ADDED RS. 3.2 LACS AS LOAN CREDITOR AND RS .12.5 LACS SHARE CAPITAL U/S.68 OF THE I.T. ACT. 3. THE APPELLANT CARRIED THE MATTER BEFORE CIT(A) W HO HAD CONFIRMED THE ADDITION BY OBSERVING AS UNDER: 4.3 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER, THE ABOVE SUBMISSIONS AND THE CASE LAW CITED BY THE LD. AUTHORISED REPRESENTATIVE. IT IS NOTICED THAT THE APPELLANT H AS ACCEPTED DEPOSITS AS ALSO SHARE APPLICATION MONEY FROM DIFFE RENT PERSONS. IT IS CLEAR FROM THE FACTS THAT THE ASSESSING OFFIC ER HAS WHILE MAKING THE ADDITIONS AS UNEXPLAINED DEPOSITS AND UN EXPLAINED SHARE APPLICATION MONEY HAS GONE IN DETAIL DISCUSSI ON AND IN CASE OF EVERY DEPOSITOR AND SHARE HOLDER, HE HAS CO MMENTED ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 4 UPON ALL FACTS RELATING TO THE CONCERNED AMOUNTS. HE HAS ENQUIRED ABOUT AND MADE ANALYSIS OF SOURCES OF INCO ME OF THE CONCERNED PERSONS, ENTRIES IN THEIR BANK ACCOUNTS M ADE FOR THE PURPOSE OF ISSUING CHEQUES, THEIR AFFIDAVITS, THEIR CAPACITY TO SAVE THE MONEY, THE INCOME STATED TO HAVE BEEN RECEIVED BY THESE PERSONS FROM THEIR RELATIVES AND FAMILY MEMBERS AND ALSO THE GENUINENESS OF TRANSACTIONS POINTING OUT THAT CASH DEPOSITS HAVE BEEN MADE IN RESPECTIVE BANK ACCOUNTS BEFORE ISSUIN G CHEQUES BY THESE PERSONS, TO THE APPELLANT. IN SOME CASES, STATEMENTS ALONG WITH AFFIDAVITS HAVE ALSO BEEN CONSIDERED BY THE ASSESSING OFFICER, WHILE CONSIDERING THE ISSUE OF INTRODUCTIO N OF AMOUNTS IN THE ACCOUNT OF THE APPELLANT BY WAY OF THE DEPOSITS AND SHARE APPLICATION MONEY. SINCE THE APPELLANT FAILED TO P ROVE THE OVER ALL CAPACITY AND CREDITWORTHINESS OF ALL THESE PERS ONS DISCUSSED IN DETAIL BY THE ASSESSING OFFICER IN THE ASSESSMEN T ORDER, THE AMOUNT OF RS.3,20,000/- BEING DEPOSIT AND RS.12,50, 000/- BEING SHARE APPLICATION MONEY REMAINS UNEXPLAINED. THE A PPELLANT COULD NOT SUBSTANTIATE ITS CLAIM WITH POSITIVE EVID ENCES AS REQUIRED TO BE PROVED IN CASE OF DEPOSITS AND SHARE APPLICATION MONEY. THE APPELLANT HAS TO PROVE ALL THE THREE RE QUIREMENTS AND ONLY THEN, A TRANSACTION CAN BE ACCEPTED AS GEN UINE. CLAIM OF LOAN RECEIVED, EVEN THROUGH BANK CANNOT BE ACCEP TED AS GENUINE, UNLESS ALL THE THREE REQUIREMENTS ARE PROV ED TO THE ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 5 SATISFACTION OF THE ASSESSING OFFICER AS HELD IN M/ S. PRECISION FINANCE (P) LTD. VS. CIT 208 ITR 265 (CAL.). THIS VIEW ALSO FINDS SUPPORT FROM SUMATI DAYAL VS. CIT 214 ITR 801 (SC) AND OCEANIC PRODUCTS EXPORTING CO. VS. CIT 241 ITR 497( KER.). IN VIEW OF THE ABOVE DISCUSSION, I HOLD THAT THE A PPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE INTRODUCTION OF MO NEY IN ITS BOOKS TO THE EXTENT OF RS.3,20,000/- CLAIMED AS DEP OSIT RECEIVED AND RS.12,15,000/- CLAIMED AS SHARE APPLICATION MON EY RECEIVED, AND HENCE THE ADDITION MADE BY THE ASSESSING OFFICE R OF SUCH AMOUNTS STANDS CONFIRMED. 4. NOW THE ASSESSEE IS BEFORE US. THE LD. COUNSEL FOR THE APPELLANT ARGUED THAT THE ASSESSEE HAD FILED AFFIDAVITS OF SH ARE HOLDERS AND EXPLAINED THE SOURCES OF INCOME BEFORE THE A.O. HE FILED PAP ER BOOK OF 54 PAGES WHICH INCLUDES COPY OF WRITTEN SUBMISSION BEFORE THE CIT( A), COPY OF CONFIRMATION LETTER IN CASE OF DEEPABEN RUPESH KUMAR, COPY OF AF FIDAVIT, CONFIRMATION LETTER, BALANCE SHEET & LEDGER OF ASSESSEE IN THE B OOKS OF DEPOSITOR IN CASE OF PETHALJI JADAVBHAI KALASARIYA, COPY OF SIMILAR EVID ENCE IN CASE OF MANJULABEN MANOHARKUMAR KALASARIYA, MANOJKUMAR JADAVBHAI KALSA RIYA, RADHABEN RAVINDRAKUMAR KALASARIYA, RANIBEN JADAVBHAI KALASAR IYA, URMILABNEN PETHALJIBHAI KALASARIYA & RAVJIBHAI BALUBHAI LADUMO R, FROM PAGE NO.20 TO 53 OF PAPER BOOK. HE ALSO RELIED UPON IN CASE OF CIT VS. DIVINE LEASING & FINACE LTD. & ACIT VS. NAMASTEY CHEMICAL PVT. LTD., ITA N O. 1542/AHD/2005 FOR A.Y. 01-02 AND SUBMITTED THAT THE ASSESSEE HAD FILED THE CONFI RMATION/AFFIDAVIT ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 6 WITH SOURCE OF FUND. THE ONUS HAS BEEN SHIFTED ON THE REVENUE TO CONTROVERT THE EVIDENCES. THUS, HE REQUESTED TO DELETE THE AD DITION. AT THE OUTSET, LD. SR. D. R. VEHEMENTLY RELIED UPON THE ORDER OF A.O. & CIT(A) AND REQUESTED TO CONFIRM THE ORDER OF CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON REC ORD. AS PER ORDER OF THE A.O., THE EVIDENCES SUBMITTED BEFORE ARE SUMMARIZED AS UNDER: SR. NO. NAME AMOUNT RS. MODE OF PAYMENT REMARKS/EVIDENCE SUBMITTED 1 DEEPABEN RUPESH KUMAR 75,000 PAY ORDER OF STATE BANK OF SAURASHTRA CONFIRMATION OF THE DEPOSITOR SHOWING THAT SHE HAD MADE DEPOSIT OUT OF HER SAVINGS FROM HOUSEHOLD EXPENSES RECEIVED FROM HER FATHER SAMATBHAI KARSHANBHAI, WHO IS A FARMER. COPY OF 7/12 EXTRACTS AND 8A EXTRACTS FROM LAND REVENUE RECORD OF SAMATBHAI KARSHANBHAI FILED WHICH SHOWS THAT HE IS HAVING LAND OF 3.41 HECTOR. 2. PETHALJI JADAVBHAI 3,50,000 + 50,000 BY CHEQUE DRAWN ON MAHUVA NAGRIK SAHKARI BANK COPY OF AFFIDAVIT OF THE PERSON CONFIRMING THE DEPOSIT AND THE CONFIRMATION LETTER ALONG WITH COPIES OF ACCOUNT FILED. THIS PERSON IS HOLDING AGRICULTURAL LAND. COPIES OF EXTRACTS FROM LAND REVENUE RECORD WERE FILED WITH THE A.O. 3. MANJULABEN 1,65,000 CHEQUE DRAWN COPY OF BANK STATEMENT OF THE ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 7 MANOHARKUMAR ON STATE BANK OF SAURASHTRA. DEPOSITOR, COPY OF CONFIRMATION BY WAY OF AFFIDAVIT AND CONFIRMATION LETTER FROM THE DEPOSITOR WERE FILED. THE DEPOSITOR HAS EXPLAINED THAT SHE IS HAVING HER SAVINGS AND ALSO THE AMOUNT RECEIVED FROM HER FATHER SAMANTBAI RAJABHAI, WHO IS A FARMER HOLDING AGRICULTURAL LAND. SAMANTBHAI HOLDS LAND OF 3.89 HECTORS + 4.05 HECTORS. COPY OF EXTRACTS FROM LAND REVENUE RECORD IN FORM NO.SA AND 7/12 WERE FILED WITH THE A.O. 4. MANOJKUMAR JADAVBHAI 3,40,000 BANKERS CHEQUE COPY OF AFFIDAVIT OF THE DEPOSITOR AND CONFIRMATION LETTER SHOWING THE SOURCE ALONG WITH COPIES OF ACCOUNT WERE FILED AND HIS BANK STATEMENT WAS ALSO FILED. THE DEPOSITOR HAD EXPLAINED THAT HE HAS HIS SAVINGS AND HAD ALSO RECEIVED AMOUNTS FROM HIS FATHER-IN-LAW SAMANTBHAI RAJABHAI WHO IS A FARMER AND HOLDS AGRICULTURAL LAND OF 4.05 HECTOR. EXTRACTS FROM LAND REVENUE RECORDS WERE FILED. 5. RADHABEN RAVINDRAKUMAR 90,000 CHEQUE OF STATE BANK OF SAURASHTRA. THE AFFIDAVIT OF RADHABEN AND CONFIRMATION LETTER ALONG WITH COPY OF ACCOUNT FILED. THE ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 8 DEPOSITOR HAS EXPLAINED THAT SHE HAD RECEIVED THE AMOUNT FROM HER PARENT SHRI BABUBHAI BHAYABHAI. EXTRACTS FROM LAND REVENUE RECORD OF BABUBHAI WERE FILED 6. RANIBEN JADAVBHAI 2,00,000 BY CHEQUE ON STATE BANK OF SAURASHTRA. COPY OF AFFIDAVIT AND CONFIRMATION LETTER ALONG WITH BANK PASS BOOK WERE FILED. THE DEPOSITOR HAS EXPLAINED THAT HER HUSBAND JADAVBHAI IS A FARMER AND OUT OF THEIR INCOME FROM AGRICULTURAL ACTIVITY THIS AMOUNT IS DEPOSITED. SHE HAD FILED EXTRACTS FROM LAND REVENUE RECORD. 7. URMILABNEN PETHALJIBHAI 2,00,000 BY CHEQUE ON STATE BANK OF SAURASHTRA. COPY OF AFFIDAVIT AND CONFIRMATION LETTER OF DEPOSITOR ALONG WITH BANK PASS BOOK FILED. THE DEPOSITOR HAS EXPLAINED THAT THE AMOUNT IS HER ACCUMULATION FROM HOUSE HOLD SAVINGS AND THE AMOUNTS RECEIVED FROM HER FATHER FROM TIME TO TIME. SHE HAD STATED THAT HER FATHER WAS HAVING AGRICULTURAL LAND. 8. RAVJIBHAI BALUBHAI 1,00,000 BANKERS CHEQUE COPY OF AFFIDAVIT AND CONFIRMATION LETTER OF DEPOSITOR FILED. IT IS EXPLAINED BY THE DEPOSITOR THAT HE HAD RECEIVED MONEY FROM HIS FATHER ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 9 BABUBHAI CHANDABHAI, WHO IS A FARMER AND HOLD AGRICULTURAL LANDS. EXTRACTS FROM LAND REVENUE RECORDS FOR THE LAND OF HIS FATHER WERE FURNISHED. IT IS SUBMITTED THAT THE ASSESSING OFFICER THUS MA DE TWO ADDITIONS OF THE FOLLOWING: SR. NO. NAME OF THE PERSON DEPOSIT (RS.) SHARE APPL. (RS.) 01 DEEPABEN RUPESH KUMAR 75,000 - 02 PETHALJI JADAVBHAI KALASARIYA 50,000 3,50,000/- 03 MANJULABEN MANOHARKUMAR KALASARIYA 15,000 1,50,0 00/- 04 MANOJKUMAR JADAVBHAI KALASARIYA 90,000/- 2,50,00 0/- 05 RADHABEN RAVINDRAKUMAR KALASARIYA 90,000/- - 06 RANIBEN JADAVBHAI KALASARIYA - 2,00,000/- 07 URMILABNEN PETHALJIBHAI KALASARIYA - 2,00,000/- 08 RAVJIBHAI BALUBHAI KALASARIYA - 1,00,000/- TOTAL 3,20,000/- 12,50,000/- WE HAVE EXAMINED THE EVIDENCES BUT THE SHARE HOLDER /DEPOSITOR HAVE NOT PROVED THE CREDITWORTHINESS AND GENUINENESS IN ALL THE CASES. FURTHER, THE ASSESSEE DID NOT FURNISH WHATEVER CONFIRMATION ON 1 3.09.2007 BUT FURNISHED ON 26.12.2007 WHEREAS THE ASSESSMENT WAS COMPLETED ON 31.12.2007. THE CASE LAW CITED BY THE ASSESSEE ARE NOT SQUARELY APP LICABLE ON ASSESSEES CASE AS THERE NO TIME REMAINED WITH A.O. TO ISSUE T HE SUMMONS TO THE LOANEE OR SHARE HOLDERS. THEREFORE, WE SET ASIDE THE ORDE R TO VERIFY THE CREDITWORTHINESS AND GENUINENESS OF TRANSACTION OF THE ABOVE SHARE HOLDERS/CASH CREDITORS. THE APPELLANT IS DIRECTED TO CO-OPERATE WITH A.O. AND ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 10 PRODUCE THE SHARE HOLDER/CASH CREDITOR FOR EXAMINAT ION. ACCORDINGLY, THIS GROUND OF APPEAL IS SET ASIDE FOR LIMITED PURPOSES. 6. THE A.O. OBSERVED THAT THE ASSESSEE HAD CLAIMED INSURANCE EXPENSES ON PAYMENT BASIS AT RS.76,530/- AND ALSO THE ASSESS EE HAD DEBITED RS.62,130/- WHICH RELATED TO F.Y. 05-06 IN P&L ACCO UNT. THE ASSESSEE HAD FOLLOWED MERCANTILE SYSTEM OF ACCOUNTING. THUS, HE MADE ADDITION OF RS. 62,130/- IN THE INCOME OF THE ASSESSEE. THE CIT(A) CONFIRMED THE ADDITION BECAUSE THE ASSESSEE COULD NOT CONTROVERT THE FINDI NG OF THE A.O. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE FILED A COPY OF IT AT C BENCH DECISION IN CASE OF ACIT VS. SYNPOL PRODUCTS PVT. LTD. IN ITA NO. 3903/AHD/2008 FOR A.Y. 05-06 AND CLAIMED THAT THE ASSESSEE HAD FOLLOWED CO NSISTENTLY AND REGULARLY THE SAME METHOD. FROM THE SIDE OF REVENUE, LD. SR. D.R. RELIED ON THE ORDER OF THE CIT(A) AND A.O. AND ARGUED THAT THE EXPENSES ARE PERTAINED TO SUBSEQUENT YEAR AND THE ASSESSEE HAS BEEN FOLLOWING THE MERCANTILE SYSTEM OF ACCOUNTING. THUS, IT SHOULD BE CONFIRMED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE CASE LAW RELIED BY THE COUNSEL FOR THE ASSESSEE WAS PERTAINED TO PAYMENT O F INSURANCE PREMIUM FOR KEYMANS INSURANCE POLICY WHICH WAS DUE DURING THE YEAR F.Y. 04-05 RELEVANT TO A.Y. 05-06 AS PER TERMS AND CONDITION OF THE POL ICY. BUT SUCH CONDITIONS DO NOT EXIST IN CASE OF THE ASSESSEE. NO EVIDENCE HAD ADVANCED BEFORE ANY STAGE WHICH SHOWED THAT THE ASSESSEE HAD TO PAY THE INSURANCE PREMIUM IN ADVANCE. THE ASSESSEE HAD FOLLOWED THE MERCANTILE SYSTEM OF ACCOUNTING. ITA NO. 1517/AHD/09 A.Y. 05-06 PAGE 11 THUS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). HOWEVER, A.O. IS DIRECTED TO VERIFY THE EXPENSES AND ALLOW THE CLAIM IN A.Y. 06-07. 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. THESE ORDERS PRONOUNCED IN OPEN COURT ON 07.12.2012 SD/- SD/- ( MUKUL KR. SHRAWAT ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNT ANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION H.W. PAPER OF MEMBER ON 03.12.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 03.12.2012 4) DATE OF CORRECTION ,, ,, 5) DATE OF FURTHER CORRECTION XXX 6) DATE OF INITIAL SIGN BY MEMBERS 07.12.2012 7) ORDER UPLOADED ON ,, ,, 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE NO 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 07.12.2012