Shri Madan Keshwrao Atkare, Vapi V. The Income tax Officer,ward-2, Vapi

ITA 41/AHD/2009

• Counselvise Citation: 4120514 RSA 2009
• Duration Of Justice: 3 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 16-07-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 05-01-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Additional evidence
• Section: 234B; 133(6); 68; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH BEFORE: SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JU DICIAL MEMBER MADAN KESHAWRAO ATKARE VAPI (APPELLANT) PAN NO. ADQPA14755 VS. THE INCOME TAX OFFICER WARD 2 VAPI (RESPONDENT) REVENUE BY : SHRI B.L. YADAV, SR. D.R. ASSESSEE BY : SHRI TUSHAR HEMANI, A.R DATE OF HEARING : 16-07-2012 DATE OF PRONOUNCEMENT : 28 -09-2012 / ORDER PER : KUL BHARAT, JUDICIAL MEMBER:- THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), VALSAD DATED 28-08-2008. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT (APPEAL) HAS ERRED IN LAW AND THE F ACTS IN UPHOLDING THE ADDITION OF RS. 15,70,000/- FOR NOT C ONSIDERING EXTRA EVIDENCES I.E. PASS BOOK/INCOME TAX RETURNS/BALANCE SHEET ETC PRODUCE TO PROVE THE GENUINENESS FOR THE TRANSACTIO N IN ADDITION TO EVIDENCE PRODUCED TO LD. ITO. 2. THE LD. CIT (APPEALS) HAS ERRED IN LAW AND FACTS IN UPHOLDING THE ADDITION OF RS. 15,70,000/- WITHOUT CONSIDERING CONFIRMATION OF I.T.A. NO 41/AHD/2009 A.Y.:-2005-06 ITA NO. 41/AHD/2009 PAGE NO. MADAN KESHAWRAO ATKARE VS. ITO 2 ACCOUNTS GIVEN DURING THE COURSE OF HEARING TO THE LD. ITO WITH ADDRESS AND PAN NUMBER OF THE LOANEE. 3. THE LD. CIT (APPEALS) HAS ERRED IN LAW AND FACTS IN UPHOLDING THE ADDITION OF RS. 15,70,000/- WITHOUT CONSIDERING THE FACTS THAT ALL THE UNSECURED LOAN HAS BEEN RECEIVED BY THE ACCOUNT PAYEE CHEQUE AND DULY CREDITED IN OUR BANK ACCOUNT AND TREATING THE SAME AS THE INCOME U/S 68 OF THE INCOME TAX ACT. 4. ON THE FACTS ON INTEREST U/S 234B OF THE INCOME TAX ACT OUGHT TO HAVE BEEN LEVIED. 2. THE ONLY EFFECTIVE GROUND IS AGAINST THE CONFIRM ATION OF ADDITION OF RS. 15,70,000/- MADE BY THE ASSESSING OFFICER U/S 6 8 OF THE ACT. THE FACTS IN BRIEF ARE THAT THE ASSESSMENT UNDER SECTION 143( 3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAME D WHEREBY THE ASSESSING OFFICER MADE ADDITION U/S 68 OF RS. 15,70,000/-. T HE ASSESSEE FEELING AGGRIEVED BY THE ASSESSMENT ORDER PREFERRED AN APPE AL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE DISMISSED THE APPEAL. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THE FACT THAT THE ASSESSEE HAD DISCHARGED HIS BURDEN BY PROVIDING ALL THE DETAILS REGARDING IDENTIFY, GENUI NENESS AND CREDITWORTHINESS OF TRANSACTIONS. HE SUBMITTED THAT SOURCE OF SOURC E IS NOT REQUIRED TO BE PROVED BY THE ASSESSEE. IN SUPPORT OF THIS CONTENT ION HE RELIED ON THE FOLLOWING JUDGMENTS:- I) CIT VS. ROHINI BUILDERS 256 ITR 360 (GUJ) II) ROHINI BUILDERS VS DCIT 76 TTJ 521 (AHM) III) MURLIDHAR LAHORIMAL VS. CIT 280 ITR 521 (GUJ) ITA NO. 41/AHD/2009 PAGE NO. MADAN KESHAWRAO ATKARE VS. ITO 3 IV) CIT VS. PRAGATI CO. OP. BANK LTD. 278 ITR 170 ( GUJ) V) CIT VS. ORISSA CORPORATION PVT. LTD. 159 ITR 78 (SC) 5. HE SUBMITTED THAT THE JUDGMENT OF THE HONBLE SU PREME COURT RENDERED IN THE CASE OF SUMATI DAYAL VS. CIT 214 IT R 82 IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. IN SUPPORT OF TH IS CONTENTION, HE RELIED ON THE JUDGMENT OF HONBLE CO-ORDINATE BENCH OF AGRA R EPORTED IN 131 ITD 127. HE SUBMITTED THAT THE ASSESSEE HAS ESTABLISHE D THE FACT THAT PAYMENTS HAVE BEEN RECEIVED FROM PARTIES AGAINST CROSSED ACC OUNT PAYEE CHEQUE WHICH HAVE BEEN DULY CREDITED IN THE RESPECTIVE BANK ACCO UNT. IN SUPPORT OF THIS CONTENTION, HE RELIED ON THE FOLLOWING JUDGMENTS. I) CIT VS. M.K. BROS. 163 ITR 249 (GUJ) II) DEVANBABU PVT. LTD. VS. INCOME TAX OFFICER. 199 0-(036)-TTJ-0664- TAHD II) ADDL. CIT VS. BAHRI BROS. PVT LTD. (1985) (154 I.T.R. 2044) (PAT) 6. HE SUBMITTED THAT IN RESPECT OF HASAN BHAI SASAM PARMAR, THE ASSESSEE HAS FILED CONFIRMATION-CUM-CONTRA ACCOUNT, PAN, ADDRESS, BANK STATEMENT, RETURN OF INCOME, BALANCE SHEET ETC. AND THE AMOUNT WAS RECEIVED BY ACCOUNT PAYEE CHEQUE. IN RESPECT OF SRI JAGNESH H SHAH CONFIRMATION- CUM-ACCOUNT AND ADDRESS WAS FURNISHED. IN THIS CA SE ALSO AMOUNT HAS BEEN RECEIVED BY CHEQUE ONLY. HE FURTHER SUBMITTED THAT IN RESPECT OF RAJENDRA S BHATKAR, THE ASSESSEE HAD FILED CONFIRMATION-CUM-CO NTRA ACCOUNT, ADDRESS, PAN AND BANK STATEMENT. IN THIS CASE ALSO, THE AMO UNT HAS BEEN RECEIVED BY CHEQUE ONLY. IN RESPECT OF NELOFAR HASAM PARMAR CO NFIRMATION-CUM-CONTRA ACCOUNT AND ADDRESS WERE ALSO FURNISHED. HE SUBMIT TED THAT PAN NO., ITA NO. 41/AHD/2009 PAGE NO. MADAN KESHAWRAO ATKARE VS. ITO 4 ADDRESS, BANK STATEMENT WERE ALSO FURNISHED TO THE ASSESSING OFFICER. THE AMOUNT WAS RECEIVED BY CHEQUE ONLY. HE SUBMITTED T HAT IN THE LIGHT OF THE JUDICIAL PRONOUNCEMENTS, THE ADDITION MADE UNDER SE CTION 68 DESERVES TO BE DELETED. ON THE CONTRARY, LD. SR. DR STRONGLY SUPP ORTED THE ORDER OF THE AUTHORITIES BELOW. HE SUBMITTED THAT IT WAS INCUMB ENT UPON THE ASSESSEE TO PROVE GENUINENESS OF TRANSACTION, CREDITWORTHINESS AND IDENTITY OF THE CREDITORS. HE SUBMITTED THAT IT HAS BEEN FOUND BY THE AUTHORITIES BELOW THAT THE EVIDENCE FURNISHED IN SUPPORT OF THE CREDITWORT HINESS OF THE CREDITORS WAS DOUBTFUL. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS PERUSED THE MATERIAL AVAILABLE ON RECORD. LD. CIT(A) HAS RECORDED OBSERVATIONS OF TH E ASSESSEE IN PARA 6.1 AS UNDER: SL. NO NAME OF THE LENDER LOAN AMOUNT 1 SHRI HASNABHAI SASAM PARMAR RS. 1,00,000/- IN THIS CASE, INFORMATION WERE CALLED FOR U/S 133( 6) VIDE THIS OFFICER LETTER DATED 31.10.2007. HOWEVER, THE POST AL AUTHORITIES RETURNED THE SAID LETTER UNSERVED STATING THAT THE ASSESSEE IS UNAVAILABLE IN THAT ADDRESS. THE ASSESSEE HAS FILE D CONFIRMATION FROM THE SAID PARTY STATING THE PAN. HOWEVER, NO P ROOF OF SOURCES OF SUCH ADVANCES WERE FIELD. MOREOVER, THE ASSESSEE HAS ALSO NOT FURNISHED THE BANK ACCOUNT OF THE SAID CRE DIT TO VERIFY THE CORRECTNESS OF THE SOURCE OF INVESTMENT. 2 SHRI JAGDISH H. SHAH RS. 5,00,000/- THE ASSESSEE HAS NOT PROVIDED THE ADDRESS OF THIS CREDITOR, BUT FURNISHED CONFIRMATION WITHOUT PAN. HOWEVER, NO OT HER DETAILS TO PROVE THE GENUINENESS OF THE TRANSACTION, CREDIT WORTHINESS OF THE CREDITOR ETC. WERE FILED. MOREOVER, THE ASSESS EE HAS ALSO NOT FURNISHED THE BANK ACCOUNT OF THE SAID CREDITOR TO VERIFY THE ITA NO. 41/AHD/2009 PAGE NO. MADAN KESHAWRAO ATKARE VS. ITO 5 CORRECTNESS OF THE SOURCE OF INVESTMENT. 3 SHRI RAJENDRA S. BHAGNAGAR RS. 5,00,000/- THE CREDITOR HAS FILED CONFIRMATION REGARDING THE CASH CREDIT, BUT NOT FIELD ANY PROOF OF CREDITWOR THINESS OF THE CREDITOR. THEREFORE, INFORMATION U/S 133(6) WAS CALLED FOR. THE CREDITOR HAS CONFIRMED THE CREDIT BUT ONCE AGAIN NO PROOF OF HIS CREDITWORTHINESS, COPIES OF BANK ACCOUNT ETC WERE N OT FURNISHED TO PROVE THE GENUINENESS, COPIES OF BANK ACCOUNT ET C. WERE NOT FURNISHED TO PROVE THE GENUINENESS OF THE CASH CRED IT. 4 SHRI NILOFAR HASAM PARMAR RS. 1,70,000/- IN THIS CASE, INFORMATION WERE CALLED FOR U/S 133( 6) VIDE THIS OFFICE LETTER DATED 31.10.2007. HOWEVER, THE POSTA L AUTHORITIES RETURNED THE SAID LETTER UNSERVED STATING THAT THE ASSESSEE IS UNAVAILABLE IN THAT ADDRESS. THE ASSESSEE HAD FILE D CONFIRMATION FORM THE SAID PARTY STATING THE PAN. HOWEVER, NO P ROOF OF SOURCES OF SUCH ADVANCES WERE FILED. MOREOVER, THE ASSESSEE HAS ALSO NOT FURNISHED THE BANK ACCOUNT OF THE SAID CRE DITOR TO VERIFY THE CORRECTNESS OF THE SOURCE OF 5 SHRI R.H. SHAH RS. 3,00,000/- THE ADDRESS OF THIS CREDITOR HAS NOT BEEN PROVIDED BY THE ASSESSEE BUT CONFIRMATION HAS BEEN FURNISHED ON 17- 12-2007 WITHOUT PAN. BESIDES THE ABOVE, NO PROOF OF SOURCE S OF SUCH ADVANCES WERE FILED. MOREOVER, THE ASSESSEE HAS AL SO NOT FURNISHED THE BANK ACCOUNT OF THE SAID CREDITOR TO VERIFY THE CORRECTNESS OF THE SOURCE OF INVESTMENT. 8. LD. CIT(A) HAS OBSERVED THAT THE AR OF THE APPEL LANT HAS DONE THE FUTILE EXERCISE OF EXPLAINING DEPOSITS UNDER DISPUT E AS WHEREVER HE HAS FILED RETURN OF INCOME OF THE DEPOSITORS NONE OF THE DEPO SITORS WERE HAVING INCOME MORE THAN RS. 50,000/-. IT IS OBVIOUS THA T THE TOTAL INCOME OF THE DEPOSITORS ITSELF SPEAKS TO THE CAPACITY OF THE DEP OSITORS TO ADVANCE MONEY TO THE APPELLANT. WHEREVER HE HAS FILED PROOF OF AGRI CULTURE LAND, HE HAS FAILED TO SUBSTANTIATE THE EARNING OF THE INCOME BY THE DE POSITORS AS NO SUCH EVIDENCES WERE PLACED ON RECORD. THE CONTENTION O F THE LD. AUTHORIZED ITA NO. 41/AHD/2009 PAGE NO. MADAN KESHAWRAO ATKARE VS. ITO 6 REPRESENTATIVE THAT THE ASSESSEE HAD DISCHARGED HIS BURDEN BY PROVIDING ALL THE DETAILS REGARDING IDENTITY, GENUINENESS AND CRE DITWORTHINESS OF THE TRANSACTIONS IS NOT ACCEPTABLE. IN VIEW OF THE FAC T THAT IN THE CASE OF JIGNESH H SHAH THE ASSESSEE HAS NOT PROVIDED THE ADDRESS BU T FURNISHED CONFIRMATION WITHOUT PAN AND NO OTHER DETAILS TO PROVE IDENTITY AND GENUINENESS OF THE TRANSACTION WAS FURNISHED. IN PAPER BOOK AT PAGE NO. 12 CONFIRMATION IS GIVEN BUT NO PAN NO. IS MENTIONED. MOREOVER, THE A DDRESS GIVEN IS NOT CLEAR. EVEN AT THE PAGE NO. 13 TO 14 EVIDENCE OF L AND HOLDING GIVEN IS IN GUJRATI NO TRANSLATED COPY OF THE SAME IS FILED. I N THE ABSENCE OF THE TRANSLATED COPY NO CONCLUSION CAN BE DRAWN ABOUT TH E OWNERSHIP OF THE LAND. HENCE, THE ADDITION IN RESPECT OF R H SHAH IS CORRE CTLY MADE. HOWEVER, IN RESPECT OF OTHER PERSONS NAMELY HANSANBHAI SASAM PA RMER, JIGNESH H. SHAH, RAJENDRA S BHAGNAGAR, NILOFAR H PARMAR AND R H SHAH THE ASSESSEE HAS GIVEN PARTICULARS REQUIRED TO BE PROVED GENUINE NESS OF TRANSACTIONS, IDENTITY OF THE CREDITORS AND ALSO CREDITWORTHINESS . IN THIS VIEW OF THE MATTER, THE DECISION OF THE HONBLE HIGH COURT OF GUJRAT RE NDERED IN THE CASE OF CIT VS. ROHINI BUILDERS 256 ITR 360 IS APPLICABLE ONLY THE CASES WHERE THE ASSESSEE HAS FURNISHED THE REQUISITE DETAILS FOR ES TABLISHING GENUINENESS OF TRANSACTIONS IDENTITY AND CREDITWORTHINESS OF CREDI TORS. IN VIEW OF AFORESAID DISCUSSION AND RESPECTFULLY FOLLOWING THE RATIO LAI D IN THE JUDGMENT OF HONBLE HIGH COURT OF GUJRAT IN THE CASE OF CIT VS. ROHINI BUILDERS 256 ITR 360, THE ADDITION OF RS 5 LAC MADE IN THE CASE OF CASE OF JIGNESH H SHAH IS CONFIRMED AND THE OTHER ADDITIONS OF RS. 10,70,0 00/- IS DIRECTED TO BE DELETED. THIS GROUND OF ASSESSEES APPEAL IS PARTL Y ALLOWED. ITA NO. 41/AHD/2009 PAGE NO. MADAN KESHAWRAO ATKARE VS. ITO 7 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (A.K. GARODIA) (KUL BHARAT) ACCOUNTANT MEMBER JU DICIAL MEMBER AHMEDABAD : DATED 28 /09/2012 A.K. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A)-III, BARODA 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# *