S K Gupta & Co., Ghaziabad V. ITO, Ward-2(3), Ghaziabad

ITA 1593/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1267 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2014-2015
• Appeal Filed On: 07-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133(6); 13; 131; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI B BEN CH, NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI AMIT SHUKLA, JUDICIAL MEMB ER ITA NO. 1593/DEL/2018 [A.Y 2014-15] M/S S.K. GUPTA & CO. VS. THE I.T.O B 26, LOHIA NAGAR, WARD 2(3) GHAZIABAD GHAZIABAD PAN: ABJFS 4999 Q [APPELLANT] [RESP ONDENT] ASSESSEE BY : MS. RANO JAIN, ADV REVENUE BY : SHRI MAHESH THAKUR, SR. DR DATE OF HEARING : 06.07.2021 DATE OF PRONOUNCEMENT : 07.07.2021 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER, THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE CIT(A), GHAZIABAD DATED 31.01.2018 PERTAINING TO A. Y 2014-15. 2 2. THE SUM AND SUBSTANCE OF THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDI TION OF RS. 1 CRORE MADE U/S 68 OF THE INCOME-TAX ACT, 1961 [HEREINAFTE R REFERRED TO AS 'THE ACT']. 3. REPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH. CASE RECORDS CAREFULLY PERUSED. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT D URING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFI CER NOTICED THAT UNDER THE HEAD LOANS AND ADVANCES, THE ASSESSEE H AS SHOWN A LOAN OF RS. 1 CRORE TAKEN FROM M/S ARTI SECURITIES AND S ERVICES LTD. THE ASSESSEE WAS ASKED TO EXPLAIN THE TRANSACTION IN LI GHT OF PROVISIONS OF SECTION 68 OF THE ACT. 5. THE ASSESSEE FURNISHED DETAILED REPLY ALONGWIT H DOCUMENTS AND BANK STATEMENTS. THE ASSESSEE ALSO FILED COPY OF L EDGER ACCOUNT OF M/S ARTI SECURITIES AND SERVICES LTD AND BANK STATE MENT OF LENDER COMPANY ALONGWITH ALL DOCUMENTS RELATING TO ITS INC OME TAX STATUS. 3 6. IN ORDER TO VERIFY THE GENUINENESS OF THE LOAN T RANSACTION, THE ASSESSING OFFICER ISSUED SUMMONS U/S 133(6) OF THE ACT AT THE ADDRESS GIVEN BY THE ASSESSEE. HOWEVER, THE SAID NOTICE WA S RETURNED BACK BY THE POSTAL AUTHORITIES. THEREAFTER, SUMMONS U/S 13 1 WERE ISSUED AT THE ADDRESS GIVEN BY THE ASSESSEE AND THE SUMMONS W ERE DULY SERVED, BUT NO RESPONSE WAS RECEIVED BY THE ASSESSING OFFIC ER. 7. THEREAFTER, THE ASSESSING OFFICER DEPUTED AN INC OME TAX INSPECTOR FOR MAKING FIELD INSPECTION AND THE INSPE CTOR, IN HIS REPORT, SUBMITTED THAT M/S ARTI SECURITIES AND SERVICES LTD HAS LEFT THE PREMISES. THE ASSESSING OFFICER ONCE AGAIN ISSUED SUMMONS U/S 131 OF THE ACT AND IN RESPONSE, SHRI PRAVEEN CHAUHAN, ACCO UNTANT OF THE COMPANY AUTHORISED BY THE DIRECTOR OF THE COMPANY, ATTENDED THE PROCEEDINGS ON BEHALF OF M/S ARTI SECURITIES AND SE RVICES LTD. 8. THE ASSESSING OFFICER RECORDED THE STATEMENT OF SHRI PRAVEEN CHAUHAN. SHRI PRAVEEN CHAUHAN ALSO FURNISHED LETTE R FROM THE DIRECTOR SHRI ANOOP AGARWAL WHO HAS CONFIRMED THE TRANSACTIO N CONCLUSIVELY AND SHOWED HIS INABILITY TO ATTEND THE PROCEEDINGS BECA USE OF HIS ILL HEALTH. 4 9. THE ASSESSING OFFICER PROCEEDED BY MAKING ADDITI ON OF RS. 1 CRORE SOLELY ON THE GROUND THAT THE DIRECTOR DID NO T ATTEND THE ASSESSMENT PROCEEDINGS, IGNORING ALL THE DIRECT EVI DENCES FURNISHED BY THE ASSESSEE IN SUPPORT OF ITS CLAIM THAT THE INITI AL BURDEN HAS BEEN DISCHARGED BY IT. 10. WHEN THE MATTER WAS AGITATED BEFORE THE LD. CIT (A), THE ASSESSEE ONCE AGAIN FURNISHED ALL DOCUMENTS IN SUPPORT OF IT S CLAIM BUT THE LD. CIT(A) ENDORSED THE VIEW TAKEN BY THE ASSESSING OFF ICER THAT THE DIRECTOR DID NOT ATTEND THE ASSESSMENT PROCEEDINGS. 11. WE ARE OF THE CONSIDERED VIEW THAT MERELY BECAU SE THE DIRECTOR OF THE LENDER COMPANY COULD NOT ATTEND THE ASSESSME NT PROCEEDINGS CANNOT BE THE BASIS FOR BRUSHING ASIDE THE CLINCHIN G DIRECT EVIDENCES BROUGHT ON RECORD BY THE ASSESSEE. WE FIND THAT TH E TRANSACTIONS HAVE BEEN MADE THROUGH BANKING CHANNEL. THE ENTRIES ARE DULY REFLECTED IN THE BANK ACCOUNTS OF BOTH THE PARTIES I.E. THE LEND ER AND THE BORROWER. WE ALSO FIND THAT THE LENDER COMPANY I.E. M/S ARTI SECURITIES AND SERVICES LTD HAS FURNISHED ITS COMPLETE INCOME TAX DETAILS ALONGWITH DOCUMENTS FURNISHED BY IT TO THE REGISTRAR OF COMPA NIES. 5 12. WE FIND THAT IT IS NOT THE CASE OF THE ASSESSIN G OFFICER THAT THE ASSESSEE HAS PURCHASED CHEQUE BY PAYING CASH NOR IT IS THE CASE OF ANY ACCOMMODATION ENTRY, NOR THERE IS ANY ALLEGATION OR SUSPICION ON THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE WHI CH ARE PART OF THE RECORD. THE ONLY REASON WE FIND IS THE NON-APPEARA NCE OF THE DIRECTOR BEFORE THE ASSESSING OFFICER. 13. WE ARE OF THE CONSIDERED VIEW THAT IN A CASE WH ERE A SUM IS CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, T HE ASSESSEE COULD DISCHARGE ITS ONUS BY PROVING THREE THINGS, NAMELY, A) THE IDENTITY OF THE CREDITOR B) THE CREDIT-WORTHINESS OF THE CREDITOR, AND C) THE GENUINENESS OF THE TRANSACTION IN QUESTION. ONCE THE ASSESSEE PROVES ALL THE ABOVE THREE THINGS , ITS ONUS IS DISCHARGED. 6 14. AFTER GOING THROUGH THE DIRECT EVIDENCES DISCUS SED HEREINABOVE, WHICH ARE PART OF THE RECORD OF THE LOWER AUTHORITI ES, WE HAVE NO HESITATION TO SAY THAT THE ASSESSEE HAS SUCCESSFULL Y DISCHARGED ITS ONUS U/S 68 OF THE ACT. THEREFORE, NO ADDITION IS CALLE D FOR. THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN IT A NO. 1593/DEL/2018 IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07.07 .2021. SD/- SD/- [ AMIT SHUKLA ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 TH JULY, 2021 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 7 DATE OF DICTATION 06.07.2021 ATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 06.07.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 07.07.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 07.07.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 07.07.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS 07.07.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT 07.07.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 07.07.2021 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER