M/S. MOOMAL MOTORS, KISHANGARH V. INCOME TAX OFFICER, Kishangarh

ITA 28/JPR/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5950 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MAHELA JCIT DHK
• Keywords: Onus to prove
• Section: 69A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH SMC, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 28/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. M/S. M U MAL MOTORS, KISHANGARH NEAR RAMMANDIR, BEHIND BUS STAND, MANDANGANJ-KISHANGARH. CUKE VS. THE INCOME TAX OFFICER, WARD 2, KISHANGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAOFM 0830 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.K. MAHELA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24.09.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26/09/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 16.10.2017 OF LD. CIT (APPEALS), AJMER FOR THE ASSESSMENT YEAR 20 08-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, LD. CIT (A) ERRED IN CONFIRMING ADDITION OF RS. 5,95,00 0/- MADE BY LD. AO U/S 69A BY COMPLETELY IGNORING SUBMISSION MA DE AND EVIDENCES ADDUCED. APPELLANT PRAYS PENALTY SO CONF IRMED DESERVES TO BE DELETED. 1.1 THAT, LD. CIT (A) HAS FURTHER ERRED IN CONFIRMING T HE ADDITION OF RS. 5,95,000/- BY IGNORING THE FACT THAT THE AMOUNT INTRODUCED IN THE BOOKS IS FORMING PART OF ADDITION OF RS. 47, 10,000/- MADE IN A.Y. 2007-08 WHICH STOOD CONFIRMED THUS MAKING A DDITION IN THE YEAR UNDER APPEAL TANTAMOUNT TO DOUBLE ADDITION AND THUS DESERVES TO BE DELETED. 2 ITA NO. 28/JP/2018. M/S. MUMAL MOTORS, KISHANGARH. 2. THAT THE APPELLANT CRAVES THE RIGHT TO ADD, DELE TE, AMEND OR ABANDON ANY OF THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL. 2. THE ONLY ISSUE ARISES IN THIS APPEAL OF THE ASSE SSEE IS REGARDING AN ADDITION MADE BY THE AO OF RS. 5,95,000/- UNDER SECTION 69A OF THE IT ACT. THE AO WHILE COMPLETING THE REASSESSMENT ORDER MADE AN ADDITION OF RS. 5,95,000/- WHICH WAS SHOWN BY THE ASSESSEE IN THE BOOKS AS ADVANCED RECE IVED FROM ITS CUSTOMER SHRI SANJAY SINGH AGAINST THE SALE OF TRUCK. THE AO WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND, THEREFORE, THE SAI D ADDITION WAS MADE UNDER SECTION 69A OF THE ACT. THE ASSESSEE CHALLENGED TH E ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 3. BEFORE THE TRIBUNAL, THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT ONCE THE AMOUNT WAS DULY RECORDED IN THE BOOKS OF ACCOUNT BE ING ADVANCE RECEIVED FROM THE CUSTOMER FOR SALE OF TRUCK, THEN THE SAME CANNOT BE ADDED UNDER SECTION 69A OF THE ACT. HE HAS FURTHER CONTENDED THAT EVEN OTHERWISE T HE ASSESSMENT WAS REOPENED BASED UPON THE ASSESSMENT FOR THE ASSESSMENT YEAR 2 009-10 ON THE SIMILAR ISSUE. THIS TRIBUNAL HAS ALLOWED THE BENEFIT OF TELESCOPIN G FOR THE ASSESSMENT YEAR 2009-10 FOR A SUM OF RS. 47,10,000/- AS THE INCOME DECLARED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2007-08 ON ACCOUNT OF ADVANCES FROM CUSTOMERS. THUS ONCE A SUM OF RS. 46,30,000/- WAS SHOWN IN THE BOOKS OF ACCOUN T FOR THE ASSESSMENT YEAR 2007-08 TO THAT EXTENT THE CASH WAS AVAILABLE WITH THE ASSESSEE AND, THEREFORE, NO ADDITION IS CALLED FOR FOR THE YEAR UNDER CONSIDERA TION. THE LD. A/R HAS FURTHER CONTENDED THAT THE SAID AMOUNT WAS ALREADY SHOWN AS REPAID BY THE ASSESSEE IN THE SUBSEQUENT YEARS AND, THEREFORE, FOR THE YEAR UNDER CONSIDERATION THERE WAS NO 3 ITA NO. 28/JP/2018. M/S. MUMAL MOTORS, KISHANGARH. AMOUNT SHOWN AS ADVANCE AS IT WAS SHOWN FOR THE ASS ESSMENT YEAR 2007-08. ONCE THE SAID AMOUNT WAS TREATED AS INCOME OF THE ASSESS EE, THE BENEFIT OF TELESCOPING MAY BE ALLOWED TO THE ASSESSEE. 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ASSESSEE FAILED TO DISCHARGE ITS ONUS TO PROVE THE IDENTITY, CREDITWOR THINESS AND GENUINENESS OF THE TRANSACTION. DESPITE SPECIFIC DIRECTIONS BY THE AO , THE ASSESSEE FAILED TO PRODUCE THE CREDITOR FOR EXAMINATION. HE HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE AO HAS MADE THE ADDITION UNDER SECTION 69A ON ACCOUNT OF A SUM OF RS. 5,95,000/- SHOWN BY THE ASSESSEE AS ADVANCE REC EIVED FROM ONE SHRI SANJAY SINGH. AT THE OUTSET, IT IS NOTED THAT THE PROVISI ONS OF SECTION 69A ARE APPLICABLE ONLY WHEN THE ASSESSEE IS FOUND TO BE OWNER OF ANY MONEY, BULLION, JEWELLERY ETC. WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNT. THE REFORE, THE CONDITION FOR INVOKING THE PROVISIONS OF SECTION 69A IS THAT SOME MONEY, B ULLION, JEWELLERY OR OTHER VALUABLE ARTICLE IS FOUND WITH THE ASSESSEE BUT THE SAME IS NOT RECORDED IN THE BOOKS OF ACCOUNT. IN THE CASE IN HAND, THE AMOUNT OF RS. 5, 95,000/- IS DULY FOUND RECORDED IN THE BOOKS OF ACCOUNT AS ADVANCE RECEIVED FROM SH RI SANJAY SINGH FOR SALE OF VEHICLE. THEREFORE, ONCE THE SAID AMOUNT IS DULY RE CORDED IN THE BOOKS OF ACCOUNT, THEN THE PROVISIONS OF SECTION 69A ARE NOT ATTRACTE D FOR MAKING THE DISALLOWANCE. EVEN OTHERWISE, ONCE IN THE PRECEDING YEAR I.E. 200 7-08 THE ASSESSEE HAS SURRENDERED A SUM OF RS. 47,10,000/- AND THE SAID A MOUNT WAS ALSO SHOWN AS REPAID BY THE ASSESSEE, THEN TO THE EXTENT OF SURRE NDERED AMOUNT WHICH WAS ASSESSED AS INCOME IN THE HANDS OF THE ASSESSEE, TH E BENEFIT OF TELESCOPING IS 4 ITA NO. 28/JP/2018. M/S. MUMAL MOTORS, KISHANGARH. AVAILABLE AS HELD BY THIS TRIBUNAL FOR THE ASSESSME NT YEAR 2009-10 VIDE ORDER DATED 8 TH FEBRUARY, 2017 IN ITA NO. 328/JP/2014. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION MADE BY THE AO AND SUSTAINED BY THE LD. CIT (APPEALS) OF RS. 5,95,000/- IS DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 26/09/20 19. SD/- ( FOT; IKY JKWO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 26/09/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S. MUMAL MOTORS, KISHANGARH. 2. THE RESPONDENT THE ITO WARD 2, KISHANGARH. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 28/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 5 ITA NO. 28/JP/2018. M/S. MUMAL MOTORS, KISHANGARH.