Shri Ashishkumar Amrutlal Vora, Bhavnagar V. The Income tax Officer,Ward-1(1), Bhavnagar

ITA 1744/AHD/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9303 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 24-01-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 06-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained cash credit

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD . . , , BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO.1744/AHD/2012 ( / ASSESSMENT YEAR : 2008-2009) ASHISHKUMAR AMRUTLAL VORA KATCHHI KUNJ LIG-111 ROAD NO.7, SHASTRI NAGAR, BHAVNAGAR 364001. / VS. INCOME TAX OFFICER, WARD : 1(1), BHAVNAGAR. ./ ./ PAN/GIR NO. : AELPV 9278 C ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI M.K. PATEL, A.R. / RESPONDENT BY : SHRI OM PRAKASH MEENA, SR. D.R. / DATE OF HEARING 24/01/2017 / DATE OF PRONOUNCEMENT 31/01/2017 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-XX, AHMEDABAD, DATED 16/05/2012 FOR THE ASSESSMENT YEAR (AY) 2008-09. ASSESSEE HAS BEEN TAKEN FOLLOWING GROUND OF APPEAL. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION MADE BY AO OF RS.10,00,000/- AS AN UNEXPLAINED CASH CREDIT U/S.68 OF THE INCOME-TAX ACT, 1961, WHICH IS REQUESTED TO BE DELETED. ITA NO.1744/AHD/2012 ASHISHKUMAR AMRUTLAL VORA VS. ITO ASST.YEAR 2008-09 - 2 - 2. THE FACTS OF THE CASE ARE THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF SHARE AND ALSO HAVING INCOME FROM INTEREST AND DIVIDEND. 3. IT WAS SEEN FROM THE RECORDS THAT THE ASSESSEE HAD RECEIVED UNSECURED LOANS FROM THE FOLLOWING PERSONS DURING THE YEAR UNDER CONSIDERATION. NO. NAME DATE AMT. RS. 1. AMARCHAND TEJSINHBHAI MEHTA 01.08.2007 200000 2. RAJENDRA AMARCHAND MEHTA 01.08.2007 200000 3. SMITABEN SURESHBHAI MEHTA 01.08.2007 200000 4. SURESHKUMAR AMARCHAND MEHTA 01.08.2007 200000 5. VARSHABEN RAJENDRAKUMAR MEHTA 01.08.2007 200000 TOTAL 10,00,000 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS REQUESTED TO FURNISH COPY OF ACCOUNT; CONFIRMATION & DOCUMENTARY EVIDENCE IN RESPECT OF IDENTIFY GENUINENESS AND CREDITWORTHINESS OF THESE DEPOSITORS. THE ASSESSEE FURNISHED COPY OF ACCOUNT, CONFIRMATION AND COPY OF BANK PASS BOOK OF THESE DEPOSITORS. ON VERIFICATION OF BANK ACCOUNT OF THESE DEPOSITORS, IT IS SEEN THAT THESE DEPOSITORS WERE HAVING BANK ACCOUNT IN DENA BANK, BHACHAV BRANCH, KUTCH. ON FURTHER VERIFICATION, IT IS SEEN THAT IN ALL DEPOSITORS BANK ACCOUNT, ON 30.07.2007, RS.2,00,000/- EACH, HAS BEEN DEPOSITED BY CASH AND ON 31.07.2007, AMOUNT OF RS.2,00,000/- EACH HAS BEEN TRANSFERRED BY WAY OF DRAFT/BANKERS CHEQUE TO ASSESSEES ACCOUNT IN BANK OF INDIA, SHASHTRINAGAR BRANCH, BHAVNAGAR. IT IS ALSO SEEN THAT ALL THE ABOVE ITA NO.1744/AHD/2012 ASHISHKUMAR AMRUTLAL VORA VS. ITO ASST.YEAR 2008-09 - 3 - DEPOSITORS ARE NOT ASSESSED TO TAX. IN THESE CIRCUMSTANCES, GENUINENESS AND THE CREDITWORTHINESS OF THESE DEPOSITORS WERE NOT SUBSTANTIATED AND THEREFORE THE ABOVE UNSECURED LOANS OF RS.10,00,000/- IS REQUIRED TO BE TREATED AS UNEXPLAINED CASH CREDIT U/S.68 OF THE INCOME-TAX ACT, 1961. HENCE, VIDE THIS OFFICE LETTER DATED 24/11/2010, THE ASSESSEE WAS REQUESTED TO SHOW CAUSE AS TO WHY THE ABOVE UNSECURED LOANS SHOULD NOT BE TREATED AS UNEXPLAINED CASH CREDIT U/S.68 OF THE INCOME-TAX ACT, 1961 AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. BUT ASSESSEE DID NOT CARE TO REPLY OF THE NOTICE. THEREFORE, UNDER THESE CIRCUMSTANCES A.O. MADE THE DEPOSIT OF RS.10,00,000/- AS UNEXPLAINED CASH CREDIT. 5. ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE CIT(A), WHO CONFIRMED THE ACTION OF THE A.O, NOW APPEAL IS BEFORE US. 6. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGNED ORDER PASSED BY THE AUTHORITIES BELOW. IT IS UNDISPUTED THAT APPELLANT RECEIVED UNSECURED LOANS OF RS.2,00,000/- EACH FROM FIVE CREDITORS ON THE SAME DAY AND ALL THE FIVE CREDITORS WERE HAVING BANK ACCOUNTS WITH THE SAME BRANCH OF DENA BANK. ON 30/07/2007, CASH OF RS.2,00,000/- EACH, WAS DEPOSITED IN THE BANK ACCOUNTS. IMMEDIATELY THEREAFTER ON 31/07/2007 DRAFT WERE OBTAINED IN FAVOUR OF THE APPELLANT. NONE OF THE CREDITORS IS INCOME-TAX PAYER. NONE OF THEM WAS BEING PAID INTEREST. APPARENTLY, THE CREDITORS ARE YET TO BE REPAID. LD. A.O.S CONTENTION THAT THERE WERE ITA NO.1744/AHD/2012 ASHISHKUMAR AMRUTLAL VORA VS. ITO ASST.YEAR 2008-09 - 4 - SUBSTANTIAL WITHDRAWALS IN THE PASS-BOOKS OF THE CREDITORS IS NOT BORNE OUT. THE STATEMENTS RECORDED BY THE A.O. FROM TWO CREDITORS DO NOT DEMONSTRATE THEIR CREDITWORTHINESS. A.OS OBSERVATIONS ARE THE ASSESSMENT ORDER AND REMAND REPORT IS COGENT AND TENABLE. THE CREDITORS WERE PERSONS OF MEAGER MEANS. 7. LD. A.R. FILED A JUDGMENT BLESSING CONSTRUCTION VS. INCOME-TAX OFFICER (2013)32 TAXMANN.COM 366 (GUJARAT) IN THIS CASE IT WAS HELD THAT WHERE SIZEABLE AMOUNT WERE DEPOSITED IN CASH IN ACCOUNTS OF DEPOSITORS BEFORE THEY WERE WITHDRAWN THROUGH CHEQUES IN FAVOUR OF ASSESSEE, ADDITION WAS JUSTIFIED. IT WAS FURTHER HELD THAT WHETHER, ON FACTS AND IN LAW, THE TRIBUNAL WAS RIGHT IN TREATING THE SAID CASH CREDITS AS NOT GENUINE AND SUSTAINING THE ADDITION MADE OF RS.66,475/-. IN THIS CASE HONBLE HIGH COURT HAS HELD, WE ARE UNABLE TO HOLD THAT THE FINDINGS RECORDED BY THE ASSESSING OFFICER, CIT(A) AND TRIBUNAL INTO THE GENUINENESS OF THE TRANSACTION, CALL FOR ANY INTERFERENCE AND SAME APPEAL OF THE ASSESSEE WAS DISMISSED. WHEREAS IN PRESENT CASE BEFORE US APPELLANT RECEIVED THE MONEY FROM THE CREDITORS EDITOR WHO WERE MAN OF MEANS AND WERE NOT INCOME-TAX PAYEE AND BARELY TO THE DATE OF WITHDRAW THE CASH WAS DEPOSITED IN THEIR RESPECTED ACCOUNT. SO IN OUR CONSIDERED OPINION THIS JUDGMENT IS NOT APPLICABLE IN THE PRESENT CASE. ITA NO.1744/AHD/2012 ASHISHKUMAR AMRUTLAL VORA VS. ITO ASST.YEAR 2008-09 - 5 - 8. ON THE OTHER HAND LD. D.R. HAS CITED A JUDGMENT GUJARAT FERTILIZERS VS. CIT 293 ITR 70 (GUJ.): ALLEGED CREDITORS NOT BEING A MAN OF MEANS WHO IS BARELY ABLE TO SUSTAIN HIMSELF BY CARRYING ON AGRICULTURAL OPERATIONS, CASH CREDITS COULD NOT BE ACCEPTED AS GENUINE. 9. THEREFORE, RESPECTFULLY FOLLOWING THAT JURISDICTIONAL HIGH COURT JUDGMENT AND IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE NOT INCLINE TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A). HENCE, APPEAL OF THE ASSESSEE IS DISMISSED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 31/01/2017 SD/- SD/- . . ( ) ( ) ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 31/01/2017 ITA NO.1744/AHD/2012 ASHISHKUMAR AMRUTLAL VORA VS. ITO ASST.YEAR 2008-09 - 6 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-XX, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 30/01/2017 (DICTATION-PAD 3 PAGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31/01/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER