Appeal details
Counselvise Citation
[2016] 121 COUNSELVISE.COM (IT) 4264 (ITAT-CUTTACK)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
5 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
09-11-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Assessment Year
2012-2013
Appeal Filed On
20-05-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 SUSANTA KUMAR JENA, MAIN ROAD, B.D.PUR SASAN, BHANJA NAGAR, DIST: GANJAM VS. ITO, PHULBANI WARD, CUTTACK ROAD, I/E, PHULBANI. PAN/GIR NO. AFBPJ 4620 H (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI S.K.AGARWAL, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 9 /11 / 2016 DATE OF PRONOUNCEMENT : 9 /11 / 2016 O R D E R THESE ARE APPEAL S F ILED BY THE ASSESSEE AGAINST SEPARATE ORDER S BOTH DATED 19.2.2016 OF CIT(A) - 1, BHUBANESWAR FOR THE ASSESSMENT YEAR S 2008 - 09 & 2009 - 2010, RESPECTIVELY . 2. IN ITA NO.207/CTK/2016 FOR A.Y. 2008 - 09, IN GROUND NO.1 OF THE APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD CIT(A) ERRED IN SUSTAINING THE ADDITION OF RS.6 LAKHS BEING UNSECURED LOAN OF RS.4 LAKHS 2 ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 RECEIVED FROM LATE BANAMALI BISOYE (FATHER IN - LAW OF THE ASSESSEE) AND RS.2 LAKHS RECEIVED FROM SRI SIMACHAL PANDA. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS RECEIVED UNSECURED LOAN OF RS.4 LAKHS FROM LATE BANAMALI BISOYE AND RS.2 LAKHS FROM SRI SIMACHAL PANDA. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DE POSIT OF RS.4 LAKHS AND DEPOSIT OF RS. 4,00,000/ - IN CHEQUE ON 3.3.2008 IN SB A/C NO.764321107 MAINTAINED IN INDIAN BANK, BERHAMPUR BRANCH. FURTHER, REGARDING LOAN OF RS.2,00,000/ - RECEIVE D FROM SHRI SIMACHAL PANDA, THE ASSESSING OFFICER FOUND THAT HE IS NOT ASSESSED TO TAX AND DOES NOT APPEAR TO HAVE ANY OSTENSIBLE SOURCE OF INCOME. SHRI SIMACHAL PANDA WAS NOT PRODUCED BY THE ASSESSEE FOR EXAMINATION BEFORE THE ASSESSING OFFICER EVEN THOUGH THE ASSESSING OFFICER SPECIFICALLY ASKED THE ASSESSEE TO DO SO. THEREFORE, THE ASSESSING OFFICER TREATED RS.6 LAKHS AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 4. ON APPEAL, LD CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. BEFORE ME, LD A.R. OF THE ASSESSEE HAS FILED AT PAGE 11 OF PB BANK STATEMENT OF SIMACHAL PANDA WITH UNITED BANK OF INDIA, B.D. PUR AND POINTED OUT THEREFROM THAT THE AMOUNT OF RS.2 LAKH WAS RECEIVED FROM SHRI 3 ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 SIMACHAL PANDA BY CHEQUE. FURTHER, HE POINTED OUT FROM THE BANK STATEMENT OF SHR I BANAMALI BESOYEE WITH UNITED BANK OF INDIA, B.D.PUR PLACED AT PAGE 5 OF PB THAT RS.4 LAKHS WAS ADVANCED BY HIM TO THE ASSESSEE OUT OF AGRICULTURAL LOAN OBTAINED FROM UNITED BANK OF INDIA. THEREFORE, IT WAS THE SUBMISSION OF LD A.R. OF THE ASSESSEE THAT T HE ADDITION SHOULD BE DELETED. 6. I FIND FROM THE BANK STATEMENT UBI B.D.PUR ACCOUNT NO.SBSB 24 OF SHRI SIMACHAL PANDA PLACED AT PAGE 11 OF PB THAT THE LOAN OF RS.2 LAKH WAS ADVANCED BY CHEQUE OF RS.1,00,000/ - ON 17.3.2008 BY DEPOSITING CASH OF RS.1,00,000/ - ON 17.3.2008. SIMILARLY ANOTHER CHEQUE OF RS.1,00,000/ - WAS GIVEN ON 18.3.2008 TO THE ASSESSE BY DEPOSITING RS.1,00,000/ - ON 18.3.2008 . FURTHER , THE SOURCE OF DEPOSIT OF CASH BY THE LOAN CREDITOR SHRI SIMACHAL PANDA COULD NOT BE SATISFACTORILY EXPLAINED BY THE ASSESSEE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD CIT(A) OR EVEN BEFORE ME. THUS, THE CREDITWORTHINESS OF THE LOAN CREDITOR SRI SIMACHAL PANDA COULD NOT BE PROVED . HEN CE, I FIND NO GOOD REASON TO INTERFERE WITH THE ORDER OF THE LD CIT(A) AND, THEREFORE, THIS PART OF GROUND OF APPEAL IS DISMISSED. 7. REGARDING LOAN OF RS.4 LAKHS FROM LATE BANAMALI BESOYEE, IT IS OBSERVED FROM THE BANK STATEMENT OF UNITED BANK OF INDIA, B .D.PUR PLACED AT PAGE 5 OF PB THAT RS.4 LAKH WAS ADVANCED OUT OF AGRICULTURAL LOAN OBTAINED FROM UBI AN D THUS, THE CREDITWORTHINESS OF THE LOAN CREDITOR IS 4 ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 PROVED FOR ADVANCING THE LOAN OF RS.4 LAKH TO THE ASSESSEE. HENCE, I SET ASIDE THE ORDERS OF LOWER AUTHORITIES ON THIS ISSUE AND DELETE THE ADDITION OF RS.4 LAKHS. THUS, GROUND NO.1 OF THE APPEAL IS PARTLY ALLOWED. 8. IN GROUND NO.2 OF THE APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 8 LAKHS U/S.68 OF THE ACT. 9. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD MADE CASH DEPOSIT OF RS.4 LAKHS AND RS.4 LAKHS ON 3.3.2008 IN SB ACCOUNT NO. 764321107 MAINTAINED IN INDIAN BANK, BERHAMPUR BRANCH. SINCE THE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE SAME, HE ADDED THE SAME TO THE INCOME OF THE ASSESSEE U/S.68 OF THE ACT. 10. ON APPEAL, THE LD CIT(A) OBSERVED THAT NO EXPLANATION REGARDING THE SOURCE OF DEPOSIT WAS EXPLAINED BY THE ASSESSEE AND HENCE, CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 11. BEFORE ME, LD A.R. OF THE ASSESSEE SUBMITTED THAT IT IS RS.8 LAKHS WAS THE SALE PROCEEDS OF THE ASSESSEE FROM THE BUSINESS OF FRUITS AND BR ICKS AND, THEREFORE, THE ENTIRE RECEIPTS COULD NOT BE TREATED AS INCOME OF THE ASSESSEE AND ONLY THE INCOME EMBEDDED OF SUCH RECEIPTS COULD ONLY BE TAXED AS INCOME OF THE ASSESSEE. 5 ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 12. ON THE OTHER HAND, LD D.R. VEHEMENTLY OPPOSED THE SUBMISSION OF THE L D A.R. OF THE ASSESSEE ON THE GROUND THAT IT IS A NEW SUBMISSION BEING MADE BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL, WHICH WAS NOT MADE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE LD CIT(A ) AND, THEREFORE, THE SAME CANNOT BE ENTERTAINE D BY THE TRIBUNAL. 13. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD . I FIND THAT THE ADDITION OF RS.8 LAKHS WAS MADE IN THE HANDS OF THE ASSESSE E U/S.68 OF THE ACT FOR DEPOSIT THE CASH OF RS.4 LACS AND CHEQUE OF RS.4 LAKHS IN THE BANK ON 3.3.2008 AS THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THE SAME. THE SOURCE OF THE DEPOSIT ALSO COULD NOT BE EXPLAINED BEFORE THE LD CIT(A). BEFORE ME, LD A.R. SUBMITTED THAT THE DEPOSIT OF RS.8 LAK HS IN THE BANK WAS THE SALE PROCEEDS FROM THE BUSINESS OF THE ASSESSEE OF FRUITS AND BRICKS. HOWEVER, HE COULD NOT PLACE ANY EVIDENCE ON RECORD TO SUBSTANTIATE HIS CLAIM. THEREFORE, THE ARGUMENT OF THE LD A .R. OF THE ASSESSEE THAT ENTIRE RS.8 LAKHS CANN OT BE TREATED AS INCOME OF THE ASSESSEE BUT THE INCOME EMBEDDED OF SUCH RECEIPTS FROM THE BUSINESS OF FRUITS AN D BRICKS OF THE ASSESSEE OF RS.8 LAKHS COULD ONLY BE TREATED AS INCOME OF THE ASSESSEE , CANNOT BE ACCEPTED. THEREFORE, I FIND NO GOOD REASON TO INTERFERE WITH THE ORDER OF THE LD CIT(A), WHICH IS HEREBY CONFIRMED AND HENCE, DISMISS THIS GROUND OF THE APPEAL. 6 ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 14. IN THE RESULT, APPEAL OF THE ASSESSEE FOR A.Y, 2008 - 09 IS PARTLY ALLOWED. 15. IN ITA NO.208/CTK/2016: A.Y. 2009 - 2010 , THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD CIT(A) ERRED IN UPHOLDING THE ADDITION OF UNSECURED LOAN OF RS.5,00,000/ - RECEIVED FROM LATE SANNYASI JENA. 16. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD . THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAS RECEIVED LOAN OF RS.5 LAKHS FROM SHRI SANNYASI JENA. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE THE LOAN CREDITOR. SINCE THE LOAN CREDITOR COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER, HE ADDED THE SAME TO THE INCO ME OF THE ASSESSEE U/S.68 OF THE ACT. 17. ON APPEAL, THE LD CIT(A) CONFIRMED THE ADDITION ON THE GROUND THAT THE LOAN CREDITOR COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER FOR EXAMINATION NOR HIS CREDITWORTHINESS WAS ESTABLISHED. 18. BEFORE ME, LD A. R. OF THE ASSESSEE SUBMITTED THAT THE ADDITION WAS REQUIRED TO BE DELETED. 19. ON THE OTHER HAND, LD D. R . RELIED ON THE ORDERS OF LOWER AUTHORITIES. 20. I FIND THAT THE ADDITION OF RS.5 LAKHS WAS MADE U/S.68 OF THE ACT ON ACCOUNT OF LOAN RECEIVED FROM SHRI SANNYASI JENA AS THE ASSESSEE FAILED TO 7 ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 PRODUCE THE LOAN CREDITOR BEFORE THE ASSESSING OFFICER . THE ADVERSE INFERENCE AGAINST THE ASSESSEE CANNOT BE DR AWN BY THE ASSESSING OFFICER MERELY FROM THE FACT THAT THE ASSESSEE COULD NOT PRODUCE THE CREDITORS BEFORE THE ASSESSING OFFICER FOR EXAMINATION. UNDER THE INCOME TAX ACT, THE POWER HAS BEEN CONFERRED ON THE ASSESSING OFFICER TO SECURE THE PRESENCE OF A PE RSON AND NO POWER HAS BEEN CONFERRED UPON THE ASSESSEE BY EXERCISE OF WHICH HE CAN COMPEL THE CREDITORS TO APPEAR BEFORE THE ASSESSING OFFICER. 21.. FROM THE MATERIALS AVAILABLE ON RECORD, I DO NOT FIND ANY ACTION TAKEN BY THE ASSESSING OFFICER TO SECUR E THE APPEARANCE OF THE CREDITORS BEFORE HIM. IN MY CONSIDERED VIEW, IN THE ABOVE CIRCUMSTANCES, THE LD CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITIONS OF RS . / - MERELY ON THE BASIS OF ABOVE STATED FACTS . I, THEREFORE, DELETE THE ADDITION OF RS.5,00, 000/ - AND ALLOW GROUNDS OF APPEAL TAKEN BY THE ASSESSEE 22 . IN THE RESULT, THE APPEAL FOR A.Y. 2009 - 2010 IS ALLOWE D. ORDER PRONOUNCE D IN THE OPEN COURT ON 9 /11 /2016 IN THE PRESENCE OF PARTIES. ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 9 /11 /2016 B.K.PARIDA, SPS 8 ITA NOS.207 & 208/CTK/2016 ASSESSMENT YEARS:2008 - 09 & 2009 - 2010 COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : SUSANTA KUMAR JENA, MAIN ROAD, B.D.PUR SASAN, BHANJA NAGAR, DIST: GANJAM 2. THE RESPONDENT. ITO, PHULBANI WARD, CUTTACK ROAD, I/E, PHULBANI 3. THE CIT(A) - 1, BHUBANESWAR 4. CIT , BHUBAENSWAR. 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//
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