Ashok Kumar Guleriya, CHURU V. ITO, CHURU

ITA 263/JODH/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99641 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.C. GUPTA G.C. GUPTA G.C. GUPTA G.C. GUPTA, , , , HONBLE HONBLE HONBLE HONBLE VICE VICE VICE VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA, , , , HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO . .. . 263/JODH/2014 263/JODH/2014 263/JODH/2014 263/JODH/2014 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009 - -- - 10 1010 10 SHRI ASHOK KUMAR GULERIYA, SHRI ASHOK KUMAR GULERIYA, SHRI ASHOK KUMAR GULERIYA, SHRI ASHOK KUMAR GULERIYA, NEAR RAILWAY GATE NO NEAR RAILWAY GATE NO NEAR RAILWAY GATE NO NEAR RAILWAY GATE NO.2, .2,.2, .2, GOPALPURA ROAD, GOPALPURA ROAD, GOPALPURA ROAD, GOPALPURA ROAD, SUJANGARH, SUJANGARH, SUJANGARH, SUJANGARH, CHURU. CHURU. CHURU. CHURU. PAN : AGRPG1852F. PAN : AGRPG1852F. PAN : AGRPG1852F. PAN : AGRPG1852F. VS. VS. VS. VS. INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, INCOME TAX OFFICER, WARD WARD WARD WARD- -- -2, 2, 2, 2, CHURU. CHURU. CHURU. CHURU. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE. RESPONDENT BY : SHRI S.L. MAURYA, D.R. DATE OF HEARING : 03.09.2015 03.09.2015 03.09.2015 03.09.2015 DATE OF PRONOUNCEMENT: 04.09.2015 04.09.2015 04.09.2015 04.09.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT : :: : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEA R 2009-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-III, J AIPUR DATED 12 TH MARCH, 2014. 2. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE-APPELLANT. THE NOTICE OF HEARING SENT BY REGISTERED POST HAS BEEN RETURNED BY THE POSTAL AUTHORITIES WITH THE RE MARK LEFT. IN THESE FACTS, WE PROCEED TO DECIDE THE ASSESSEES APPEAL E X PARTE QUA THE ASSESSEE-APPELLANT ON MERITS AFTER HEARING THE LEAR NED DR. 3. GROUND NOS.1 & 2 OF THE ASSESSEES APPEAL READ A S UNDER:- ITA-263/JODH/2014 2 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ACTIO N OF THE LD.AO IN REJECTING THE BOOKS OF ACCOUNTS BY INV OKING THE PROVISIONS OF SECTION 145(3) OF THE INCOME TAX ACT, 1961 AND THEREAFTER CONFIRMING THE TRADING ADDITION OF RS.8,065/- OUT OF THE TOTAL TRADING ADDITION OF RS.79,645/- MADE BY THE LD.AO. THE ACTION OF LD.CI T(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY ACCEPTIN G THE BOOK RESULTS AND DELETING THE ADDITION OF RS.8, 065/-. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD.CIT(A) HAS ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCES PRODUCED DURING THE COURSE OF APPELLATE PROCEEDINGS. THE ACTION OF THE LD.CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FAC TS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY CONSIDERING THE ADDITIONAL EVIDENCES WHILE DISPOSING OFF THE APPEAL . 4. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESS ING OFFICER AND THE LEARNED CIT(A). 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR AND HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). WE FIND THAT OUT OF THE TRADING ADDITION OF `79,645/- MADE BY THE ASSESSING OFFICER, LEARNED CIT(A) HAS ALLOWED SUBSTANTIAL REL IEF TO THE ASSESSEE AND ONLY ADDITION OF `8,065/- HAS BEEN SUSTAINED. IN THE FACTS OF THE CASE, THE ACCOUNT BOOKS OF THE ASSESSEE WERE RIGHTL Y REJECTED BY THE DEPARTMENT AND THE NET PROFIT RATE OF 4% HAS BEEN A PPLIED, WHICH IS QUITE REASONABLE AND SUBSTANTIAL RELIEF HAS BEEN AL LOWED BY THE LEARNED CIT(A) AND THERE BEING NO MERIT IN THE GROUNDS OF A PPEAL NO.1 & 2 OF THE ASSESSEE, THE SAME ARE DISMISSED. 6. GROUND NO.3 OF THE ASSESSEES APPEAL READS AS UN DER:- ITA-263/JODH/2014 3 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ACTIO N OF THE LD.AO IN ADDING THE UNSECURED LOAN OF RS.1,38,0 00/- AS UNEXPLAINED CREDIT U/S 68 OF THE INCOME TAX ACT, 1961. THE ACTION OF LD.CIT(A) IS ILLEGAL, UNJUSTIF IED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIE F MAY PLEASE BE GRANTED BY TREATING THE LOAN AS GENUINE A ND DELETING THE ADDITION OF RS.1,38,000/-. 7. LEARNED DR SUBMITTED THAT THE ASSESSEE HAS FAILE D TO PRODUCE THE CREDITORS AND THE CREDITWORTHINESS OF THE CREDI TORS WAS NOT PROVED BY THE ASSESSEE. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR AND HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). WE FIND THAT THE ASSESSEE HAS SUBMITTED THE CONFIRMATI ON OF THE CREDITOR PARTY M/S RAJA MUSIC CENTRE AND THAT THE AMOUNT OF LOAN WAS RECEIVED AS PER ACCOUNT PAYEE CHEQUE. THE ASSESSEE HAS CLAI MED THAT IT HAS FURNISHED THE NAME AND ADDRESS OF THE LENDER, THE A CCOUNT PAYEE CHEQUE NUMBERS AND THAT INTEREST WAS DEBITED TO THE LOAN ACCOUNT AND TRANSACTIONS WERE DULY REFLECTED IN THE BANK STATEM ENT FILED BEFORE THE ASSESSING OFFICER. WE FIND THAT THE LEARNED CIT(A) HAS CONFIRMED THE ADDITION ON THE PLEA THAT THE ASSESSING OFFICER HAS REQUIRED THE ASSESSEE TO PRODUCE THE CREDITOR FOR EXAMINATION AN D THAT THE ASSESSEE HAS FILED ONLY CONFIRMATION OF THE CREDITO R AND THERE WAS NO MENTION OF PERMANENT ACCOUNT NUMBER THEREON AND THA T THE ONUS WAS ON THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRA NSACTION OF LOAN. WE FIND THAT THE ASSESSEE HAS FILED THE NAME AND CO MPLETE ADDRESS OF THE LENDER, THE ACCOUNT PAYEE CHEQUE NUMBERS AND TH E BANK STATEMENT WAS FILED BEFORE THE ASSESSING OFFICER. THE INTEREST AMOUNT WAS DEBITED TO THE LOAN ACCOUNT WHICH WAS EVIDENT F ROM THE CONFIRMATION FILED ON RECORD. WE FIND THAT ALTHOUG H THE ASSESSEE HAS FAILED TO PRODUCE THE CREDITOR FOR EXAMINATION BUT NO FURTHER ENQUIRY IN ITA-263/JODH/2014 4 THIS REGARD WAS MADE BY THE ASSESSING OFFICER AND T HE CREDITOR PARTY WAS NOT SUMMONED BY THE ASSESSING OFFICER FOR RECOR DING ITS STATEMENT ETC. CONSIDERING THE FACTS AND CIRCUMSTANCES OF TH E CASE, WE ARE OF THE VIEW THAT THE INITIAL ONUS ON THE ASSESSEE TO P ROVE THE GENUINENESS OF THE CREDIT ENTRY HAS BEEN DISCHARGED BY THE ASSE SSEE AND IN THE ABSENCE OF ANY FURTHER ENQUIRY MADE BY THE ASSESSIN G OFFICER, WE HOLD THAT THE ADDITION MADE U/S 68 COULD NOT BE SUSTAINE D AND IS ACCORDINGLY DELETED. GROUND NO.3 OF THE ASSESSEES APPEAL IS ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 04.09.2015 . SD/- SD/- ( (( ( R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA ) )) ) (G. (G. (G. (G. C. GUPTA C. GUPTA C. GUPTA C. GUPTA ) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : SHRI ASHOK KUMAR GULERIYA, SHRI ASHOK KUMAR GULERIYA, SHRI ASHOK KUMAR GULERIYA, SHRI ASHOK KUMAR GULERIYA, NEAR RAILWAY GATE NO.2, NEAR RAILWAY GATE NO.2, NEAR RAILWAY GATE NO.2, NEAR RAILWAY GATE NO.2, GOPALPURA ROAD, SUJANGARH, CHURU. GOPALPURA ROAD, SUJANGARH, CHURU. GOPALPURA ROAD, SUJANGARH, CHURU. GOPALPURA ROAD, SUJANGARH, CHURU. 2. RESPONDENT : INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD INCOME TAX OFFICER, WARD- -- -2, CHURU. 2, CHURU. 2, CHURU. 2, CHURU. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR