ACIT, Nashik V. Shri Ramesh Amarnath Agrawal, Nashik

ITA 1586/PUN/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1183 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 26-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANN KAPUTHAMA
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , ! ' , #$ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1586/PN/2012 #% & '& / ASSESSMENT YEAR : 2009-10 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1, NASHIK ....... / APPELLANT (% / V/S. SHRI RAMESH AMARNATH AGRAWAL, AGRAWAL VENTURES, AGRAWAL VILLA, PLOT NO. 1, SURVEY NO. 617, TIDKE COLONY, NASHIK PAN : AAOPA2051M / RESPONDENT ASSESSEE BY : SHRI C.H. NANIWADEKAR REVENUE BY : SMT. ANN KAPUTHAMA / DATE OF HEARING : 24-08-2015 / DATE OF PRONOUNCEMENT : 26-08-2015 ) / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATED 02-05 -2012 FOR THE ASSESSMENT YEAR 2009-10. 2 ITA NO. 1586/PN/2012, A.Y. 2009-10 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE : THE ASSESSEE IS AN INDIVIDUAL AND IS ENGAGED IN THE BUSINESS OF SALE AND DISTRIBUTION OF FMCG AND STOCKIEST FOR HINDUSTAN UNILEVER LIM ITED. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009- 10 ON 30-09-2009 DECLARING TOTAL INCOME OF RS.15,81,300/-. DURING THE COURSE OF SCRUTINY ASSESSMENT, THE ASSESSING OFFICER MADE ADDITIONS/DISALLOWANCES ON ACCOUNT OF : I. CERTAIN EXPENDITURE CLAIMED SUPPORTED BY SELF MADE VOUCHE RS RS.20,000/-. II. ADDITIONS U/S. 68 ON ACCOUNT OF UNEXPLAINED CASH CREDITS - RS.21,00,000/-. AGGRIEVED BY THE ASSESSMENT ORDER DATED 23-12-2011, T HE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) DELETED THE ADDITION MADE BY ASSESSING OFFICER U/S. 68 ON THE GROUND T HAT THE ASSESSEE WAS ABLE TO SATISFY THE 3 ESSENTIAL CONDITIONS T O PROVE CASH CREDITS; IDENTITY OF THE PAYER, GENUINENESS OF THE TRANSAC TION AND THE CREDITWORTHINESS OF THE PAYER WERE ESTABLISHED. THEREFORE , ADDITION OF RS.21,00,000/- U/S. 68 IS NOT CALLED FOR. AGAINST THESE FINDI NGS OF THE COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPE AL BEFORE THE TRIBUNAL. 3. SMT. ANN KAPUTHAMA REPRESENTING THE DEPARTMENT SUB MITTED THAT THE ASSESSEE IS ONE OF THE DIRECTORS OF M/S. MAYARA M FOOD LTD., NASHIK. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT W AS NOTICED THAT THE ASSESSEE HAS CREDITED AN AMOUNT OF RS.21,00,000 /- IN CASH AS ADVANCE RECEIVED FROM M/S. MAYARAM FOOD LTD. AGAINST SALE OF PROPERTY 3 ITA NO. 1586/PN/2012, A.Y. 2009-10 IN HIS CAPITAL ACCOUNT. THE ASSESSEE HAS NOT SHOWN ANY LIABILITY TOWARDS THE ABOVE ADVANCES CLAIMED TO BE RECEIVED FROM M/S. MAYARAM FOOD LTD. IN HIS BALANCE SHEET. THE ASSESSEE DURING ASS ESSMENT PROCEEDINGS HAD SUBMITTED THAT THE COMPANY M/S. MAYARA M FOOD LTD. IS A DEFUNCT COMPANY FOR THE LAST FOUR YEARS. THE ASSESS EE NEITHER PLACED ON RECORD THE BALANCE SHEET AND PROFIT AND LOSS A CCOUNT OF THE SAID COMPANY FOR THE RELEVANT ASSESSMENT YEAR NOR SUBM ITTED THE COPY OF AGREEMENT FOR THE SALE OF PROPERTY. THE ASSESSEE FILED COPY OF BALANC E SHEET AND PROFIT AND LOSS ACCOUNT OF THE COMPANY BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF I NCOME TAX (APPEALS) BEFORE ACCEPTING THE FRESH EVIDENCES FILED BY T HE ASSESSEE DID NOT CALL FOR THE COMMENTS OR REMAND REPORT OF THE AS SESSING OFFICER. IT IS APPARENT FROM RECORDS, THAT THE COMMISSIONER OF INC OME TAX (APPEALS) HAS NOT VERIFIED THE VERACITY OF FACTS AND DOCUME NTS BEFORE ACCEPTING THE SAME. THUS, THE CREDITWORTHINESS OF M/S. M AYARAM FOOD LTD., AS WELL AS, THE GENUINENESS OF THE TRANSACTION IS NOT PROVED. THE LD. DR PRAYED FOR SETTING ASIDE OF THE IMPUGNED ORDER. THE LD. DR FURTHER SUBMITTED THAT THE MATTER CAN BE REMITTED BACK TO ASSESSING OFFICER FOR VERIFICATION OF THE FRESH EVIDENCE FILED BY THE ASSES SEE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 4. SHRI C.H. NANIWADEKAR APPEARING ON BEHALF OF THE ASSESS EE VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOM E TAX (APPEALS). THE LD. AR SUBMITTED THAT THE COMMISSIONER OF INC OME TAX (APPEALS) IN HIS ORDER HAS CATEGORICALLY STATED THAT THE A SSESSEE HAS BEEN ABLE TO PROVE THE GENUINENESS OF THE TRANSACTION, I DENTITY AND CREDITWORTHINESS OF THE PAYER. ONCE THESE BASIC ELEMENTS ARE ESTABLISHED, DISALLOWANCE U/S. 68 CANNOT BE MADE. 4 ITA NO. 1586/PN/2012, A.Y. 2009-10 5. BOTH SIDES HEARD. THE ORDERS OF THE AUTHORITIES BELOW PERUSED. THE ONLY ISSUE RAISED BY THE REVENUE IN APPEAL IS AGAINST THE DELETIN G OF ADDITION OF RS.21,00,000/- ON ACCOUNT OF UNEXPLAINED CASH C REDITS U/S. 68 OF THE ACT. A PERUSAL OF THE IMPUGNED ORDER SHOWS TH AT THE ASSESSEE HAD FILED CERTIFIED COPY OF TRADING, PROFIT AND LOSS ACCOUNT A ND BALANCE SHEET FOR THE YEAR ENDING 31-03-2007 OF M/S. MAYARAM FO OD LTD. TO SHOW THE CREDITWORTHINESS OF THE PAYER COMPANY BEFORE T HE COMMISSIONER OF INCOME TAX (APPEALS). DURING THE ASSESSME NT PROCEEDINGS, THE ASSESSEE HAD NOT FILED THE AFORESAID DOCU MENTS. THE ASSESSING OFFICER HAS CATEGORICALLY RECORDED IN HIS ORDER T HAT THE ASSESSEE HAS NOT FURNISHED COPIES OF BALANCE SHEET, PROFI T AND LOSS ACCOUNT AND RETURN OF INCOME OF M/S. MAYARAM FOOD LTD. THE COMMISSIONER OF INCOME TAX (APPEALS) BEFORE ACCEPTING THESE DOCUMENTS AS ADDITIONAL EVIDENCE, HAS NOT SOUGHT THE COM MENTS OR REMAND REPORT FROM THE ASSESSING OFFICER. THE COMMISSIONER OF INCOME TAX (APPEALS) SHOULD HAVE GRANTED REASONABLE OPPO RTUNITY TO ASSESSING OFFICER TO EXAMINE THE EVIDENCE/DOCUMENTS PRODU CED BY ASSESSEE FOR THE FIRST TIME IN APPELLATE PROCEEDINGS IN ACCO RDANCE WITH THE PROVISIONS OF RULE 46A OF THE INCOME TAX RULES. THE LD. DR IN ALTERNATE PRAYER HAS PRAYED FOR REMITTING THE MATTER BACK TO ASSESSING OFFICER FOR VERIFICATION OF THE DOCUMENTS FILE D BY THE ASSESSEE DURING FIRST APPELLATE PROCEEDINGS. THE LD. AR OF T HE ASSESSEE HAS NOT RAISED ANY OBJECTION TO THE REMAND OF CASE TO ASSESSING OFFICE R. 6. IN THE INTEREST OF JUSTICE, WE DEEM IT APPROPRIATE TO REMIT THIS FILE BACK TO THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF ADDITIONAL DOCUMENTS FURNISHED BY THE ASSESSEE. THE ASSE SSING OFFICER 5 ITA NO. 1586/PN/2012, A.Y. 2009-10 SHALL GRANT FAIR OPPORTUNITY TO THE ASSESSEE BEFORE DECIDIN G THE MATTER AFRESH, IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON WEDNESDAY, THE 26 TH DAY OF AUGUST, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 26 TH AUGUST, 2015 RK )*+#,-!.!', / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-I, NASHIK 4. ' / THE CIT-I, NASHIK 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE