ITO, Kota V. TARA CHAND GUPTA, Kota

ITA 402/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5324 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2016
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 27-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: MAHENDRA GARGIEYA ADV DHK
• Keywords: Unexplained cash credit; Additional evidence
• Section: 143(3); 68; 263

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 FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA-@ ITA NO. 402/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER, WARD 1(2), KOTA. CUKE VS. TARA CHAND GUPTA, PROP.- M/S KPB INDUSTRIEA, BHAMASHAH MANDI, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGGPG 4814 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/04/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 05/04/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE REVENUE EMANATES FRO M THE ORDER OF THE LD. CIT(A), KOTA DATED 19/03/2014 FOR THE A.Y. 2007-08, WHEREIN THE REVENUE HAS TAKEN ONLY ONE EFFECTIVE GROUND OF APPEAL, WHICH IS REPRODUCED HEREUNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN: (I) RESTRICTING THE BALANCE UNEXPLAINED CASH CREDIT ORS OF RS. 36,67,333/- TO RS. 3,67,733/- BY HOLDING THAT IT WO ULD BE FAIR AND REASONABLE TO TREAT 10% OF THESE CREDITORS AS ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 2 UNEXPLAINED INSTEAD OF CONFIRMING THE WHOLE ADDITIO N OF RS. 45,39,140/-. 2. THE ASSESSEE FILED HIS RETURN OF INCOME ON 14/11/ 2007 DECLARING TOTAL INCOME OF RS. 2,66,550/-. THE ASSESSMENT WAS FI NALIZED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) ON 01/3/2013 AT AN INCOME OF RS. 48,14,960/-. THE ADDITION OF RS. 45 ,39,140/- WAS MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITORS. THE L D. CIT(A) HAS PARTLY GRANTED RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: IN THIS CASE, THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) ON 29.09.2009. THEREAFTER, CIT, KOTA PASSED AN ORDER U /S 263 ON 31.01.2012 AND SET-ASIDE THE EARLIER ASSESSMENT ORDER WITH A DIREC TION TO VERIFY SUNDRY CREDITORS OF RS. 45,39,140/-. THE AO MADE AN ADDITION OF RS. 45,39,140/- OBSERVIN G AS UNDER:- THE ASSESSEE HAS SHOWN OUTSTANDING CREDITORS OF RS .4539140/- DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE WAS ASKED TO SUBM IT THE NAME, FULL ADDRESS AND PAN OF THESE CREDITORS. ASSESSEE WAS ALSO ASKED TO SUBMIT CONFIRMATION OF LEDGER ACCOUNT OF THESE CREDITORS ALONGWITH VCIKRAY PARCHI. HOWEVER THE ASSESSEE ONLY SUBMITTED VIKARY PARCHI I N CASE OF THESE CREDITORS EXCEPT ONE. IN CASE OF SH. PANKAJ CHOUDHARY WITH OU TSTANDING AMOUNT OF RS.37000/- THE ASSESSEE EVEN FAILED TO SUBMIT VIKRA Y PARCHI ALSO. THE ASSESSEE ALSO FAILED TO SUBMIT OTHER DETAILS IN VERIFICATION OF THESE OUTSTANDING CREDITORS. FURTHER, IN THE ABSENCE OF THE REQUISITE DETAILS, N O VERIFICATION COULD BE MADE OF THESE CREDITORS. VIKRAY PARCHI COULD NOT BE TAKEN A S EVIDENCE REGARDING THESE OUTSTANDING AMOUNTS. ASSESSEE SUBMIT COPY OF LEDGER ACCOUNTS AS PER HIS BOOKS OF ACCOUNT, WITHOUT ANY CONFIRMATION OF THE CREDITO RS. THE HONBLE HIGH COURT OF RAJASTHAN, JODHPUR BENCH ALSO HELD IN THE CASE OF RAJSHREE SYNTHETICS (P) LTD., V. COMMISSIONER OF IN COME-TAX [203] 131 TAXMAN 391 (RAJ) THAT IT IS WELL-SETTLED THAT THE ASSESSEE IS REQUIRED TO PROVE PRIME FACIE THE TRANSACTIONS, WHICH RESULT IN CASH CREDITS IN H IS BOOKS OF ACCOUNT. SUCH PROOF INCLUDES THE PROOF OF IDENTITY OF HIS CREDITOR, CAP ACITY OF SUCH CREDITOR TO ADVANCE ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 3 THE MONEY AND, LASTLY, THE GENUINENESS OF THE TRANS ACTION. THESE THINGS MUST BE PROVE PRIMA FACIE BY THE ASSESSEE AND ONLY AFTER TH E ASSESSEE HAS ADDUCED EVIDENCE TO ESTABLISH PRIMA FACIE, THE AFORESAID ON US SHIFTS ON TO THE DEPARTMENT. MERE FILING OF CONFIRMATORY LETTERS DOE S NOT DISCHARGE THE ONUS THAT LIES ON THE ASSESSEE. SIMILARLY, MERE FURNISHING OF PARTICULARS IS NOT ENOUGH. THEREFORE ADDITION OF RS.4539140/- IS MADE TO TOTAL INCOME OF THE ASSESSEE U/S 68 OF I. T. ACT, 1961. I HAVE GONE THROUGH AOS FINDINGS AND ASSESSEES SU BMISSION. DURING THE COURSE OF HEARING, THE ASSESSEE SUBMITTE D ADDITIONAL EVIDENCE IN THE FORM OF CONFIRMATIONS AND AFFIDAVITS OF TRADE C REDITORS. THE SAME WERE ADMITTED AND FORWARDED TO AO FOR ENQUIRY AND REPORT . THE AO SUBMITTED AS UNDER:- KINDLY REFER TO YOUR LETTER NO.1315 DATED 26.07.20 13 ON THE ABOVE SUBJECT. WITH REFERENCE TO THE ABOVE, IT IS SUBMITTED THAT T HE ASSESSEE VIDE THIS OFFICE LETTER NO.839 DATED 03.09.2013, 925 DATED 16.06.201 3 AND 1132 DATED 17.10.2013 WAS REQUESTED TO APPEAR BEFORE THE UNDER SIGNED AND PUT UP ADDITIONAL EVIDENCE BUT ASSESSEE HAD NOT COMPLIED W ITH THE SAME TILL DATE. IT MEANS, THE ASSESSEE HAS NOTHING TO SAY IN THE RESPE CT OF HIS ADDITIONAL EVIDENCE. THE ASSESSEE SUBMITTED AS UNDER:- THE ORDER PASSED U/S 263 OF L.T. ACT BY THE LEARNE D COMMISSIONER IS ARBITRARY AND UNJUSTIFIED. THE LD INCOME TAX OFFICER DURING T HE COURSE OF HEARING OF THE CASE U/S 143(2) OF I.T. ACT HAD VERIFIED THE DETAIL S ABOUT THE CREDIT BALANCE APPEARING IN THE FARMERS ACCOUNTS AND AFTER BEING SATISFIED, HE PASSED THE ORDER U/S 143(3) OF I.T. ACT, AND THUS THE ORDER PA SSED BY THE INCOME TAX OFFICER WAS NOT ERRONEOUS. (II) THE LEARNED CIT IN HIS ORDER PASSED U/S 263 O FL.T. ACT HAS SPECIFICALLY MENTIONED ON PAGE-2, PARA-4. THE ORDER PASSED BY AO FOR ASST, YEAR 2007-08 IS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E BECAUSE, THE NECESSARY DETAILS TO VERIFY THIS CLAIM I.E. THE FULL ADDRESS OF THE FARMERS DATE OF TRANSACTION AND CREDITWORTHINESS OF THE SAID FARMERS HAVE NOT B EEN TAKEN ON RECORD BY A.O. WHILE FRAMING THE ASSESSMENT ORDER. ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 4 (III) IN COMPLIANCE OF THE DIRECTIONS OF THE LEARNE D CIT, THE ASSESSEE HAS SUBMITTED THE ENTIRE DETAILS REGARDING THE TRADE (AGRICULTURI ST) CREDITORS DURING THE HEARING WITH THE INCOME TAX OFFICER AND AGAIN DURING THE CO URSE OF HEARING OF APPEAL. THE APPELLANT HAS FILED THE DETAILS OF THE VIKRARY A PARCHI (ISSUED BY MANDI COMMITTEE) OF THE OUTSTANDING CREDITORS (AGRICULTUR IST) AND HAS ALSO FILED THE AFFIDAVITS OF THE SAID PERSONS ALONGWITH THE DETAIL S OF AGRICULTURAL LAND HOLDING I.E. COPIES OF KHATA KHASRA AND IDENTITY PROOF. THUS THE APPELLANT HAS SUBMITTED/PRODUCED THE DETA ILS OF IDENTITY OF THE CREDITOR, GENUINENESS OF THE TRANSACTION AND CAPACI TY OF THE CREDITOR FOR THE BALANCE OUTSTANDING. (IV) IT IS ALSO SUBMITTED THAT MORE THAN 6 YEARS HA VE ELAPSED SINCE THE TRANSACTION HAS TAKEN PLACE AND THE HUMBLE APPELLANT DOES NOT H AVE ANY DIRECT RELATION OR APPROACH TO THE PERSONS WHOSE AMOUNT WAS LYING OUTS TANDING IN THE CLOSE OF THE YEAR MARCH 2007. MUNIMS WHO WERE LOOKING AFTER THE ENTIRE BUSINESS HAD ALSO LEFT THE SERVICE OF THE ASSESSEE (APPELLANT) B EFORE 2-3 YEARS AND THEREFORE HE IS NOT HAVING INDIRECT APPROACH ALSO TO THOSE PE RSONS NOW A DAYS. THEREFORE PRESENCE/ ATTENDANCE OF THOSE AGRICULTURIST IN THE INCOME TAX OFFICE COULD NOT BE FORCED BY HIM. RESPECTED SIR, THE HUMBLE APPELLANT HAS PROVED THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTIONS AND OF THE AGRI CULTURIST/CREDITORS AND IN SUCH CASE HE HAS DISCHARGED HIS ONUS. IN SUCH A CAS E NO ADDITION ON THIS ACCOUNT SHOULD BE MADE AND MERELY BECAUSE THE ASSESSEE COUL D NOT PRODUCE THE CREDITOR, ADDITION IS NOT SUSTAINED BY HIGHER COURT . (I) ATMARAM J MANGHIMALANI (HUF) V/S ITO 62 TTJ (M UMBAI) 358) MERE NON APPEARANCE OF THE DONOR IN THE ABSENCE OF ANY EVIDE NCE THAT DONATED AMOUNT REPRESENTS UNDISCLOSED INCOME OF THE APPELLA NT, NO ADDITION CAN BE MADE (THE SAME ANALOGY IS APPLICABLE IN THE CASE OF LOAN). (II) BHAGWAN DAS SHARDA V/S ACIT (2004) 82 TTJ (HYD .) 982 LENDER CONFIRMED THE LOAN BUT COULD NOT BE PRODUCED AS HE WAS NOT AV AILABLE. THE LOAN WAS CLEARED BY THE ASSESSEE BEFORE ASSESSMENT PROCEEDIN GS STARTED. THE ADDITION BASED ON NON PRODUCTION OF LENDER WAS UNJU STIFIED. IN VIEW OF ABOVE, IT IS REQUESTED THAT PLEASE DELE TE THE ADDITIONS MADE BY THE LEARNED INCOME TAX OFFICER AND OBLIGE. FROM THE CASE RECORDS, IT WAS SEEN THAT THE AO HAD ASKED THE ASSESSEE TO PRODUCE THE SUNDRY CREDITORS WHOSE AFFIDAVITS WERE SUBMITTED BY ASSESSEE. ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 5 HOWEVER, THE ASSESSEE DID NOT COMPLY. DURING THE CO URSE OF HEARING, THE AO HAS ALSO REPORTED AS UNDER: - DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WA S ASKED VIDE LETTER DATED 01.10.2012 TO SUBMIT DETAILS OF CREDITORS ALONGWITH CONFIRMATION OF LEDGER ACCOUNTS AND VIKRAY PARCHI. HOWEVER TILL DATE OF AS SESSMENT ON 01.03.2013, ASSESSEE HAS NOT MADE FULL COMPLIANCE IN THIS REGAR D. THEREFORE ADDITIONS WERE MADE DURING THE ASSESSMENT PROCEEDINGS. NOW THE ASS ESSEE HAS SUBMITTED VIDE LETTER DATED 28.06.2(313 THAT HE WAS NOT AT ALL TOU CH WITH THE ASSESSMENT PROCEEDINGS. BUT AT THE SAME TIME THE AFFIDAVITS OF THE CREDITORS, AGRICULTURISTS, SUBMITTED UNDER RULE 46A OF IT RULES, 1962 SAYS THA T AFTER SELLING THEIR PRODUCE TO THE ASSESSEE, THEY DID NOT RECEIVE FULL AMOUNT F ORM THE ASSESSEE BECAUSE OF GOOD AND FAMILY RELATIONS WITH THE ASSESSEE. FURTHE R, IT IS FOUND FORM THE DETAILS OF THE DOCUMENTS THAT;- 1. AS PER AUDITED BALANCE SHEET, SH. RADHEY SHYARN (44891 /-), SH. PANKAJ CHOUDHARY (41000/-) AND SHRI GENDI LAI (61878/-) AR E RESIDENT OF SISWALI, SAMURANITY AND SISWALI RESPECTIVELY. BUT AS PER AFF IDAVITS OF THE CREDITORS, THEY ARE RESIDENTS OF DIKMANI (SHAHBAD), SHAHBAD AN D SUNWA. 2. IN THE CASE OF FOLLOWING PERSONS, THE DOCUMENTS INCLUDING AFFIDAVIT ARE NOT SUBMITTED BY THE PERSONS WHOSE NAMES ARE APPEAR ING IN THE AUDITED BALANCE SHEET OF THE ASSESSEE. S. NO. NAME AS PER AUDITED BALANCE SHEET NAME AS PER AFFIDAVITS AMOUNT 1 SHRI RAM NARAYAN SHRI MANISH JAIN 250000/- 2 SHRI RAMESHWAR SHRI SURESH 140000/- 3 SHRI HARI PRASAD SHRI KAMLESH 100000/- 4 SHRI NARAYAN SMT. GOGA BAI 200000/- 5 SHRI NAND KISHORE SHRI HEMRAJ 240000/- 6 SHRI RADHA RAMAN SHRI NARESH KUMAR 281807/- TO THIS, THE ASSESSEE REPLIED AS UNDER:- THE LEARNED INCOME TAX OFFICER HAS REPORTED DISCRE PANCIES IN THE DETAILS/AFFIDAVIT FILED FOR WHICH WE SUBMIT AS UNDE R. POINT NO.-1 ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 6 (I) SHRI RADHEUSHUAM S/O INDERMAL RS. 44891/- THE AUDITORS WRONGLY MENTIONED THE VILLAGE SISWALI IN PLACE OF DICKMANY. IN VIKRAYA PARCHI, THE PLACE OF RESIDENCE IS MENTIONED AS DICKMANY. (II) SHRI PANKAI CHOUDHARV S/O SHIV CHARAN CHOUDHAR U RS. 41000/- THE AGRICULTURIST IS LIVING IN SHAHBAD AND HAVING A GRICULTURAL LAND AT SHAHBAD. IN VIKRAYA PARCHI ALSO PLACE IS MENTIONED- SHAHBAD. DU E TO MISTAKE IN ACCOUNT LEDGER THE PLACE IS WRONGLY MENTIONED SAMRANIYA. DE TAILS OF AGRI. LAND HOLDING. COPY OF VIKRAYA PARCHI AND I/CARD. RATION CARD COPY FILED. (III) SHRI GENDI LAI S/O KALUANMAL RS.61879/- IN VIKRAYA PARCHI, VILLAGE IS MENTIONED CORRECTLY- VILLAGE-SUNWA- IWUOK. THE AGRICULTURIST RESIDES IN SUNWA BUT DUE TO MISTAKE- PLACE IS MENTIONED IN REPORT/ LEDGER AS SISWALI. POINT NO.- 2 (I) SHRI RAMNARAIN RS.25000/- THIS PERSON HAS DONE AGRICULTURAL ACTIVITY ON THE L AND OF SHRI MANISH JAIN S/O SHRI NEMI CHAND JAIN, SISWALI ON MUNAFA KAST BASIS. HE S OLD THE GOODS THROUGH THE ASSESSEE AND AS HE HAD LEFT THE VILLAGE, AFFIDAVIT IN SUPPORT OF THE AGRICULTURE DONE BY RAM NARAIN, AFFIDAVIT OF SHRI MANISH JAIN I S PRODUCED. (II) SHRI RAMESHWAR RS. 140000/- SHRI RAMESHWAR JI HAD EXPIRED AND THEREFORE AFFIDAV IT OF HIS SON SHRI SURESH HAS BEEN FILED. (III) SHRI HARI PRASAD RS.100000/- SHRI HARI PRASAD DONE AGRICULTURE ON THE BASIS OF E WUKQK DKLR ON THE LAND OF SHRI KAMLESH S/O MADHOLAL. HARI PRASAD HAS LEFT THE PLAC E AND THEREFORE, IN SUPPORT OF THE AGRICULTURE DONE BY HARIPRASAD, AFFIDAVIT OF SH RI KAMLESH IS PRODUCED. (IV) SHRI NARAIN MEHAR RS. 200000/- SHRI NARAIN MEHAR HAS EXPIRED AFFIDAVIT OF HIS WIFE SMT. GOGA BAI SUBMITTED. AGRICULTURAL LAND IS ALSO IN THE NAME OF SMT. GOGA BAI. HER I CARD ALSO FILED SHOWING HUSBAND NAME. (V) SHRI NAND KISHORE KHATI RS.240000/- ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 7 SHRI NAND KISHORE KHATI DONE AGRICULTURE ON EWUKQK DKLR ON THE AGRI. LAND OF SHRI HEMRAJ S/O MATHURA LAL. NAND KISHORE HAD LEFT THE VILLAGE AND THEREFORE, IN SUPPORT OF THE AGRICULTURE DONE BY SHRI NAND KISHOR E, AFFIDAVIT ALONG WITH PROOF OF AGRICULTURE HOLDING OF SHRI HEMRAJ FILED. (VI) SHRI RADHARAMAN RS.281807/- SHRI RADHARAMAN DONE AGRICULTURE ON EWUKQK DKLR ON THE AGRI. LAND OF SHRI NARESH KUMAR. SHRI RADHARAMAN HAS LEFT THE PLACE AN D THEREFORE IN SUPPORT OF THE AGRICULTURE DONE BY SHRI RADHARAMAN, AFFIDAVIT ALONGWITH I CARD AND PROOF OF AGRI. HOLDING OF SHRI NARESH KUMAR ENCLOSED. I HAVE GONE THROUGH ASSESSING OFFICERS REPORT AND ASSESSEES COUNTER COMMENTS. IN THE CASE OF SHRI RAM NARAIN (RS. 2,50,000/-), SH RI HARI PRASAD (RS. 1,00,000/- ), SHRI NAND KISHORE KHATI (RS. 2,40,000/-) & SHRI RADHA RAMAN (RS. 2,81,807/-) IN PLACE OF THESE PERSONS AFFIDAVITS OF OTHER PERSO NS WERE FILED CLAIMING THAT THESE PERSONS WERE THE ORIGINAL OWNERS OF THE LAND AND THE SUNDRY CREDITORS WERE THE PERSONS WHO HAD TAKEN THE LAND ON LEASE FR OM THESE PERSONS. IT IS SURPRISING THAT WHEN ASSESSEE WAS UNABLE TO CONTACT THESE PERSONS HOW COULD HE CAME TO KNOW THAT THESE PERSONS HAD TAKEN THE LA ND ON LEASE FROM OTHERS AND OBTAINED CONFIRMATION FROM THE LAND OWNERS. FRO M THE ABOVE, IT CAN BE CONCLUDED THAT THESE AFFIDAVITS WERE AN AFTERTHOUGH T. THEREFORE, THESE SUNDRY CREDITORS ARE HELD TO BE NON GENUINE AND THE ADDITI ON OF RS. 8,71,807/- IS CONFIRMED. IN THE CASE OF SHRI RAMESHWAR AND SHRI NARAIN MEHAR AFFIDAVITS OF SON & WIFE WERE SUBMITTED AS THEY HAVE EXPIRED. THEREFORE, THE Y ARE CONSIDERED AT PAR ALONGWITH OTHER SUNDRY CREDITORS. OUT OF THE TOTAL CREDITORS OF RS. 45,39,140/-, I HA VE ALREADY CONFIRMED ADDITION OF RS. 8,71,807/-. REGARDING BALANCE ADDITION OF RS . 36,67,333/-, THE FOLLOWING WAS OBSERVED:- ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 8 (I) THE ASSESSEE SUBMITTED AFFIDAVIT, IDENTITY PROO F, VIKRAY PURCHI, COPY OF ACCOUNT AND LAND HOLDING DETAILS OF THE SUNDRY CRED ITORS. (II) ON ONE HAND, THE ASSESSEE CLAIMED THAT THESE P ERSONS LEFT THE MONEY WITH ASSESSEE DUE TO GOOD RELATION ON THE OTHER HAN D, HE FAILED TO PRODUCE THESE PERSONS. III). THE AO ASKED THE ASSESSEE TO PRODUCE THESE P ERSONS, HOWEVER, HE DID NOT ISSUE SUMMONS TO THESE PERSONS WHEN THEIR ADDRE SSES WERE AVAILABLE WITH THE AO. CONSIDERING THE ABOVE, I AM OF THE OPINION THAT ENT IRE SUNDRY CREDITORS CANNOT BE TREATED AS UNEXPLAINED. I HAVE ALREADY CONFIRMED ADDITION OF RS. 8,71,807/-. IT WOULD BE FAIR AND REASONABLE TO TREAT 10% OF THE REMAINING SUNDRY CREDITORS AS UNEXPLAINED (IN VIEW OF ASSESSEES NON-COMPLIANC E BEFORE AO). THEREFORE, OUT OF REMAINING SUNDRY CREDITORS OF RS. 36,67,333/ -, A SUM OF RS. 3,67,733/- IS TREATED AS UNEXPLAINED. IN THE RESULT, ADDITION OF RS. 12,39,540/- IS CONFI RMED. THE AO IS DIRECTED TO DELETE BALANCE ADDITION OF RS. 32,99,600/-. 3. WHILE PLEADING ON BEHALF OF THE REVENUE, THE LD DR HAS SUBMITTED THAT THE ASSESSEE WAS ASKED TO SUBMIT THE DETAILS OF CREDITORS AND ALSO CONFIRMATION OF LEDGER ACCOUNT OF THESE CREDITORS. HOWEVER, THE ASSESSEE HAS FAILED TO SUBMIT THE DETAILS FOR VERIF ICATION OF THESE CREDITORS. THE LD. CIT(A) ADMITTED THE ADDITIONAL EVI DENCES AND AFFIDAVITS WHEREIN THESE ARE CLAIMED TO BE TRADE CR EDITORS OF THE ASSESSEE. THE LD. CIT(A) FORWARDED THESE EVIDENCES TO THE ASSESSING OFFICER. THE ASSESSING OFFICER GRANTED THREE OPPORTU NITIES WITH REGARD ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 9 TO THESE ADDITIONAL EVIDENCES BUT THE ASSESSEE HAS NOT REPRESENTED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER SUBMITTED THE REPORT. THE LD. CIT(A) HAS GRANTED PART RELIEF ON AD HOC BASIS. IT WAS ALSO SUBMITTED THAT THESE VIKRAYA PARCHI SHOWS THAT NO NECESSARY DEDUCTIONS FOR EXPENSES HAVE NOT BEEN SHOWN IN ANY O F THESE VIKRAYA PARCHIES. THUS, THE GENUINENESS OF THE VIKRAYA PARCH I ITSELF IS DOUBTFUL. THE EXPENSES OF PALLEDARI, CHHANAI, HUMMALI AND TULAI (WEIGHING) HAVE NOT BEEN MENTIONED IN THESE VIKRAYA PARCHIES, WHICH MAKE THESE PARCHIES AS DOUBTFUL. THE LD DR FURTHER SUBMITTED TH AT THE LD. CIT(A) WITHOUT ANY BASIS GRANTED PART RELIEF TO THE ASSESSE E AND SUSTAINED ONLY 10% OF THE REMAINING SUNDRY CREDITORS TREATING THE SAME AS FAIR AND REASONABLE WITHOUT ANY BASIS AND CONCRETE EVIDENCE. 4. ON THE OTHER HAND, THE LD AR OF THE ASSESSEE HAS RELIED ON THE ORDER OF THE LD. CIT(A). HE ALSO SUBMITTED THAT THE ADDITION SUSTAINED TO THE EXTENT OF RS. 12,39,540/- MAY ALSO BEEN CONSIDE RED UNDER RULE 27 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 (IN SHORT THE ITAT RULES). HE PLEADED THAT THE ASSESSEE SHOULD BE GRAN TED RELIEF EVEN FROM THE SUSTAINED ADDITION. 5. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSUE . THE LD. CIT(A) HAS CONFIRMED THE ADDITION OF RS. 8,71,807/- IN RESPECT OF CREDIT ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 10 BALANCE OF RS. 2,50,000/- IN THE CASE OF SHRI RAM NARAIN, RS. 1,00,000/- IN THE CASE OF SHRI HARI PRASAD, RS. 2,4 0,000/- IN THE CASE OF SHRI NAND KISHORE KHATI AND RS. 2,81,807/- IN THE C ASE OF SHRI RADHA RAMAN. AGAINST WHICH THE ASSESSEE HAS NOT FILED APP EAL. DURING THE HEARING ON THE ISSUE OF APPLICABILITY OF RULE 27 OF THE ITAT RULES IN RESPECT OF ADDITION SUSTAINED OF RS. 8,71,807/- WHE RE THE ASSESSEE HAS NOT PREFERRED APPEAL, IT WAS MADE CLEAR THAT THIS RU LE CANNOT BE INVOKED IN RESPECT OF THESE ADDITIONS OF RS. 8,71,8 07/- BECAUSE THESE ARE ADDITIONS OF INDEPENDENT AND SEPARATE CREDITORS WHERE NO RELIEF HAS BEEN GRANTED BY THE LD. CIT(A). IN THESE FACTS RULE 27 OF THE ITAT RULES CANNOT BE INVOKED. THEREFORE, THE PLEADING UND ER RULE 27 OF THE ITAT RULES IN RESPECT OF SUSTAINED ADDITION OF RS. 8 ,71,807/- HAS NO MERIT AND THE SAME IS DISMISSED. FURTHER IN RESPECT OF SUSTAINING 10% OF THE ADDITION WITH REGARD TO SUNDRY CREDITORS WE FI ND THAT THE LD. CIT(A) HAS GIVEN THE PART RELIEF WITHOUT SPECIFYING T HE GENUINENESS AND MERITS OF EACH OF THE CREDITOR. EACH CREDITOR HAS T O BE SEEN INDEPENDENT TO ESTABLISH THE IDENTITY, GENUINENESS AND CREDITWORTHINESS. IN EACH CASE, THE DOCUMENTS AND DE TAIL SUBMITTED HAS TO BE CONSIDERED FOR SUSTAINING/DELETING THE ADDITI ON INDEPENDENTLY. NO GENERALIZATION CAN BE DONE IN SUCH CASES. NO AD HOC RELIEF/ADDITION CAN BE MADE IN RESPECT OF SUCH SUNDRY CREDITORS. THEREF ORE, CONSIDERING THE ITA 402/JP/2014_ ITO VS. TARA CHAND GUPTA 11 TOTALITY OF THE FACTS AND CIRCUMSTANCES INCLUDING N ON-COMPLIANCE OF THE ASSESSEE IN THE REMAND PROCEEDINGS, WE ARE OF THE VI EW THAT THE MATTER IN RESPECT OF THE RELIEF GRANTED BY THE LD. CIT(A) NEED TO BE RESTORED BACK TO THE FILE OF THE LD. CIT(A) TO BE DE CIDED THE ISSUE AFRESH. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 05/04/2018. SD/- SD/- FOT; IKY JKO FOT; IKY JKO FOT; IKY JKO FOT; IKY JKO HKKXPAN HKKXPAN HKKXPAN HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 TH APRIL, 2018. *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD WARD 1(2), KOTA. 2. IZR;FKHZ @ THE RESPONDENT- SHRI TARA CHAND GUPTA, KOTA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 402/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR