Smt Bhawna Nandwani., Bhopal V. The ITO, Indore

ITA 310/IND/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2737 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 17-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, SMC BENCH-I, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.310/IND/2010 AY: 2006-07 BHAWNA NANDWANI, 1/201, SHALIMAR STERLING, NEAR APSARA CINEMA, PUNJABI BAGH, BHOPAL PAN ACKPN 1991 M ..APPELLANT V/S. ITO-3(1), BHOPAL ..RESPONDENT APPELLANT BY : NONE DEPARTMENT BY : SMT. APARNA KARAN, SR. DR ORDER THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER O F THE LD. CIT(A)- II, BHOPAL, DATED 11.1.2010. THE ONLY GROUND RAISED IN THE APPEAL IS THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN TRE ATING THE AMOUNT OF RS.1,12,000/- TAKEN AS LOAN FROM FRIENDS AND RELATI VES AS INGENUINE. 2. DURING HEARING OF THIS APPEAL, NOBODY WAS PRESEN T FOR THE ASSESSEE WHEREAS MRS. APARNA KARAN, LD. SR. DR WAS PRESENT FOR THE REVENUE. THE ASSESSEE WAS INFORMED ABOUT THE DATE O F HEARING THROUGH 2 SPEED POST BUT NOBODY ATTENDED THE PROCEEDINGS. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IN STRONG REL IANCE UPON THE IMPUGNED ORDER BY CONTENDING THAT THE AMOUNT OF RS. 19,000/- EACH TAKEN AS CASH FROM SIX PARTIES AGGREGATING RS.1,12, 000/- IS WITHOUT ANY REASON BY FURTHER SUBMITTING THAT THE CREDITORS WER E NOT PRODUCED BEFORE THE ASSESSING OFFICER. IT WAS ALSO PLEADED T HAT THE LOANS WERE TAKEN IN AN UNIFORM PATTERN AS THE CASH WAS ONLY TA KEN FROM FRIENDS AND RELATIVES AND THAT TOO, IN THE AMOUNT OF RS.19, 000/- EACH. PLEA WAS ALSO RAISED THAT THE ONUS OF PROVING GENUINENES S AND CREDITWORTHINESS OF LENDERS WAS ON THE ASSESSEE. 3. I HAVE CONSIDERED THE SUBMISSIONS PUT FORTH BY T HE LD. SR. DR AND PERUSED THE MATERIAL AVAILABLE ON FILE. SINCE NOBOD Y IS PRESENT FOR THE ASSESSEE, THEREFORE, I HAVE NO OPTION BUT TO PROCEE D EXPARTE QUA ASSESSEE AND TO DECIDE THE APPEAL ON THE BASIS OF M ATERIAL AVAILABLE ON THE RECORD. BRIEF FACTS ARE THAT THE ASSESSEE IS EN GAGED IN TAILORING CLASSES, JOB WORK AND COOKING HAD BEEN REGULARLY BE EN FILING HER RETURNS SINCE FY 2001-02. THE ASSESSEE PURCHASED A PLOT FOR RS.3,57,000/- (INCLUSIVE REGISTRY CHARGES OF RS.57, 000) OUT OF OPENING BALANCE OF RS.1,40,100/- IN THE CAPITAL ACCOUNT, CU RRENT YEAR INCOME OF RS.1,18,500/- AND LOANS RECEIVED FROM RELATIVES AND FRIENDS AMOUNTING TO RS.1,12,000/-. AS PER THE ASSESSEE, SU FFICIENT CASH WAS 3 AVAILABLE WITH HER. HOWEVER, THE LD. ASSESSING OFFI CER ADDED RS.2,38,500/- U/S 69 OF THE ACT ON THE PLEA THAT TH E ASSESSEE COULD NOT EXPLAIN THE SOURCE OF THE INVESTMENT. ON APPEAL, TH E LD. FIRST APPELLATE AUTHORITY FOUND THE AMOUNT OF RS.1,40,100/- AS GENU INE BUT AFFIRMED THE STAND OF THE LD. ASSESSING OFFICER ON THE REMAI NING AMOUNT OF RS.1,12,000/- WHICH WAS RECEIVED AS LOAN FROM RELAT IVES AND FRIENDS ON THE PLEA THAT THE GENUINENESS OF THE TRANSACTION IS IN DOUBT. THE UNCONTROVERTED FACT IS THAT THE ASSESSEE FILED THE NAMES, PAN NOS. AND CONFIRMATIONS FROM THE LENDERS ALONG WITH PROOF OF RETURNS FILED BY THEM. IN THE ASSESSMENT ORDER, THE IMPUGNED ADDITIO N WAS MADE MERELY ON THE GROUND THAT THE ASSESSEE COULD NOT PR ODUCE CREDITORS FROM WHOM LOAN OF RS.1,12,000/- (RS.19,000/- EACH) WAS TSAKEN. THERE IS NO FINDING IN THE ASSESSMENT ORDER EITHER THE LE NDERS WERE NON- EXISTENT OR THEY DID NOT GIVE THE RESPECTIVE AMOUNT BUT FACT REMAINS THAT THEIR PAN NOS., ADDRESSES, AND PROOF OF MENTIO NING THE RESPECTIVE AMOUNTS IN THE RETURNS WERE DULY FURNISHED BY THE A SSESSEE. IF THE ASSESSING OFFICER WAS NOT SATISFIED, NOTHING PREVEN TED HIM TO SUMMON THE CREDITORS BUT THAT WAS NOT DONE BY HIM. EVEN OT HERWISE, AS FAR AS TAKING OF LOAN OF RS.19,000/- EACH IS CONCERNED, TH ERE IS NO VIOLATION OF SEC. 269SS OF THE ACT AS EACH AMOUNT IS BELOW PRESC RIBED LIMIT AS PROVIDED IN SUB-CLAUSE (C) OF SEC. 269SS OF THE ACT . IT IS ALSO AN 4 UNCONTROVERTED FACT THAT THE RESPECTIVE AMOUNT OF L OAN WAS DULY REFLECTED BY THE LENDERS IN THEIR RETURNS, THEREFOR E, NO ADDITION CAN BE MADE MERELY ON THE BASIS OF DOUBT OR PRESUMPTION AS PRESUMPTION CANNOT TAKE SHAPE OF EVIDENCE, HOWEVER STRONG IT MA Y BE. EVEN OTHERWISE, NO CONTRARY MATERIAL HAS BEEN BROUGHT ON RECORD BY THE LD. ASSESSING OFFICER IN SUPPORT OF HIS PRESUMPTION. EV EN OTHERWISE, IF THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE TO TH E ASSESSING OFFICER THEN ONUS SHIFTS TO THE REVENUE, FOR THIS VIEW, THE ASSESSEE IS SUPPORTED FROM THE DECISION FROM HONBLE ALLAHABAD HIGH COURT IN CIT VS. DAYACHAND JAIN VAIDYA (98 ITR 280). SINCE NAMES AND ADDRESSES, RESPECTIVE PAN NOS. AND PROOF OF SHOWING THAT EACH AMOUNT WAS REFLECTED IN THE RETURNS BY THE RESPECTIVE LENDER W AS DULY PRODUCED BY THE ASSESSEE, THEREFORE, NO ADDITION SHOULD HAVE BE EN MADE, CONSEQUENTLY, THIS APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 12 .7.2 010. (JOGINDER SINGH) JUDICIAL MEMBER DATED: 12 .7.2010 !VYAS! COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR/GUARD F ILE