RAMESH S. NAIK, MUMBAI V. ITO 17(3)(4), MUMBAI

ITA 1945/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7376 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 03-03-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 30-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER ITA NO.1945/MUM/2009 : ASST.YEAR 2004-2005 SHRI RAMESH S.NAIK B/701, PLOT NO.50 OM SIDDHI VINAYAK CO-OP.HO.SOCIETY SECTOR 2, CHARKOP, KANDIVALI (WEST) MUMBAI 400 067. PA NO.AABPN1699K. VS. THE INCOME TAX OFFICER WARD 17(3)(4) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAMEER DALAL RESPONDENT BY : SHRI S.M.KESHKAMAT O R D E R THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 28.11.2008 IN RELATION TO THE ASSESSMENT YEAR 2004-2005. 2. THE ONLY GROUND IS AGAINST THE CONFIRMATION OF A DDITION OF RS.3,00,000 MADE BY THE ASSESSING OFFICER U/S.68 OF THE ACT. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD SHOWN TO HAVE RECEIVED LOAN O F RS.3,00,000 FROM MS.VIMALRAJ JAIN. ON BEING CALLED UPON TO ESTABLISH THE GENUINENESS OF THE TRANSACTION, THE ASSESSEE COULD NOT FILE EVEN LOAN CONFIRMATION BUT STATED THAT THE SAID LOAN WAS RECEIVED THROUGH CHEQUES. THE ASSESS EE ALLEGED THAT THE LOAN CREDITOR WAS NOT COOPERATING. ONE LETTER DATED 9.11 .2006 WAS ISSUED U/S.133(6) BY THE A.O. TO MS.VIMALRAJ JAIN CALLING FOR COMPLIANCE BUT THERE WAS NO RESPONSE. IN THE ABSENCE OF EVIDENCE TO ESTABLISH THE GENUINENES S OF THE LOAN TRANSACTION, THE A.O. MADE ADDITION FOR THE SAID SUM OF RS.3 LAKHS. DURING THE FIRST APPELLATE PROCEEDINGS IT WAS STATED ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE AND MS.VIMALRAJ JAIN WERE FRIENDS EARLIER BUT LATER ON BECAME RIVALS. THAT WAS STATED TO BE THE REASON FOR NON-COMPLIANCE BY MS.VIMALRAJ JAI N. THE LEARNED CIT(A) WROTE A LETTER TO ITO TO LEVY PENALTY U/S.272A(2)(C) IN C ASE OF NON-COMPLIANCE. EVEN ITA NO.1945/MUM/2009 SHRI RAMESH S.NAIK. 2 COMMISSION WAS DIRECTED TO BE ISSUED U/S.131 FOR RE CORDING HER STATEMENT AS THE ASSESSEE PRODUCED THE ADDRESS OF THE ALLEGED DEPOSI TOR. THE ITO ISSUED COMMISSION U/S.131 TO ITO, CHIPLUN WHERE THE ALLEGE D DEPOSITOR WAS STATED TO BE RESIDING. THE ITO, CHIPLUN COULD NOT FIND THE ALLEG ED DEPOSITOR ON THE ADDRESS GIVEN BY THE ASSESSEE. THE ASSESSEE WAS APPRAISED O F THIS DEVELOPMENT. SINCE THERE WAS NO FURTHER EVIDENCE EXCEPT ONE COPY OF BANK ACC OUNT PRODUCED BY THE ASSESSEE SHOWING DEBIT ENTRY OF RS.56,850 ON 22.12.2003, THE LEARNED CIT(A) UPHELD THE ADDITION. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS OBSERVED THAT THE ASSESSEE HAD SHOWN T O HAVE RECEIVED THE SAID SUM OF RS.3 LAKHS FROM MS.VIMALRAJ JAIN THROUGH ACCOUNT PA YEE CHEQUE. NEITHER THE COPY OF BANK ACCOUNT NOR ANY CONFIRMATION FROM THE ALLEG ED DEPOSITOR WAS FILED AT THE ASSESSMENT STAGE. THE SAME POSITION CONTINUED AT TH E FIRST APPELLATE STAGE AGAIN WHERE THE ASSESSEE COULD NOT LEAD ANY EVIDENCE TO S UBSTANTIATE THE GENUINENESS OF THE CLAIM. EVEN THE ITO, CHIPLUN COULD NOT LOCATE T HE ALLEGED DEPOSITOR ON THE SPECIFIC DIRECTION GIVEN BY THE LEARNED FIRST APPEL LATE AUTHORITY TO THE CONCERNED A.O. THESE FACTS PROVE THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CAST UPON HIM TO PROVE THE GENUINENESS OF THE TRANSACTION. TH E MERE FACT THAT THE AMOUNT WAS RECEIVED THROUGH BANKING CHANNEL IS NOT CONCLUSIVE EVIDENCE TO PROVE THE GENUINENESS OF TRANSACTION. IN ORDER TO COME OUT TO THE RIGOR OF SECTION 68 THE ONUS IS UPON THE ASSESSEE TO PROVE THE THREE INGREDIENTS NAMELY IDENTITY AND CAPACITY OF THE CREDITOR ALONG WITH THE GENUINENESS OF THE TRAN SACTION. IN MY CONSIDERED OPINION THERE IS NO FORCE IN THE SUBMISSION BY THE LEARNED A.R. THAT THE MATTER MAY BE RESTORED TO THE FILE OF A.O. FOR PROVING GENUINE NESS OF THE TRANSACTION. IT IS AXIOMATIC THAT THE ASSESSEE HAS FAILED TO LEAD ANY EVIDENCE FOR PROVING THE GENUINENESS OF THE TRANSACTION BEFORE THE A.O. AS W ELL AS THE LEARNED CIT(A). THE SAME POSITION IS CONTINUING EVEN BEFORE THE TRIBUNA L. IN SUCH CIRCUMSTANCES I UPHOLD THE IMPUGNED ORDER. ITA NO.1945/MUM/2009 SHRI RAMESH S.NAIK. 3 4. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS 5 TH DAY OF MARCH, 2010. SD/- ( R.S.SYAL ) ACCOUNTANT MEMBER MUMBAI : 5 TH MARCH, 2010. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) XXV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.