Shri Noor Mohammed, JODHPUR V. ACIT, JODHPUR

ITA 412/JODH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70303 (ITAT-JODHPUR)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: N R MERTIA
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ITA NO.412/JODH/2013 ASST. YEAR: 2009-10 SHRI NOOR MOHAMMED, VS. ASSTT. COMMISSIONER OF IN COME TAX, C/O. M/S. MERTIA & COMPANY, CIRCLE-3, JODHPUR. CHARTERED ACCOUNTANTS, VATSALYA, 244, KAMALA NEHRU NAGAR, PRAKARTIC CHIKITSA KENDRA, CHPASNI ROAD, JODHPUR. (PAN: ACEPM 8860 G) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N.R. MERTIA, REVENUE BY : SHRI N.A. JOSHI, D.R. DATE OF HEARING : 27.11.2013 DATE OF PRONOUNCEMENT : 28 .11.2013 ORDER PER HARI OM MARATHA, JUDICIAL MEMBER: THIS APPLE OF THE ASSESSEE FOR A.Y. 2009-10 IS DIR ECTED AGAINST THE ORDER OF LD. CIT(A), JODHPUR DATED 20.05.2013. 2 ITA NO.412/JODH/2013 A.Y. 2009-10 2. THE SOLE ISSUE RAISED IN THIS APPEAL IS REGARDIN G CONFIRMED ADDITION OF RS.2,00,000/- MADE UNDER SECTION 68 OF THE INCOME T AX ACT, 1961 (THE ACT FOR SHORT). 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE HAS SHOWN TWO CASH CREDITOR OF RS.1,00,000/- EACH DURING THIS YEAR. I T IS SHOWN THAT THE ASSESSEE HAS RECEIVED A LOAN FROM SMT. MUSHIRA, W/O. MOHIDEEN AN D FROM SMT. PARVEEN MEHOR, W/O. MOHAMMED AYUB RESPECTIVELY BUT NO INTEREST WAS PAID TO THEM. TO EXPLAIN THESE CASH CREDITS, THE ASSESSEE FILED BANK STATEME NT AND CONFIRMATION OF THE CREDITORS BUT WHEN DEMANDED, THE ASSESSEE DID NOT P RODUCE THE CREDITORS FOR PERSONAL EXAMINATION. AS PER THE A.O. THESE LADIES WERE NOT HAVING OTHER FUNDS TO ADVANCE RS.1,00,000/- EACH TO THE ASSESSEE. HE HAS OBSERVED THAT CASH OF RS.1,00,000/- EACH HAVE BEEN DEPOSITED IN THEIR BAN K ACCOUNT AND CHEQUES HAVE BEEN GIVEN TO THE ASSESSEE ON THE SAME DAY. THEREF ORE, THE A.O. HAS DRAWN DUE INFERENCE THAT THE MONEY OF THE ASSESSEE HIMSELF HA S TRAVELLED BACK TO HIM. THESE LADIES ARE IN FACT THE DAUGHTERS OF THE ASSESSEE. ACCORDINGLY, THE A.O. TREATED THESE CASH CREDIT AS UNEXPLAINED AND MADE ADDITION OF RS. 2,00,000/- IN THE HANDS OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. 3 ITA NO.412/JODH/2013 A.Y. 2009-10 4. AGGRIEVED, THE ASSESSEE WENT IN FIRST APPEAL AND THE LD. CIT(A) HAS ALSO FOLLOWED SUIT IN THIS CASE. NOW THE ASSESSEE IS FU RTHER AGGRIEVED AND HAS FILED THIS APPEAL. 5. IT WAS ARGUED BY THE LD. AUTHORIZED REPRESENTATI VE WITH THE HELP OF HONBLE JURISDICTIONAL HIGH COURTS DECISION RENDERED IN TH E CASE OF LABH CHAND BOHRA VS. ITO, REPORTED IN 219 CTR (RAJ.) 571 AND THAT OF ARA VALI TRADING COMPANY VS. ITO REPORTED IN 220 CTR (RAJ.) 622. ON THE OTHER HAND , THE LD. AUTHORIZED REPRESENTATIVE HAS RELIED ON THE ORDERS OF THE AUTH ORITIES BELOW. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT THE ABOVE MENTIONED TWO DECISIONS GAVE RATIO THAT ONCE THE CR EDITORS ARE IDENTIFIED, THEY HAVE ADMITTED TO HAVE DEPOSITED OR GIVEN LOAN TO THE ASS ESSEE, AND HAVE ALSO EXPLAINED THEIR RESPECTIVE SOURCES, IT IS NOT INCUMBENT UPON THE ASSESSEE TO EXPLAIN AND PROVE THE SOURCE OF THE SOURCE. IT IS ALSO HELD THAT THE CAPACITY OF THE LENDERS TO ADVANCE MONEY TO THE ASSESSEE WAS AND CANNOT BE A MATTER WH ICH THE ASSESSEE COULD BE REQUIRED TO ESTABLISH BECAUSE IT WOULD AMOUNT TO CA LLING TO ESTABLISH SOURCE OF THE SOURCE. RESPECTFULLY FOLLOWING THE ABOVE TWO JURIS DICTIONAL HIGH COURTS DECISIONS, WE HAVE TO ACCEPT THE GROUND RAISED IN T HIS APPEAL. SINCE BOTH THE LADIES WHO ARE ASSESSEES DAUGHTERS HAVE CONFIRMED THEIR R ESPECTIVE CASH CREDIT WHICH HAVE BEEN RECEIVED BY THE ASSESSEE THROUGH CHEQUES AND THERE IS NO EVIDENCE ON 4 ITA NO.412/JODH/2013 A.Y. 2009-10 RECORD THAT THE OWN MONEY OF THE ASSESSEE HAS TRAVE LLED BACK, WE HAVE TO DECIDE THE SAME IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, W E ORDER TO DELETE THE IMPUGNED ADDITION AND ALLOW THIS APPEAL OF THE ASSESSEE. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED (ORDER PRONOUNCED IN THE OPEN COURT ON 28.11.2013) SD/- SD/- (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH NOVEMBER, 2013 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, JODHPUR