Sanjay Bansal, Gwalior V. I.T.O. Ward - 2(3), Gwalior

ITA 279/AGR/2012

• Counselvise Citation: 27920314 RSA 2012
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-10-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 22-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Unexplained cash credit; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 278/AGRA/2012 ASSTT. YEAR : 2009-10 SHRI YOGESH BANSAL, VS. INCOME-TAX OFFICER, PROP. M/S. RADHIKA AGENCIES, WARD 2(3), GWALIOR . GWALIOR(PAN: AGGPB 5412 K) ITA NO. 279/AGRA/2012 ASSTT. YEAR : 2009-10 SHRI SANJAY BANSAL, VS. INCOME-TAX OFFICER, PURANA BANK OF INDIA, WARD 2(3), GWALIOR. DAL BAZAR, LASHKAR, GWALIOR(PAN: ACKPB5995 P) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE. RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 16.10.2012 DATE OF PRONOUNCEMENT OF ORDER : 19.10.2012 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS BY THE DIFFERENT ASSESSEES ARE DI RECTED AGAINST DIFFERENT ORDERS OF LD. CIT(A) DATED 04.05.2012 AND 30.04.201 2 FOR THE ASSESSMENT YEAR 2009-10. SINCE THE ISSUE IS COMMON IN BOTH THE APPE ALS, THEREFORE, BOTH WERE HEARD TOGETHER AND WE DISPOSE OF THE SAME THROUGH THIS CO MMON AND CONSOLIDATED ORDER. ITA NO. 278 & 279/AGRA/2012 2 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERED TH E MATERIAL AVAILABLE ON RECORD. ITA NO. 278/AGRA/2012 (YOGESH BANSAL): 3. IN THIS APPEAL, THE ASSESSEE CHALLENGED THE ADDI TION OF RS.15,50,000/- MADE BY THE AO U/S. 68 OF THE IT ACT AND CONSEQUENTIAL D ISALLOWANCE OF INTEREST OF RS.61,665/-. THIS ISSUE RELATES TO UNSECURED LOANS IN RESPECT OF 13 PARTIES, NAMELY SMT. JYOTI BANSAL, SHRI JAGDISH AGARWAL, SMT. BINDU AGARWAL, SHRI RAHUL AGARWAL, SHRI RAJEEV AGARWAL, MS. RUCHI AGARWAL, KU M. SHIVANGI AGARWAL, SHRI SATISH JAIN, SHRI SANJAY JAIN (HUF), SMT. RITU SING HAL, SMT. NEETA JAIN, SMT. JYOTI JAIN AND JAISAL GARG TRUST IN A SUM OF RS.15,50,000 /-. THE AO ASKED THE ASSESSEE TO PROVE THE IDENTITY OF THE CREDITORS, THEIR CREDI TWORTHINESS AND GENUINENESS OF THE TRANSACTION. ONLY CONFIRMATIONS WERE FILED BEFORE T HE AO. IN THE ABSENCE OF SUFFICIENT DOCUMENTS, THE AO FOUND THAT THE ASSESSE E FAILED TO PROVE CREDITWORTHINESS OF THE CREDITORS AND ALSO THE CRED ITORS WERE NOT PRODUCED FOR EXAMINATION. THE ADDITION WAS ACCORDINGLY MADE AND INTEREST WAS ALSO DISALLOWED. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT THE ASS ESSEE MET THE INCOME-TAX OFFICER TO FILE THE REQUIRED DOCUMENT LIKE PAN AND AFFIDAVI TS ETC. BUT THE AO DIRECTED THE ASSESSEE TO SEND THE SAME BY DAK AND WHEN THE SAME WERE SENT, THE ORDER WAS ALREADY PASSED. THE LD. CIT(A), HOWEVER, DID NOT AC CEPT THE CONTENTION OF THE ITA NO. 278 & 279/AGRA/2012 3 ASSESSEE BECAUSE MERELY CONFIRMATIONS WERE FILED WI THOUT ANY SUPPORTING DOCUMENT AND ACCORDINGLY, ADDITIONS WERE CONFIRMED. 4. THE LD. COUNSEL FOR THE ASSESSEE FILED APPLICATI ON FOR ADMISSION OF ADDITIONAL EVIDENCE ON THE ABOVE GROUND AND SUBMITTED THAT THE ABOVE ADDITIONS HAVE BEEN MADE BY THE AO IN RESPECT OF DEPOSITS MADE IN ASSES SEES BANK ACCOUNT BECAUSE PROPER EVIDENCES WERE NOT FILED BEFORE THE AO, THOU GH THE SAME WERE FILED BEFORE HIM THROUGH SPEED POST AFTER PASSING OF THE ORDER A ND ALL THE DOCUMENTS FILED IN THE PAPER BOOK WERE FILED BEFORE THE LD. CIT(A) FROM PA GES 1 TO 93. HE HAS SUBMITTED THAT ALL THE DOCUMENTS FILED IN THE PAPER BOOK ARE IMPORTANT AND RELATED DOCUMENTS AND GO TO THE ROOT OF THE MATTER. THEREFORE, THE SA ME MAY BE ADMITTED FOR HEARING. HE SUBMITTED THAT ALL THE DOCUMENTS WERE FILED BEFO RE THE LD. CIT(A), BUT NO REQUEST WAS MADE FOR THEIR ADMISSION AND THE LD. CI T(A) DID NOT DISCUSS THE SAME IN THE APPELLATE ORDER. HE HAS GIVEN CERTIFICATE TO THE SAME EFFECT IN THE PAPER BOOK. AS SUCH, ADDITIONAL DOCUMENTS FILED IN THE PAPER BO OK ARE IN RESPECT ALL THE CREDITORS AND CONTAIN THE DOCUMENTS LIKE AFFIDAVIT OF THE CREDITOR, ACKNOWLEDGEMENT SLIP OF FILING OF THE RETURN OF INC OME, PAN CARD, CONFIRMATION OF THE CREDITOR, COPY OF ACCOUNT OF THE CREDITORS, COP Y OF THE BANK PASSBOOK OF THE CREDITORS. HE HAS SUBMITTED THAT ALL 93 DOCUMENTS F ILED IN THE PAPER BOOK WOULD EXPLAIN THE MATTER IN ISSUE. THEREFORE, IN THE INTE REST OF JUSTICE, THE SAME ITA NO. 278 & 279/AGRA/2012 4 DOCUMENTS MAY BE ADMITTED FOR HEARING. THE LD. DR S UBMITTED THAT IT IS THE DISCRETION OF THE BENCH TO ADMIT THESE DOCUMENTS OR NOT. ITA NO. 279/AGRA/2012 (SANJAY BANSAL): 5. IN THIS APPEAL, THE ASSESSEE CHALLENGED THE ADDI TION OF RS.4,00,000/- AND RS.15,00,000/- U/S. 68 OF THE IT ACT AND RESULTANT DISALLOWANCE OF INTEREST ON THE LOAN OF RS.4,00,000/- IN RESPECT OF RAJENDRA SINGHA L. IN THE AFORESAID CASE ALSO, THE AO MADE ADDITION OF RS.9,00,000/- IN RESPECT OF FOU R CREDITORS AS NO SUFFICIENT EVIDENCES WERE FILED. THE LD. CIT(A) DELETED THE AD DITION IN RESPECT OF THREE CREDITORS BUT MAINTAINED THE ADDITION OF RS.4,00,00 0/- IN THE CASE OF SHRI RAJENDRA SINGHAL, THE CREDITOR. AS REGARDS ADDITION OF RS.15 ,00,000/- MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT, IT WAS FOUND THAT THERE WE RE DEPOSITS AS PER CASH FLOW STATEMENT AND THE ASSESSEE CLAIMED TO HAVE INTRODUC ED THE CASH ON SALE OF VINAY NAGAR PLOT, BUT COPY OF THE AGREEMENT TO SALE AND O THER DOCUMENTS WERE NOT FILED. THEREFORE, THE ADDITION WAS MADE. SIMILAR SUBMISSIO NS WERE MADE BEFORE THE LD. CIT(A), BUT THE ADDITIONS WERE CONFIRMED. 6. THE LD. COUNSEL FOR THE ASSESSEE SIMILARLY FILED APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE AND SUBMITTED THAT ALL THE DOCU MENTS FILED IN THE PAPER BOOK FROM PAGES 1 TO 10 WERE FILED BEFORE THE AO THROUGH SPEED POST AND SAME WERE ALSO FILED BEFORE THE LD. CIT(A), BUT THE LD. CIT(A ) NEITHER CONSIDERED THE SAME NOR ITA NO. 278 & 279/AGRA/2012 5 ADMITTED THE ADDITIONAL EVIDENCE. HE HAS SUBMITTED THAT IN THE CASE OF CREDITOR RAJENDRA SINGHAL, HIS AFFIDAVIT, CONFIRMATION, COPY OF BANK ACCOUNT & PAN CARD ARE SUBMITTED. SIMILARLY, AFFIDAVIT OF SHRI NARENDR A YADAV AND COPY OF AGREEMENT TO SALE HAVE BEEN FILED IN THE PAPER BOOK, WHICH WO ULD EXPLAIN THE CREDITS AND SUBMITTED THAT IN THE INTEREST OF JUSTICE, ADDITION AL EVIDENCE MAY BE ADMITTED FOR HEARING BECAUSE THESE WERE GOING TO THE ROOT OF THE MATTER. THE LD. DR SIMILARLY SUBMITTED THAT THE TRIBUNAL HAS DISCRETION TO ADMIT THE ADDITIONAL EVIDENCE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. IT IS ADMITTED FACT THAT ALL THE ADDITIONS MADE U/S. 68 I N BOTH THE CASES WERE MADE AGAINST THE ASSESSEE BECAUSE NO SUFFICIENT EVIDENCE S HAVE BEEN FILED BEFORE THE AO. SAME PAPERS WERE FILED BEFORE THE AO THROUGH POST, BUT THESE DID NOT REACH THE AO BEFORE PASSING OF THE ASSESSMENT ORDER. SIMILARLY, ACCORDING TO THE SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE, ALL THE DOCUMENTS FILED IN PAPER BOOKS OF BOTH THE ASSESSEES WERE FILED BEFORE THE LD. CIT(A), BUT THO SE WERE NEITHER CONSIDERED NOR ADMITTED BY THE LD. CIT(A) FOR THE PURPOSE OF DECID ING THE ISSUE. THE ASSESSEE HAS NOW FILED APPLICATIONS U/R. 29 OF THE ITAT RULES FO R ADMISSION OF THE ADDITIONAL EVIDENCES AT THIS STAGE. ON GOING THROUGH THE ADDIT IONAL EVIDENCES IN THE CASE OF ASSESSEE YOGESH BANSAL, COPIES OF WHICH ARE FILED I N THE PAPER BOOK FROM PAGE 1- 93, WE FIND THAT ALL THE DOCUMENTS WOULD THROW LIGH T ON THE IDENTITY OF THE ITA NO. 278 & 279/AGRA/2012 6 CREDITORS, THEIR CREDITWORTHINESS AND GENUINENESS O F THE TRANSACTION. ALL THE CREDITORS ARE ASSESSED TO TAX AND FILED THEIR CONFI RMATION AND AFFIDAVIT ALONG WITH THEIR BANK STATEMENT. SIMILARLY, IN THE CASE OF ASS ESSEE, SHRI SANJAY BANSAL, THE ASSESSEE FILED SIMILAR DOCUMENTS AND ALSO FILED COP Y OF AGREEMENT TO SALE AND AFFIDAVIT OF NARENDRA YADAV, WHICH WOULD THROW LIGH T ON THE UNEXPLAINED CREDITS AND CREDIT ENTRIES. ON CONSIDERATION OF THESE DOCUM ENTS, WE ARE OF THE OPINION THAT THESE DOCUMENTS ARE VITAL AND NECESSARY TO EXPLAIN THE ISSUE U/S. 68 OF THE IT ACT AND WOULD BE NECESSARY FOR PASSING OF THE ORDER OR FOR DOING JUSTICE BETWEEN THE PARTIES AND FOR SUBSTANTIAL CAUSE. ALL THESE ADDITI ONAL EVIDENCES ARE NECESSARY FOR JUST DECISION IN THE MATTER AND IT IS NOT A CASE WH ERE THE ASSESSEE DID NOT MAKE AN ATTEMPT TO FILE THESE DOCUMENTS BEFORE THE AUTHORIT IES BELOW, BUT ON ONE OR THE OTHER REASONS, THE SAME COULD NOT BE FILED IN TIME OR NO REQUEST COULD BE MADE FOR ADMISSION OF ADDITIONAL EVIDENCES. CONSIDERING THE NATURE OF THE ADDITIONAL EVIDENCES, NOW FILED IN THE PAPER BOOK AND THE ISSU E INVOLVED IN THE APPEAL, WE ARE OF THE VIEW THAT ALL THESE EVIDENCES HAVE TO BE ADM ITTED FOR JUST DECISION IN THE MATTER AND NO PREJUDICE SHALL BE CAUSED TO THE REVE NUE DEPARTMENT BECAUSE ULTIMATELY THESE EVIDENCES WOULD BE REMANDED TO THE AO FOR ADJUDICATION ON MERITS. CONSIDERING THE ABOVE DISCUSSION, WE ADMIT THE ADDITIONAL EVIDENCES FILED ON THE PAPER BOOK FROM PAGE 1-93 IN THE CASE OF YOG ESTH BANSAL AND FROM PAGES 1 TO 10 FILED IN THE PAPER BOOK OF ASSESSEE SHRI SANJ AY BANSAL. THE APPLICATIONS OF ITA NO. 278 & 279/AGRA/2012 7 ASSESSEES FOR ADMISSION OF ADDITIONAL EVIDENCES ARE , ACCORDINGLY, ALLOWED. SINCE THESE EVIDENCES ARE ADMITTED AT THE TRIBUNAL STAGE, THEREFORE, IN OUR VIEW OPPORTUNITY SHOULD BE GIVEN TO THE AO TO EXAMINE AL L THESE EVIDENCES FOR DECIDING THE ISSUE ON MERIT. WE ACCORDINGLY, SET SIDE THE OR DERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE OF AO WITH THE DIRECTION TO RE-DECIDE THE ABOVE ISSUE BY CONSIDERING THE ABOVE ADDITIONAL EVI DENCES SO ADMITTED, BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE COPY OF BOTH THE PAPER BOOKS BE FORE THE AO FOR HIS CONSIDERATION OF THE EVIDENCES IN ACCORDANCE WITH LAW. 8. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY