RAKESH KAMLAKAR PADWAL, MUMBAI V. ITO 18(2)(1), MUMBAI

ITA 2026/MUM/2013

• Counselvise Citation: 202619914 RSA 2013
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 14-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUDOLPH H DSOUZA
• Keywords: Business income; Onus to prove
• Section: 68; 6; 133(6)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE S/SHRI D. MANMOHAN , VICE-PRESIDENT AND B.R.BASKARAN (AM) , . , . . , ./I.T.A. NO.2026/MUM/2013 ( ! ' / ASSESSMENT YEAR :2009-10) RAKESH KAMLAKAR PADWAL, B-110, GURUKRUPA CO-OP. HSG LTD., N C KELKAR ROAD, DADAR(W), MUMBAI-400028 / VS. I NCOME TAX OFFICER 18(2) (1), MUMBAI. ( #$ / APPELLANT) .. ( %& #$ / RESPONDENT) # ./ () ./ PAN/GIRNO.:AMCPP9743K #$ * / ASSESSEE BY : NONE %&#$ + * /RESPONDENT BY : SHRI RUDOLPH H DSOUZA , - + ./ / DATE OF HEARING : 1.10.2014 0'! + ./ /DATE OF PRONOUNCEMENT : 8.10.2014 / O R D E R PER B R BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 16.1.2013 PASSED BY THE LD. CIT(A)- 29, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2009-10. THE ASSESSEE IS AGGRIEVED BY THE DEC ISION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.61,04,000/- MADE BY AO UNDER SECTION 68 OF THE INCOME TAX ACT, 1961(THE ACT). 2. NONE APPEARED ON BEHALF OF THE ASSESSEE THOUGH T HE NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY REGISTERED POST WHICH W AS DULY SERVED UPON HIM ON 15.7.2014. HENCE, WE PROCEED TO DISPOSE OF THE APPE AL EX-PARTE, WITHOUT PRESENCE OF THE ASSESSEE. I.T.A. NO.2026/MUM/2013 2 3. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORD. THE FACTS THAT EMANATE FROM THE RECORD ARE THAT THE AO NOTICED FR OM THE AIR INFORMATION THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.11,40,000/- IN ABHUDAYA CO-OP BANK. WHEN ENQUIRED ABOUT THE SAME, THE ASSESSEE SUBMITTE D THAT CASH WAS DEPOSITED FROM HIS BUSINESS INCOME AND CASH WITHDRA WALS MADE FROM THE BOOKS. THE AO EXAMINED THE BUSINESS BOOKS OF THE ASSESSEE AND NOTICED THAT THE ASSESSEE HAS INTRODUCED LOANS IN THE NAME OF 21 PER SONS ON VARIOUS DATES AND EACH LOAN WAS OBTAINED BY WAY OF CASH FOR AN AMOUNT , WHICH WAS LESS THAN RS.20000/-. THE AGGREGATE AMOUNT OF LOANS SO OBTA INED WAS RS.4,04,800/-. HENCE, IN ORDER TO ASCERTAIN GENUINENESS OF THE CAS H LOANS, THE AO ISSUED NOTICES U/S 133(6) OF THE ACT TO SOME OF THE PARTI ES, BUT THERE WAS NO COMPLIANCE FROM ANY OF THEM. THE AO ASKED THE ASSE SSEE TO PRODUCE THE PARTIES, BUT THE ASSESSEE DID NOT COMPLY WITH THE S AME. HENCE, THE AO CONSIDERED ALL THE CASH LOANS AGGREGATING TO RS.4. 04,800/- AS UNPROVED CASH CREDITS AND ASSESSED THE SAME U/S 68 OF THE ACT. 4. IN ADDITION TO THE ABOVE, THE AO ALSO NOTICED TH AT THE ASSESSEE HAS OBTAINED UNSECURED LOANS AGGREGATING TO RS.59,50,00 0/- FROM FRIENDS AND RELATIVES. ON VERIFICATION OF THE RELEVANT DETAIL S, IT WAS NOTICED THAT THE ASSESSEE HAS OBTAINED LOAN OF RS.57,00,000/- FROM A FIRM NAM ED M/S VINTAGE VENTURE BY WAY OF TWO CHEQUES I.E. RS.55,00,000/- AND 2,00,00 0/-. WITH REGARD TO THE ENQUIRY MADE BY THE AO, THE ASSESSEE FILED A CONFIR MATION LETTER OBTAINED FROM THE ABOVE SAID CONCERN AND THE SAID LETTER WAS SEEN SIGNED BY A PERSON NAMED AS SHRI T K THANGAPPA HAVING PAN NO.AIZPN7061J . IN ORDER TO CROSS VERIFY THE GENUINENESS OF THE LOAN CREDITOR, A NOTICE U/ S 133(6) OF THE ACT WAS ISSUED TO THE ABOVE SAID FIRM BUT THERE WAS NO COMPLIANCE TO THE SAME. SINCE THE IDENTITY AND CREDITWORTHINESS OF THE CREDITORS WER E NOT PROVED, THE AO ASSESSED AN AMOUNT OF RS.57,00,000/- AS UNEXPLAINED CASH CR EDIT. 5. IN THE APPELLATE PROCEEDINGS ALSO THE ASSESSEE DID NOT PRODUCE ANY OTHER MATERIAL TO PROVE THE CASH CREDITS AND HENCE THE LD. CIT(A) CONFIRMED THE ADDITION OF BOTH CASH CREDITS REFERRED ABOVE. AGGR IEVED, THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. I.T.A. NO.2026/MUM/2013 3 6. WE HAVE HEARD LD D.R AND PERUSED THE RECORD. I T IS A WELL SETTLED PROPOSITION OF LAW THAT THE INITIAL BURDEN OF PROOF WITH REGARD TO THE CASH CREDITS IS PLACED UPON THE ASSESSEE U/S 68 OF THE ACT, I.E . THE ASSESSEE IS REQUIRED TO PROVE THREE MAIN INGREDIENTS, VIZ., (A) THE IDENTI TY OF THE CREDITOR, (B) THE CREDITWORTHINESS OF THE CREDITOR AND ( C ) THE GEN UINENESS OF THE TRANSACTIONS. IN THE INSTANT CASE, THE ASSESSEE HAS CLAIMED TO HA VE RECEIVED RS.4,04,800/- FROM 21 PERSONS BY WAY OF CASH. HOWEVER, ASSESSEE DID NOT PRODUCE ANY OF THE PARTIES BEFORE THE AO AND DID NOT FURNISH ANY OTHER DOCUMENT TO PROVE THE CASH LOANS. HENCE, WE FIND NO INFIRMITY IN THE ORDER OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.4,04,800/- REFERRED ABOVE. 7. WITH REGARD TO THE LOAN OF RS.57 LAKHS, WE NOTIC E THAT THE ASSESSEE HAS SIMPLY FILED A CONFIRMATION LETTER AND HAS SUBMITTE D THAT THE CREDITOR IS MORE THAN 85 YEARS AND BED RIDDEN. THUS, THE ASSESSEE H AS FAILED TO FURNISH ANY OTHER DOCUMENT TO PROVE CREDITWORTHINESS OF THE CREDITOR. FURTHER, THE LD CIT(A) HAS ALSO NOTICED THAT THE ASSESSEE HAS OBTAINED CASH LO AN OF LESS THAN RS.20,000/- FROM THE VERY SAME AGED MAN. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF THE LD. CIT(A) IN CONFIRMING THE ADDIT ION MADE U/S 68 OF THE ACT. ACCORDINGLY, WE UPHOLD THE ORDER PASSED BY LD. CIT( A). 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN C OURT ON 8TH OCT, 2014 . 0'! , 1 2 3 4 8TH OCT , 2014 + 5- 6 SD SD ( . / D. MANMOHAN ) ( . . ,/ B.R. BASKARAN) / VICE- PRESIDENT / ACCOUNTANT MEMBER , - MUMBAI: 8TH OCT ,2014. . . ./ SRL , SR. PS I.T.A. NO.2026/MUM/2013 4 ! ' / COPY OF THE ORDER FORWARDED TO : 1. #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT. 3. , :. ( ) / THE CIT(A)- CONCERNED 4. , :. / CIT CONCERNED 5. 6. ;<5 %. = , / = ! , , - / DR, ITAT, MUMBAI CONCERNED 5 >- / GUARD FILE. ? , / BY ORDER, TRUE COPY ( (ASSTT. REGISTRAR) / = ! , , - /ITAT, MUMBAI