SAJ PROPERTIES PVT. LTD., Jaipur V. ITO, NEW DELHI

ITA 370/JPR/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5338 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G R PARIKH J DHK
• Assessee Lawyers: PREM LATA
• Section: 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA-@ ITA NO. 370/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 M/S. SAJ PROPERTIES PVT. LTD. A-4, SHASTRI NAGASR, NEAR SHUBHAM TOWER, JAIPUR CUKE VS. THE ITO WARD- 7 (2) NEW DELHI LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAKCS 1529 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI S.L. JAIN AND SMT. PREM LATA (AD VOCATE) JKTLO DH VKSJ LS@ REVENUE BY: SHRI G.R. PARIKH, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16/05/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 17 /05/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM:- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)-II, JAIPUR DATED 21-03-2014 FOR THE ASSESSMENT YEAR 200 8-09. 2.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND 1 TO 3 WHICH ARE DISMISSED BEING NOT PRE SSED. 3.1 THE REMAINING GROUND NO. 4 OF THE ASSESSEE IS A S UNDER:- THAT THE AO HAS FURTHER GROSSLY ERRED IN LAW AND IN FACTS IN MAKING ADDITION OF RS. 26.50 LACS ON ACCOUNT OF CA SH CREDIT U/S. 68 IN THE NAME OF THE DIRECTORS AS UNDER DUE TO NON-FI LING OF SIGNED CONFIRMATION AT THE TIME OF REMAND REPORT BUT SIGNE D CONFIRMATION WERE FILED BEFORE PASSING THE APPELLATE ORDER BY TH E WORTH CIT (A). ITA NO.370/JP/2014 M/S . SAJ PROPERTIES PVT. LTD. VS ITO, WARD 7(2), NEW DELHI 2 NAME OF DEPOSITORS AMOUNT MODE OF DEPOSIT PAN CONFIRMATION FILED TO CIT (A) SHRI SANDEEP KOHLI 20,00,000 CHEQUE AHFPK 7123 E YES SHRI SHARWAN CHOUDHARY 5,00,000 CHEQUE ABIPCK 7810K YES SHRI SHARWAN CHOUDHARY 1,50,000 CHEQUE ABIPCK 7810K YES 3.2 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT RELIEF OF RS. 1.50 LACS HAS BEEN AWARDED BY THE AO IN SET ASIDE THE PROCEEDINGS , THEREFORE, THE GROUND IS CONFINED TO THE AMOUNT OF RS. 25.00 LACS DEPOSITED BY CROSSED CHEQUES OF SHRI SANDEEP KOHLI AND SHRI SHARWAN CHOUDHARY, DIRECTORS OF THE COMPANY AS MENTIONED ABOVE. 3.3 THE CIT(A) HAS CONFIRMED THE ADDITION OF RS. 25 .00 LACS BY FOLLOWING OBSERVATIONS. ASSESSING OFFICER IN THE REMAND REPORT MENTIONED THAT CONFIRMATIONS FROM MR. SANDIP KOHLI AND MR.SHARWAN CHOUDHARY WERE FILED WITHOUT ANY SIGNATURE OF THE LENDERS AND THEREFORE, THE SAME HAS NO VALIDITY. IN THE ABSENCE OF CONFIRMATIO N, THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S WERE NOT ESTABLISHED. APPELLANT SUBMITTED THAT IN THE ASSESS MENT YEAR 2006- 07, SIMILAR ADDITION IN RESPECT OF DEPOSITS FROM T HESE PERSONS WAS MADE AND THE SAME WAS DELETED BY ITAT BY HOLDING TH AT THE DEPOSITS WERE EXPLAINED. I HAVE GONE THROUGH THE OR DER OF ITAT AND IT IS SEEN THAT FACTS ARE DIFFERENT THIS YEAR. THE CONFIRMATIONS OF THE DEPOSITORS WERE SUBMITTED BEFORE THE AO IN THAT YEAR AND AS SUCH APPELLANT DISCHARGED ITS ONUS. HOWEVER, APPELL ANT DID NOT FILE VALID CONFIRMATIONS THIS YEAR AND THEREFORE IT CANN OT BE SAID THAT THE DEPOSITS WERE EXPLAINED THIS YEAR. EVEN IF LOAN IS TREATED AS GENUINE IN EARLIER YEARS, THE SUBSEQUENT YEARS LOA N WILL NOT AUTOMATICALLY BE TREATED AS EXPLAINED ON THE BASIS OF EVIDENCES FILED IN EARLIER YEARS. SINCE EACH YEAR IS SEPARATE AND FOR THE NEW BORROWINGS, APPELLANT IS DUTY BOUND TO SUBMIT CONFI RMATION TO THE AO, APPELLANT DID NOT DISCHARGE ITS ONUS BY NOT SUB MITTING CONFIRMATION FROM THESE TWO PARTIES. IN THE ABSENCE OF CONFIRMATION FROM THE LENDER, LOAN CANNOT BE TREATED AS EXPLAINE D. ALL OTHER ITA NO.370/JP/2014 M/S . SAJ PROPERTIES PVT. LTD. VS ITO, WARD 7(2), NEW DELHI 3 INFORMATIONS ARE SECONDARY AND CANNOT SUBSTITUTE TH E PRIMARY REQUIREMENT OF CONFIRMATION OF LOAN. EVEN IN THE CA SE OF ORISSA CORPORATION LTD., HON'BLE SUPREME COURT HELD THAT B Y FILING CONFIRMATION WITH PAN ONUS IS DISCHARGED BY THE APP ELLANT. AFTER THIS, ONUS SHIFTS TO THE DEPARTMENT. HOWEVER, IN TH E ABSENCE OF CONFIRMATION, ONUS ON THE PART OF APPELLANT NEVER G ETS DISCHARGED. RESPECTFULLY FOLLOWING THE DECISION OF APEX COURT REFERRED EARLIER, IT IS HELD THAT BY NOT SUBMITTING SIGNED CONFIRMATI ON FROM THESE TWO PARTIES EVEN DURING REMAND PROCEEDINGS, APPELLANT H AS NOT DISCHARGED ITS ONUS AND THEREFORE CREDITS APPEARING IN THEIR NAME AMOUNTING TO RS. 25 LAKHS ARE NOT EXPLAINED. ACCORD INGLY, ADDITION MADE BY THE AO TO THE EXTENT OF RS. 25 LAKHS IS CON FIRMED. IT IS CONTENDED THAT THE SOLE REASON FOR CONFIRMATI ON IS THE ABSENCE OF THEIR SIGNATURES ON CONFIRMATION, BEING A CURABLE DEFECT , AFTER REMAND PROCEEDINGS THE SIGNED COPIES OF CONFIRMATIONS WERE FILED WITH LD. CIT(A). FURTHER SIMILAR ISSUE AROSE IN ASSESSEES OWN CASE BEFORE ITAT DELH I BENCH WHO VIDE ORDER DATED 20-04-2012 IN ITA NO. 535/DEL/2010 HAD DELETE D THE ADDITIONS. 3.4 THE LD. DR VEHEMENTLY CONTENDS THAT THE ADDITIO N HAS BEEN CONFIRMED NOT ONLY BECAUSE OF UNSIGNED CONFIRMATION BUT ALSO BY L D. AOS PERTINENT OBSERVATIONS IN THE REMAND REPORT THAT GENUINENESS AND CREDITWORTHINESS OF THE CREDITORS ALSO HAVE NOT BEEN PROVED. FURTHER IN THE ENTIRE ITAT ORDER, THERE IS NO ANY MENTION OF IMPUGNED CREDITORS I.E. SHRI SANDEEP KOHLI AND SHRI SHARWAN CHOUDHARY. THEREFORE IT CANNOT BE HELD THAT GENUINE NESS OF THE TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS IS COVERED BY ITA T ORDER (SUPRA). 3.5 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. PRIMA FACIE LD. CIT(A)S ORDER GIVES AN IM PRESSION THAT THE ADDITION HAS BEEN CONFIRMED BECAUSE OF UNSIGNED CONFIRMATIONS FI LED BY THE ASSESSEE , ITA NO.370/JP/2014 M/S . SAJ PROPERTIES PVT. LTD. VS ITO, WARD 7(2), NEW DELHI 4 HOWEVER, READING IT WITH AOS REMAND REPORT GIVES O THER IMPRESSION TO THE EFFECT THAT THERE WERE QUESTIONS ON THE CREDITWORTH INESS AND OTHER ISSUES OF THESE CREDITORS. THE ITAT ORDER (SUPRA) ALSO DOES NOT GIV E CLEAR INDICATION ABOUT THE CREDITWORTHINESS OF THESE TWO CREDITORS. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE FEEL THAT IN THE INTEREST OF JUSTIC E, THE ISSUE IN QUESTION BE RE-ADJUDICATED BY THE LD. CIT(A) AFTER CONSIDERING THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPOR TUNITY OF BEING HEARD. THUS THE GROUND NO. 4 OF THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. 4.0 IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 17 /05 /2016. SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 17 /05/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S. SAJ PROPERTIES PVT. LTD., JAIP UR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 7(2), NEW DELHI 3. VK;DJ VK;QDRVIHY ) @ CIT(A) 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.370/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR