Mrs. Almas Ahmed, Nayagarh V. ITO, Khurda Ward, Khurda

ITA 398/CTK/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7136 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 16-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: T K AGARWAL
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 398 /CTK/2017 ASSESSMENT YEAR : 201 0 - 2011 MRS ALMAS AHMED, W/O. MIRZA ASIF ALI BAIG, OSED, WARD NO.2, MAIN ROAD, NEW TOWN, NAYAGARH. VS. ITO, KHURDA PAN/GIR NO. AQMPA 2192 F (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI T.K.AGARWAL, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 2 4 /0 7 / 2018 DATE OF PRONOUNCEMENT : 25 /0 7 / 2018 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 31.3.2017 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. THIS APPEAL IS TIME BARRED BY 111 DAYS. THE ASSESSEE HAS FILED CONDONATION PETITION SUPPORTED WITH AN AFFIDAVIT REQUESTING TO CONDONE THE DELAY. WE FIND THAT THE ASSESSEE HAD REASONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN THE STIPULATED TIME. LD D.R. DID NOT HAVE ANY OBJECTION FOR CONDONING THE DELAY. WE, THEREFORE, CONDONE THE DELAY OF 111 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL AND ADMIT THE APPEAL FOR HEARING. 2 ITA NO. 398/CTK/2017 ASSESSMENT YEAR : 2010 - 2011 3. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN CONFIRMING T HE ADDITION OF RS.24 LAKHS MADE BY THE ASSESSING OFFICER U/S.69 OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS RECEIVED LOAN OF RS.24,00,000/ - FROM ONE SHRI K. SUNDARESH KUMAR. THE ASSESSING OFFICER I SSUED NOTICE U/S.133(6) OF THE ACT TO THE LOAN CREDITOR BUT NO REPLY WAS RECEIVED FROM HIM. THEREFORE, THE ASSESSING OFFICER ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 5. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE CREDITWORTHINESS OF THE LOAN CREDIT OR WAS NOT PROVED BY THE ASSESSEE. 6. BEFORE US, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE FILED COPY OF CONFIRMATION OF LOAN FROM K. SUNDARESH KUMAR, WHEREIN, HE HAS GIVEN HIS BANK ACCOUNT NO.254001100003422 OF BANK OF BARODA, BARKOKOCHER BRANCH. HE SUBMITTED THAT THE ASSESSING OFFICER THEREAFTER HAS MADE NO ENQUIRY FROM THE BANK OF THE LOAN CREDITOR TO VERIFY ABOUT THE CREDITWORTHINESS OF THE LOAN CREDITOR AND, THER EFORE, AS THE ASSESSEE HAS DISCHARGED HIS BURDEN BY PROVING THE IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS BY FILING BANK ACCOUNT NO.254001100003422 OF BANK OF BARODA, BARKOKOCHER BRANCH OF SH K SUNDARESH KUMAR, THE LOAN CREDITOR, THE AD DITION MADE IS NOT SUSTAINABLE IN LAW AND SHOULD BE DELETE D . 3 ITA NO. 398/CTK/2017 ASSESSMENT YEAR : 2010 - 2011 7. ON THE OTHER HAND, LD D.R. VEHEMENTLY OPPOSED THE SUBMISSION OF LD A.R. OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE FAILED TO PRODUCE THE LOAN CREDITOR BEFORE THE ASSESSING OFFICER AND EVE N COULD NOT FILE THE COPY OF THE BANK STATEMENT OF THE LOAN CREDITOR. THOUGH THE PAN NO. OF THE LOAN CREDITOR WAS PROVIDED BY THE ASSESSEE IN THE LOAN CONFIRMATION OF THE LOAN CREDITOR, BUT THE INCOME TAX OFFICER OF THE LOAN CREDITOR WARD HAS FILED A LETT ER WITH REFERENCE TO LETTER OF ITO, KHURDA WARD, KHURDA, WHEREIN, IT HAS BEEN STATED THAT THE SAID LOAN CREDITOR HAD NOT FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010 - 2011 AND ONLY THE RETURN OF INCOME FILED BY THE SAID ASSESSEE WAS FOR ASSESSMENT YE AR 2011 - 12. THEREFORE, THE CREDITWORTHINESS OF THE LOAN CREDITOR COULD NOT BE VERIFIED. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE CLAIMED TO HAVE RECEIVED LOAN OF RS.24,00,000/ - FROM SHRI K.SUNDARESH KUMAR. SINCE THE ASSESSEE COULD NOT FILE CONFIRMATION OF THE LOAN CREDITOR, THE ASSESSING OFFICER MADE THE ADDITION OF THE SAME TO THE INCOME OF THE ASSESSEE U/S.69 OF THE ACT, WHICH WAS CONFIRMED IN APPEAL BY THE CIT(A) ON THE GROUND THAT CREDITWORTHINESS OF THE LOAN CREDITOR WAS NOT PROVED. 9. LD A.R. HAS POINTED OUT FROM THE ORDER OF THE ASSESSING OFFICER AT PAGE 3 PARA 4.3 , WHEREIN, CONFIRMATION L ETTER HAS BEEN QUOTED IN VERBATIM AND POINTED OUT THEREFROM THAT THE SAID LOAN CREDIT OR HAS GIVEN HIS BANK ACCOUNT NO. 254001100003422 OF BANK OF BARODA, BARKOKOCHER 4 ITA NO. 398/CTK/2017 ASSESSMENT YEAR : 2010 - 2011 BRANCH FROM WHERE THE LOAN WAS ADVANCED TO THE ASSESSEE. IT IS THE SUBMISSION THAT THE ASSESSING OFFICER HAS NOT VERIFIED THE CREDITWORTHINESS OF THE LOAN CREDITOR BY CALLING INFORMATION FROM THE SAID BANK AND, THEREFORE, THE ADDITION MADE WAS NOT JUSTIFIED. IN THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER FAILED TO CALL FOR INFORMATION FROM THE BANK OF LOAN CREDITOR TO VERIFY THE CREDITWORTHINESS OF THE LOAN CREDITOR. FURTHER, THE ASSESSEE ALSO FAILED TO FILE DETAILS ABOUT LOAN CREDITOR TO PROVE HIS CREDITWORTHINESS AS TO WHETHER THE SAME WAS OUT OF HIS EARNINGS OR FROM HIS BORROWINGS FROM OTHERS. AS THE ENTIRE FACTS HAVE NOT BEEN BROUGHT ON RECORD BY EITHER OF THE LOWER AUTHORITIES, WE ARE OF THE CONSIDERED VIEW THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSIN G OFFICER FOR VERIFYING THE CREDITWORTHINESS OF THE LOAN CREDITOR BY CALLING INFORMATION FROM THE B ANK OF BARODA, BARKOKOCHER BRANCH FRO M WHERE THE BANK ACCOUNT OF THE LOAN CREDITOR IS MAINTAINED AND THEREAFTER, ADJUDICATE THE ISSUE AFRESH. WE, THEREFORE, SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 25 /0 7 /2018. SD/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 25 /0 7 /2018 B.K.PARIDA, SPS 5 ITA NO. 398/CTK/2017 ASSESSMENT YEAR : 2010 - 2011 COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : MRS ALMAS AHMED, W/O. MIRZA ASIF ALI BAIG, OSED, WARD NO.2, MAIN ROAD, NEW TOWN, NAYAGARH. 2. THE RESPONDENT. ITO, KHURDA 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//