The ACIT, Surat V. M/s. Shivam Infrastructure, Surat

ITA 223/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6451 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 08-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 23-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Bogus loan; TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER DATE OF HEARING : 08/06/2011 DRAFTED ON: 09 /06/2011 ITA NO.223/AHD/2009 ASSESSMENT YEAR : 2005-06 ASST.CIT CIRCLE-9 SURAT VS. M/S.SHIVAM INFRASTRUCTURE C/O.SHRI PANKAJIBHAI 95, KRISHNA SOCIETY A.K. ROAD, SURAT PAN/GIR NO. : AARFS 9650 D ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI B.L. YADAV, D.R. RESPONDENT BY: -NONE- O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL OF THE REVENUE FROM THE ORDER OF THE LEARNED CIT(APPEALS)-V, SURAT DATED 21/10/2008 PASSED FOR A SSESSMENT YEAR 2005-06 AND THE GROUNDS RAISED BEFORE US ARE AS FOL LOWS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-V, SURAT, HAS ERRED IN DELETING THE ADDITION OF RS.29, 56,017/- & RS.44,041/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAI NED CREDITORS IN CONTRAVENTION OF RULES 46A OF I.T. RUL ES, 1962. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-V, SURAT HAS ERRED IN DELETING THE ADDITION OF RS.29,5 6,017/- & RS.44,041/- MADE BY THE A.O. ON ACCOUNT OF UNEXPLAI NED CREDITORS WITHOUT APPRECIATING THE FACTS OF THE CAS E. ITA NO .223/AHD/2009 ACIT VS. M/S.SHIVAM INFRASTRUCTURE ASST.YEAR - 2005-06 - 2 - 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER WERE THAT THE ASSESSMENT WAS MADE U/S.144 OF THE I. T. ACT, 1961 DATED 31/12/2007 ACCORDING TO WHICH THE ASSESSEE-FIRM IS A CIVIL CONTRACTOR. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THERE WAS A LOAN IN THE NAME OF M/S. PROGRESSIVE CONSTRUCTION CO.LTD. OF RS.29,5 6,017/-. AN ENQUIRY WAS CONDUCTED U/S.133(6) OF THE I.T.ACT AND ON THAT BASIS THE ASSESSING OFFICER HAS CONCLUDED THAT THE IMPUGNED AMOUNT WAS A BOGUS LOAN, HENCE, TAXED IN THE HANDS OF THE ASSESSEE. THE MAT TER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY. 3. ON HEARING THE SUBMISSIONS, THE LEARNED CIT(APPE ALS) HAS CONCLUDED THAT THE ADDITION WAS UNWARRANTED PRIMARI LY BECAUSE OF THE REASON THAT THE IMPUGNED AMOUNT REPRESENTED THE OPE NING BALANCE WHICH WAS CARRIED FROM THE EARLIER YEARS. IT WAS ALSO F OUND THAT THE ASSESSMENT OF THE EARLIER YEAR HAD BEEN COMPLETED U/S.143(3) O F THE I.T.ACT. IT WAS ALSO FOUND THAT THE SAID LIABILITY HAD DULY BEEN AC CEPTED. AFTER RECORDING ALL THESE REASONS, THE ADDITION WAS DELETED. 4. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE RESPONDENT-ASSESSEE, HOWEVER, THE MATTER BEING TRIV IAL IN NATURE, WE HAVE DECIDED TO PROCEED EX-PARTE QUA THE ASSESSEE, AFTER HEARING THE LD.DR WHO HAS PLACED RELIANCE ON THE ORDER OF THE ASSESSI NG OFFICER. 5. SINCE THE UNDISPUTED FACTS AS DISCUSSED BY THE L EARNED CIT(APPEALS) WERE THAT THE IMPUGNED AMOUNT, IN FACT , HAS REPRESENTED THE OPENING BALANCE IN THE ACCOUNT OF M/S. PROGRESS IVE CONSTRUCTION ITA NO .223/AHD/2009 ACIT VS. M/S.SHIVAM INFRASTRUCTURE ASST.YEAR - 2005-06 - 3 - CO.LTD. AND THE SAID LIABILITY HAD BEEN ACCEPTED IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR AND THAT ASSESSMENT WAS S TATED TO HAVE BEEN COMPLETED U/S.143(3) OF THE I.T.ACT AND FURTHER TH AT THERE WAS NO ADDITION IN THE SAID OPENING BALANCE DURING THE YEA R UNDER ASSESSMENT, THEREFORE, LOOKING TO THE TOTALITY OF THOSE FINDING S ON FACTS WE HEREBY AFFIRM THE SAME. THIS GROUND OF THE REVENUE IS, TH EREFORE, DISMISSED. 6. THE REVENUE HAS ALSO CONTESTED THE DELETION OF A N ADDITION OF RS.44,041/- AND, IN THIS REGARD, THE OBSERVATION O F THE ASSESSING OFFICER WAS THAT THERE WAS ALLEGED EXCESS SECURITY OF RS.44,041/-. A NOTICE U/S.133(6) OF THE I.T.ACT WAS ISSUED TO AS CERTAIN THE AMOUNT OF SECURITY DEPOSIT TO M/S.SADHAV. AS PER THE ASSE SSING OFFICER, THERE WAS A DIFFERENCE BETWEEN THE AMOUNT AS SHOWN BY THE ASSESSEE AND THE AMOUNT AS CONFIRMED BY THE SAID PARTY. AC CORDINGLY, THE DIFFERENCE WAS TAXED. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, THE TRANSACTION WAS FOUND DULY RECORDED IN THE BOOKS OF ACCOUNT AND ALSO TALLIED WITH THE TDS CERT IFICATE ISSUED BY THE SAID PARTY. ON VERIFICATION BY THE LEARNED CI T(APPEALS), THOSE CONTENTIONS OF THE ASSESSEE WERE FOUND CORRECT, HEN CE, IT WAS HELD THAT THE SAID ADDITION WAS UNWARRANTED. 7. HAVING HEARD THE SUBMISSIONS OF LEARNED DEPARTME NTAL REPRESENTATIVE, WE ARE OF THE VIEW THAT ONCE, ON EN QUIRY, THE EXPLANATION OF THE ASSESSEE WAS FOUND CORRECT AND THE REVENUE I S NOT IN A POSITION TO CONTRADICT THOSE FINDINGS ON FACTS, THEREFORE, WE A RE NOT INCLINED TO ITA NO .223/AHD/2009 ACIT VS. M/S.SHIVAM INFRASTRUCTURE ASST.YEAR - 2005-06 - 4 - INTERFERE WITH THOSE FINDINGS. AS A RESULT, THIS PART OF THE GROUND IS ALSO DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 10/ 06 /2011. SD/- SD/- ( A.N. PAHUJA ) ( MU KUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED / /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED. 4. THE LD. CI T(APPEALS)-V, SURAT 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..08/06/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09/06/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S10/06/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 10/06/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER