Shri Gurmukhdas Saluja, V. The ACIT, 1(1),

ITA 329/IND/2005

• Counselvise Citation: 32922714 RSA 2005
• Duration Of Justice: 7 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2000-2001
• Appeal Filed On: 15-04-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R R MEENA
• Assessee Lawyers: R N GUPTA
• Keywords: Reopening of assessment; Period of limitation; Time period of passing order
• Section: 143(3); 68

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI R.C. SHARMA , AM ITA NO. 329/IND/2005 A.Y.2000-01 SHRI GURUMUKHDAS SALUJA BHOPAL PAN AAF[S2777N :: APPELLANT VS ACIT 1(1) BHOPAL :: RESPONDENT APPELLANT BY SHRI SUMIT NEMA AND SHRI R.N. GUPTA RESPONDENT BY SHRI R.R. MEENA DATE OF HEARING 31.10.2012 DATE OF PRONOUNCEMENT 19 .12.2012 O R D E R PER R.C. SHARMA, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 15.3.2004 FOR THE A.Y. 200 0-01 IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961. 2 2. IN THIS APPEAL, THE ASSESSEE IS BASICALLY AGGRIE VED WITH THE ADDITION OF RS. 14,44,465/- ON ACCOUNT OF SUNDRY CR EDITORS AND RS. 2,41,000/- ON ACCOUNT OF ADVANCE FROM CUSTOMERS . 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SALE OF LIQU OR. DURING THE COURSE OF SCRUTINY ASSESSMENT, THE ASSESSING OFFICE R FOUND THAT THE ASSESSEE COULD NOT FURNISH CONFIRMATION FROM TH E SUNDRY CREDITORS AND ADVANCES RECEIVED FROM CUSTOMERS. AC CORDINGLY, THESE AMOUNTS WERE ADDED TO THE TOTAL INCOME OF THE ASSESSEE AND THE SAME WAS CONFIRMED BY THE CIT(A). THE ASSE SSEE IS IN FURTHER APPEAL BEFORE US. 4. IT WAS ARGUED BY THE LD.COUNSEL FOR THE ASSESSEE THAT NO CREDITS WERE RAISED DURING THE YEAR UNDER CONSIDERA TION, THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ADDING THE SAME TO THE TOTAL INCOME OF THE YEAR UNDER CONSIDER ATION. HE PLACED RELIANCE UPON THE DECISION OF THE JABALPUR B ENCH IN THE CASE OF M/S RAMESH CHANDRA RAVINDRA KUMAR RAI; 14 I TJ 34 IN SUPPORT OF THE PROPOSITION THAT THE ADDITION U/S 68 CANNOT BE MADE IN RESPECT OF UNSECURED LOANS OF EARLIER YEARS WHICH WERE SHOWN AS OPENING BALANCE IN THE CURRENT YEAR AND WH ICH ARE NOT 3 CASH CREDITS OF THE ASSESSMENT YEAR UNDER CONSIDERA TION. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE DEL HI BENCH OF I.T.A.T. IN THE CASE OF HOTEL EXCELSIOR LIMITED; 11 4 TTJ 248 IN SUPPORT OF THE PROPOSITION THAT NO ADDITION U/S 41( 1) CAN BE MADE IN THE ABSENCE OF MATERIAL TO COME TO A VIEW T HAT THE LIABILITIES, IN QUESTION, HAVE CEASED TO EXIST ON T HE DATE OF BALANCE SHEET AND MERELY BECAUSE ACCOUNTS HAVE BECOME NON-O PERATIONAL OR THE PERIOD OF THREE YEARS HAS EXPIRED, IT DOES N OT MEAN THAT SUCH LIABILITY HAS CEASED TO EXIST. RELIANCE WAS A LSO PLACED ON THE DECISION OF I.T.A.T., AHMEDABAD BENCH, IN THE C ASE OF BHAVESH PRINTS PRIVATE LIMITED; 46 SOT 268/274 IN S UPPORT OF THE PROPOSITION THAT THERE HAS TO BE POSITIVE ACT O N THE PART OF THE CREDITOR IN THE CURRENT YEAR WHICH WOULD PROVIDE TH E BENEFIT TO THE ASSESSEE BY WAY OF REMISSION AND IF NO SUCH ACT ON THE PART OF THE CREDITOR TAKES PLACE, THERE IS NO CASE FOR HOLD ING THAT A LIABILITY HAS BEEN REMITTED IN FAVOUR OF THE ASSESS EE. 5. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDERS OF THE LOWER AUTHORITIES AND CONTENDED THAT THEIR ORDE RS SHOULD BE CONFIRMED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES, GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D ALSO 4 DELIBERATED ON THE CASE LAWS CITED BY THE LD.COUNSE L FOR THE ASSESSEE IN THE CONTEXT OF FACTUAL MATRIX OF THE IN STANT CASE. FROM RECORD WE FIND THAT THE CREDITORS WERE ADDED T O THE INCOME OF THE ASSESSEE ON THE PLEA THAT THE ASSESSEE FAILE D TO PRODUCE CONFIRMATION IN SUPPORT OF THE LIABILITY CONTINUED IN THEIR BOOKS OF ACCOUNTS AT THE END OF THE YEAR. THE LIABILITY SO E XISTING AT THE END OF THE YEAR WAS NOT PERTAINING TO THE YEAR, UND ER CONSIDERATION, NOR IS IT A CASE OF THE REVENUE THAT THE LOANS WERE RAISED DURING THE YEAR UNDER CONSIDERATION. THE AS SESSEE HAS ALSO NOT FURNISHED THE DETAILS OF YEAR TO WHICH SUC H LIABILITY PERTAINS. HOWEVER, WE ARE IN AGREEMENT WITH THE JUD ICIAL PRONOUNCEMENT IN THE CASE OF M/S RAMESH CHANDRA RAV INDRA KUMAR RAI (SUPRA) WHEREIN IT WAS HELD THAT WHERE CA SH CREDITS WERE OPENING BALANCE OF THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION, NO ADDITION CA N BE MADE DURING THE YEAR UNDER CONSIDERATION. THUS, THE ADD ITION CAN ONLY BE MADE IN THE YEAR TO WHICH SUCH CREDIT RELATES. IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER AND THE ASSESSEE IS DIRECTED TO P ROVIDE DETAILS OF THE YEAR TO WHICH IT PERTAINS. THE ASSESSING OFFIC ER IS TO DECIDE THE ISSUE AFRESH IN THE RELEVANT ASSESSMENT YEAR TO WHICH SUCH 5 LIABILITY PERTAINS SUBJECT TO THE CONDITIONS OF PRO VISIONS OF THE LIMITATION PERIOD FOR REOPENING OF ASSESSMENT AS CO NTAINED U/S 149 OF IT ACT. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 19.12.2012. SD/- SD/- (JOGINDER SINGH) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED - 19.12.2012 COPY TO : APPELLANT, RESPONDENT, CIT, CIT(A), DR, GUARD FILE DN/-