E.Ummer Bava, Malappuram V. The ACIT, Tirur

ITA 296/COCH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68999 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2013
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 14-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 13-05-2013
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: R V VISWANATHAN
• Keywords: Gift; Onus to prove
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO. 296/COCH/2013 ASSESSMENT YEAR : 2008-09 SHRI E. UMMER BAVA, CONTRACTOR, SAKEEN MANZIL, DOWN HILL, MALAPPURAM-676 519. [PAN:ADKPB 9071 F] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-2(2), TIRUR. (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI R.V. VISWANATHAN, CA REVENUE BY SHRI K.K. JOHN, SR. DR DATE OF HEARING 14/08/2013 DATE OF PRONOUNCEMENT 25/10/2013 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 18-02-2013 PASSED BY LD CIT(A) AND IT RELATES TO THE ASSESSMEN T YEAR 2008-09. THE ASSESSEE IS CHALLENGING THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.20.00 LAKHS MADE U/S 68 OF THE ACT. 2. THE AO NOTICED THAT THE ASSESSEE HAS RECEIVED LO AN OF RS.10.00 LAKHS EACH FROM SRI E. SAMEER AND SRI P.M. MOHAMMED ALI, WHO WERE NR IS WORKING IN MIDDLE EAST. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE ABO VE SAID CREDITORS SENT CONFIRMATION LETTERS DIRECTLY TO THE AO. HOWEVER, THE ASSESSEE COULD NOT FURNISH THE BANK ACCOUNT I.T.A. NO.296/COCH/2023 2 DETAILS OF CREDITORS AND OTHER DETAILS BEFORE THE A O. HENCE, THE AO HELD THAT THE CASH CREDITS REFERRED ABOVE IS ASSESSABLE AS THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT AND FOR THAT PURPOSE, THE AO TOOK SUPPORT FROM THE DECI SION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. MOHANAKALA (291 ITR 217), WHERE IN IT WAS HELD THAT THE RECEIPT OF MONEY THROUGH BANKING CHANNELS WAS NOT A CONCLUSIVE PROOF TO PROVE THE CREDITS. THE LD CIT(A) ALSO CONFIRMED THE ASSESSMENT OF CASH CRE DITS AND HENCE THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE RECORD. IT IS A WELL SETTLED PROPOSITION OF LAW THAT THE PRIMARY BURDEN OF PROOF IS PLACED UPON THE ASSESSEE U/S 68 OF THE ACT TO PROVE THE CASH CREDITS., I.E., THE AS SESSEE IS REQUIRED TO PROVE THREE MAIN INGREDIENTS IN RESPECT OF ANY CASH CREDIT, VIZ., TH E IDENTITY OF CREDITOR, GENUINENESS OF TRANSACTIONS AND CREDIT WORTHINESS OF THE CREDITOR. ADMITTEDLY, IN THE INSTANT CASE, THE ASSESSEE COULD NOT FURNISH ANY DOCUMENTS TO PROVE T HE CREDIT WORTHINESS OF THE CREDITORS. DURING THE COURSE OF HEARING, THE LD A. R CONTENDED THAT THE YARDSTICKS MENTIONED ABOVE SHALL APPLY ONLY TO GIFTS AND NOT T O LOANS. WE ARE UNABLE TO AGREE WITH THE SAID CONTENTIONS, AS SECTION 68 OF THE ACT DOES NOT DIFFERENTIATE LOAN OR GIFT. WHEN IT WAS SPECIFICALLY ASKED WHETHER THE ASSESSEE COULD FURNISH DETAILS OF CREDIT WORTHINESS OF THE CREDITORS, THE LD A.R EXPRESSED A BOUT THE DIFFICULTY OF THE ASSESSEE IN OBTAINING THE DETAILS. HOWEVER, HE SUBMITTED THAT THE IMPUGNED LOANS ARE GENUINE LOANS AND HENCE THE PROVISIONS OF SEC.68 SHOULD NOT BE APPLIED THEREON. 4. WE ARE UNABLE TO AGREE WITH THE SAID CONTENTIONS . ADMITTEDLY, THE ASSESSEE HAS FAILED TO PROVE THE CREDIT WORTHINESS OF THE CREDIT ORS BY FURNISHING NECESSARY DOCUMENTS TO THE SATISFACTION OF THE AO. THE ASSESSEE CAN BE SAID TO HAVE DISCHARGED THE INITIAL BURDEN OF PROOF PLACED UPON HIM U/S 68 OF THE ACT O NLY IF HAS PROVED THE THREE MAIN INGREDIENTS STATED ABOVE. SINCE THE ASSESSEE HAS F AILED TO PROVE THE CREDIT WORTHINESS OF THE CREDITORS, WE DO NOT FIND ANY INFIRMITY IN T HE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITIONS MADE U/S 68 OF THE ACT. ACCORDINGLY, WE UPHOLD HIS ORDER. I.T.A. NO.296/COCH/2023 3 5. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 25 -10-2013. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 25TH OCTOBER, 2013 GJ COPY TO: 1. SHRI E. UMMER BAVA, CONTRACTOR, SAKEEN MANZIL, DO WN HILL, MALAPPURAM-676 519. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -2(2), TIRUR. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS), KOZHIKO DE. 4. THE COMMISSIONER OF INCOME-TAX, KOZHIKODE. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN I.T.A. NO.296/COCH/2023 4