Shri Lalchand Dhariwal, Surat V. The Income Tax Officer, Ward-1(2)(3), Surat

ITA 2623/AHD/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5887 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 10-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRS ANUPAMA SINGLA
• Assessee Lawyers: SAPNESH SHETH
• Keywords: Unexplained investment; Corroborative evidences; Third party statement; Capital expenditure; TDS
• Section: 251; 68

Judgement Text

LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 1 OF 10 , , IN THE INCOME TAX APPELLATE TRIBUNAL-SURAT-BENCH-SU RAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUTANT MEMBER . . /. I.T.A NO.2623/AHD/2016 / ASSESSMENT YEAR:2012-13 SHRI LALCHAND P. DHARIWAL, PROP. M/S. ADINATH TEXTILE , O-21-23 BOMBAY MARKET UMARWADA SURAT PAN: AATPD 0682 Q INCOME TAX OFFICER, WARD- 1(2)(3) SURAT APPELLANT / RESPONDENT /ASSESSEE BY SHRI SAPNESH SHETH, CA /REVENUE BY MRS. ANUPAMA SINGLA, SR.D.R. / DATE OF HEARING: 11.02.2020 /PRONOUNCEMENT ON 11.02.2020 /O R D E R PER O. P. MEENA, AM: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, SUR AT(IN SHORT THE CIT (A)) DATED 08.08.2016 PERTAINING TO ASSESSMEN T YEAR 2012-13, WHICH IN TURN HAS ARISEN FROM THE ASSESSMENT ORDER PASSED UNDER SECTION 143 (3) DATED 27.03.2015 OF INCOME TAX ACT , 1961 (IN SHORT THE ACT) BY THE INCOME TAX OFFICER, WARD- 1(2)(3 ),SURAT(IN SHORT THE AO). 2. GROUND NO.1 &2 RELATED TO CONFIRMING ADDITION OF RS . 23,31,000 AS UNEXPLAINED UNSECURED LOAN AND INTEREST OF RS. 2 ,13,708 THEREON. LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 2 OF 10 3. THE AO FOUND THAT THE ASSESSEE HAS TAKEN UNSECURED LOANS FROM SHRI KAMLESH L DHARIWAL OF RS. 18,56,000 , RS. 2,75 ,000 FROM SHRI PARESH KUMAR R PATEL AND RS. 2,00,000 FROM SHRI RAT ILAL V. TANK. THE AO HELD THE ASSESSEE COULD NOT PROVE THE IDENTITY, THE GENUINENESS OF THE TRANSACTION AND THEREFORE, MADE THE ADDITION OF RS.23, 31, 000 UNDER SECTION 68 OF THE ACT. 4. BEING, AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT (A). WHEREIN IT WAS SUBMITTED THAT DURING THE A SSESSMENT PROCEEDINGS, THE IDENTITY, CREDITWORTHINESS, AND TH E GENUINENESS OF THE TRANSACTION WAS PROVED BEFORE THE AO BY FURNISH ING THE CONFIRMATION LETTER ALONG WITH THE BANK STATEMENT ETC. IT WAS CONTENDED THAT THE AMOUNT WAS RECEIVED OF RS.18,56, 000 FROM KAMLESH DHARIWAL, THE SON OF THE APPELLANT, AND WHO WAS REGULARLY ASSESSED TO TAX AND HAD SUFFICIENT SURPLUS CAPITAL TO GIVE THIS AMOUNT. IT WAS CONTENDED THAT THE AO HAS TAKEN ADVERSE VIEW OF NOT PRODUCING SHRI PARESH KUMAR R PATEL AND SHRI RATILAL V. TANK BEFORE THE AO THOUGH THE APPELLANT HAD MADE HIS BEST EFFORTS AND THE DETAILS FURNISHED BEFORE THE AO ALONG WITH THE CONFIRMATION S. HOWEVER, THE LD. CIT (A) OBSERVED THAT THE AO ISSUED NOTICES TO THESE LENDERS, BUT THE NOTICE, COULD NOT BE SERVED, AND WERE RETURNED AS UNSERVED. THE AO FOUND THAT SHRI KAMLESH DHARIWAL DID NOT HAVE SU FFICIENT FUNDS TO LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 3 OF 10 MAKE SAID ADVANCE OF RS.18,56,000 AND FAILED FURNIS HED THE SOURCE OF CASH DEPOSITS MADE IN BANK ACCOUNT JUST BEFORE THE ISSUANCE OF CHEQUE TO THE APPELLANT. IN VIEW OF THESE FACTS, CI T (A) HELD THAT THE ASSESSEE HAS FAILED TO THE ESTABLISHED IDENTITY OF THE LENDERS INTEREST TWO CASES, THE CREDITWORTHINESS AND GENUINENESS OF TRANSACTION, IN SPITE OF REPEATED OPPORTUNITIES AND THEREFORE, THE ADDITION MADE BY THE AO UNDER SECTION 68 OF THE ACT WAS CONFIRMED WI TH DISALLOWANCE OF INTEREST PAYMENT ON THESE LOANS. 5. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THE TRIBUNAL. THE LEARNED COUNSEL SUBMITTED THAT SHRI K AMLESH DHARIWAL SON OF THE ASSESSEE HAS FILED CONFIRMATION IN RESPO NSE TO NOTICE UNDER SECTION 133(6), WHICH IS DISCERNIBLE FROM PAGE NO. 5 OF ASSESSMENT ORDER. IT WAS EXPLAINED THAT SHRI KAMLESH L DHARIWA L WAS HIS HAVING CAPITAL OF RS.20, 27, 632 AS ON 31. 03. 2012 OUT OF WHICH LOAN OF RS. 18,56,000 WAS GIVEN TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT PROFIT HAS NO RELEVANCE WITH LOAN AMOUNT AS THE SAM E IS GIVEN OUT OF CAPITAL AND NOT FROM PROFIT. SHRI KAMLESH DHARIWAL WAS HAVING SUFFICIENT CASH OUT OF CASH, WHICH WAS DEPOSITED IN BANK, AND CHEQUE AMOUNT WAS GIVEN OUT OF SAID BANK ACCOUNT. THEREFOR E, RELYING ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF DCIT V. ROHINI BUILDERS [2002] 256 ITR 360 (GUJ.)/[2003] 127 TAXMA N 523 (GUJ) IT LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 4 OF 10 WAS SUBMITTED THAT THE HIGH COURT HAS LAID DOWN THA T WHEN THE ASSESSEE HAS PRIMARILY DISCHARGED THE INITIAL ONUS LAID ON HIM IN TERMS OF SECTION 68 BY PROVIDING DETAILS TO ESTABLISH GEN UINENESS OF TRANSACTION, IDENTITY AND CREDITWORTHINESS OF DEPOS ITORS, THEN THE ASSESSEE IS NOT EXPECTED TO PROVE GENUINENESS OF CA SH DEPOSITED IN BANK ACCOUNT OF THOSE CREDITORS BECAUSE UNDER THE L AW THE ASSESSEE CAN BE ASKED TO PROVE THE SOURCE OF CREDITS IN HIS BOOKS OF ACCOUNTS BUT NOT THE SOURCE OF SOURCE. THE LOAN OF RS. 2, 7 5,000 TAKEN FROM PARESH KUMAR R PATEL WAS REPAID AND HE WAS RESIDING ABROAD HENCE, HIS PAN COULD NOT BE FILED HIS PAN BUT HIS CONFIRMA TION WAS FILED. THE LEARNED COUNSEL FOR THE ASSESSEE RELYING ON THE DEC ISION IN THE CASE OF CIT V. AYACHI CHANDRASEKHAR NARSANGJI [2014] 42 TAXMANN.COM 251 (GUJARAT) CONNECTED THAT WHERE DEPARTMENT HAD ACCEP TED REPAYMENT OF LOAN IN SUBSEQUENT YEAR, NO ADDITION W AS TO BE MADE IN CURRENT YEAR BECAUSE OF CASH CREDIT. 6. WITH REGARD TO LOAN OF RS. 2 LAKH FROM SHRI RATILA L V. TANK, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT COP Y OF CONFIRMATION WAS FILED OF WHICH COPY IS PLACED AT PAPER BOOK PAG E NO. 21. THE LOAN WAS TAKEN BY CHEQUE DRAWN ON BANK OF RAJASTHAN. THE REFORE, IDENTITY, CREDIT-WORTHINESS AND GENUINENESS OF TRAN SACTION HAS BEEN DULY PROVED. HENCE, CIT (A) WAS NOT JUSTIFIED IN CO NFIRMING THE LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 5 OF 10 ADDITION. THE LEARNED COUNSEL ALSO RELIED IN THE CA SE OF CIT V. RANCHHOD JIVABHAI NAKHAVA [2012] 81 CCH 193 GUJ-HC HELD THAT WHERE LENDERS OF ASSESSEE ARE INCOME-TAX ASSESSEES WHOSE PAN HAVE BEEN DISCLOSED, ASSESSING OFFICER CANNOT ASK ASSESS EE TO FURTHER PROVE GENUINENESS OF TRANSACTIONS WITHOUT FIRST VERIFYING SUCH FACT FROM INCOME-TAX RETURNS OF LENDERS. 7. IN VIEW OF THE FOREGOING, IT WAS REQUESTED THAT CIT (A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 23,31,0 0 LOAN AND INTEREST OF RS. 2,13,708 PAID TO LENDERS. 8. PER CONTRA, THE LD. SR. D.R. RELIED ON THE AO /CIT (A). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT SHRI KAMLESH DHARI WAL, SON OF THE ASSESSEE, HAS FILED CONFIRMATION IN RESPONSE TO NOT ICE UNDER SECTION 133(6), WHICH IS DISCERNIBLE FROM PAGE NO. 5 OF ASS ESSMENT ORDER. SHRI KAMLESH L DHARIWAL WAS HAVING CAPITAL OF RS.20, 27, 632 AS ON 31. 03. 2012 OUT OF WHICH LOAN OF RS. 18,56,000 WAS GIVEN T O THE ASSESSEE. IT IS NOTICED THAT SHRI KAMLESH DHARIWAL WAS HAVING SU FFICIENT CASH IN HAND OUT OF CASH WAS DEPOSITED IN BANK AND CHEQUE A MOUNT WAS GIVEN OUT OF SAID BANK ACCOUNT. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT NO ADDITION COULD BE SUSTAINED ON THIS ACCOUNT IN THE LIGHT OF DECISION IN THE CASE OF DCIT V. ROHINI BUILDERS [2 002] 256 ITR 360 LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 6 OF 10 (GUJ.)/[2003] 127 TAXMAN 523 (GUJ) WHEREIN THE HON` BLE HIGH COURT HAS LAID DOWN THAT WHEN THE ASSESSEE HAS PRIMARILY DISCHARGED THE INITIAL ONUS LAID ON HIM IN TERMS OF SECTION 68 BY PROVIDING DETAILS TO ESTABLISH GENUINENESS OF TRANSACTION, IDENTITY AND CREDITWORTHINESS OF DEPOSITORS THEN THE ASSESSEE IS NOT EXPECTED TO PRO VE GENUINENESS OF CASH DEPOSITED IN BANK ACCOUNT OF THOSE CREDITORS B ECAUSE UNDER THE LAW THE ASSESSEE CAN BE ASKED TO PROVE THE SOURCE O F CREDITS IN HIS BOOKS OF ACCOUNTS BUT NOT THE SOURCE OF SOURCE. IN VIEW OF THESE FACTS, THE ADDITION OF RS. 18,56,000 IS THEREFORE, DELETED . WE FURTHER NOTE THAT THE LOAN OF RS. 2,75,000 TAKEN FROM PARESH KUM AR R PATEL WAS REPAID IN SUBSEQUENT ASSESSMENT YEAR AND SAME STAND ACCEPTED BY THE DEPARTMENT. FURTHER, THE CONFIRMATION WAS FILED BUT OTHER DETAILS COULD NOT BE FILED AS HE WAS RESIDING ABROAD. THE L EARNED COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION IN THE CASE OF CIT V. AYACHI CHANDRASEKHAR NARSANGJI [2014] 42 TAXMANN.COM 251 ( GUJARAT) WHEREIN IT WAS HELD THAT WHERE DEPARTMENT HAD ACCEP TED REPAYMENT OF LOAN IN SUBSEQUENT YEAR, NO ADDITION WAS TO BE M ADE IN CURRENT YEAR ON ACCOUNT OF CASH CREDIT. IN VIEW OF THIS MA TTER, THIS ADDITION MADE BY THE AO IS THEREFORE, DELETED. 10. WITH REGARD TO LOAN OF RS. 2 LAKH FROM SHRI RATILA L V. TANK, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT COP Y OF CONFIRMATION LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 7 OF 10 WAS FILED OF WHICH COPY IS PLACED AT PAPER BOOK PAG E NO. 21. THE LOAN WAS TAKEN BY CHEQUE DRAWN ON BANK OF RAJASTHAN. THE REFORE, IDENTITY, CREDIT-WORTHINESS AND GENUINENESS OF TRAN SACTION HAS BEEN DULY PROVED. HENCE, CIT (A) WAS NOT JUSTIFIED IN CO NFIRMING THE ADDITION. THE LEARNED COUNSEL ALSO RELIED IN THE CA SE OF CIT V. RANCHHOD JIVABHAI NAKHAVA [2012] 81 CCH 193 GUJ-HC WHEREAS IT WAS HELD THAT WHERE LENDERS OF ASSESSEE ARE INCOME-TAX ASSESSEES WHOSE PAN HAVE BEEN DISCLOSED, ASSESSING OFFICER CANNOT A SK ASSESSEE TO FURTHER PROVE GENUINENESS OF TRANSACTIONS WITHOUT F IRST VERIFYING SUCH FACT FROM INCOME-TAX RETURNS OF LENDERS. 11. IN VIEW OF THE FOREGOING, WE ARE OF THE CONSIDERED OPINION, THAT ADDITION SUSTAINED BY THE CIT (A) WERE NOT JUSTIFIE D. HENCE, CONSIDERING THE FACTS AND RELYING ON THE DECISION O F HONBLE GUJARAT HIGH COURT AS REFERRED ABOVE, THESE GROUNDS OF APPE AL OF THE ASSESSEE ARE ALLOWED. ACCORDINGLY, ADDITION OF RS. 23,31,00 LOAN AND INTEREST OF RS. 2,13,708 PAID TO LENDERS SUSTAINED BY THE CI T (A) IS DELETED. ACCORDINGLY, GROUND NO. 1 AND 2 OF APPEAL IS ALLOWE D. 12. GROUND NO. 3: RELATING TO INTEREST OF RS. 47,103 BE ING UNDISCLOSED INCOME INTEREST IS NOT PRESSED BEFORE U S BY THE LEARNED COUNSEL FOR THE ASSESSEE, EX-CONSEQUENTI, IT IS TRE ATED AS DISMISSED AS NOT PRESSED. LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 8 OF 10 13. GROUND NO. 4 RELATES TO CONFIRMING ADDITION OF RS. 1,98,750 AS UNEXPLAINED INVESTMENT / EXPENDITURE. 14. SUCCINCT FACTS ARE THAT THE AO FOUND THAT THE ASSES SEE HAS CLAIMED EXPENSES OF RS.1, 98, 750 TOWARDS ARCHANA P LOT NO.85 OF WHICH NO DOCUMENT EVIDENCE WAS SUBMITTED NOR ANY CO NTRACT CONFIRMATION WAS FILED AND NOR TDS WAS DEDUCTED. TH EREFORE, THE AO ADDED THIS AMOUNT TO THE INCOME OF THE ASSESSEE. 15. BEING DISSATISFIED, THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A). HOWEVER, THE LD. CIT(A) OBSERVED THAT THE A PPELLANT HAD NOT CLAIMED ANY EXPENSES IN THE PLA ACCOUNT PERTAINING TO ARCHANA PLOT NO. 85. THE AO HAS NOT GIVEN ANY FINDING THAT HOW H E WAS LIABLE TO DEDUCT TDS ON THE PAYMENT MADE TO KALPESH KANTILAL GOSALIA. HOWEVER, THE FACT REMAINS THAT THE APPELLANT HAD MA DE EXPENDITURE OF RS. 1, 98,750 TOWARDS ARCHANA PLOT NO.85 FOR WHI CH NO CONTRA CONFIRMATION WAS FILED REGARDING THE PAYMENT. THERE FORE, THE AO HAS RIGHTLY HELD THAT FILING OF THE COPY OF THE CONFIRM ATION AND ACKNOWLEDGEMENT AND BALANCE SHEET OF DOES NOT PROVE THE GENUINENESS OF THE SOURCE OF THE PAYMENT. ACCORDING LY, THE ADDITION WAS CONFIRMED. 16. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THIS TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 9 OF 10 EXPENDITURE OF RS. 1,98,750 IS INCURRED IN CASH, WH ICH IS NOT BEEN CLAIMED IN THE PLA ACCOUNT AS BEING CAPITAL EXPENDI TURE. THEREFORE, NO QUESTION OF MAKING ANY DISALLOWANCE OF THE EXPEN SES IS ARISEN. THE ASSESSEE HAS FILED CORROBORATIVE EVIDENCES, WHICH A RE PLACED AT PAPER BOOK PAGE NO.25 TO 29. THE PAYMENT SO MADE IS REFLE CTED IN THE CASHBOOK AND WHICH HAS BEEN INCURRED OUT OF CASH BA LANCES AND APPEARING IN THE CASHBOOK. THE AO HAS NOT DOUBTED T HE SOURCE OF THE EXPENDITURE. HOWEVER, HE MADE THE DISALLOWANCE WHIC H CANNOT BE MADE AS THE EXPENSES BEING CAPITAL IN NATURE NOR TH E ASSESSEE HAS CLAIMED THAT SUCH EXPENDITURE IN THE PLA ACCOUNT 17. PER CONTRA , LEARNED SENIOR DEAR RELIED ON THE LD. CIT(A) A 18. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE HAS F ILED COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME, CONTRA CONFIRM ATION FOR KALPESH K GOSALINA INCURRED FOR COMPOUND WALL, COPY OF BILLS AND PROOF OF PAYMENT MADE THOUGH CASH BOOK. THE PAYMENT HAS BEEN SHOWN IN BALANCE SHEET AS CAPITAL EXPENDITURE. THIS EXPENDITURE IS NOT CLAIMED IN PROFIT & LOSS ACCOUNT. THEREFORE, DI SALLOWANCE OF IT IS NOT JUSTIFIED. THE ASSESSEE HAS FILED COPY OF ADINA TH TEXTILE, WHICH IS PLACED AT PAPER BOOK PAGE NO. 29. THE CASHBOOK OF A DINATH TEXTILE IS APPEARING AT PAPER BOOK PAGE NUMBER 25 TO 26. HE NCE, SOURCE OF LALCHAND P DHARIWAL V. ITO-WD-1(2)(30 SURAT/ I.T.A. NO. 2623/AHD/2016/A.Y. 12-13 PAGE 10 OF 10 EXPENDITURE IS EXPLAINED AND EXPENDITURE BEING CAPI TAL IN NATURE CANNOT BE DISALLOWED. ACCORDINGLY, THIS ADDITION IS DELETED. ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED IN FA VOUR OF THE ASSESSEE. 19. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED. 20. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11. 02. 2 020. SD/- SD/- (SANDEEP GOSAIN) (O. P.MEENA) JUDICIAL MEMBER ACCOUNTAN T MEMBER SURAT: DATED: 11 TH FEBRUARY, 2020/OPM COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A) / ITAT (DR)/ GUARD FILE OF ITAT. BY ORDER // TRUE COPY // ASSISTANT REGISTRAR, SURAT