M/s Vikas Udyog, Ghaziabad V. ITO, Ghaziabad

ITA 2446/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3514 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 27-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 12-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Assessee Lawyers: AMIT KUMAR
• Keywords: Onus to prove
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SH. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 2446/DEL/2011 AY: 20 05-06 VIKAS UDYOG, VS INCOME TAX OFFICER, C/O RAVI KUMAR & CO., CA WARD 2(1), 58, G.T. ROAD, HAPUR CHUNGI, GHAZIABAD. GHAZIABAD. (PAN: AABFV1382M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT KUMAR, ADV. RESPONDENT BY : SHRI O.P.MEENA, SR. DR ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THE PRESENT APPEAL IS PREFERRED BY THE ASSESSEE AGA INST THE ORDER DATED 19.2.2011 PASSED BY THE LD. CIT (A), GH AZIABAD WHEREIN BY THE IMPUGNED ORDER DATED 19.2.2011, THE LD. CIT(A) HAS CONFIRMED ADDITION OF RS.1.00 LACS ALLEGED TO H AVE BEEN RECEIVED BY THE ASSESSEE. 2. AS PER THE RECORDS, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF MANUFACTURE OF MACHINERY USED IN PLYWOO D INDUSTRIES AND LABOUR JOB WORK. THE ASSESSEE HAD D ECLARED INCOME OF RS.1290/- IN ITS RETURN OF INCOME WHICH W AS INITIALLY PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (H EREINAFTER I.T.A. NO. 2446/DEL/2011 ASSESSMENT YEAR 2005-06 2 CALLED THE ACT). LATER, THE CASE WAS SELECTED FO R SCRUTINY. DURING THE SCRUTINY PROCEEDINGS, THE ASSESSING OFFI CER NOTICED THAT THE BALANCE SHEET AS ON 31.3.2005 REFLECTED AN ADVANCE OF RS.2.5 LACS RECEIVED FROM ONE SHRI YASHPAL. NOTICE U/S 133(6) WAS ISSUED TO SHRI YASHPAL, WHO, IN RESPONSE, ATTEN DED AND HIS STATEMENT WAS RECORDED. IN HIS STATEMENT, SHRI YAS HPAL HAS STATED THAT HE HAD GIVEN RS.3,50,000/- TO THE ASSES SEE. HE ALSO FILED COPY OF QUOTATION DATED 17.11.2004 FOR PURCHA SE OF MACHINERY FOR RS.6,50,000 AGAINST WHICH AN ADVANCE OF RS.1.00 LAC WAS DEDUCTED LEAVING A BALANCE OF RS.5,50,000/- . FURTHER, AN AMOUNT OF RS. 2 LACS WAS SHOWN TO HAVE BEEN RECEIVE D THROUGH CHEQUE DATED 25.11.2004, LEAVING A BALANCE OF RS.3, 50,000/-. SHRI YASHPAL ALSO FILED COPIES OF RECEIPTS DATED 17 .11.2004, 19.11.2004, 22.11.2004 AND 24.11.2004 OF RS. 25,000 /- EACH (TOTAL RS. 1.00 LAC) RECEIVED IN CASH BY THE ASSESS EE AND ALSO A COPY OF RECEIPT DATED 01.03.2005 FOR PAYMENT OF RS. 50,000/- RECEIVED THROUGH CHEQUE DATED 01/03/2005. THUS, AS SESSING OFFICER WAS OF THE OPINION THAT ALTHOUGH THE ASSESS EE HAD RECEIVED A TOTAL PAYMENT OF RS.3,50,000/- (INCLUDIN G RS. 1 LAC IN CASH), ONLY RS.2,50,000/- HAVE BEEN SHOWN AS RECEIV ED IN THE BALANCE SHEET. I.T.A. NO. 2446/DEL/2011 ASSESSMENT YEAR 2005-06 3 3. ARMED WITH THESE DOCUMENTS, THE ASSESSING OFFICE R CONFRONTED THE ASSESSEE. IN RESPONSE, THE ASSESSEE FILED AN AFFIDAVIT DATED 30.11.2007 STATING THAT IT HAD ONLY RECEIVED CHEQUE OF RS. 2.00 LAC AND RS. 50,000/- AND ANY OTH ER AMOUNT WAS NOT RECEIVED BY IT WHATSOEVER. 4. THE ASSESSING OFFICER AGAIN WROTE A LETTER TO SH RI YASHPAL CONFRONTING HIM WITH THE AFFIDAVIT BY THE ASSESSEE BUT SHRI YASHPAL DID NOT RESPOND ON THIS OCCASION. THE ASSE SSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD FAILED TO FIL E ANY EVIDENCE THAT THE FOUR RECEIPTS OF RS.25,000/- EACH WERE NOT ISSUED BY IT. ACCORDINGLY, THE AMOUNT OF RS. 1.00 LAC WAS ADDED T O THE INCOME OF THE ASSESSEE AS UNDISCLOSED INCOME. 5. ON APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE LD. CIT(A) WHILE DISMISSING THE ASSESSEES APPEAL OBSERVED THA T EVEN IN THE AFFIDAVIT OR THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS NOT DENIED THAT THE IMPUGNED FOUR RECEIPTS OF RS.25,000/- EACH WERE NOT SIGNED BY THE PARTNER. THE LD. CIT ALSO OBSERVED T HAT THE DEDUCTION OF RS.1.00 LAC FROM THE QUOTATION ALSO LE NDS CREDENCE TO THE VIEW THAT THE DOCUMENTS ARE GENUINE. THUS, AS PER THE LD. CIT(A), THE ADDITION WAS NOT ONLY BASED ON THE STAT EMENT OF SHRI YASHPAL BUT MORE ON THE BASIS OF HARD CORE EVIDENCE IN THE FORM I.T.A. NO. 2446/DEL/2011 ASSESSMENT YEAR 2005-06 4 OF CASH RECEIPTS WHICH COULD NOT BE EXPLAINED BY TH E ASSESSEE. HENCE, THE ADDITION WAS CONFIRMED. 6. IN THE APPEAL BEFORE US, THE LD. AR EMPHASISED T HAT AS SHRI YASHPAL DID NOT APPEAR FOR CROSS-EXAMINATION, HIS S TATEMENT CANNOT BE RELIED UPON. THE LD. AR ALSO SUBMITTED T HAT ONLY THE RECEIPTS WERE ISSUED FOR FINANCE PURPOSES BUT IN FA CT NO CASH WAS ACTUALLY RECEIVED BY THE ASSESSEE. HE ALSO SUBMITT ED THAT THE ASSESSEE HAS SWORN ON AN AFFIDAVIT AND THE SAME CAN NOT BE SIMPLY BRUSHED ASIDE. 7. LD. DR, ON THE OTHER HAND, RELIED ON THE ORDER O F THE LD. CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. IT IS NOT DISPUTED THAT THE ASSESSEE FILED AN AFFIDAVIT BEFORE THE FINALISATION OF ASSESSMENT AND REQUESTED CROSS-EXAMINATION OF SHRI YASHPAL. T HE DEPARTMENT HAS NOT DISPUTED THE AFFIDAVIT FILED BY THE ASSESSEE. ASSESSMENT IS THE RESPONSIBILITY OF THE DEPARTMENT AND THE BURDEN TO PROVE THAT A CERTAIN ITEM IS TAXABLE LIES ON IT. WHILE DETERMINING IT, THE DEPARTMENT CAN RELY ON EVIDENCE WHICH IS ADMISSIBLE AND PASS THE ORDER AFTER AFFORDING OPPOR TUNITY TO THE I.T.A. NO. 2446/DEL/2011 ASSESSMENT YEAR 2005-06 5 ASSESSEE. THE HON'BLE HIGH COURT OF ALLAHABAD IN T HE CASE OF COMMISSIONER OF SALES TAX VS FAQIR CHAND HAZARI MAL 1981 UPTC 656 HAS HELD, THE WORD ADMISSIBLE MAY NOT BE UNDERSTOOD IN THE STRICT SENSE OF THE EVIDENCE ACT BUT IT CANN OT ADMIT OF ANY DOUBT THAT NO MATERIAL CAN BE RELIED WITH WHICH THE ASSESSEE IS NOT CONFRONTED. CONFRONTING DOES NOT MEAN TELLING THE ASSESSEE THAT A DOCUMENT IS ON RECORD. FOR INSTANCE IF RELI ANCE IS PLACED ON ACCOUNT BOOKS OR DIARY OR MATERIAL BELONGING TO THIRD PERSON, THEN THE DEPARTMENT IS REQUIRED TO ESTABLISH ITS AU THENTICITY, WHICH MAY BE ESTABLISHED EITHER BY ADMISSION OF ASS ESSEE OR DEPARTMENT MAY PROVE IT. HAVING GIVEN A DUE CONSID ERATION TO THE FACTS OF THE CASE, THE MATERIAL BEFORE US AND T HE RATIO OF THE JUDGMENT OF THE HON'BLE ALLAHABAD HIGH COURT, WE RE STORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR GIV ING A FRESH OPPORTUNITY TO THE ASSESSEE TO EXPLAIN ONLY THE DIF FERENCE OF RS. 1.00 LAC AS IN DISPUTE IN THE PRESENT APPEAL BEFORE US. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. I.T.A. NO. 2446/DEL/2011 ASSESSMENT YEAR 2005-06 6 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 24/2/2 016. SD/- SD/- (J. SUDHAKAR REDDY) (SUDHANSHU SRIVAS TAVA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: THE 24TH OF FEBRUARY, 2016 GS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER ASSTT. REGISTRAR