SUNIL KUMAR, NEW DELHI V. ITO, WARD- 35(2), NEW DELHI

ITA 1669/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0823 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 09-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R MANJANI
• Section: 133(6); 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 1669 /DEL/201 8 [ASSESSMENT YEAR: 2 0 03 - 04 ] SHRI SUNIL KUMAR BHATIA VS. THE I . T . O F - 50, KOHLAPUR ROAD WARD 35 ( 2 ) KAMLA NAGAR, DELHI NEW DELHI PAN : AAFPB 5064 J [APPELLANT] [RESPONDENT] DATE OF HEARING : 0 6 . 0 9 .201 8 DATE OF PRONOUNCEMENT : 1 4 .0 9 .2018 ASSESSEE BY : SHRI K.R. MANJANI, ADV. REVENUE BY : S HRI ANIL KUMAR SHARMA, SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 1 2 , DELHI DATED 2 0 . 1 0 .201 7 PERTAINING TO ASSESSMENT YEAR 20 03 - 04 . 2 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 4 LAKHS MADE U/S 68 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] BY THE ASSESSING OFFICER. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, CASH CREDITS IN THE NAME OF SHRI SHYAM GOPAL & SONS RS. 4 LAKHS AND M/S YAJESH GARG RS. 5 LAKHS W E R E F O U N D . THE ASSESSEE WAS ASKED TO PROVE THE GENUINENESS OF THE TRANSACTIONS AND CREDIT WORTHINESS OF THE CREDITORS. THE ASSESSEE FILED A DETAILED REPLY VIDE LETTER DATED 14.10.2015 ALONGWITH CO PIES OF BANK STATEMENTS. BASED ON THE REPLY AND THE BANK STATEMENT, THE ASSESSING OFFICER ISSUED NOTICE U/S 133(6) OF THE ACT TO UNITED BANK OF INDIA AND CANARA BANK RESPECTIVELY. NOTICES WERE ALSO ISSUED TO M/S YAJESH KUMAR GARG [HUF] A N D M/S SHYAM GOPA L & SONS. NOTICES WERE RETURNED UNSERVED. WHEN AN INSPECTOR WAS DEPUTED TO SERVE NOTICE U/S133(6) OF THE ACT AND AFTER VERIFYING THE PRESENCE OF THE SAID PARTIES, HE REPORTED THAT NO NAMED PERSONS WERE FOUND AT THE GIVEN ADDRESS. THE ASSESSING OFFICER F ORMED BELIEF THAT CASH 3 CREDITORS WERE NOT GENUINE AND ACCORDINGLY, MADE ADDITION U/S 68 OF THE ACT. 4. THE ASSESSEE STRONGLY AGITATED THE MATTER BEFORE THE CIT(A) AND ONCE AGAIN FURNISHED BANK STATEMENTS TO DEMONSTRATE THAT THE CREDITORS WERE GENUINE AND THE TRANSACTIONS HAVE BEEN DONE THROUGH BANKING CHANNEL. 5. AFTER CONSIDERING THE FACTS AND DETAILED SUBMISSIONS, THE LD. CIT(A) WAS CONVINCED WITH THE GENUINENESS OF THE CREDIT ENTRIES IN THE NAME OF M/S YAJESH KUMAR GARG [HUF]. THE CIT(A) WAS OF THE OP INION THAT THE LOAN FROM M/S SHYAM GOPAL & SONS HAVE NOT BEEN REPAID SINCE LAST 15 YEARS. ACCORDINGLY, HE CONFIRMED THE ADDITION OF THE ALLEGED LOAN TAKEN FROM M/S SHYAM GOPAL & SONS AMOUNTING TO RS. 5 LAKHS AND DELETED THE ADDITION OF RS. 4 LAKHS. 6. B EFORE ME, THE LD. AR ONCE AGAIN DREW MY ATTENTION TO THE BANK STATEMENTS AND POINTED OUT THAT NOT ONLY THE LOAN HAS BEEN TAKEN BY ACCOUNT PAYEE CHEQUE BUT THE SAME HAS 4 ALSO BEEN REFUNDED AND THE CIT(A) GROSSLY ERRED IN STATING THAT THE LOAN HAS NEVER BEEN REPAID. 7. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE ORDERS OF THE ASSESSING OFFICER. 8 . I HAVE HEARD BOTH THE SIDES AND CAREFULLY CONSIDERED THE DOCUMENTARY EVIDENCE BROUGHT ON RECORD IN THE FORM OF PAPER BOOK IN LIGHT OF RULE 18(6) OF THE APPELLATE TRIBUNAL RULES. 9. EXHIBIT 2 IS THE CONFIRMATION FROM M/S SHYAM GOPAL & SONS. EXHIBIT 4 IS THE BALANCE SHEET OF M/S SHYAM GOPAL & SON IN WHICH, ON THE ASSET SIDE, LOAN GIVEN TO SHRI SUNIL KUMAR BHATIA HAS BEEN MENTIONED. EXHIBIT 5 IS THE BANK STATEMENT OF THE ASSESSEE, A PERUSAL OF WHICH SHOWS THAT ON 09.08.2004, THE ASSESSEE HAS REFUNDED RS. 4 LAKHS TO M/S SHYAM GOPAL & SONS. CONS IDERING THESE FACTS IN TOTALITY, I HAVE NO HESITATION IN HOLDING THAT THE TRANSACTIONS IS GENUINE AND THE ASSESSEE HAS SUCCESSFULLY DISCHARGED THE ONUS CAST 5 UPON IT BY VIRTUE OF SECTION 68 OF THE ACT. I ACCORDINGLY DIRECT THE ASSESSING OFFICER TO DELETE TH E IMPUGNED ADDITION. 10 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 4 . 0 9 .2018 . S D / - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 1 4 T H SEPTEMBER , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER