NEERJA EDEUCATION AND HOSPITALITY MANAGEMENT SERVICES PVT LTD., Jaipur V. ITO, Jaipur

ITA 158/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5520 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJINDER SINGH JCIT DR DHK
• Section: 68; 12

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 158/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 M/S. NEERJA EDUCATION AND HOSPITALITY MANAGEMENT SERVICES (P) LTD. D-46B, MALVIYA NAGAR, C-SCHEME, JAIPUR CUKE VS. THE ITO WARD- 6(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AACCN 5087 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI, CA JKTLO DH VKSJ LS@ REVENUE BY: SHRI RAJINDER SINGH, JCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14/12/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27 /01/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LD. CIT(A)-II, JAIPUR DATED 17-12-2013 FOR THE ASSESSME NT YEAR 2009-10 WHEREIN THE SOLITARY GROUND RAISED BY THE ASSESSEE IS AS UNDER:- IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F THE AO IN TREATING THE SHARE APPLICATION MONEY AMOUNTING T O RS. 2.10 LACS AS UNEXPLAINED AND CONSEQUENTLY ADDING TH E SAME U/S 68 OF THE I.T. ACT, 1961. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FAC TS OF THE CASE. ITA NO. 158/JP/2014 M/S.NEERJA EDUCATION & HOSPITAL MANAGEMENT SERVICES (P) LTD. VS. ITO WARD- 6(2), JAIPUR 2 RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID A DDITION OF RS. 2.10 LACS. 2.1 DURING THE COURSE OF HEARING, THE LD. AR CONTEN DS THAT THE ASSESSEE HAS DISCHARGED ITS ONUS IN FILING THE PAN DETAILS A ND AFFIDAVITS OF THE SHARE APPLICANTS IN QUESTION. THEREFORE, THE ADDITI ONS ARE REQUESTED TO BE DELETED. RELIANCE IS PLACED ON THE FOLLOWING CASE L AWS TO THIS EFFECT. (I) KANHAIYALAL JANGID VS. ACIT (2008) 217 CTR 354 (RAJ.) (II) ARAVALI TRADING CO. VS. ITO (2008) 220 CTR 622 (RAJ.) (III) LABH CHAND BOHRA VS. ITO (2010) 189 TAXMAN 14 1 (RAJ.) (IV) CIT VS. LOVELY EXPORTS (P) LTD. (2008) 216 CTR 195 (SC) (V) CIT VS. JAY DEE SECURITIES & FINANCE LTD. (2013 ) 350 ITR 220 (ALL.) (VI) CIT VS. STELLAR INVESTMENT LTD. (2001) 251 ITR 263 (SC) (VII) CIT VS. SOPHIA FINANCE LTD. (1994) 205 ITR 98 (DELHI) (FB) (VIII) BARKHA SYNTHETICS LTD. VS. ACIT (2006) 283 I TR 377 (RAJ.) ITA NO. 158/JP/2014 M/S.NEERJA EDUCATION & HOSPITAL MANAGEMENT SERVICES (P) LTD. VS. ITO WARD- 6(2), JAIPUR 3 2.2 THE LD. DR ON THE OTHER HAND REFERRED TO THE RE LEVANT PART OF THE LD. CIT(A)S ORDER AS UNDER: - 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSESSMENT ORDER AND APPELLANTS WRITTEN SUBMISSION . ASSESSING OFFICER MADE ADDITION OF CASH RECEIVED FR OM 12 PERSONS U/S 68 WHO WERE NOT FOUND TO BE HAVING FINA NCIAL RESOURCES FOR SUCH CONTRIBUTION. APPELLANT SUBMITTE D PAN IN RESPECT OF 8 PERSONS AND REMAINING 4 DID NOT HAVE P AN. APPELLANT SUBMITTED AFFIDAVITS FROM THESE PERSONS H OWEVER THEY HAVE NOT MENTIONED THE EXACT