Shekhar Narula, Delhi V. ACIT, New Delhi

ITA 3916/DEL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3436 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 06-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 20-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMRIT KUMAR
• Assessee Lawyers: RIDHI KARAN AGARWAL
• Keywords: Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SH. BHAVNESH SAINI, JUDICIAL MEMBER AND SH.L.P.SAHU, ACCOUNTANT MEMBER I.T.A .NO.-3916/DEL/2013 (ASSESSMENT YEAR-2008-09) SHEKHAR NARULA, 2950, HAMILTON ROAD, KASHMIRI GATE,NEW DELHI-110006. PAN-AADPN6959N ( APPELLANT) VS ACIT, CIRCLE-20(1), NEW DELHI (RESPONDENT) ASSESSEE BY SH.RIDHI KARAN AGARWAL, CA REVENUE BY SH.AMRIT KUMAR, SR.DR DATE OF HEARING 06.04.2017 DATE OF PRONOUNCEMENT 21.04.2017 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE HAS BEEN DIRECTED AGAIN ST THE ORDER OF LD.CIT(A)-XXII, NEW DELHI DATED 31.01.2013 FOR A.Y. 2008-09, CHALLENGING THE ADDITION OF RS.11,25,000/- ON ACCOUNT OF UNEXPL AINED LOAN RECEIVED FROM SH.BALWANT SINGH. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH PARTIE S AND PERUSED THE MATERIAL ON RECORD. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT DURING TH E YEAR UNDER APPEAL, THE ASSESSEE HAS SHOWN DEPOSIT OF RS.11,25,000/- IN THE NAME OF SH. BALWANT SINGH DETAILED BELOW:- (I) 14.01.2008 RS.3,00,000/- (II) 14.01.2008 RS.3,25,000/- PAGE 2 OF 7 (III) 28.01.2008 RS.5,00,000/- 4. THE ASSESSEE WAS REQUIRED TO FURNISH CONFIRMATIO N OF THE CASH CREDITOR WITH DOCUMENTARY EVIDENCES AND ALSO TO PRO VE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE DEPOSITOR. THE ASSESSEE FILED CONFIRMATION LETTER AND ALSO BANK ACCOUNT. PERUSAL THEREOF REVEALED THAT THE DEPOSITOR SH. BALWANT SINGH NEITHER FILED RETUR N OF INCOME NOR WAS MAN OF MEANS TO ADVANCE A LARGE SUM TO THE ASSESSEE . PERUSAL OF THE BANK ACCOUNTS REVEALED THAT THERE ARE NO SUBSTANTIAL TRA NSACTION IN THE BANK ACCOUNT EXCEPT THE AMOUNT SHOWN AS DEPOSIT IN THE N AME OF THE ASSESSEE. THESE AMOUNTS WERE DEPOSITED ON THE SAME DATE AS C ASH INCLUDING DRAFT CHARGES PAYABLE THEREON. THE DETAILS OF THESE DEPO SITS IN CASH INCLUDING BANK CHARGES ARE REPRODUCED IN THE IMPUGNED ORDER. IT IS STATED THAT ON 14.01.2008, THE CREDITOR DEPOSITED CASH OF RS.6,25, 000/- AND RS.1,000/-. ON THE SAME DAY, THE CREDITOR HAS ISSUED DRAFTS (W DL) IN FAVOUR OF THE ASSESSEE OF THE AMOUNT OF RS.3,00,000/- & RS.3,25,0 00/- WITH BANK CHARGES. AGAIN ON 28.01.2008, THE CREDITOR DEPOSIT ED RS.5,02,000/- IN CASH IN HIS BANK ACCOUNT AND ON THE SAME DAY RS.5,0 0,000/- WITH BANK CHARGES HAVE BEEN TRANSFERRED THROUGH DRAFT (WDL) I N THE ACCOUNT OF THE ASSESSEE FOR GIVING LOAN. THE ASSESSEE FAILED TO P RODUCE THE CREDITOR FOR EXAMINATION ON OATH. THE LOAN WAS FOUND OUTSTANDI NG EVEN AFTER LAPSE OF THREE YEARS. THE ASSESSEE IS TOTALLY UNKNOWN ABOUT THE DEPOSITOR. THE ASSESSEE CAME INTO CONTACT WITH THE DEPOSITOR THROU GH SH. SATISH KAMBOJ PAGE 3 OF 7 WITH WHOM THE ASSESSEE HAS BUSINESS DEALING. THE AO, THEREFORE, NOTED THAT THE ASSESSEE HAS INTRODUCED HIS AMOUNT FROM UN DISCLOSED SOURCE IN THE NAME OF SH. BALWANT SINGH, THEREFORE, IDENTIFY, GENUINENESS AND CREDITWORTHINESS OF THE CREDITOR AND GENUINE DEPOSI T OF RS.11,25,000/- HAVE NOT BEEN PROVED. THE AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 5. THE ASSESSEE REITERATED THE SUBMISSIONS BEFORE T HE LD.CIT(A) AND IT WAS SUBMITTED THAT THE ASSESSEE FILED CONFIRMATIONS OF THE LENDER, COPY OF THE ELECTION CARD OF THE LENDER, COPY OF BANK STAT EMENT AND COPY OF THE SALE PROCEEDS OF AGRICULTURAL COMMODITIES. THEREFO RE, THE ASSESSEE PROVED THE IDENTITY AND CREDITWORTHINESS OF THE CREDITOR A S WELL AS PROVED THE GENUINENESS OF THE TRANSACTION IN THE MATTER. CERT AIN CASE LAWS WERE ALSO RELIED UPON. 6. LD.CIT(A) FOUND THAT EVEN IF COPY OF SEVEN FORM (J) SHOWING SALE PROCEEDS OF AGRICULTURE PRODUCE BY THE LENDER ARE FILED AS ADDITIONAL EVIDENCE BUT THIS WOULD ADDED UPTO TOTAL OF RS.5,73 ,843/-. THE DEPOSITOR CLAIMED DEPOSIT IN JAN. 2008 BUT THE DOCUMENT SHOWS SALE, MUCH BEYOND THIS PERIOD. EVEN SOME OF THE DOCUMENTS HAVE ILLEG IBLE DATES. IT IS ALSO NOTED THAT THE LENDER WOULD HAVE SPENT SOME AMOUNT FOR EARNING AGRICULTURAL INCOME AND SPENT PERSONAL EXPENSES, TH EREFORE, NOTHING IS LEFT WITH THE CREDITOR SH.BALWANT SINGH. THE AO ALSO NO TED THAT THERE WERE NO RELATIONSHIP BETWEEN THE ASSESSEE AND THE CREDITOR AND THE CASH DEPOSITS PAGE 4 OF 7 IN THE ACCOUNT OF THE CREDITOR HAS NOT BEEN PROVED. THEREFORE, SH.BALWANT SINGH DID NOT HAVE CAPACITY OR CREDITWORTHINESS TO ADVANCE THE LOAN. FURTHER, GENUINENESS OF THE TRANSACTIONS HAS NOT BE EN PROVED, THEREFORE, ADDITION WAS CONFIRMED AND THIS GROUND OF APPEAL OF THE ASSESSEE WAS DISMISSED. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE DO N OT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. LD. COUNSEL FOR THE AS SESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO THE ORDER OF ITAT DELHI BENCH IN THE CASE OF THE ASHOK KUMAR NAR ULA IN ITA NO.3917/DEL/2013 DATED 07.01.2016. HE HAS SUBMITTE D THAT IT IS A CASE BROTHER OF THE ASSESSEE IN WHICH LOAN WAS TAKEN FRO M SH.BALWINDER SINGH AND ON THE SAME FACTS, THE ADDITION HAS BEEN DELETE D. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BE LOW. 7.1. CONSIDERING THE FACTS OF THE APPEAL AND IN THE LIGHT OF THE MATERIAL ON RECORD, IT IS CLEAR THAT THE ASSESSEE FAILED TO PRO VE THE CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION IN THE MATTER. 7.2. THOUGH, THE ASSESSEE FILED COPY OF THE CONFIRM ATION AND COPY OF THE ELECTION CARD OF THE CREDITOR WHICH MAY PROVE IDENT ITY OF CREDITOR BUT THE ASSESSEE FAILED TO PROVE CREDITWORTHINESS OF THE CR EDITOR. THE BANK A/C OF CREDITOR REVEALED THAT ON 14.01.2008 THERE IS A CA SH DEPOSIT OF RS.6,25,000/- IN HIS ACCOUNT ALONGWITH RS.1,000/- A ND ON THE SAME DAY, TWO DRAFTS OF RS.3,00,000/- & RS.3,25,000/- WITH BA NK CHARGES HAVE BEEN PAGE 5 OF 7 ISSUED IN THE NAME OF THE ASSESSEE. SIMILARLY ON 2 8.01.2008, THERE IS A CASH DEPOSIT IN THE BANK ACCOUNT OF THE CREDITOR OF RS.5,02,000/- AND ON THE SAME DAY DRAFT OF RS.5,00,000/- HAS BEEN ISSUED TO THE ASSESSEE. THUS, THE CREDITOR HAS NO EXPLANATION OF SOURCE OF THE CASH DEPOSITED IN HIS BANK ACCOUNT FORM (J) WERE FILED BEFORE THE LD.CIT( A) SHOWING SALE PROCEEDS OF AGRICULTURAL PRODUCE BUT THESE WERE ALS O NOT SUFFICIENT TO PROVE THE CREDITWORTHINESS OF THE CREDITOR BECAUSE AFTER EXCLUDING THE EXPENSES INCURRED FOR EARNING AGRICULTURAL INCOME AND HOUSEH OLD EXPENSES , NOTHING WOULD BE LEFT WITH THE CREDITOR BECAUSE ONLY FORM ( J) WERE FILED FOR RS.5,73,843/- ONLY IN WHICH ALSO LD.CIT(A) FOUND CE RTAIN DEFECTS. NO OTHER EVIDENCE HAS BEEN PRODUCED TO PROVE CREDITWORTHINES S OF THE CREDITOR. ITAT, AGRA BENCH IN THE CASE OF SMT. SUMAN GUPTA VS ITO 138 ITD 153 CONSIDERED THE IDENTICAL FACTS IN WHICH THERE WERE SMALL BANK BALANCES AVAILABLE IN THE ACCOUNT OF THE CREDITOR BEFORE ISS UE OF CHEQUE TO THE ASSESSEE AND EQUAL AMOUNT OF THE CASH WERE DEPOSITE D IN THE BANK ACCOUNTS FOR GIVING LOAN TO THE ASSESSEE. THE TRIB UNAL CONFIRMED THE ADDITION U/S 68 OF THE ACT. HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SMT. SUMAN GUPTA VS CIT IN ITA NO.680/12 VIDE JUDGEMENT DATED 07.08.2012 CONFIRMED THE ORDER OF THE TRIBUNAL AND DISMISS TH E APPEAL OF THE ASSESSEE. HONBLE GUJARAT HIGH COURT IN THE CA SE OF BLESSING CONSTRUCTION VS ITO 32 TAXMANN.COM 366 HELD THAT WHERE SIZEABLE AMOUNTS WERE DEPOSITED IN CASH IN ACCOUNT OF DEPOSI TOR ONLY BEFORE THEIR PAGE 6 OF 7 WITHDRAWAL THROUGH CHEQUES IN FAVOUR OF THE ASSESSE E, ADDITION WAS JUSTIFIED. FURTHER THE ASSESSEE FAILED TO PRODUCE THE CREDIT OR BEFORE THE AO FOR EXAMINATION IN ORDER TO FIND OUT THE TRUTH IN THE MATTER, THEREFORE, THE ASSESSEE DELIBERATELY WITHHOLD THE CREDITOR TO BE PRODUCED BEFORE THE AO FOR EXAMINATION. LD. COUNSEL FOR THE ASSESSEE S UBMITTED THAT THE ASSESSEE WAS NOT REQUIRED TO PRODUCE THE DEPOSITOR FOR EXAMINATION. HOWEVER, THE AO HAS SPECIFICALLY MENTIONED IN THE A SSESSMENT ORDER THAT THE ASSESSEE DID NOT PRODUCE THE DEPOSITOR FOR EXAM INATION ON ONE OR OTHER REASON. IF THE ASSESSEE WAS INTERESTED IN PRODUCIN G THE CREDITOR FOR EXAMINATION BY THE INCOME TAX AUTHORITIES, THE ASS ESSEE SHOULD HAVE MADE A REQUEST TO THE LD.CIT(A) IN THIS RESPECT, TH EREFORE, THE FACTS REMAINED THAT THE ASSESSEE COULD NOT PRODUCE SUFFI CIENT EVIDENCES BEFORE THE AUTHORITIES BELOW TO PROVE CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION IN THE MATTER. LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE ORDER OF THE ITAT IN THE ASHOK KUMA R NARULA (SUPRA) BUT THIS ORDER COULD NOT BE ANY PREFERENCE AS AGAINST T HE DECISIONS OF THE HONBLE ALLAHABAD HIGH COURT AND GUJARAT HIGH COURT REFERRED TO ABOVE. LD. COUNSEL FOR THE ASSESSEE ALSO REFERRED TO CERTA IN DECISIONS DURING THE COURSE OF HEARING WITH REGARD TO SHARE APPLICATION MONEY WHICH WERE NOT RELEVANT TO THE MATTER IN ISSUE AND WERE CLEARLY DI STINGUISHABLE ON FACTS. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, WE DO NOT FIND ANY MERIT IN THIS GROUND OF THE APPEAL OF THE ASSESSEE. PAGE 7 OF 7 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (L.P.SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:- 21 ST APRIL, 2017 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT R EGISTRAR ITAT NEW DELHI