Pradeep Jindal, New Delhi V. ACIT, Circle-40(1), New Delhi

ITA 2634/DEL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6936 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 26-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: K SAMPATH SHRI V RAJA KUMAR
• Keywords: Unexplained cash credit; Set aside
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.2634/DEL/2019 ASSESSMENT YEAR: 2014-15 PRADEEP JINDAL, PROP. PRADEEP IMPEX, C/O KAPIL GOEL, ADVOCATE, F-26/124, SECTOR-7, ROHINI, NEW DELHI. V. ACIT, CIRCLE-40(1), NEW DELHI. TAN/PAN: AEPPJ 2814L (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K. SAMPATH, ADVOCATE, SHRI V. RAJAKUMAR, ADVOCATE RESPONDENT BY: SHRI SURENDER PAL, SR.D.R. DATE OF HEARING: 25 07 2019 DATE OF PRONOUNCEMENT: 30 07 2019 O R D E R PER AMIT SHUKLA, JUDICIAL MEMBER THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 21.01.2019, PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-XIV, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3) FOR THE ASSESSMENT YEAR 2014-15. IN VARIOUS GROUNDS OF APPE AL, THE ASSESSE HAS MAINLY CHALLENGED THE ADDITION MADE U/S .68 ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF RS.1,78,65,00 0/- RECEIVED FROM ONE PERSON, NAMELY, MR. JYOTI CHAWLA. I.T.A. NO.2634/DEL/2019 2 2. FROM THE PERUSAL OF THE IMPUGNED ORDER, IT IS SEEN THAT LD. CIT (A) HAS PASSED AN EX-PARTE ORDER. HOWE VER, BEFORE US LD. COUNSEL HAS SUBMITTED WRITTEN SUBMISSION ALO NG WITH ALL THE DETAILS FURNISHED BEFORE THE LD. CIT(A). 3. THE FACTS IN BRIEF ARE THAT ASSESSE HAD SHOWN UNSECURED LOAN OF RS.1,71,89,000/- ON THE FOLLOWING PARTIES. SR. NO. NAME OF PARTY CLOSING BALANCE AS ON 31.03.2014 1. J.B. JINDAL 17,19,900/- 2. NIMBUS SALES CORPORATION 1,47,10,000/- 3. URMILA JINDAL 7,60,000/- TO VERIFY THE GENUINENESS AND CREDITWORTHINESS OF THE PARTIES, ASSESSING OFFICER CALLED AN EXPLANATION U/ S.133(6) FROM ALL THE PARTIES AND IN RESPONSE TO WHICH ONLY MR. J.B. JINDAL AND MRS. URMILA JINDAL RESPONDED TO THE NOTI CES AND NO INFORMATION WAS RECEIVED FROM M/S. NIMBUS SALES CORPORATION. THE ASSESSE HAS GIVEN DETAILS OF ONE P ERSON, MR. JYOTI CHAWLA AND BANK ACCOUNT STATEMENT OF HER PROP RIETARY CONCERN, M/S. NIMBUS SALES CORPORATION. ON PERUSAL OF THESE DOCUMENTS AND BANK ACCOUNT STATEMENT OF MR. JYOTI C HAWLA, PROPRIETOR, M/S. NIMBUS SALES CORPORATION, HE NOTED THAT SIMILAR AMOUNT OF CASH HAS BEEN DEPOSITED IN THE AC COUNT OF M/S. NIMBUS SALES CORPORATION BEFORE IT WAS TRANSFE RRED TO THE ASSESSE. HE HAS FURTHER NOTED THAT MR. JYOTI CH AWLA NEVER RESPONDED TO THE NOTICES U/S. 133(6) NOR HE APPEARE D IN RESPONSE TO THE SUMMONS U/S.131 OF THE ACT. ACCORDI NGLY, HE TREATED THE AMOUNT RECEIVED FROM M/S. NIMBUS SALES CORPORATION AS UNEXPLAINED. I.T.A. NO.2634/DEL/2019 3 5. LD. CIT (A) TOO HAS CONFIRMED THE SAID ADDITION AFTER OBSERVING AND HOLDING AS UNDER: 5. IN THE WRITTEN SUBMISSIONS THE ASSESSEE CLAIMED THAT SINCE HE FURNISHED THE ADDRESS AND PAN OF MR. JYOTI CHDWLA A ND ONUS U/S 68 HAS BEEN DISCHARGED. THE SAID CONTENTION CANNOT BE ACCEPTED AS THE ONUS U/S 68 WAS ON THE ASSESSEE IN RESPECT OF LOAN CLAIMED TO HAVE BEEN TAKEN BY THE ASSESSEE. MERE FURNISHING OF PAN ON ADDRESS OF THE LENDER DOES NOT AMOUNT TO DISCHARGE OF ONUS U/S 68. IT NEEDS TO BE MENTIONED THAT IN THE BANK ACCOUNT OF NIMBUS SALES CORPORATION, THERE HAVE BEEN CASH DEPOSITS IMMEDIATELY BEFORE TH E ISSUE OF CHEQUES OF LOAN TO THE ASSESSEE, WHICH PUTS A QUEST ION MARK ON THE GENUINENESS OF TRANSACTIONS AND CREDIT WORTHINESS O F THE CLAIMED LENDER. IN VIEW OF THE SAME VARIOUS CASE LAWS RELIE D UPON BY THE ASSESSEE ARE DISTINGUISHABLE. THE AMOUNT RECEIVED' FROM NIMBUS SALES' CORPORATION HAS BEEN SHOWN AS UNSECURED LOAN S IN THE BALANCE SHEET. BUT IN THE WRITTEN SUBMISSION DATED 14.12.20 16 ADDRESSED TO THE AO AND COPY FILED IN THE PAPER BOOK IT IS CLAIM ED THAT THE AMOUNT WAS RECEIVED AGAINST THE SUPPLY OF GOODS. HOWEVER, THIS CLAIM HAS ALSO NOT BEEN ESTABLISHED. THE PRESENT STATUS OF TH E SAID AMOUNT I.E. WHETHER THE AMOUNT HAS BEEN REPAID OR WHETHER ANY G OODS WERE SOLD HAS ALSO NOT BEEN EXPLAINED OR ESTABLISHED. THOUGH IN THE GROUNDS OF APPEAL ONLY THE ADDITION O N MERITS HAS BEEN HAS ALSO NOT BEEN EXPLAINED OR ESTABLISHED WHETHER ANY INTEREST WAS PAID TO NIMBUS SALES CORPORATION. CONSIDERING THE S AME, NON- COMPLIANCE OF THE ASSESSEE IN THE APPELLATE PROCEED INGS, IN SPITE OF SEVERAL OPPORTUNITIES GIVEN, THE ADDITION MADE IS C ONFIRMED. 6. BEFORE US, LD. COUNSEL FOR THE ASSESSE SUBMITTED THAT APART FROM ALL THE DOCUMENTARY EVIDENCE ASSESSE HAD FILED AFFIDAVIT OF MR. JYOTI CHAWLA AND ALSO ON STATEMENT RECORDED I.T.A. NO.2634/DEL/2019 4 ON OATH BY THE ASSESSING OFFICER ON 21.12.2017 WHIC H WAS FOR THE SUBSEQUENT ASSESSMENT PROCEEDINGS, WHEREIN HE H AS ACCEPTED THE LOAN GIVEN TO THE ASSESSE AND ASSESSIN G OFFICER IN THE ASSESSMENT ORDER PASSED U/S. 143(3) FOR THE ASSESSMENT YEAR 2015-16 HAS ACCEPTED THE GENUINENES S OF LOAN. THUS, HE SUBMITTED THAT MATTER CAN BE RESTORE D BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISS UE IN THE LIGHT OF FACT THAT IN SUBSEQUENT ASSESSMENT PROCEEDINGS S IMILAR NATURE OF LOAN FROM THE SAME PARTIES HAS BEEN ACCEP TED AFTER EXAMINING THE DEBTOR ON OATH. 7. ON THE OTHER HAND, LD. DR HAS STRONGLY RELIED UP ON THE ORDER OF THE AO AND LD. CIT (A) AND HAS POINTED OUT THAT IN CASE MATTER IS RESTORED BACK TO THE ASSESSING OFFIC ER THEN CREDITOR SHOULD BE DIRECTED TO BE PRODUCED BEFORE T HE AO. 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ON PERUSAL OF THE MATERIAL PLACED ON RECORD, WE FIND T HAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THOUGH ASSESSE HAD FILED VARIOUS DOCUMENTS AND EVIDENCES, HOWEVER THE LD. AO HAS MAINLY MADE THE ADDITION ON THE GROUND THAT CRE DITOR DID NOT RESPOND IN RESPONSE TO THE NOTICES U/S. 133(6) AND SUMMONS ISSUED U/S.131. BEFORE US, IT HAS BEEN SUBM ITTED BY THE LD. COUNSEL THAT IN THE SUBSEQUENT ASSESSMEN T PROCEEDINGS THE SAME CREDITOR MR. JYOTI CHAWLA WAS PRODUCED AND HIS STATEMENT WAS RECORDED, THE GENUINENESS AND THE CREDITWORTHINESS OF THE LOAN GIVEN BY THE SAME PERS ON HAVE BEEN ACCEPTED. IN VIEW OF THESE FACTS AND MATERIAL ON RECORD, I.T.A. NO.2634/DEL/2019 5 WE ARE OF THE OPINION THAT THIS MATTER SHOULD BE RE MANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THIS ISSUE AFRESH AND ASSESSE SHALL PRODUCE THE CREDITOR BEFOR E THE ASSESSING OFFICER IN RESPONSE TO THE SUMMONS ISSUED U/S.131 AND ASSESSING OFFICER AFTER EXAMINING THE SAME AND OTHER EVIDENCES ON RECORD SHALL DECIDE THE ISSUE IN ACCOR DANCE WITH LAW. THUS, THE ISSUE OF ADDITION OF RS.1,78,65,000/ - IS SET ASIDE AND MATTER IS REMANDED BACK TO THE FILE OF TH E AO TO BE DECIDED A FRESH AND IN ACCORDANCE WITH LAW AFTER GI VING DUE AND EFFECTIVE OPPORTUNITY OF HEARING TO THE ASSESSE . 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JULY, 2019. SD/- SD/- [PRASHANT MAHARISHI] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH JULY, 2019 PKK