TIRUPATI CONSTRUCTIONS, MUMBAI V. DCIT 20(3), MUMBAI

ITA 2192/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7804 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 01-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Unexplained cash credit; Onus to prove
• Section: 143(3); 133(6); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI BEFORE SHRI R.C.SH ARMA, AM & SHRI RAM LAL NEGI , JM ITA NO. 2192 / MUM/20 14, 2193/MUM/2014 & 2932/MUM/2013 ( ASSESSMENT YEAR : 2008 - 09 & 2009 - 10 ) M/S. TIRUPATI CONSTRUCTIONS 419/214, LAXMI PLAZA LAXMI INDUSTRIAL ESTATE NEW LINK ROAD, ANDHERI (W) MUMBAI 400 063 VS. DCIT 20 (3) MUMBAI 400 012 PAN/GIR NO. AAFFT0513J APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI RUSHABH MEHTA REVENUE BY SHRI V. JUSTIN DATE OF HEARING 08 / 11 /201 7 DATE OF PRONOUNCEME NT 19 / 12 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 31, MUMBAI FOR THE A.Y.2008 - 09 AND 2009 - 10 IN THE MATTER OF ORDER PASSED U/S.143(3) /153C R.W.S. 143(3) OF THE IT ACT. ITA NO.2932/MUM/2013: 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PERUSED. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.143(3) , THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAD SHOWN 'UNSECURED LOANS' OF RS.16,86,64,834 / - AND ASKED THE ASSESSEE TO FURNISH CON FIRMATIONS FOR ALL UNSECURED LOANS. IN RESPONSE TO THE SAME, THE AR OF ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 2 THE ASSESSEE FILED THE PHOTOCOPIES OF THE CONFIRMATIONS FROM 29 NON - CORPORATE LENDERS. THE A.O. OBSERVED THAT THESE CONFIRMATIONS WERE DEFICIENT. ACCORDINGLY, THE ASSESSEE WAS FURTHER A SKED TO FURNISH THE ORIGINAL CONFIRMATIONS. ON FURTHER SCRUTINY, THE ASSESSING OFFICER NOTED THAT TH E ASSESSEE HAD FAILED TO FURNISH CONFIRMATIONS IN RESPECT OF FOLLOWING FIVE PARTIES , AND ADDED THE SAME IN ASSESSEES INCOME. 1. M/S S K INTERNATIONAL RS. 86,25,334/ - 2. MRGHANSHYAMBHAI JAIN RS. 17,00,0007 - 3. MRVISHAL JAIN HUF RS. 22,00,000/ - 4. LALAJI RS. 4,21,000/ - 5. PRADEEP DHARMESH KAPOOR RS. 15,81,000/ - --------------------- TOTAL RS. 1,45,27,334/ - ===== ======== 4. BY THE IMPUGNED ORDER, THE CIT(A) DELETED THE ADDITIONS EXCEPT ADDITION IN RESPECT OF FOLLOWING LOAN CREDITORS. HOWEVER, DEPARTMENT IS NOT IN APPEAL BEFORE US FOR THE ADDITIONS DELETED BY CIT(A) . BEFORE US ASSESSEE IS AGGRIEVED TO THE ADDITION CONFIRMED BY CIT(A) IN RESPECT OF THE FOLLOWING LOAN CREDIT ORS AMOUNTING TO RS.64,52,000/ - . 1. GHISUBHAI JAIN RS.17,00,000 2. VISHAL JAIN HUF RS. 22,00,000 3. LALA JI RS. 4,21,000 4. PRADEEP DHARMESH PODDAR RS.15,81,000 5. SHAH DHIRAJLAL H ARILAL RS. 4,00,000 6. SHAH DHIRAJLAL HARILAL HUF RS. 1,50,000 ------------------- TOTAL RS.64,52,000 =========== 5. IT WAS ARGUED BY LEARNED AR THAT ASSESSEE F IRM WAS FORMED ON 01.12.2006 AND BECAME OPERATIONAL IN THE YEAR UNDER REFERENCE. THE CAPITAL WAS INTRODUCED BY THE PARTNERS IN THE YEAR UNDER REFERENCE AND ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 3 THEN THE BUSINESS HAS COMMENCED, WITH THE PROJECT OF BALAJI COMPLEX BEING UNDERTAKEN AT VIRAR (EAST). THE SAID PROJECT COMMENCED IN NOVEMBER 2007. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD TAKEN UNSECURED LOANS AMOUNTING TO RS. 16,86,64,834/ - FROM VARIOUS PARTIES AS PROJECT HAD JUST COMMENCED IN THE YEAR. ALSO, THE ASSESSEE FILED DETAILS INCLUDING LOAN CONFIRMATIONS VIDE SUBMISSIONS DATED 09.08.2010, 16.12.20 10,21.12.2010 FOR MAJORITY OF THE PARTIES. AS REQUIRED BY THE LD. ASSESSING OFFICER, THE ASSESSEE FIRM HAD FURNISHED THE CONFIRMATIONS WITH FULL DETAILS (VIZ. NAME, ADDRESS, PAN, BANK STATEMENT AND COPY OF ITR ACKNOWLEDGMENT ETC) IN RESPECT OF THE TOTAL L OANS AMOUNTING TO RS. 14,87,16.500/ - ; I.E.IN CASE OF ABOUT 90% OF LENDER. THE ASSESSEE WAS IN THE PROCESS OF COLLECTING THE BALANCE CONFIRMATIONS. THE ASSESSEE MANAGED TO OBTAIN MOST OF THE BALANCE LOAN CONFIRMATIONS AND ALSO, AS REGARDS TO COVERING UP FOR THE DEFICIENCIES IN THE LOAN CONFIRMATIONS, THE ASSESSEE TRIED TO FILE CONFIRMATIONS RECTIFIED BY 30.12.2010. HOWEVER, WHILE SUBMITTING THE LETTER ON 30.12.2010, THE ASSESSEE WAS INFORMED THAT THE ASSESSMENT ORDER IS ALREADY PREPARED AND HENCE, THE SAME C ANNOT BE ACCEPTED AT THIS POINT OF TIME. 6. HE FURTHER CONTENDED THAT DURING REMAND PROCEEDINGS BEFORE CIT(A), THE ASSESSEE HAS FILED ALL THE CONFIRMATIONS AND THE DOCUMENTS REQUIRED WITH RESPECT TO THE LOAN CREDITORS, THE CIT(A) HAS ALSO SEND THE SAME TO THE AO FOR REMAND REPORT. AS PER LEARNED AR, DU RING THE REMAND PROCEEDINGS, THE ID. ASSESSING OFFICER ISSUED NOTICES U/S. 133(6) AS CAN BE BORNE OUT FROM THE PARA 4 OF THE REMAND REPORT PLACED AT PAGE NO. 47 ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 4 OF THE PAPER BOOK. IT IS NOT THE CASE THAT THES E NOTICES WERE RETURNED UNSERVED . HOWEVER , THE ID. CIT(A) SUSTAINED THE ADDITION OF RS. 64,52,000/ - U/S. 68 OF THE ACT AND DELETED THE BALANCE AMOUNT FOR WHICH THE DEPARTMENT IS NOT IN APPEAL. 7. AS PER LEARNED AR, THIS IS THE FIRST YEAR OF THE BUSINESS BE ING CARRIED OUT AND HOW IN THE VERY FIRST YEAR ITSELF, A FIRM CAN EARN UNDISCLOSED INCOME? REGARDING THE SAID PROPOSITION, THE RELIANCE WAS PLACED ON THE DECISIONS IN THE CASE OF CITV. BHARAT ENGINEERING & CONSTRUCTION CO. [1972] 83ITR187 (SC), SURENDRA PRASAD MISRA V. ITO [2006] 7 SOT 457 (LUCK. LTAT), GHAZIABAD FOOTWEAR (P.) LTD. V. DCIT [2005] 142 TAXMAN 18 (DELHI) AND M/S. OSWAL PUMPS P. LTD. V. ITO (ITA NO1480/DEL/201 3). 8. OUR ATTENTION WAS ALSO I NVITED TO THE LOAN REPAID TO GHISUBHAI JAIN AMOUNTIN G TO RS. 17 LAKHS AND RE PAYMENT MADE TO VISHAL JAIN HUF RS.10 LAKHS. REPAYMENT WAS ALSO MADE TO PRADEEP DHARMESH PODDAR AMOUNTING TO RS.15.81 LAKHS. IN RESPECT OF LOAN TAKEN FROM DHIRAJLAL HARILAL AND SHAH DHIRAJLAL HARILAL HUF TO RS.4 LAKHS AND RS.1,50,0 00/ - RESPECTIVELY. 9. OUR ATTENTION WAS INVITED TO THE CONFIRMATIONS FILED BEFORE THE AO DATED 09/08/2010, 16/12/2010 AND 09/08/2011. IN RESPECT OF LOAN PAYMENT FROM GHISUBHAI JAIN AND VISHAL JAIN, OUR ATTENTION WAS INVITED TO THE ORDER OF HONBLE BOMBA Y HIGH COURT AGAINST A CRIMINAL PETITION FILED BY THE AFORESAID PARTIES WHO WERE NOT AVAILABLE WHEN HEARING WAS CONCLUDED BY THE CIT(A). AS PER HIGH COURT DECISION, THE APPEALS SO FILED ARE OF CIVIL NATURE AND HAS SPECIFIED THAT THE FINDINGS OF THE POLICE OFFICER ARE NOT ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 5 CONCLUSIVE AND ALL CONTENTIONS ARE OPEN. IN VIEW OF THE HIGH COURT DECISION IT WAS CONTENDED BY LEARNED AR THAT IDENTITY OF THESE PARTIES WHO ARE BASICALLY INVESTORS / CUSTOMERS IN THE PROJECT UNDERTAKEN BY THE ASSESSEE ARE ESTABLISHED AND ALSO GENUINENESS OF THEIR TOTAL INVESTMENT OF RS.39 LAKHS IN THE PROJECT OF THE ASSESSEE FIRM WAS APPROVED. 10. AS PER LEARNED AR, ASSESSEE HAS DISCHARGED HIS BURDEN OF PROVING IDENTITY OF THE LOAN CREDITORS AND GENUINENESS OF THE LOAN TRANSACTION BY FU RNISHING THE COMPLETE DETAILS AS NAME, PAN NO., ADDRESS, BANK STATEMENT AND ALSO FACT OF REPAYMENT MADE SUBSEQUENTLY OF THESE PARTIES . 11. OUR ATTENTION WAS ALSO INVITED TO LETTER DATED 28/12/2010 FURNISHED TO THE AO DURI NG ASSESSMENT PROCEEDINGS, WHEREIN ASSESSING OFFICER WAS ALSO REQUESTED THAT SINE ALL THE NAMES AND ADDRESSES OF THE PARTIES HAVE ALREADY BEEN PROVIDED, HE MAY VERIFY THE SAME DIRECTLY FROM THE PARTIES U/S.133(6) OR U/S 131. FOR THIS PURPOSE RELIANCE WAS PLACED ON THE DECISION OF DELHI TRIBUNAL IN CASE OF GHAZIABAD FOOTWEAR (P) LTD., 142 TAXMAN 18 WHEREIN THE HONBLE DELHI ITAT (PAGE NO.12 OF COMPILATION OF JUDGMENTS) HAS HELD - 'ASSESSING OFFICER MADE AN ADDITION OF UNEXPLAINED CASH CREDIT TO INCOME OF AS SESSEE COMPANY - ASSESSEE HAD GIVEN IDENTITY OF DEPOSITOR, FILED CONFIRMATION ON HIS BEHALF AND REQUESTED ASSESSING OFFICER TO SUMMON CONCERNED PERSON, BUT HE DID NOT DO SO - WHETHER AS ASSESSEE HAD DISCHARGED ITS BURDEN TO PROVE GENUINENESS OF DEPOSIT AND I DENTITY OF DEPOSITOR, ADDIT ION MADE IN HANDS OF ASSESSEE ARE ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 6 NOT JUSTIFIED, PARTICULARLY WHEN IT WAS FIRST YEAR OF ASSESSEE'S BUSINESS - HELD, YES' . 12. AS PER LEARNED AR IN ANY CASE, FROM THE REMAND REPORT, IT IS NOTED THAT ID. ASSESSING OFFICER HAS ISSUE D THE NOTICE U/S.133(6) TO THESE PARTIES AND NONE OF THEM HAVE BEEN RETURNED UNSERVED. AS PER LEARNED AR IT IS BEYOND THE CONTROL OF THE ASSESSEE TO FORCE THE PRESENCE OF THE THIRD PARTIES AND ONCE THE BASIC DETAILS ALONG WITH CONFIRMATION AND BANK STATEM ENTS COUPLED WITH DETAILS OF REPAYMENTS HAS BEEN SUBMITTED AND THE FACT THAT NOTICES HAVE BEEN SERVED AND NOT RETURNED BACK; THIS CLEARLY ESTABLISHES THE LOANS AND THEREFORE THE SAME STANDS EXPLAINED. 13. RELIANCE IS ALSO PLACED ON THE DECISION OF THE HON 'BLE APEX COURT IN THE CASE OF CIT V. ORISSA CORPORATION [159 JTR 78 (SC)] WHEREIN IT IS HELD AS UNDER: - ' THAT IN THE CASE THE RESPONDENT HAD GIVEN THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID C REDITORS WERE INCOME TAX ASSESSEE'S. THEIR INDEX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM ISSUING THE NOTICE UNDER SECTION 131 AT THE INSTANCE OF THE RESPONDENT, DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE TH E SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY ARE CREDITWORTHY. THERE WAS NO EFFORT MADE TO PURSUE THE SO - CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE RESPONDENT COULD NOT DO ANYTHING FURTHER. IN THE PREMISES, IF THE T RIBUNAL CAME TO THE CONCLUSION THAT THE RESPONDENT HAD DISCHARGED THE BURDEN THAT LAY ON IT, THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. 14. IN VIEW OF THE ABOVE DISCUSSION, IT WAS CONTENDED T HAT ASSESSEE HAS DULY DISCHARGED ITS ONUS IN RESPECT OF THE ALLEGED LOANS AND THEREFORE, THE ADDITION WAS REQUESTED TO BE DELETED. ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 7 15. ON THE OTHER HAND, LEARNED DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 16. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE HAD ALSO DELIBERATED ON THE JUDICIAL PRONOUNCEMENTS REFERRED BY LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS AS WELL AS CITED BY LEARNED AR AND DR DURING THE COURSE OF HEARING BEFORE US IN THE CONTEXT OF FACTUAL MATRIX OF THE CASE. 17. FROM THE RECORD, WE FOUND THAT IN RESPECT OF LOAN PAYMENT FROM GHISUBHAI JAIN AND VISHAL JAIN HUF, THE ASSESSEE HAS FILED CONFIRMATION LETTER DATED 09/08/2011. THE FULL PARTICULARS WAS GIVEN. OUT OF THE LOAN OF RS.17,00,000/ - TAKEN FROM GHISUBHAI JAIN, ASSESSEE HAS REPAID LOAN OF RS.5,00,000/ - ON 14/10/2009, RS.5,00,000/ - ON 02/11/2009 AND RS.7,00,000/ - ON 21/11/2009. LOAN OF RS.10,00,000/ - WAS REPAID TO VISHAL JAIN HUF . FIRST RS.5,00,000/ - WAS PAID ON 04/03/20 10 AND RS.5,00,000/ - WAS PAID ON 15/04/2010. 18. FROM THE PETITI ON FILED BEFORE THE BOMBAY HIGH COURT BY THE GHISULAL JAIN AND VISHAL JAIN HUF, WE FOUND THAT T HEY HAVE GIVEN A SUM OF RS. 51 LAKHS OF WHICH RS. 39 LAKHS WERE GIVEN BY CHEQUE AND RS, 12 LAKHS BY CASH. THE REPRESENTATIVES OF TIRUPATI CONSTRUCTION HAD PROMISED A RETURN OF 50% MORE THAN AMOUNT SO INVESTED. THE REPRESENTATIVES HAD REPRESENTED THAT THE INVESTMENTS WERE SECURED BY PROPERTY OWNED BY THEM AND MORE PARTICULARLY FLAT CONSTRUCTED BY THEM . ON THIS PETITION, THE HONBLE HIGH COURT HAS PASSED ORDER DATED 26/11/2012 WHICH IS PLACED ON RECORD . THE HIGH COURT ORDERED THE INVESTIGATING OFFICER OF VASHI POLICE ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 8 STATION TO REGISTER AN FIR IF THE STATEMENTS RECORDED DISCLOSE COMMISSION OF COGNIZABLE OFFENCE . 19. AS PER STATEMENT OF RAMESH GAJRA, PARTNER OF ASSESSEE FIRM DATED 08/05/2012. IT WAS STATED THAT THE FIRM HAS RECEIVED ONLY A SUM OF RS. 39,00,0007 - BY CHEQUE. THE AMOUNT RECEIVED WAS ON ACCOUNT OF BOOKING OF FLAT IN PROJECT - BALAJI COMPLEX. THEREAFTER, THEY INDICATED THEIR INTENTION TO CANCEL THE BOOKING IN THE YEAR 2009. THE SUM OF RS. 27,00,000 / - WAS ACCORDINGLY REFUNDED TO THESE PARTIES. THE SAID GHISULAL JAIN & VISHAL JAIN REPRESENTED THEIR WILL TO PURCHASE OFFICE INSTEAD OF FLATS. THE AS SESSEE - TIRUPATI CONSTRUCTION INTRODUCED THEM TO REPRESENTATIVES OF BHOOMI INFRASTRUCTURE DEVELOPING THE PROJECT - 'WEDDING CITY'. MR. GHISULAL JAIN & VISHAL JAIN AGREED FOR PURCHASE OF OFFICE IN THE SAID PROJECT FOR A SUM OF RS. 39,00,000/ - . THEY ACCORDI NGLY PAID A SUM OF RS. 27,00,000 / - TO BHOOMI INFRASTRUCTURE. FOR THE BALANCE AMOUNT OF RS. 12,00,000/ - THEY REQUESTED THAT THE AMOUNT BE ADJUSTED AGAINST AMOUNT DUE BY THE ASSESSEE TO THE PARTIES. THE SAID ADJUSTMENT WAS REJECTED AS THE PARTNER OF THESE FI RMS WERE DIFFERENT. THE ASSESSEE REQUESTED THE ASSESSEE TO COLLECT THE SAID SUM OF RS. 12 LAKHS AND PAY THE SAID AMOUNT THEREAFTER TO BHOOMI INFRASTRUCTURE. 20. FROM THE RECORD, WE ALSO FOUND THAT GHISULAL JAIN AND VISHAL JAIN HUF HAD FILED A WRIT PETITION NO.3040 OF 2012 DATED 29/08/2012. THE ASSESSEE HAS FILED INTERVENTION APPLICATION DATED 05/09/2012 CONTENDING THE ALLEGATION BY THE LENDERS TO BE FALSE. AS PER THE FINDING OF THE POLICE OFFICER IN HIS REPORT DATED 06/09/2012 A SUM OF RS.39,00,000/ - HAS B EEN ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 9 PAID BY MR. GHISULAL JAIN & V ISHAL JAIN (HUF) TO THE ASSESSEE. THE DOCUMENTS ALSO REVEAL REPAYMENT OF RS.27 LACS AND THE INTENTION OF THE ASSESSEE TO REPAY RS. 12 LACS. THE OFFICER NOTICED NO CRIMINAL INTENT. ACCORDINGLY, NO FIR WAS REGISTERED . 21. IN VIEW OF THE ABOVE DOCUMENTS, THE HONBLE HIGH COURT HELD THAT APPEAL IS OF CIVIL NATURE. THE COURT HAS SPECIFIED THAT FINDINGS OF POLICE OFFICER ARE NOT CONCLUSIVE AND ALL THE CONTENTIONS ARE OPEN, THE PETITION WAS ACCORDINGLY DISPOSED OF BY THE HONBLE H IGH COURT. 22. IN VIEW OF THE ABOVE DISCUSSION, WE OBSERVE THAT IDENTITY OF THESE PARTIES WHO WERE BASICALLY INVESTORS / CUSTOMERS OF THE PROJECT UNDERTAKEN BY THE ASSESSEE ARE CLEARLY PROVED AND ALSO GENUINENESS OF THE TOTAL INVESTMENT OF RS.39 LAKHS IN THE PROJECT OF THE ASSESSEE FIRM WAS PROVED. UNDER THESE CIRCUMSTANCES, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY MERIT IN THE ADDITION OF RS.39,00,000/ - SO MADE WITH RESPECT TO THE AMOUNT TAKEN FROM GHISUBHAI JAI N AND VISHAL JAIN HUF. 23 . IN RESPECT OF LOAN PAYMENT FROM PRADEEP DHARMESH PODDAR, THE ASSESSEE HAS FILED CONFIRMATION DATED 16/12/2010 AND 09/08/2011. THE FULL PARTICULARS AND PAN NUMBER OF THE LOAN CREDITOR WAS ALSO FILED. ASSESSEE HAS REPAID LOAN OF RS .7,00,000/ - ON 26/09/2009 AND RS.8.81 LAKHS ON 31/03/2010. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND FROM RECORD THAT I N RESPECT OF PRADEEP DHARMESH PODDAR, THE ASSESSEE HAS DISCHARGED ITS INITIAL BURDEN AND ALSO AFTER FILING CONFIRMATION HAS REPAID THE ENTIRE AMOUNT OF LOANS ON THE DATES DISCUSSED ABOVE, WE ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 10 ACCORDINGLY DO NOT FIND ANY MERIT FOR THE ADDITION OF RS.15,81,000/ - MADE IN RESPECT OF PRADEEP DHARMESH PODDAR. SIMILARLY , IN RESPECT OF LOAN OF RS.4,00,000/ - TAKEN FROM SHAH DHIRAJLAL HARILAL H UF AND RS.1,50,000/ - FROM SHAH DHIRAJLAL HARILAL HUF, THE ASSESSEE HAS DISCHARGED ITS PRIMARY ONUS, ACCORDINGLY, NO ADDITION IS WARRANTED. AO IS DIRECTED TO DELETE THE ADDITION IN RESPECT OF ABOVE LOAN CREDITORS. 2 4 . IN RESPECT OF LOAN OF RS.4,21,000/ - TAK EN FROM LALA JI, WE FOUND THAT ASSESSEE HAS NOT DISCHARGED ITS PRIMARY ONUS OF PROVING THE IDENTITY AND GENUINENESS OF LOAN TRANSACTION. ACCORDINGLY, WE CONFIRM THE SAME. 2 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. ITA NO.2192/MUM/2014 2 6 . IN THIS APPEAL, ASSESSEE IS AGGRIEVED BY THE ACTION OF THE AO FOR ASSUMPTION OF JURISDICTION U/S.143(3) R.W.S. 153C . ASSESSEE HAS ALSO ALLEGED ADDITION OF RS.64,52,000/ - MADE U /S.68 OF THE IT ACT. 2 7 . WE HAVE GONE THROUGH THE ORDERS OF THE AUTHORIT IES BELOW AND FOUND THAT AO HAS CORRECTLY ASSUMED JURISDICTION U/S.143(3) R.W.S.153C . SO FAR AS ADDITION OF RS.64,52,000/ - IS CONCERNED, WE HAVE ALREADY DEALT WITH THE MATTER IN ITA NO.2932/MUM/2013 WHEREIN WE HAVE DELETED THE ADDITION TO THE EXTENT OF RS .60,31,000/ - AND CONFIRMING THE ADDITION OF RS.4,21,000/ - . FOLLOWING THE REASONING GIVEN HEREINABOVE, WE DIRECT THE AO ACCORDINGLY. ITE NO.2193/MUM/2014 28 . IN THIS APPEAL, ASSESSEE IS AGGRIEVED FOR DISALLOWANCE OF RS.1,26,000/ - BEING BROKERAGE PAID TO MR.JAYESH BHANSHLI. ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 11 29 . FACTS IN BRIEF ARE THAT ASSESSEE HAS CLAIMED BROKERAGE EXPENSES OF RS.1,26,000/ - . THE ASSESSEE HAS SUBMITTED COMPLETE DETAILS OF BROKERAGE SO PAID VIDE LETTER DATED 28/06/2011. WITH RESPECT TO THE RECIPIENT OF BROKERAGE, MR. JAYE SH BHANSHLI, THE ASSESSEE HAS FILED FOLLOWING DOCUMENTS. A. THE PHYSICAL COPIES OF RETURN OF INCOME ALONG WITH ACKNOWLEDGEMENT OF ITR. B. E - FIFED COPY OF ITR. C. COMPUTATION OF INCOME. D. AUDITED ACCOUNTS ALONG WITH THE AUDIT REPORT UNDER THE COMPANIES A CT, 1956. E. TAX AUDIT REPORT ALONG WITH DETAILS IN FORM NO.3CD 30 . WE FOUND THAT D URING THE YEAR UNDER REFERENCE, THE ASSESSEE HAD SOLD FLAT NOS. 504, 202, 203, 204, 301 IN BLOCK NO. 13 - C WITH THE HELP OF THE SERVICES OF BROKER MR. JAYESH BHANUSHALI. ACC ORDINGLY, THE BROKERAGE OF RS.1,26,000/ - WAS PAID, AND TDS OF RS.12,978/ - WAS ALSO DEDUCTED BY THE ASSESSEE ON THE PAYMENT OF THE BROKERAGE AMOUNT REFLECTS ON THE 26AS TOO. COMPLETE DETAILS OF THE BROKERAGE PAID AND DEDUCTED THEREON ALONG WITH THE GENUINE BROKERAGE BILL WERE ALREADY SUBMITTED BEFORE THE LD. ASSESSING OFFICER. 3 1 . WE FOUND THAT THE LD. ASSESSING OFFICER MERELY RELYING UPON THE STATEMENT OF MR.VIJAY BHANUSHALI, BROTHER OF MR. JAYESH BHANUSHALI, IN WHICH HE HAS STATED THAT MR. JAYESH BHANUSHAL I HAS NOT RENDERED ANY SERVICES TO M/S. TIRUPATI CONSTRUCTION HAD DISALLOWED THE SAME . HOWEVER, MR. VIJAY BHANUSHALI DOES NOT HAVE ANY RIGHTS OR LOCUS - STANDI TO COMMENT ON THE TRANSACTIONS OF THE ASSESSEE WITH THE THIRD PARTIES AND ALSO, THE ITA NO. 2192/MUM/2014, 2193/MUM/2014 & 2932/MUM/2013 M/S. TIRUPATI CONSTRUCTION 12 SAME IS NOT RE LIABLE. T HE STATEMENT OF MR. VIJAY BHANUSHALI CAN BE RELIED UPON ONLY TO THE EXTENT OF THE FACTS RELATED TO HIM AND NOT TO THE OTHERS. 32 . IN VIEW OF THE ABOVE DOCUMENTARY EVIDENCE S PLACED BEFORE THE LOWER AUTHORITIES AND CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY MERIT FOR THE DISALLOWANCE OF COMMISSION OF RS.1,26,000/ - PAID TO MR. VIJAY BHANUSHALI ON WHICH TDS HAS ALSO BEEN DEDUCTED BY THE ASSESSEE AT SOURCE. WE DIRECT ACCORDINGLY. 32. IN THE RESULT, APPEALS ARE ALLOWED IN TERMS INDICATED HEREINABOVE. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 19 / 12 /2017 S D / - ( RAM LAL NEGI ) SD/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DA TED 19 / 12 /201 7 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//