Rajeshkumar Shantilal Shah, Bhavnagar V. ITO, Ward-2(3), Bhavnagar

ITA 245/AHD/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7423 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 01-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Keywords: Additional evidence
• Section: 143(3); 133(6); 143(2); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (CONDUCTED THROUGH VIRTUAL COURT) BEFORE: SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI AMARJIT SINGH, ACCOUNTANT MEM BER RAJESHKUMAR SHANTILAL SHAH, BHADEVANI SHARI, BHADEVANINI STREET, LALLUBHAI DELI, VORA BAZAR, BHAVNAGAR PAN: CELPS8994N (APPELLANT) VS THE ITO, WARD-2(3), BHAVNAGAR (RESPONDENT) REVENUE BY: SHRI R.R. MAKWANA, SR. D.R. ASSESSEE BY: SHRI TUSHAR HEMANI, A. R. DATE OF HEARING : 18-08-2021 DATE OF PRONOUNCEMENT : 27-08-20 21 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THIS ASSESSEES APPEAL FOR A.Y. 2014-15, ARISES FRO M ORDER OF THE CIT(A)-6, AHMEDABAD DATED 29-11-2017, IN PROCEEDIN GS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE SOLITARY GROUND OF APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-6 AHMEDABAD IN CONFIRMING THE A CTION OF ASSESSING OFFICER OF MAKING AN ADDITION OF LOAN OF RS. 1,13,9 0,000/- U/S. 68 OF THE ACT. ITA NO. 245/AHD/2018 ASSESSMENT YEAR 2014-15 I.T.A NO. 245/AHD/2018 A.Y. 2014-15 PAGE NO RAJESHKUMAR SHANTILAL SHAH VS. ITO 2 3. THE FACT IN BRIEF IS THAT RETURN OF INCOME DECL ARING TOTAL INCOME OF RS. 2,19,690/- WAS FILED ON 8 TH MARCH, 2015. THE CASE WAS SUBJECT TO SCRUTINY ASSESSMENT AND NOTICE U/S. 143(2) OF THE ACT WAS IS SUED ON 24 TH SEP, 2014. 3.1 DURING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS OBTAINED LOAN AMOUNTING TO RS. 75,19, 740/- AND RS. 38,70,260/- FROM M/S. POINEER MERCANTILE LTD. AND L AKSHYA SECURITIES CREDIT HOLDING LTD. THE ASSESSEE WAS ASKED TO EXP LAIN THE SOURCE OF LOAN IN ACCORDANCE WITH THE PROVISION OF SECTION 68 OF THE ACT. THE ASSESSING OFFICER STATED THAT ASSESSEE HAS MERELY FILED LEDGE R CONFIRMATION OF SUCH LOAN AND NOTICES U/S. 133(6) OF THE ACT WERE ISSUED TO B ENEFICIARIES M/S. POINEER MERCANTILE LTD. AND LAKSHYA SECURITIES CREDIT HOLDI NG LTD. AND THEY HAVE FAILED TO MAKE COMPLIANCE WITH THE NOTICES ISSUED B Y THE ASSESSING OFFICER. THEREFORE, THE ASSESSING OFFICER HAS ISSUED SHOW CA USE NOTICE TO THE ASSESSEE TO SHOW CAUSE AS TO WHY AGGREGATE LOAN OF RS. 1,13,90,000/- TAKEN FROM BOTH THE PARTIES SHOULD NOT BE TREATED AS UNEX PLAINED CASH CREDIT U/S. 68 OF THE ACT. IN RESPONSE, THE ASSESSEE EXPLAINED THAT HE HAS SUBMITTED ALL THE DETAILS/DOCUMENTS IN HIS SUBMISSION DATED 12 TH JULY, 2016, 8 TH AUGUST, 2016 AND 7 TH DECEMBER, 2016. THE ASSESSEE HAS FURTHER SUBMITTE D THAT PART OF THE DETAIL MENTIONED IN THE NOTICE AT PARA NO. 2 PERTAI NING TO THE DETAIL OF M/S. POINEER MERCANTILE LTD. AND LAKSHYA SECURITIES CRED IT HOLDING LTD. COULD NOT BE FURNISHED BECAUSE OF THE SAME BEING CONFIDE NTIAL IN NATURE AS THE SAME INFORMATION WAS NOT AVAILABLE WITH THE ASSESSE E. SUCH DETAILS MENTIONED BY THE ASSESSEE IN HIS SUBMISSION ARE LIK E BANK STATEMENT, COMPUTATION OF INCOME AND ITR ACKNOWLEDGEMENT PERTA INING TO THE AFORESAID COMPANIES. THE ASSESSING OFFICER HAS NOT ACCEPTED THE I.T.A NO. 245/AHD/2018 A.Y. 2014-15 PAGE NO RAJESHKUMAR SHANTILAL SHAH VS. ITO 3 EXPLANATION OF THE ASSESSEE AND STATED THAT BECAUS E OF NON FILING OF DOCUMENTS PERTAINING TO THE LENDERS, THE IDENTITY O F THE LENDERS, CAPACITY AND CREDITWORTHINESS OF THE LENDERS AND GENUINENESS OF THE TRANSACTIONS OF LOAN TAKEN BY THE ASSESSEE COULD NOT BE EXAMINED. THER EFORE, THE IMPUGNED LOAN AGGREGATING TO RS. 1,13,90,000 WAS TREATED AS UNEXP LAINED CASH CREDIT U/S. 68 OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASS ESSEE. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE L D. CIT(A). BEFORE THE LD. CIT(A), THE ASSESSEE HAS FILED DOCUMENT FR OM WEBSITE OF REGISTRAR OF COMPANY IN RESPECT OF THESE TWO CREDITORS NAMELY M/ S. POINEER MERCANTILE LTD. AND LAKSHYA SECURITIES CREDIT HOLDING LTD., TH E LD. CIT(A) HELD THAT THESE DOCUMENTS CANNOT BE ACCEPTED AS EVIDENCES AS THESE WERE NOT FILED BEFORE THE ASSESSING OFFICER. SECONDLY, THE ASSESS EE HAD NOT FILED ANY APPLICATION FOR ADMITTING THESE DOCUMENTS AS ADDITI ONAL EVIDENCES UNDER RULE 46A OF THE INCOME TAX I.T. RULE 1962. 5. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US, THE LD. COUNSEL HAS CONTENDED THAT PART OF THE INFORMATION PERTAINI NG TO THE TWO LENDERS WAS NOT AVAILABLE WITH THE ASSESSEE BECAUSE OF CONFIDEN TIAL NATURE, THEREFORE, THE SAME COULD NOT BE FURNISHED BEFORE THE ASSESSING OF FICER BECAUSE OF PAUCITY OF TIME AT THE ASSESSMENT LEVEL. BECAUSE OF THE OWN EFFORTS OF THE ASSESSEE, THE SAME WAS FILED BEFORE THE LD. CIT(A) AFTER COLL ECTING THE INFORMATION FROM THE WEBSITE OF THE MINISTRY OF CORPORATE AFFAI RS. HOWEVER, THE LD. CIT(A) HAS NOT ACCEPTED THESE DETAILS FOR DECIDING THE CASE OF THE ASSESSEE ON MERIT. THE ASSESSEE HAS ALSO PLEADED THAT INAD VERTENTLY THE ASSESSEE COULD NOT MAKE AN APPLICATION UNDER RULE 46A I.T. R ULE 1962 FOR ADMISSION I.T.A NO. 245/AHD/2018 A.Y. 2014-15 PAGE NO RAJESHKUMAR SHANTILAL SHAH VS. ITO 4 OF ADDITIONAL EVIDENCES BEFORE THE LD. CIT(A). HE HAS SUBMITTED THAT LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE AFORESAID UNAVOIDABLE CIRCUMSTANCES CREATED HINDRANCE IN TIMELY SUBMISSION OF THE REQUI SITE INFORMATION. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS SUP PORTED THE ORDER OF LOWER AUTHORITIES. 6. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. DURING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER MADE AD DITION OF RS. 1,33,90,000/- U/S. 68 OF THE ACT IN RESPECT OF UNSE CURED LOAN OBTAINED BY THE ASSESSEE FROM TWO LENDERS I.E. M/S. POINEER MERCANT ILE LTD. AND LAKSHYA SECURITIES CREDIT HOLDING LTD. BECAUSE OF NOT FURNI SHING COMPLETE INFORMATION BY THE ASSESSEE. DURING THE COURSE OF ASSESSMENT, THE ASSESSEE HAS SUBMITTED DOCUMENTARY PROOF SUCH AS COPIES OF B ANK STATEMENT SHOWING RECEIPT OF AMOUNT FROM THE LENDERS AND COPIES OF CO NFIRMATION WITH PAN AS OBTAINED FROM BOTH THE PARTIES. HOWEVER, THE ASSES SEE COULD NOT SUBMIT THE COPY OF ITR AND BANK STATEMENT OF THE LENDERS. SI NCE THESE INFORMATION WERE AVAILABLE WITH THE LENDERS AND ASSESSEE HAS CA TEGORICALLY BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT HE WAS NOT HAV ING ANY ACCESS TO SUCH CONFIDENTIAL DETAILS OF THE LENDERS. HOWEVER, DUR ING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) THE ASSESSEE HAS SUBMITTED THAT HE HAS OBTAINED THE REQUISITE INFORMATION FROM THE GOVERNM ENT DEPARTMENT OF THE MINISTRY OF CORPORATE AFFAIRS BY PAYING THE REQUISI TE FEES IN RESPECT OF BOTH THE LENDERS I.E. PROOF OF PAYMENT OF REQUISITE FEES FOR OBTAINING SUCH DOCUMENTS I.E. MINISTRY OF CORPORATE AFFAIRS RECEIP T GAR-7, BALANCE SHEET AS WELL AS PROFIT AND LOSS ACCOUNT. THE ASSESSEE H AS EXPLAINED THAT HE WAS PREVENTED BY THE AFORESAID CAUSE FROM PRODUCING THE DETAILS BEFORE THE I.T.A NO. 245/AHD/2018 A.Y. 2014-15 PAGE NO RAJESHKUMAR SHANTILAL SHAH VS. ITO 5 ASSESSING OFFICER DURING THE ASSESSMENT. IN SPITE OF THE UNDISPUTED FACT THAT THE ASSESSEE HAS CATEGORICALLY BROUGHT TO THE NOTIC E OF THE ASSESSING OFFICER THAT HE WAS NOT HAVING ACCESS TO THE PART OF THE IN FORMATION SPECIFICALLY AVAILABLE WITH THE LENDERS, THE ASSESSING OFFICER HAS NOT ISSUED ANY SUMMON U/S. 131 OF THE ACT TO THE TWO LENDERS TO CARRY OUT FURTHER VERIFICATION AND TO FIND OUT LEGITIMACY IN THE CLAIM OF THE ASSESSEE. W E HAVE ALSO CONSIDERED THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE O F SMT. PRABHAVATI S. SHAH VS. CIT 231 ITR 1 (BOM) REFERRED BY THE LD. CO UNSEL FOR NEED OF ADMITTING ADDITIONAL EVIDENCE IN THE LARGER INTERES T OF JUSTICE. UNDER THE ABOVE, FACTS AND CIRCUMSTANCES, LOOKING TO THE FACT S OF THE CASE WE CONSIDER THAT IT IS ESSENTIAL TO RESTORE THIS CASE TO THE FI LE OF ASSESSING OFFICER FOR DECIDING THE ISSUE IN APPEAL ON MERIT AFTER EXAMINA TION, VERIFICATION OF THE ADDITIONAL EVIDENCES WHICH COULD NOT BE OBTAINED DU RING THE COURSE OF ASSESSMENT PROCEEDINGS BECAUSE OF NON-COOPERATION F ROM THE LENDER PARTIES. THEREFORE, THIS APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27-08-2021 SD/- SD/ - (RAJPAL YADAV) (AMARJIT SINGH) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD : DATED 27/08/2021 / COPY OF ORDER FORWARDED TO:- I.T.A NO. 245/AHD/2018 A.Y. 2014-15 PAGE NO RAJESHKUMAR SHANTILAL SHAH VS. ITO 6 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,