SOURCE OF INCOME FROM WHICH THIS CONTRIBUTION WAS MADE. ASSESSING OFFICER FOUND THAT EVEN THOSE PERSONS HAVING PAN DID NOT FILE A R ETURN OF INCOME AND THEREFORE, THE SOURCE IS NOT KNOWN. SINC E AMOUNT CONTRIBUTED WAS IN CASH AND NONE OF THE DEPOSITOR F ILED RETURN OF INCOME, GENUINENESS AND CREDITWORTHINESS ARE NOT PROVED. APPELLANT SUBMITTED THAT IT HAS DISCHARGED ITS ONUS BY SUBMITTING CONFIRMATIONS AND RELEVANT DETAILS. H OWEVER, IT IS SEEN THAT NONE OF THE DEPOSITOR IS INCOME TAX ASSESSEE AND THE TRANSACTIONS WERE IN CASH THEREFORE, THE DE CISIONS RELIED UPON BY THE APPELLANT WITH REGARD TO DISCHAR GE OF ITS ONUS ARE NOT APPLICABLE. SINCE ASSESSING OFFICER FO UND THAT CREDITS APPEAR IN THESE 12 PERSONS NAME IS NOT EXP LAINED, THE ADDITION MADE BY THE AO IS SUSTAINABLE. IT WILL NOT BE OUT OF PLACE TO MENTION HERE THAT ASSESSING OFFICER ACC EPTED MOST OF THE CREDITS WHERE APPELLANT SUBMITTED REQUI RED ITA NO. 158/JP/2014 M/S.NEERJA EDUCATION & HOSPITAL MANAGEMENT SERVICES (P) LTD. VS. ITO WARD- 6(2), JAIPUR 4 DETAILS AND CREDITWORTHINESS WAS ESTABLISHED. HOWE VER, IN THESE CASES THE SAME WAS NOT DONE. SINCE APPELLANT HAS NOT ESTABLISHED CREDITWORTHINESS OF DEPOSITORS AND THE MONEY WAS RECEIVED IN CASH, THE DECISIONS RELIED UPON BY THE APPELLANT ARE NOT APPLICABLE. ACCORDINGLY, THE ADDI TION MADE BY THE ASSESSING OFFICER BY TREATING DEPOSITS AS UN EXPLAINED IS CONFIRMED. IT IS CONTENDED THAT THE ISSUE OF CREDIT RELATING T O SECTION 68 CONTEMPLATES THREE MANDATORY INGREDIENTS I.E. IDENTITY OF DEPOSI TORS, GENUINENESS OF THE TRANSACTIONS AND CREDITWORTHINESS OF THE DEPOSITORS . FROM THE MATERIALS AVAILABLE ON RECORD, IT IS CLEAR THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE CREDITWORTHINESS OF THE DEPOSITORS, THUS THIS IMPOR TANT INGREDIENT OF SECTION 68 REMAINS UN-COMPLIED WITH BY THE ASSESSEE . ORDER OF LD. CIT(A) IS RELIED ON. 2.3 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE CONTENTION S OF THE LD. DR. FROM THE RECORD, IT DOES NOT EMERGE THAT THE ASSESSEE HAS DI SCHARGED ITS ONUS IN RESPECT OF THE CREDITWORTHINESS OF THE DEPOSITORS. CONSEQUENTLY, THE BURDEN CAST ON THE ASSESSEE IN TERMS OF SECTION 68 QUA ESTABLISHING THE CREDITWORTHINESS REMAINS UNDISCHARGED. IN VIEW THER EOF, I FIND NO ITA NO. 158/JP/2014 M/S.NEERJA EDUCATION & HOSPITAL MANAGEMENT SERVICES (P) LTD. VS. ITO WARD- 6(2), JAIPUR 5 INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHICH IS U PHELD. THUS THE APPEAL OF THE ASSESSEE IS DISMISSED. 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 /01/ 2016. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27 /01/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S.NEERJA EDUCATION AND HOSPITALITY MANAGEMENT SERVICES (P) LTD. , JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 6 (2), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 158/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR