M/s. R.K. Enterprises, Raigad V. Income-tax Officer,

ITA 277/PUN/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2929 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 05-01-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 13-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Keywords: Unexplained cash credit; Deemed dividend
• Section: 143(3); 194C; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA , AM . / ITA NO. 277 /PN/201 4 / ASSESSMENT YEAR : 20 0 7 - 0 8 M/S. R.K. ENTERPRISES, SHOP NO.1, POOJA COMPLEX, NEW PANVEL, DIST. RAIGAD. . / APPELLANT PAN: AA IFR1626D VS. THE INCOME TAX OFFICER , WARD - 2, PANVEL . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 05 . 0 1 .201 6 / DATE OF PRONOUNCEMENT: 27 . 0 1 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT (A) - I , THANE , DATED 17 . 1 0 .20 1 3 RELATING TO ASSESSMENT YEAR 20 0 7 - 0 8 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. DESPITE SERV ICE OF NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY APPLICAT ION WAS MOVED FOR ADJOURNMENT, HENCE, WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 2 3. THE ASSESSEE HAS RAISED SEVERAL G ROUNDS OF APPEAL , WHICH READ AS UNDER : - 1 . IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING DISALLOWANCE RS.86,550 / - OUT OF THE TOTAL DISALLOWANCE OF RS.1,58,050 / - BY APPLYING THE PROVISIONS OF SECTION 40(A)(IA) IN RESPECT OF COMMISSION PAID ON THE ALLEGED GROUND THAT THE SAID PAYMENT IS COVERED U / S 194H OF THE INCOME TAX ACT, 1961. 2. REASONS GIVEN BY A.O. FOR CONFIRMING DISALLOWANCE OF RS.1,58,050 / - OUT OF THE TOTAL DISALLOWANCE OF RS.1,58,050 / - BY APPLYING TH E PROVISIONS OF SECTION 40(A)(IA) IN RESPECT OF COMMISSION PAID ON THE ALLEGED GROUND THAT THE SAID PAYMENT IS COVERED U / S 194H OF THE INCOME TAX ACT, 1961, ARE WRONG INSUFFICIENT AND CONTRARY TO THE FACTS AND EVIDENCE ON RECORD. 3. IN THE FACTS AND CIRCU MSTANCES OF THE CASE AND IN LAW LEARNED CIT(A) ERRED IN CONFIRMING DISALLOWANCE OF RS.8,17,741/ - MADE BY THE A.O. BY APPLYING THE PROVISIONS OF SECTION 40(A)(IA) IN RESPECT OF PAYMENT MADE TO THE LABOURER ON THE ALLEGED GROUND THAT THE SAID PAYMENT IS COVE RED U /S 194C OF THE INCOME TAX ACT , 1961. 4 . REASONS GIVEN BY CIT(A) FOR CONFIRMING DISALLOWANCE OF RS.8,17,741/ - MADE BY THE A. O. BY APPLYING THE PROVISIONS OF SECTION 40(A)(IA) IN RESPECT OF PAYMENT MADE TO THE LABOURERS ON THE ALLEGE D GROUND THAT TH E SAID PAYMENT IS COVERED U / S 194C OF THE II1C9JNE TAX 1961, ARE WRONG INSUFFICIENT AND CONTRARY TO THE FACTS AND EVIDENCE ON RECORD . 5 . IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION MADE BY THE A.O. BY TREATING A SUM OF RS.2,01,884 AS A DEEMED DIVIDEND AND THEREBY ADDING THE SAME TO THE TOTAL INCOME WITHIN THE MEANING OF SEC 2(22)(E) . SAME TO THE TOTAL INCOME WITHIN THE MEANING OF SEC 2(22)(E) . 6 . REASONS GIVEN BY THE LEARNED CIT(A) IN CONFIRMING THE ADDITION MADE BY THE A.O. BY TREATING A SUM OF RS.2,01 ,884 / - AS A DEEMED DIVIDEND AND THEREBY ADDING THE SAME TO THE TOTAL INCOME WITHIN THE MEANING OF SEC 2(22)(E), ARE WRONG INSUFFICIENT AND CONTRARY TO THE FACTS AND EVIDENCE ON RECORD. 7 . IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING DISALLOWANCE MADE BY THE A.O. OF RS. 5,00,000 / - BEING LOAN TAKEN FROM DURVESH CONSTRUCTION COMPANY AND TREATING THE SAME AS UNEXPLAINED CASH CREDIT BY INVOKING THE PROVISIONS OF SEC 68 OF THE INCOME TAX ACT, 1961. 8 . REASONS GIV EN BY THE CIT(A) FOR CONFIRMING THE DISALLOWANCE MADE BY A.O. OF RS.5,00,000 / - BEING LOAN TAKEN FROM DURVESH CONSTRUCTION COMPANY AND TREATING THE SAME AS UNEXPLAINED CASH CREDIT BY INVOKING THE PROVISIONS OF SEC 68 OF THE INCOME TAX ACT, 1961, ARE WRONG I NSUFFICIENT AND CONTRARY TO THE FACTS AND EVIDENCE ON RECORD. 9. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN CONFIRMING DISALLOWANCE MADE BY A.O. OF RS.67,500/ - ON ACCOUNT OF GROSS RECEIPTS WHICH WERE OFFERED FOR TAXA TION IN THE SUBSEQUENT ASSESSMENT YEAR. 10 . REASONS GIVEN BY THE CIT(A) FOR CONFIRMING DISALLOWANCE MADE BY A.O. OF RS.67,500 / - ON ACCOUNT OF GROSS RECEIPTS W HICH WERE OFFERED FOR TAXATION IN THE SUBSEQUENT ASSESSMENT YEAR, ARE WRONG INSUFFICIENT AND CONT RARY TO THE FACTS AND EVIDENCE ON RECORD. ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 3 11 . THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, MODIFY OR OMIT ANY OF THE AFORESAID GROUNDS OF APPEAL AS OCCASION MAY ARISE OF DEMAND. 4 . IN RESPECT OF GROUNDS OF APPEAL NO.1 AND 2 RAISED BY THE ASSESSEE, TH ERE IS NOTING ON ONE OF EARLIER HEARING THAT THE GROUNDS OF APPEAL NO.1 AND 2 ARE NOT PRESSED. IN ANY CASE, THE ISSUE RAISED VIDE GROUNDS OF APPEAL NO.1 AND 2 IS AGAINST THE DISALLOWANCE OF RS.1,58,050/ - FOR NON - DEDUCTION OF TAX OUT OF COMMISSION PAID . B Y APPLYING PROVISIONS OF SECTION 40(A)(IA) OF THE ACT , THE SAID AMOUNT WAS DISALLOWED FOR NON - DEDUCTION OF TDS. IN VIEW OF THE ASSESSEE HAVING NOT PRESSED THE GROUNDS OF APPEAL NO.1 AND 2 IN THE EARLIER ROUND OF HEARING AND IN VIEW OF THE ISSUE INVOLVED, WE DISMISS THE GROUNDS OF APPEAL NO.1 AND 2 AS NOT PRESSED. 5. THE GROUNDS OF APPEAL NO.3 AND 4 RAISED BY THE ASSESSEE IS AGAINST THE DISALLOWANCE OF RS. 8,17,741/ - OUT OF PAYMENTS MADE TO THE LABOURERS. THE SAID AMOUNT WAS DISALLOWED BY THE ASSESSING OFF ICER FOR NON - DEDUCTION OF TAX AT AMOUNT WAS DISALLOWED BY THE ASSESSING OFF ICER FOR NON - DEDUCTION OF TAX AT SOURCE AND APPLYING THE PROVISIONS OF SECTION 194C OF THE ACT, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE SAID AMOUNTS WERE SUBJECT ED TO TAX DEDUCTION AT SOURCE AND BECAUSE OF NON - DEDUCTION, THE AMOUNTS WERE NOT A LLOWAB LE UNDER SECTION 40(A)(IA) OF THE ACT. 6. BRIEFLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE WAS A PARTNERSHIP FIRM CARRYING THE BUSINESS OF BUILDERS & DEVELOPERS IN AND AROUND PANVEL AREA. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCE EDINGS NOTED FROM T HE DETAILS OF SALARY AND WAGES THAT IN INCLUDES LABOUR CHARGES OF RS. 17,55,902/ - TO THE LABOUR AND RS.3,33,150/ - TO CASUAL LABOURS. FROM THE LABOUR - WISE DETAILS, IT WAS SEEN THAT THE AMOUNTS WERE PAID TO VARIOUS PERSONS AND IN RESPECT O F TWO PERSONS I.E. PAYMENT MADE TO AIER OF RS.61,500/ - AND ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 4 PAYMENT MADE TO SATYAM ENTERPRISES OF RS. 7,56,241/ - , AGGREGATING TO RS. 8,17,741/ - ATTRACTED THE TDS PROVISIONS. SINCE THE ASSESSEE HAD NOT DEDUCTED TAX AT SOURCE , THE LEARNED AUTHORIZED REPRESENTA TIVE FOR THE ASSESSEE WAS REQUESTED TO EXPLAIN AS TO WHY THE DISALLOWANCE ON LABOUR CHARGES SHOULD NOT BE MADE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AGREED FOR THE DISALLOWANCE AND AN ADDITION OF RS. 8,17,741/ - WAS MADE IN THE HANDS OF AS SESSEE. 7. THE CIT(A) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER DISMISSING THE PLEA OF THE ASSESSEE THAT RELIEF WAS ALLOWABLE SINCE TAX DEDUCTION PROVISIONS WERE NOT APPLICABLE IN RESP ECT OF THE AMOUNTS ALREADY PAID, BUT WERE APPLICABLE ONLY ON TH E AMOUNT WHICH WAS PAYABLE AT THE END OF THE YEAR. 8. THOUGH THE ASSESSEE DID NOT APPEAR BEFORE US, BUT HAS FILED WRITTEN 8. THOUGH THE ASSESSEE DID NOT APPEAR BEFORE US, BUT HAS FILED WRITTEN SUBMISSIONS ALONG WITH PAPER BOOK. 9. THE PERUSAL OF THE WRITTEN SUBMISSIONS REFLECT THAT IN RESPECT OF THE AFORESAID GROUNDS OF APPEAL, SIMILAR SUBMISSIONS AS BEFORE THE CIT(A) ARE MADE. WE FIND NO MERIT IN THE SUBMISSIONS OF THE ASSESSEE THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE APPLICABLE ONLY TO THE AMOUNTS WHICH ARE OUTSTANDING OR REMAINING PAYABLE AT THE END OF EVERY YEAR I.E. 31 ST MARCH. THE PUNE BENCH OF TRIBUNAL HAS CONSISTENTLY TAKEN A VIEW THAT THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT ARE APPLICABLE TO THE AMOUNTS IRRESPECTIVE OF WHETHER THE SAME WERE PAID DURING THE YEAR OR WERE OUTSTANDING AT THE C LOSE OF THE YEAR . IN THE ABSENCE OF ANY JUSTIFICATION FOR NON - DEDUCTION OF TDS OUT OF SUB - CONTRACT PAYMENTS AND IN VIEW OF ADMISSION OF THE ASSESSEE BEFORE THE ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 5 ASSESSING OFFICER, WE UPHOLD THE ADDITION OF RS. 8,17,741/ - . THE GROUNDS OF APPEAL NO.3 AND 4 R AISED BY THE ASSESSEE ARE THUS, DISMISSED. 10. THE ISSUE IN GROUNDS OF APPEAL NO.5 AND 6 RAISED BY THE ASSESSEE IS AGAINST THE ADDITION OF RS. 2,01,884/ - AS DEEMED DIVIDEND BY APPLYING THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT. 11. BRIEFLY, IN THE FAC TS RELATING TO THE ISSUE, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS TAKEN LOAN FROM R.K. BUILDERS AND DEVELOPERS PVT. LTD., M/S. R.K. GROUP BUILDERS AND DEVELOPERS PVT. LTD., WHICH WAS A COMPANY IN WHICH SHRI R.K. KOLEKAR HAD SUBSTANTIAL INTEREST. APPLYING THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT AND SINCE THE COMPANY M/S. R.K. GROUP BUILDERS AND DEVELOPERS PVT. LTD. HAD RESERVES AND SURPLUS AS ON 31.03.2007 AMOUNTING TO RS. 2,01,884/ - , THE LOAN TO THE EXTENT OF RS.2,01,884/ - WAS ADDED AS INCOME OF THE ASSESSEE. THE ASSESSEE. 12. THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER, AGAINST WHICH THE ASSESSEE IS IN APPEAL. 13. ON PERUSAL OF THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE, WE FIND THAT THERE WAS AN OUTSTANDING CLOSING BALANCE OF RS. 14,79,043/ - OF LOAN TAKEN BY THE ASSESSEE I.E. PARTNERSHIP FIRM FROM R.K. BUILDERS AND DEVELOPERS PVT. LTD. ADMITTEDLY, BOTH THE PARTNERS MR. SANJAY KOLKAR AND MR. RAJENDRA KOLKAR WERE THE SHAREHOLDERS OF THE SAID PRIVATE LIMITED COMPANY. THE SAID COMPANY HAD RESERVES AND SURPLUS TO THE EXTENT OF RS.2,01,884/ - . THE ISSUE ARISING IN THE PRESENT GROUNDS OF APPEAL IS WHETHER IN SUCH CIRCUMSTANCES, THE AMOUNT ADVANCED TO THE ASSESSEE COULD BE TREATED AS DEEMED DIVIDEND UNDER SECTION 2(22)(E) OF THE ACT. THE ASSESSEE IS A PARTNERSHIP FIRM, BUT IS NOT A REGISTERED ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 6 SHAREHOLDER OF THE SAID PRIVATE LIMITED COMPANY, ONLY ITS PARTNERS WERE THE SHAREHOLDERS / DIRECTORS OF THE SAID COMPANY. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN THE WRITTEN SUBMISSIONS HAS MADE REFERENCE TO THE DECISION OF MUMBAI SPECIAL BENCH OF TRIBUNAL IN ACIT VS. BHUMIK COLOUR PVT. LTD. REPORTED IN 27 SOT 17 AND POINTED OUT THAT THE PROVISIONS OF SECTION 2(22)(E) OF THE ACT ARE APPLICABLE ONLY IN THE HANDS OF THE PERSON , WHO IS THE SHAREHOLD ER OF LENDER COMPANY. SINCE THE ASSESSEE IS NOT THE REGISTERED SHAREHOLDER OF THE SAID COMPANY, WE FIND NO MERIT IN THE AFORESAID ADDITION MADE IN THE HANDS OF THE ASSESSEE. REVERSING THE ORDER OF CIT(A), WE ALLOW THE GROUNDS OF APPEAL NO.5 AND 6 RAISED BY THE ASSESSEE. 14. COMING TO THE ISSUE IN GROUNDS OF APPEAL NO.7 AND 8, WHICH IS AGAINST THE ADDITION OF RS.5 LAKHS ON ACCOUNT OF CASH CREDIT BY INVOKING THE PROVISIONS OF SECTION 68 OF THE ACT. 15. BRIEFLY, IN THE FACTS RELATING TO THE ISSUE, THE ASSE SSEE HAD RECEIVED SUM OF RS.5 LAKHS FROM MR. S.R. SHARMA, SOLE PROPRIETOR OF DURVESH CONSTRUCTION CO. THE ASSESSEE FURNISHED LOAN CONFIRMATION OF THE SAID PARTY AND POINTED OUT BEFORE THE ASSESSING OFFICER THAT THOUGH DURING THE YEAR, THE ASSESSEE HAD REC EIVED LOAN OF RS.5 LAKHS BUT THE SAID AMOUNT WAS ADJUSTED TOWARDS OPENING LOAN BALANCE OF RS. 2 , 57,500/ - , WHICH WAS TAKEN BY MR. S.R. SHARMA IN EARLIER YEARS AND BALANCE OF RS.2,42, 5 00/ - WAS SHOWN AT THE CLOSE OF THE YEAR. THE ASSESSEE FILED CONFIRMATION F ROM THE CASH CREDITOR. THE ASSESSING OFFICER DEPUTED HIS INSPECTOR TO VERIFY THE IDENTITY OF THE CREDITOR, WHO IN TURN, REPORTED THAT NO SUCH PERSON EXISTED AT THE GIVEN ADDRESS. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE PARTY OR TO PRODUCE HIS P RESENT ADDRESS SO THAT THE GENUINENESS OF THE LOAN COULD BE VERIFIED. SINCE THE ASSESSEE NEITHER ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 7 PRODUCED SUCH PERSON NOR ANY NEW ADDRESS, THE ASSESSING OFFICER ADDED SUM OF RS.5 LAKHS UNDER SECTION 68 OF THE ACT. 16. BEFORE T HE CIT(A), THE CLAIM O F THE ASSESSEE WAS THAT THOUGH IT HAD RECEIVED SUM OF RS.5 LAKHS FROM MR. S.R. SHARMA, BUT SUM OF RS.2,57,500/ - WAS ADJUSTED AGAINST THE LOAN OUTSTANDING AND THE BALANCE AMOUNT OF RS.2,42, 5 00/ - WAS LOAN TAKEN DURING THE YEAR. THE SUBMISSIONS OF THE ASSESS EE WERE FORWARDED TO THE ASSESSING OFFICER, WHO IN HIS REMAND REPORT DATED 04.03.2013 STATED THAT THOUGH THE ASSESSEE IN THE REMAND PROCEEDINGS CLAIMED THAT HE WOULD PRODUCE THE BANK STATEMENT OF THE LOAN CREDITOR, BUT NO SUCH STATEMENT WAS SUBMITTED AND T HE INSPECTOR WAS DEPUTED TO SERVE SUMMONS UNDER SECTION 131 OF THE ACT FOR EXAMINATION. HOWEVER, IT WAS REPORTED BY HIM THAT NO SUCH PERSON EXISTED AT THE GIVEN ADDRESS. THE ASSESSING OFFICER IN THE REMAND REPORT THUS, STATED THAT NEITHER AT THE TIME OF ASSESSMENT PROCEEDINGS NOR DURING THE REMAND PROCEEDINGS, THE ASSESSEE ASSESSMENT PROCEEDINGS NOR DURING THE REMAND PROCEEDINGS, THE ASSESSEE COULD PROVE THE IDENTITY OF THE SO - CALLED LOAN CREDITOR OR THE CORRECT ADDRESS OF THE SAID PERSON, HENCE, MERITS TO BE UPHELD. THE CIT(A) REJECTED THE EXPLANATION OF THE ASSESSEE, IN V IEW OF THE REMAND REPORT AND ALSO DID NOT ACCEPT THE ALTERNATE PLEA OF THE ASSESSEE THAT THE ADDITION SHOULD BE RESTRICTED TO RS.2,42,500/ - , SINCE THE ASSESSEE HAD FAILED TO BRING ON RECORD ANY EVIDENCE TO SHOW WHEN THE LOAN WAS ADVANCED TO MR. S.R. SHARMA AND WHETHER THE SAME WAS REFLECTED IN ASSESSEES BOOKS OF ACCOUNT OR NOT. ACCORDINGLY, ADDITION OF RS.5 LAKHS WAS CONFIRMED . 17. ON PERUSAL OF RECORD AND WRITTEN SUBMISSIONS FILED BY THE ASSESSEE, THE CONTENTION OF THE ASSESSEE WAS THAT THE ASSESSEE REQ UESTED THE ASSESSING OFFICER TO VERIFY THE CORRECTNESS OF THE SAID LOAN TRANSACTION FROM MR. S.R. ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 8 SHARMA AS HE WAS BEDRIDDEN FOR THE LAST SIX MONTHS. THE ASSESSING OFFICER REJECTING THE EXPLANATION OF THE ASSESSEE , MADE AN ADDITION OF RS.5 LAKHS BY INVOKI NG PROVISIONS OF SECTION 68 OF THE ACT. THE ASSESSEE HAS PLACED ON RECORD THE LETTER FILED BEFORE THE ASSESSING OFFICER, IN WHICH IT IS REFLECTED THAT THE OPENING BALANCE OF LOAN ACCOUNT OF DURVESH CONSTRUCTION CO. WAS DEBIT BALANCE OF RS.2,57,500/ - AND R S.5 LAKHS WAS TRANSACTED DURING THE YEAR AND THE CLOSING BALANCE AS ON 31.03.2007 WAS RS.2,42,500/ - , COPY OF THE SAID LETTER IS PLACED AT PAGE 33 OF THE PAPER BOOK. FURTHER, A LETTER DATED 29.12.2009 IS ALSO PLACED ON RECORD, IN WHICH THERE IS NO REFERENC E TO THE SAID LOAN TRANSACTION. THE PERUSAL OF THE BALANCE SHEET FILED BY THE ASSESSEE, WHICH IS PLACED AT PAGE 13 OF THE PAPER BOOK REFLECTS THAT THE CLOSING BALA NCE AS ON 31.03.2007 WAS RS.2,42,500/ - I.E. THE AMOUNT DUE TO DURVESH CONSTRUCTION CO. THE CASE OF THE ASSESSEE BEFORE US IS LIMITED THAT IT HAD RECEIVED SUM OF RS.5 LAKHS FROM M/S. DURVESH CONSTRUCTION CO., OUT OF WHICH SUM OF RS.2,57,500/ - WAS THE LOAN DUE FROM THE SAID PERSON AND THE BALANCE OF RS.2,42,500/ - WAS THE LOAN OUTSTANDING AT THE CL OSE OF THE YEAR. THE ASSESSEE HAD ADMITTEDLY, RECEIVED RS.5 LAKHS FROM THE SAID PERSON AND HAD ONLY SHOWN THE BALANCE OF RS.2,42,500/ - IN THE BALANCE SHEET. IN THE ABOVE SAID FACTS AND CIRCUMSTANCES, WHERE THE ASSESSEE HAD ADVANCED SUM OF RS.2,57,500/ - I N THE PRECEDING YEAR TO MR. S.R. SHARMA, PROPRIETOR OF M/S. DURVESH CONSTRUCTION CO., THEN TO THE EXTENT OF SAID AMOUNT, LOAN IS EXPLAINED AS THE CREDITWORTHINESS CAN BE ACCEPTED TO THE EXTENT OF AMOUNT WHICH WAS ADVANCED BY THE ASSESSEE. HOWEVER, IN RESP ECT OF BALANCE OF RS. 2,42,500/ - , THE ASSESSEE HAS FAILED TO DISCHARGE HIS ONUS I.E. TO ESTABLISH THE CREDITWORTHINESS OF THE PERSON ADVANCED THE LOAN. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO RESTRICT THE DISALLOWANCE TO RS.2,42,500/ - . THUS, THE G ROUNDS OF APPEAL NO.7 AND 8 RAISED BY THE ASSESSEE ARE PARTLY ALLOWED. ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 9 18. COMING TO THE GROUNDS OF APPEAL NO.9 AND 10, THE ISSUE RAISED IS IN RESPECT OF ADDITION OF RS.67 , 500/ - BEING DIFFERENCE IN RECEIPTS. 19. THE ASSESSING OFFICER FROM THE EVIDENCES FURNISHED BY THE ASSESSEE NOTED THAT AS AGAINST THE AMOUNT DECLARED BY THE ASSESSEE AND SALES AS PER AGREEMENT VALUE OF DIFFERENT TRANSACTIONS VARIED , SUM OF RS. 67,500/ - WAS NOT TAKEN BY THE ASSESSEE FOR THE PURPOSE OF SALE. WHEN CONFRONTED, THE LEARNED A UTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE SAID AMOUNT WAS OFFERED TO TAXATION IN THE NEXT YEAR, BUT THE ASSESSEE FAILED TO FURNISH THE DOCUMENTARY EVIDENCE IN THIS REGARD AND HENCE, THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. 20 . THE CIT(A) UPHELD THE AFORESAID ADDITION REJECTING THE PLEA OF THE ASSESSEE THAT AGAINST THE SALE OF PLOTS TO VARIOUS PROSPECTIVE BUYERS, HE HAD YET TO RECEIVE THE PORTION OF SALE CONSIDERATION BECAUSE OF CERTAIN DISPUTES . YET TO RECEIVE THE PORTION OF SALE CONSIDERATION BECAUSE OF CERTAIN DISPUTES . THE ASSESSEE HAD ALSO CLAIMED THAT HE HAD BOOKED THE BALANCE SALE CONSIDERATION IN THE SUBSEQUENT ASSESSMENT YEAR. IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE SAID CONTENTION, THE CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. 21. THE ASSESSEE IS AGGRIE VED BY THE AFORESAID ADDITION. 22. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS REITERATED ITS PLEA THAT IT HAD NOT RECEIVED THE BALANCE AMOUNT FROM THE PROSPECTIVE PURCHASERS AND HENCE, THE SAME WAS NOT BOOKED AS SALE CONSIDERATION. THE ASSESSEE CLAIMS TO HAVE BOOKED THE BALANCE SALE CONSIDERATION IN SUBSEQUENT ASSESSMENT YEAR. THOUGH THE ASSESSEE IS MAKING THE SAME PLEA BEFORE THE AUTHORITIES BELOW AND EVEN BEFORE US, BUT THE PLEA OF THE ASSESSEE CANNOT BE ACCEPTED IN THE ITA NO. 277 /PN/20 1 4 M/S. R.K. ENTERPRISES 10 ABSENCE OF ANY DOCUMENTARY EVI DENCE BEING FILED BY THE ASSESSEE. EVEN BEFORE US, THE ASSESSEE HAS FAILED TO RECONCILE DIFFERENCE IN SALE CONSIDERATION AND / OR TO FURNISH THE EVIDENCE THAT THE SAID AMOUNT HAS BEEN OFFERED TO TAXATION IN THE SUCCEEDING YEAR AND ON WHAT BASIS. IN THE A BSENCE OF THE SAME, WE FIND NO MERIT IN THE GROUNDS OF APPEAL NO.9 AND 10 IN THIS REGARD. CONFIRMING THE ADDITION OF RS.67,500/ - , WE DISMISS THE GROUNDS OF APPEAL NO.9 AND 10 RAISED BY THE ASSESSEE. 23 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 27 TH DAY OF JANUARY , 201 6 . SD/ - SD/ - (PRADIP KUMAR KEDIA) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 27 TH JANUARY , 201 6 . / PUNE ; DATED : 27 TH JANUARY , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE AP PELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - I, THANE ; 4. / THE CIT - II, THANE ; 5. , , / DR A , ITAT, PUNE; / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE