Shri Juzer Bannatwala, Indore V. The ITO-2(4), Indore

ITA 354/IND/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7479 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-01-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 11-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K C SELVAMANI
• Assessee Lawyers: S S SOLANKI
• Keywords: Unexplained cash credit; Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 143(3); 68; 2

Judgement Text

JUZER BANNATWALA ITA NO.354/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.354/IND/2017 ASSESSMENT YEAR 2012-13 REVENUE BY S HRI K.C. SELVAMANI, SR.DR ASSESSEE BY SHRI S.S. SOLANKI, C . A DATE OF HEARING 1 0 . 0 1 . 201 9 DATE OF PRON OUNCEMENT 11 . 01.2019 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2012-13 IS DIRECTED A GAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- I (IN SHORT LD.CIT(A)], INDORE DATED 30.01.2017 WHICH ARE AR ISING OUT OF THE S HRI JUZER BANNATWALA, 65, SCHEME NO.102, MANIK BAGH ROAD, INDORE VS. ITO - 2(4) , INDORE ( APPELLANT ) (RESPONDENT ) PAN NO. A HLPB7786Q JUZER BANNATWALA ITA NO.354/IND/2017 2 ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHO RT THE ACT) DATED 23.03.2015 FRAMED BY ITO-2(4), INDORE. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL; 1. THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.35,00,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED CR EDITORS U/S 68. THAT THE ASSESSEE HAS PROVED ALL THE INGREDIENTS OF SECTION 68, THE ADDITION SO MADE REQUIRE TO BE DELETED. 3. FROM PERUSAL OF THE RECORD, WE FIND THAT THE INS TANT APPEAL IS TIME BARRED BY 9 DAYS. WE HAVE GONE THROUGH THE SU BMISSION FOR CONDONATION OF DELAY ALONG WITH THE AFFIDAVIT AND F IND THAT THE ASSESSEE WAS SUFFERING FROM ILLNESS WHICH PREVENTED HIM FROM FILING APPEAL BEFORE THE TRIBUNAL. WE, IN THE INTEREST OF JUSTICE AND THE REASONABLE CAUSE MENTIONED IN THE AFFIDAVIT, CONDON E THE DELAY OF 9 DAYS AND ADMITT THE APPEAL FOR ADJUDICATION. 4. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE REFER RING TO THE AFFIDAVIT OF SHRI SOHANLAL KUMAWAT SUBMITTED THAT H E IS ONE OF THE ALLEGED UNEXPLAINED CREDITOR AND THE AFFIDAVIT HAS BEEN FILED IN ORDER TO EXPLAIN THE CASH CREDIT. HE PRAYED FOR GRANTING ONE MORE OPPORTUNITY TO GO BEFORE THE LD.A.O SO AS TO EXPLAI N THE ALLEGED JUZER BANNATWALA ITA NO.354/IND/2017 3 CREDITORS OF RS.35,00,000/- WHICH WAS ADDED TO THE INCOME BY LD.A.O U/S 68 OF THE ACT. HE ALSO STATED AS AN OFF ICER OF THE COURT, THAT ALL THE ALLEGED CREDITORS, FOR WHICH THE ADDIT ION HAS BEEN MADE BY THE LD.A.O, SHALL BE PRODUCED BEFORE THE LD.A.O IN THE SET ASIDE PROCEEDINGS, SO THAT THE LEARNED ASSESSING OFFICER CAN CONFRONT THE CREDITORS SO AS TO SATISFY ABOUT THE IDENTITY, GENU INENESS AND CREDITWORTHINESS OF THE CASH CREDITORS OF RS.35,00, 000/-. 5. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE THOUG H SUPPORTED THE ORDERS OF LOWER AUTHORITIES BUT DID NOT OPPOSE THIS REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE FOR AFRESH ADJUDIC ATION OF THE ISSUE SUBJECT TO THE PERSONAL APPEARANCES OF ALL THE ALLE GED CASH CREDITORS BEFORE THE LD.A.O TO BE EXAMINED FOR THE IDENTITY, GENUINENESS AND CREDITWORTHINESS. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. WE FIND THAT THE ASSESSEE IS ENG AGED IN THE BUSINESS OF PLYING LIGHT VEHICLE, BROKERAGE AND AGR ICULTURAL INCOME. RETURN OF INCOME WAS FILED ON 03.01.2013 DECLARING INCOME OF JUZER BANNATWALA ITA NO.354/IND/2017 4 RS.2,30,246/-. THE CASE WAS SELECTED FOR SCRUTINY U/S 143(2) OF THE ACT AND THE ASSESSMENT U/S 143(3) WAS COMPLETED ON 23.03.2015 AFTER MAKING ADDITION OF UNEXPLAINED CASH CREDITORS OF RS.35,00,000/- FROM FOUR DIFFERENT CREDITORS AS WEL L AS ADDITION OF RS.1,52,000/- FOR INCOME FROM OTHER SOURCES. ASSES SEE FILED AN APPEAL BEFORE LD.CIT(A) BUT FAILED TO SUCCEED ON TH E GROUND RELATING TO ADDITION FOR UNEXPLAINED CASH CREDITORS U/S 68 O F THE ACT AT RS.35,00,000/-. NOW THE ASSESSEE IS IN APPEAL BEFOR E THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR ONE MORE OPPORTUNITY TO GO BEFORE LD.A.O TO PROVE THE IDENTI TY, GENUINENESS AND CREDITWORTHINESS OF THE FOUR CASH CREDITORS NAM ELY S/SHRI BHUPENDRA SINGH, MALKHAN SINGH, MANOHAR SINGH AND S OHANLAL FOR THE ALLEGED UNEXPLAINED CASH CREDIT OF RS.7,00,000/ -, RS.6,00,000/-, RS.7,00,000/- AND RS.15,00,000/- RES PECTIVELY. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT ON 28.12.2018 OF SHRI SOHANLAL IN ORDER TO EXPLAIN THE CREDIT OF RS.15,00,000/- ON 28.12.2018. THE REVENUE HAS NOT OBJECTED TO THE REQUEST FOR AFRESH EXAMINATION OF THE ISSUE. JUZER BANNATWALA ITA NO.354/IND/2017 5 8. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCE S OF THE CASE AND IN VIEW OF THE REQUEST MADE BY BOTH THE PARTIES SET ASIDE THE ISSUE RAISED IN THIS APPEAL TO THE FILE OF ASSESSIN G OFFICER FOR DENOVO ADJUDICATION WITH THE DIRECTION TO THE ASSESSEE TO PRODUCE ALL THE ABOVE REFERRED FOUR CASH CREDITORS ALONG WITH NECES SARY DETAILS AND DOCUMENT BEFORE THE LD.A.O, WHO WILL EXAMINE THE ID ENTITY, GENUINENESS AND CREDITWORTHINESS OF THE ALLEGED UNE XPLAINED CASH CREDITORS TOTALING TO RS.35,00,000/- AND AFTER BEIN G SATISFIED SHOULD DECIDE ACCORDINGLY. NEEDLESS TO MENTION THAT REASO NABLE OPPORTUNITY OF BEING HEARD SHOULD BE PROVIDED TO TH E ASSESSEE. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 11.01 .2019. SD/- ( KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 11 JANUARY, 2019 /DEV JUZER BANNATWALA ITA NO.354/IND/2017 6 COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE