M/s. Vijay Mishra, Nani Daman V. The ACIT.,Vapi Circle, Vapi

ITA 2883/AHD/2010

• Counselvise Citation: 288320514 RSA 2010
• Duration Of Justice: 4 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 01-12-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 14-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Unexplained cash credit; Corroborative evidences
• Section: 68

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ # ## #. .. .# ## #. . . . % % % %, , , , &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER) ITA NO.2883/AHD/2010 [ASSTT.YEAR : 2007-2008] M/S.VIJAY MISHRA PROP: YASH ENGINEERING WORKS ROLEX POLYMERS-32, SUPREME INDUSTRIAL ESTATE BHIMPORE, NANI DAMAN 396 210. /VS. ACIT, VAPI, CIRCLE VAPI. ( (( ( *+ *+ *+ *+ / APPELLANT) ( (( ( ,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 & / ASSESSEE BY : NONE (WRITTEN SUBMISSIONS) ( 0 1 & / REVENUE BY : SMT.SONIA KUMAR, SR.DR 3 0 /4' / DATE OF HEARING : 1 ST DECEMBER, 2014 567 0 /4' / DATE OF PRONOUNCEMENT : 09-01-2015 &8 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSTT.YEAR 2007-08 IS DIRECTED AGAINST THE ORDE R OF THE CIT(A). 2. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE-APPELLANT. HOWEVER, THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS FOR CONSIDERATION THEREOF, AND HAS ALSO FILED COMPILATION IN SUPPORT OF HIS CA SE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS BEING DECIDED EX PARTE QUA THE ASSESSEE-APPELLANT ON MERITS AFTER ITA NO.2883/AHD/2010 -2- HEARING THE LEARNED DR, AND ALSO AFTER CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE. 3. THE GROUND NO.1 OF THE ASSESSEES APPEAL IS AS U NDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.4,45,000/- U/S.68 OF IT ACT WITHOUT CONSIDERING THE DETAILS & SUBMISSIONS OF LAND RECORDS. 4. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE A O AND THE CIT(A). SHE REFERRED TO RELEVANT PORTIONS OF THE ASSESSMENT ORD ER IN SUPPORT OF THE CASE OF THE REVENUE. 5. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND ALSO WRITTEN SU BMISSIONS FILED BY THE ASSESSEE. WE FIND THAT THE ASSESSEE HAS INTRODUCED A SUM OF RS.6,00,000/- ON 20.3.2007 AS CAPITAL IN THE PROPRIETARY FIRM, M/S.R OLEX POLYMERS AND CLAIMED THAT IT REPRESENTED ACCUMULATED SHARE OF AGRICULTUR E INCOME REIMBURSED BY THE UNCLE OF THE ASSESSEE, SHRI RAMNATH MISHRA AND IS D ULY REFLECTED IN THE PERSONAL BALANCE SHEET OF THE ASSESSEE AS ASSET AS ON 31.3.2 006. THE ASSESSEE HAS FILED 7/12 EXTRACT SHOWING THE DETAILS OF LAND OWNED BY T HE ASSESSEE. THE ASSESSEE HAS CLAIMED THAT THE AO HAS NOT REQUIRED ANY OTHER DETAILS OR EVIDENCES AND HAS STRAIGHT AWAY ADDED THE AMOUNT OF RS.4,45,000/- OUT OF TOTAL AMOUNT OF RS.6,00,000/- INTRODUCED BY THE ASSESSEE AND THE BA LANCE AMOUNT WAS ACCEPTED BY HIM AS GENUINE. THE CLAIM OF THE ASSESSEE IS TH AT THE AMOUNT WAS DUE FROM UNCLE OF THE ASSESSEE AND SHOWN AS OPENING BALANCE IN THE PERSONAL BALANCE SHEET, AND THEREFORE, THERE WAS NO JUSTIFICATION FO R ALLOWING THE CREDIT OF AGRICULTURAL INCOME ONLY FOR TWO YEARS I.E. A.Y.200 6-07 AND 2007-08 AND DENIED FOR OTHERS. WE FIND THAT THERE IS NO FOOLPROOF EV IDENCE LED BY THE ASSESSEE OR BY THE DEPARTMENT IN THIS REGARD, TO SHOW THAT WHETHER ACCUMULATED SHARE OF THE ASSESSEE FOR THE PAST MANY YEARS IN THE AGRICULTURE INCOME WAS ACCUMULATED BY THE ASSESSEE AND RECEIVED FROM HIS UNCLE DURING THE YEAR OR WHETHER THE SOME ITA NO.2883/AHD/2010 -3- PORTION THEREOF WAS ALREADY SPENT BY THE ASSESSEE. WE, CONSIDERING TOTALITY OF THE FACTS AND CIRCUMSTANCES CASE, INCLUDING THE EXT ENT OF LAND HOLDING OF THE ASSESSEE, AS SHOWN IN 7/12 EXTRACT OF THE REVENUE R ECORD AND THAT THE ASSESSEE HAS CLAIMED THE AMOUNT, AS REFLECTED IN HIS PERSONA L BALANCE SHEET AS ACCUMULATED BALANCE OF HIS SHARE IN THE AGRICULTURE INCOME, ACCUMULATED FOR LAST SEVERAL YEARS, AND ALSO AFFIDAVIT FILED IN THIS REG ARD, ARE OF THE VIEW THAT ENDS OF JUSTICE SHALL BE MET, IF THE ADDITION IS RESTRICTED TO RS.1,50,000/- AS AGAINST RS.4,45,000/- SUSTAINED BY THE CIT(A), AND THE BALA NCE ADDITION IS DELETED, AND THE GROUND NO.1 OF THE ASSESSEE IS PARTLY ALLOWED. 6. THE GROUND NO.2 OF THE ASSESSEE IS AS UNDER: 2. THE LD.CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.4,73,883/- AS UNEXPLAINED CASH CREDIT U/S.68 OF THE IT ACT AND ADDED TO THE INCOME FOR THE YEAR. 7. THE LEARNED DR HAS RELIED ON THE ORDERS OF THE A O AND THE CIT(A) AND REFERRED TO RELEVANT PORTIONS OF THE ASSESSMENT ORD ER IN SUPPORT OF THE CASE OF THE REVENUE. 8. WE HAVE CONSIDERED SUBMISSIONS OF THE LEARNED DR AND ALSO PERUSED THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND THE COPIES OF THE DOCUMENTS FILED IN THE COMPILATION BY THE ASSESSEE. WE FIND THAT THE ASSE SSEE HAS INTRODUCED RS.11 LAKHS AS CAPITAL IN THE PROPRIETARY FIRM, M/S.ROLEX POLYMERS, OUT OF WHICH, A SUM OF RS.4,73,883/- HAS BEEN ADDED AS CASH CREDIT UNDER SECTION 68 OF THE ACT. THE ASSESSEE HAS CLAIMED THAT THIS AMOUNT WAS DEPOS ITED BY HIM REPRESENTED THE AMOUNT OF HIS MOTHER BEING THE CAPITAL ACCOUNT BALA NCE OF VIJAY ENGINEERING WORKS AND HER SAVINGS FROM AGRICULTURE INCOME ETC. THE ASSESSEE HAS FILED CAPITAL ACCOUNT WITH THE FIRM RIGHT FROM A.Y.2003-0 4 TO 2006-07 ALONG WITH COPY OF THE ACKNOWLEDGEMENT OF RETURN OF INCOME. THE COPY OF THE 7/12 EXTRACT OF THE REVENUE RECORD REGARDING AGRICULTURE LAND HOLDING OF THE MOTHER OF THE ASSESSEE WERE ALSO FILED. WE FIND THAT THE AO HAS ALLOWED CREDIT OF RS.6,26,117/- BEING THE AMOUNT IN CAPITAL ACCOUNT I N THE FIRM AS ON 31.3.2006 ITA NO.2883/AHD/2010 -4- AND ADDED RS.4,73,883/- AS CASH CREDIT ON ACCOUNT T HAT THERE IS NO DOCUMENTARY PROOF TO SUBSTANTIATE THE CLAIM. WE FIND THAT THE ASSESSEE HAS FILED CAPITAL ACCOUNT WITH THE FIRM FROM A.Y.2003-04 TO 2006-07 A LONG WITH COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME, AND THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE HAS NOT FILED ANY DOCUMENTS AND SUPPORTING EVIDENCES IN SUPPORT OF HIS CASE. THE ASSESSEE HAS ALSO FILED 7/12 EXTRACT OF THE REVENUE RECORD TO SHOW THE AGRICULTURE LAND HOLDING OF THE MOTHER OF THE ASSES SEE. IN THESE FACTS, WE ARE OF THE VIEW THAT SOME PART OF CREDIT OF THE WITHDRAWAL S MADE FROM THE FIRM, M/S.VIJAY ENGINEERING WORKS, DAMAN FROM A.Y.2003-04 TO 2006-07 WAS ALLOWABLE TO THE ASSESSEE, AND ALSO SOME CREDIT FOR THE AGRICULTURE INCOME OF THE MOTHER OF THE ASSESSEE. THE ASSESSEE COULD NOT PRO VE WITH DOCUMENTARY EVIDENCES THAT THE ENTIRE WITHDRAWALS MADE FROM THE FIRM, IN PAST DIFFERENT YEARS WERE KEPT INTACT BY HIM. IN THESE FACTS, CONSIDERI NG TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, AND CONSIDERING THE CAPI TAL ACCOUNT FROM A.Y.2003- 04 TO 2006-07 IN M/S.VIJAY ENGINEERING, DAMAN ALONG WITH ACKNOWLEDGE OF FILING OF THE RETURN AND THE COPY OF 7/12 EXTRACTS OF THE REVENUE RECORDS SHOWING THE HOLDING OF AGRICULTURE LAND OF THE MOTHER OF TH E ASSESSEE, WE ARE OF THE VIEW THAT CREDIT OF RS.3,00,000/- SHOULD BE ALLOWED TO T HE ASSESSEE, APART FROM RS.6,26,117/- ALLOWED BY THE AO, AND THE BALANCE AD DITION OF RS.1,73,883/-IS CONFIRMED AND THE GROUND NO.2 OF THE ASSESSEE IS PA RTLY ALLOWED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( # ## # . .. . # ## # . . . . % % % % /N.S.SAINI) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD