Baljit Trikha, Ludhiana V. DCIT, Ludhiana

ITA 165/CHANDI/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60931 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-06-2012
• Assessment Year: 1998-1999
• Appeal Filed On: 10-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Onus to prove
• Section: 147; 148; 143(3)

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 165/CHD/2012 ASSESSMENT YEAR: 1998-99 SHRI BALJIT TRIKHA, V DCIT, CIRCLE VII, K-3, TEXTILE COLONY, LUDHIANA. LUDHIANA. PAN: ACHPT-5574D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT : SMT. JAISHREE SHARMA DATE OF HEARING : 05.06.2012 DATE OF PRONOUNCEMENT : 12.07.2012 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 29.12.2011 PASSED BY THE LD . CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'TH E ACT'). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLL OWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL AND UPHOLDING THE ADDITION MADE BY THE AO. 2. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS. 10,06,000/--( RS.10,00,000/- +RS.6,000/-) IN RESPECT OF LOAN RECEIVED FROM SH. N.K. GARG OR THROUGH M/S ASHISH LEASING & FINANCE LTD. BY DEMAND DRAFT AS UNDISCLOSED INCOME OF THE APPELLANT. 2 3. THAT THE LD. CIT(A) HAS ERRED IN UPHOLDING THA T THE APPELLANT FAILED TO PROVE THE GENUINENESS OF LAON RECEIVED FROM SH. N.K.GARG OR THROUGH M/S ASHISH LEASING & FINANCE LTD. 4. THAT THE LD. CIT(A) HAS ERRED IN NOT CONSIDERI NG THAT THE ASSESSING OFFICER WHILE PASSING ORDER HAS NOT FOLLOWED PROPERLY THE INSTRUCTIONS ISSUED BY THE ITAT WHO HAD SET ASIDE THE ASSESSMENT AND REMANDED THE CASE BACK TO THE FILE OF THE AO 5. THAT THE LD. CIT(A) HAS ALSO ERRED IN NOT CONSIDERING THAT THE ASSESSING OFFICER HAS NOT AFFORDED OPPORTUNITY TO CROSS EXAMINE SH. N.K. GARG FOR WHICH THE ASSESSEE HAD REQUESTED DURING THE COURSE OF HEARING. 6. THAT ADDITION HAS BEEN UPHELD BY T HE CIT(A) AGAINST THE FACTS AND CIRCUMSTANCE S OF THE CASE. 7. THAT THE LD. CIT(A) HAS ERRED IN NOT CONSIDERING THAT NO REASONABLE OPPORTUNITY WAS AFFORDED BY HIM AS WELL AS BY THE AO TO THE APPELLANT TO REPRESENT HIS CASE. 8. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 3. IN THE COURSE OF APPELLATE PROCEEDINGS BEFORE US , LD. 'AR' STATED THAT GROUND NOS. 5, 6 AND 7 ARE NOT PRE SSED. THEREFORE, THESE GROUNDS OF APPEAL ARE DISMISSED AS NOT PRESSED. 4. SIMILARLY, GROUND NOS. 1 & 8 ARE GENERAL IN NATU RE AND HENCE, NEED NO SEPARATE ADJUDICATION. 3 5. LD. 'AR' CONTENDED THAT GROUND NOS. 2, 3 & 4 ARE INTER- CONNECTED. IT WAS, FURTHER, STATED BY LD. 'AR' THA T THE DECISION OF THE SETTLEMENT COMMISSION, IN THE CASE OF SHRI N.K.GARG VIDE ORDER PASSED U/S 245D(4) OF THE ACT, HAS DEMOLISHED THE VERY FOUNDATIONS OF SUCH GROUNDS OF APPEAL. IN THIS CONTEXT, HE REFERRED TO PARA 16 AND 18 OF T HE ORDER OF THE SETTLEMENT COMMISSION, IN THE CASE OF SHRI N.K. GARG. IN VIEW OF THIS, IT WAS STATED BY LD. 'AR' THAT THE IS SUE RAISED IN THESE GROUNDS OF APPEAL, IS COVERED AGAINST THE ASS ESSEE. 6. LD. 'DR' OBSERVED THAT THE CONTENTION MADE BY LD . 'AR' IS FACTUAL. 7. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSIONS, FACTS OF THE CASE AND THE RELEVANT RECORDS. IN THIS CASE , ASSESSMENT U/S 148 READ WITH SECTION 147 OF THE ACT WAS COMPLETED ON 29.03.2006 AT NET TAXABLE INCOME OF RS.11,42,000/- VIDE ORDER DATED 29.03.2006. THE AS SESSEE FILED APPEAL AGAINST ASSESSMENT ORDER AND CIT(A) DE LETED THE ADDITION. ON SECOND APPEAL, FILED BY THE DEPARTMENT , ITAT VIDE ORDER DATED 28.11.2008 SET ASIDE THE ASSESSMEN T AND REMANDED THE CASE TO THE FILE OF THE AO FOR FRESH O RDER. CONSEQUENTLY, THE AO PASSED ASSESSMENT ORDER ON 14.12.2009 U/S 143(3) OF THE ACT AT TAXABLE INCOME OF RS.11,42,000/-. THE FINDINGS OF THE AO, AS CONTAIN ED IN PARA 5, ARE REPRODUCED HEREUNDER : 5. IN VIEW OF THE FACTS AND LEGAL POSITION DISCUSS ED IN FOREGOING PARAS, IT IS HELD THAT THE ASSESSEE HAS N OT BEEN ABLE TO PROVE THE GENUINENESS CREDIT RECEIVED FROM SHRI N.K.GARG OR THROUGH M/S ASHISH LEASING & FINAN CE 4 LTD., AND THEREFORE, AMOUNT OF RS.10,06,000/- (RS.10,00,000/- PLUS RS.6000) GIVEN FOR PROCURING T HE DEMAND DRAFT FROM SHRI N.K.GARG OR THROUGH M/S ASHI SH LEASING & FINANCE LTD., AND DEPOSITING THE SAME WIT H UNION BANK OF INDIA IN THE SHAPE OF DEMAND DRAFT IS HELD TO BE AS THE UNDISCLOSED INCOME OF THE ASSESSE E AND ADDED TO TAXABLE INCOME OF THE ASSESSEE. 8. THE ASSESSEE, FILED APPEAL BEFORE THE CIT(A), WH O DISMISSED APPEAL OF THE ASSESSEE VIDE ORDER DATED 29.12.2011, OBSERVING AS UNDER : 3. DURING ASSESSMENT PROCEEDINGS, THE AO HELD THAT THE APPELLANT FAILED TO PROVE THE GENUINENESS OF CR EDIT RECEIVED FROM SHRI N.K.GARG OR THROUGH M/S ASHISH LEASING & FINANCE LTD. AND THEREFORE, AMOUNT OF RS.10,06,000/- GIVEN FOR PROCURING THE DEMAND DRAFT FROM SHRI N.K.GARG OR THROUGH M/S ASHISH LEASING & FINANCE LTD. AND DEPOSITING THE SAME WITH THE UNION BANK OF INDIA IN THE SHAPE OF DEMAND DRAFT. THE AO HELD THE SAME AS UNDISCLOSED INCOME OF THE APPELLAN T. 4. SINCE, THE APPELLANT FAILED TO PROVE THE GENUINENESS OF THE CREDIT RECEIVED DURING THE YEAR UNDER CONSIDERATION AS THE ONUS TO PROVE THE SAME LIES UP ON THE APPELLANT. THEREFORE, KEEPING IN VIEW THE ABOV E FACTUAL POSITION OF THE CASE ,THE CONTENTION RAISED BY THE APPELLANT VIDE THIS APPEAL IS HEREBY DISMISSED AND ADDITION MADE BY THE AO IS UPHELD. 9. IN VIEW OF THE STATEMENT MADE BY THE ASSESSEE, T HE ISSUE IS COVERED AGAINST THE ASSESSEE, BY ORDER OF THE SETTLEMENT COMMISSION, IN THE CASE OF SHRI N.K.GARG . THE RELEVANT PARA OF THE SETTLEMENT COMMISSIONS ORDER IS REPRODUCED HEREUNDER : 16. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED COUNSEL OF THE APPLICANT AND THE LEARNED CIT(DR). WE FIND MERIT IN THE ARGUMENT OF THE 5 LEARNED COUNSEL OF THE APPLICANT. IN THE SITUATION, IN WHICH THE APPLICANT WAS PLACED AFTER A POLICE RAID AND JAIL, WHEN THE BOOKS OF THE APPLICANT WERE BURNT AND SEIZED BY THE POLICE, THE APPLICANT ADOPTED A BONA FIDE AND NON CONTROVERSIAL APPROACH OF RELYING ON THE FIGURE OF GROSS TURNOVER BY THE ASSESSING OFFICER, WHEN THE ASSESSING OFFICER GAVE A FIGURE EARLIER, THE APPLICANT HAD ACCEPTED THAT FIGURE AND WHEN THE ASSESSING OFFICER REVISED THAT FIGURE, THE APPLICANT ADOPTED THE REVISED FIGURE. 18. NOW COMING TO THE MERITS, WE FIND THAT THE ISSUES ARE CRYSTALLIZED AND THERE ARE THREE ISSUES INVOLVED. THE FIRST ISSUE IS WHETHER THE DEPOSITS I N THE VARIOUS BANK ACCOUNTS MAINTAINED BY THE APPLICANT ARE THE APPLICANTS OWN MONEY AND OUGHT TO BE TAXED U/S 69A AS DONE BY THE AO IN THE ASSESSMENT ORDERS. WE DO NOT FIND MERIT ON THIS PLEA OF THE AO. FROM THE FACTS THERE IS OVERWHELMING EVIDENCE THAT THE APPLICANT WAS AN ENTRY OPERATOR AND THE CASH DEPOSITS WERE NOT APPLICANTS OWN MONEY AND BELONGED TO THIRD PARTIES. THE REPORT UNDER RULE 9 ALSO DOES NOT LAY STRESS ON THIS PLEA. HENCE, WE REJECT THIS STAND OF THE AO. 10. IN VIEW OF THE CONTENTION MADE BY LD. 'AR' AND IN THE LIGHT OF DECISION OF SETTLEMENT, AS REPRODUCED ABOV E, THESE GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON JULY,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12 TH JULY,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH