Amrul Lokmnali Shaikh, Ahmedabad V. The Income tax Officer,Ward-7(1), Ahmedabad

ITA 2374/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 94611 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 19-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER & SHRI KUL BHARAT, JUDICIAL MEMBER) ITA NO: 2374/AHD/2011 (ASSESSMENT YEAR: 2007-08) AMRUL LOKMNALI SHAIKH M/S. KHUSHBOOTOLA ENTERPRISE A-7, ALFESAL PARK, B/H. ZALAK APPARTMENT, JUHAPURA, VEJALPUR, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 7 (1), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: BIRPS1178R APPELLANT BY : SHRI CHIRAG SHAH, AR RESPONDENT BY : SHRI DINESH SINGH, SR. D.R. ( )/ ORDER DATE OF HEARING : 08-10-2015 DATE OF PRONOUNCEMENT : 16-10-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE OR DER OF CIT(A)-VI, AHMEDABAD DATED 23.06.2011 FOR A.Y. 2007-08. ITA NO. 2374 /AHD/2011 . A.Y. 2007-08 2 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER. 3. ASSESSEE IS AN INDIVIDUAL STATED TO BE ENGAGED IN L ABOUR CONTRACTS IN THE NAME OF KHUSHBOOTOLA ENTERPRISE, HIS PROPRIETARY CONCERN. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2007-08 ON 23.05.2008 DECLARING TOTAL INCOME OF RS. 1,42,920/-. THE CASE WAS SELECTED FOR SCRUTI NY AND THEREAFTER THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) VIDE ORD ER DATED 24.11.2009 AND THE TOTAL INCOME WAS DETERMINED AT RS. 9,42,920 /-. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE L D. CIT(A) WHO VIDE ORDER DATED 23.06.2012 UPHELD THE ORDER OF A.O AND DISMIS SED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE AFORESAID ORDER OF LD. C IT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GR OUNDS:- 1. THE ASSESSMENT ORDER PASSED U/S. 143(3) OF IT ACT B Y THE ASSESSING OFFICER AND CONFIRMED BY THE FIRST APPELLATE AUTHOR ITY IS BAD IN LAW AND DESERVED TO BE UNCALLED FOR. 2. THE ASSESSING OFFICER AS WELL AS FIRST APPELLATE AU THORITY HAS ERRED IN LAW AND ON FACTS IN MAKING AND CONFIRMING RESPECTIVELY THE ADDITION OF RS. 8,00,000/- U/S. 68 OF I. T. ACT. THE SAME DESERVES TO BE DELETED. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND ON PERUSING THE DETAILS SUBMITTED BY THE ASSESSEE, A.O NOTICED THAT ASSESSE E HAS RECEIVED UNSECURED LOAN AGGREGATING RS. 8 LAC FROM VARIOUS P ARTIES, (THE LIST OF PARTIES ARE LISTED AT PAGE 2 OF HIS ORDER) WHICH WAS INTROD UCED AS THE CAPITAL. THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS/EVIDENCES OF THE UNSECURED LOAN WHICH COULD PROVE THE GENUINENESS OF TRANSACTION, I DENTITY AND CREDITWORTHINESS OF THE PARTIES. FROM THE DETAILS S UBMITTED, A.O NOTICED THAT ITA NO. 2374 /AHD/2011 . A.Y. 2007-08 3 THE ASSESSEE HAD NOT SUBMITTED THE COMPLETE DETAILS OF THE DEPOSIT ENTRY AND HAD NOT SUBMITTED THE COPY OF PASS BOOK AND PAN NUM BER. A.O ALSO NOTED THAT IN THE CONFIRMATIONS THE PARTIES HAVE STATED T O BE HAVING THEIR INCOME BELOW TAXABLE LIMIT. A.O NOTED THAT THE DEPOSITORS HAD ALSO NOT MENTIONED THE REASON FOR GIVING DEPOSITS WITHOUT INTEREST TO THE ASSESSEE EVEN WHEN THEIR INCOMES WERE BELOW THE TAXABLE LIMITS AND THA T NEITHER THE DEPOSITOSR NOR ASSESSEE HAD MENTIONED THE DATE OF TRANSACTION AND THE AMOUNT OF TRANSACTION AND HAD NO DETAILS OF THE DATE ON WHICH THE DEPOSITORS HAD RECEIVED BACK THE AMOUNT IN CASH. HE ACCORDINGLY A ND IN THE ABSENCE OF SATISFACTORY EXPLANATION HELD THE UNSECURED LOANS R ECEIVED FROM VARIOUS PARTIES BY THE ASSESSEE AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT AND ACCORDINGLY MADE ADDITION OF RS. 8 LAC. AGGRIEVED BY THE ORDER OF A.O., ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) WHO U PHELD THE ORDER OF A.O BY HOLDING AS UNDER:- 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE, ASSESSMENT ORDER AND APPELLANT'S SUBMISSION. ASSESSING OFFICER MADE ADDI TION UNDER SECTION 68 SINCE APPELLANT ONLY PROVIDED DETAILS OF LENDERS WITHOUT GIVING ANY DETAILS ABOUT THE IDENTITY AND CREDITWORTHINESS AND ALSO GENUINENESS OF THE TRANSACTIONS. THROUGHOUT THE ASSESSMENT PROCEED INGS, APPELLANT MAINTAINED BORROWING RS 8 LACS FROM CERTAIN PERSONS . THE EVIDENCE IN SUPPORT OF THESE LOANS COULD NOT BE PROVIDED AND AC CORDINGLY ASSESSING OFFICER MADE THE ADDITION UNDER SECTION 68. DURING APPEAL, APPELLANT SUBMITTED THAT WRONG ACCOUNTS WERE SUBMITTED TO THE AO AND THAT NO BORROWINGS WERE MADE FROM ANY PARTY. AS PER NEW ACC OUNTS PREPARED BY THE APPELLANT, THERE WAS NO BORROWING FROM ANYBO DY. APPELLANT ASKED THESE ACCOUNTS TO BE ADMITTED AS ADDITIONAL E VIDENCE UNDER RULE 46A. ITA NO. 2374 /AHD/2011 . A.Y. 2007-08 4 SINCE APPELLANT HIMSELF ADMITTED BEFORE ASSESSING O FFICER ON SEVERAL OCCASIONS THAT HE BORROWED THE SUMS FROM THE-PERSON S MENTIONED IN THE ASSESSMENT ORDER. THE SAID DETAILS WERE ON THE BASI S OF ACCOUNTS PREPARED AT THAT POINT. HOW THE FACT OF BORROWINGS CAN BE REMOVED FROM THE NEW ACCOUNTS IS NOT CLEAR. HOW SUCH ACCOUN TS CAN BE RELIED UPON WHICH ARE CONTRARY TO THE CLAIMS MADE IN ASSES SMENT PROCEEDINGS. IN VIEW OF THE FACT THAT THESE ACCOUNTS ARE NOT CON TEMPORARY AND DO NOT HAVE ANY EVIDENTIARY VALUE, THESE ARE NOT ADMITTED AS ADDITIONAL EVIDENCE AND NOT SENT FOR ASSESSING OFFICER'S REMAN D REPORT. IF THESE NEW ACCOUNTS ARE NOT TAKEN INTO CONSIDERATION AND APPEL LANT'S DENIAL OF BORROWINGS IS CONSIDERED THEN CLEARLY THE CASH CRED ITS TREATED AS UNEXPLAINED BY THE ASSESSING OFFICER REMAINED UNEXP LAINED. ACCORDINGLY THE ADDITION MADE BY THE ASSESSING OFFI CER IS CONFIRMED. IN THE FINAL RESULT APPEAL IS DISMISSED. 5. AGGRIEVED BY THE AFORESAID ORDER OF LD. CIT(A), ASS ESSEE IS NOW IN APPEAL BEFORE US. 6. BEFORE US, LD. A.R. REITERATED THE SUBMISSIONS MADE BEFORE LD. CIT(A) AND FURTHER SUBMITTED THAT AT THE TIME OF ASSESSMENT PR OCEEDINGS, WHEN THE DETAILS OF CAPITAL ACCOUNT WAS ASKED, ADDITION OF R S. 8 LAC WAS SHOWN TO HAVE BEEN SOURCED FROM UNSECURED LOAN BUT IT WAS NOT ON THE BASIS OF FORMAL BALANCE SHEET AND LATER ON WHEN THE ACTUAL BOOKS OF ACCOUNTS WERE COMPLETED, IT WAS NOTICED THAT THERE WAS NO SUCH LO AN FIGURE STANDING IN THE ACCOUNTS. HE SUBMITTED THAT THESE FACTS WERE BROUGH T TO THE NOTICE OF LD. CIT(A) BUT THE SAME WERE REJECTED BY HIM. HE THEREF ORE SUBMITTED THAT ASSESSEE BEING GIVEN ONE MORE OPPORTUNITY TO EXPLAI N ITS CASE. LD. D.R. ON ITA NO. 2374 /AHD/2011 . A.Y. 2007-08 5 THE OTHER HAND SUPPORTED THE ORDER OF A.O AND LD. C IT(A) AND STRONGLY OBJECTED TO THE REQUEST OF LD. A.R. OF GRANTING ONE MORE OPPORTUNITY TO THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS ABOUT ADDITION U/S. 68 OF THE ACT. A.O HAS NOTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE WAS ASKED TO PROVE THE GENUINENESS OF TRANSACTION, IDENTITY AND CREDITWORTHINESS OF THE PARTIES IN RESPONSE TO WHICH ASSESSEE HAD SUBMITTED THE DETAILS OF 7 PARTIES FROM WHOM THE AGGREGATE AMOUNT OF UNSECURED LOAN WA S RECEIVED. BEFORE US IT WAS ASSESSEES SUBMISSION, THAT WHEN THE ACTUAL BOOKS WERE COMPLETED THERE WAS NO SUCH LOAN FIGURE STANDING IN THE ACCOU NTS AND THEREFORE BEFORE LD. CIT(A), ASSESSEE SOUGHT OPPORTUNITY TO PROVIDE ACTUAL BOOKS OF ACCOUNT. THE SUBMISSIONS OF ASSESSEE WERE NOT ACCEPTED BY LD . CIT(A). IT IS ASSESSEES SUBMISSION THAT IN FACT THERE WAS NO UNS ECURED LOAN RECEIVED BY THE ASSESSEE BUT SUBMISSIONS OF THE ASSESSEE IS NOT SUPPORTED BY ANY CORROBORATIVE EVIDENCE. FURTHER THE SUBMISSION OF T HE ASSESSEE ALSO CANNOT BE ACCEPTED IN VIEW OF THE FACT THAT A.O HAS LISTED OUT THE NAMES OF THE PERSONS FROM WHOM THE ASSESSEE IS STATED TO HAVE RE CEIVED THE AMOUNTS. IT IS NOT THE CASE OF THE LD. A.R. THAT THE NAMES OF THE PERSONS WHICH HAVE BEEN STATED BY THE A.O WERE NOT GIVEN BY ASSESSEE OR BY THE AUTHORIZED REPRESENTATIVE OF ASSESSEE DURING THE COURSE OF ASS ESSMENT PROCEEDINGS AND THAT THE A.O ON HIS OWN HAVE STATED THOSE NAMES AND AMOUNTS STANDING TO THEIR CREDITS. A.O HAS ALSO NOTED THAT AMPLE OPPORT UNITY WAS GRANTED TO THE ASSESSEE TO PROVE THE CREDITWORTHINESS BUT THE ASSE SSEE FAILED TO FURNISH THE DETAILS. BEFORE US, LD. A.R. HAS NOT PLACED ANY MAT ERIAL TO CONTROVERT THE AFORESAID FACTS. IN VIEW OF THE SAME, WE ARE OF THE VIEW THAT LD. CIT(A) ITA NO. 2374 /AHD/2011 . A.Y. 2007-08 6 RIGHTLY FOR THE REASONS STATED IN THE ORDER, DECLIN ED TO ADMIT THE ADDITIONAL EVIDENCES SUBMITTED BY ASSESSEE AND UPHELD THE ORDE R OF A.O. WE ALSO THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDE R OF LD. CIT(A) AND THUS THIS GROUND OF ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 16 - 10 - 2015. SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD