M/s. Sri Raghunath Traders, New Delhi V. ACIT, New Delhi

ITA 4151/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7367 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 20-06-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 25-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARHAT KHAN
• Assessee Lawyers: K R MANJANI
• Keywords: Opportunity of being heard; Bogus loan

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-3 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-415 1/DEL/2014 (ASSESSMENT YEAR-20 07-08) SRI RAGHUNATH TRADERS, 2046, KATRA TOBACCO, KHARI BAOLI, NEW DELHI-110006. PAN-AABFS5596C (APPELLANT) VS ACIT, CENTRAL CIRLCE-17, NEW DELHI (RESPONDENT) APPELLANT BY SH. K.R.MANJANI, ADV. RESPONDENT BY SH. FARHAT KHAN, SR.DR ORDER PER DIVA SINGH, JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 19.06.2014 OF CIT(A)-II, NEW DELHI PERT AINING TO 2007-08 ASSESSMENT YEAR. 2. ASSAILING THE ADDITION OF RS.1,28,134/- MADE BY THE AO WHICH WAS SUSTAINED IN APPEAL BY THE CIT(A). THE LD.AR SUBMITTED THAT NO EVIDENCE HAS BEEN RELIED UPON TO MAKE THE ADDITION. INVITING ATTENTION TO THE ASSESSMENT ORDER AND THE IMPUGNED ORDER, IT WAS SUBMITTED THAT THE SO CALLED STATEMENT OF SH.PRADE EP KUMAR BANSAL, HUSBAND OF SMT. SHASHI BALA BANSAL HAS BEEN RELIED UPON TO MAKE THE ADDITION. NO EFFORT HAS BEEN MADE TO CONFRONT THE SAME TO HIS WIFE WHO HAS GIVEN THE LOA N TO THE ASSESSEE. THE CONCLUSION OF THE CIT(A) THAT SH. PRADEEP KUMAR BANSAL WAS ASSESS EES WITNESS IS INCORRECT AS THE ASSESSEE HAD RECEIVED THE LOAN FROM SMT. SHASHI BAL A BANSAL AND IT IS NOT HER STATEMENT DATE OF HEARING 20 .06.2016 DATE OF PRONOUNCEMENT 19 .0 8 .2016 I.T.A .NO.-4151/DEL/2014 PAGE 2 OF 4 THAT THE LOAN WAS BOGUS. THE FACT THAT THE STATEMEN T WAS RECORDED AT THE BACK OF THE ASSESSEE AND WAS NEVER CONFRONTED TO THE ASSESSEE I T WAS SUBMITTED HAD BEEN AGITATED BEFORE THE CIT(A) ALSO. THE ARGUMENT WAS REJECTED, OBSERVING THAT THE PARTY WAS THE WITNESS OF THE ASSESSEE. IT WAS HIS SUBMISSION THA T THE PLETHORA OF EVIDENCE FILED IN SUPPORT OF THE CLAIM OF THE IDENTITY AND CAPACITY AS WELL A S THE GENUINENESS OF THE LOAN TAKEN COULD NOT HAVE BEEN IGNORED MERELY RELYING UPON THE SO C ALLED STATEMENT OF THE HUSBAND OF SMT. SHASHI BALA BANSAL. IT WAS STATED THAT THE HUSBAND HAS EXPIRED BUT SMT. SHASHI BALA BANSAL IS VERY MUCH ALIVE AND AS PER THE DOCUMENTS AVAILABLE IT IS EVIDENT THAT THE SAID LADY HAD GIVEN A LOAN OF RS.2 LACS IN THE IMMEDIATELY PR ECEDING ASSESSMENT YEAR. THUS THE CAPACITY OF GIVING LOAN OF RS.1 LAC IN THESE CIRCUM STANCES IT WAS SUBMITTED CANNOT BE DOUBTED. IT WAS HIS SUBMISSION THAT THE ASSESSEE H AS PAID BACK THE LOAN OF RS.2 LACS WHEREIN TDS TO THE EXTENT OF RS.17,23,984/- HAS BE EN DEDUCTED AND A COPY OF THE RETURN OF SMT. SHASHI BALA BANSAL FOR 2007-08 AY I.E. THE YEAR UNDER CONSIDERATION IN THESE CIRCUMSTANCES WOULD SHOW THAT SHE HAS CLAIMED THE S AID TDS IN THE SAID YEAR. THE COPY OF THE RETURN FILED IT WAS SUBMITTED IS AT PAGE 4 AND THE COMPUTATION OF THE TOTAL INCOME IS ATTACHED ALONGWITH THE SAME AND IS SUPPORTED BY THE CLAIM OF TDS PAID TO HER, COPY PLACED AT PAPER BOOK PAGE 6. COPY OF THE PAN OF THE SAID LADY IT WAS SUBMITTED WAS AVAILABLE AT PAGE 8 SUPPORTED BY THE PAYMENT THROUGH THE BANKING CHANNEL AND THE RECEIPT BACK OF THE LOAN ALSO THROUGH BANKING CHANNELS WAS AVAILABLE AT PAGE 9 TO 11. IT WAS SUBMITTED THAT ALL THESE EVIDENCES COULD NOT HAVE BEEN IGNORED MERELY RELYING UPON THE STATEMENT OF HER HUSBAND WHICH TOO WAS NEVER CONFRONTED TO THE ASSES SEE. RELIANCE WAS PLACED ON 167 ITR 849 & 330 ITR 498 SO AS TO CONTEND THAT NO ADDITION COULD HAVE BEEN MADE. I.T.A .NO.-4151/DEL/2014 PAGE 3 OF 4 3. THE LD.SR.DR, SH. F.KHAN RELYING UPON THE ASSESS MENT ORDER AND THE IMPUGNED ORDER SUBMITTED THAT THE ASSESSEE WAS GIVEN AN OPPORTUNIT Y TO PRODUCE THE SAID PERSON IN SUPPORT OF THE CLAIM OF HAVING RECEIVED LOAN AND SINCE THE ASSESSEE DID NOT PRODUCE THE SAID PERSON, SUMMONS WERE ISSUED. IN RESPONSE TO THE SAME SH.PR ADEEP KUMAR BANSAL HUSBAND OF SMT. SHASHI BALA BANSAL ATTENDED AND CATEGORICALLY STATE D THAT BOGUS LOAN OF RS.1 LAC WAS GIVEN TO M/S R.L.TRADERS. THUS NO FURTHER EVIDENCE WAS R EQUIRED. HOWEVER, THE LD.SR.DR WAS UNABLE TO RESPOND TO THE QUERY WHY THE STATEMENT RE CORDED IN THE COURSE OF THE ASSESSMENT PROCEEDINGS WAS NOT CONFRONTED TO THE ASSESSEE AND MOREOVER HOW THE STATEMENT OF THE HUSBAND WAS CONSIDERED RELEVANT WHERE EVIDENTLY THE AMOUNT HAD BEEN ADVANCED BY THE WIFE. IN THE FACTS IT IS THE STATEMENT OF THE WIFE WHICH WOULD BE THE RELEVANT STATEMENT AND WHY HER STATEMENT WAS NOT RECORDED THE ORDER IS SILENT. THE LD.SR.DR SUBMITTED THAT PROBABLY THERE WAS NOT MUCH TIME LEFT TO COMPLETE T HE PROCEEDINGS. 4. THE LD. AR ON THE OTHER HAND SUBMITTED THAT THE ASSESSMENT ORDER IS DATED 04.12.2009 AND THE SUMMONS WERE ISSUED ON 02.11.200 9 THUS SINCE THE CASE WAS NOT BECOMING TIME BARRED THE AO HAD ADEQUATE TIME TO CO NFRONT THE STATEMENT. 5. THE ARGUMENTS OF THE PARTIES HAVE BEEN TAKEN INT O CONSIDERATION ALONGWITH THE FACTS AND CIRCUMSTANCES AS BROUGHT OUT IN THE ORDERS OF T HE AUTHORITIES. CONSIDERING THE SAME, I AM OF THE VIEW THAT THE ORDER UNDER CHALLENGE CANNO T BE SAID TO BE A SPEAKING ORDER AS NOT ONLY THERE IS NO DISCUSSION ON RELEVANT FACTS NAMEL Y THE REASONS FOR DISREGARDING THE PLETHORA OF EVIDENCES RELIED UPON BY THE ASSESSEE I N SUPPORT OF THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION BUT EVEN OTHERWISE THE SAID AUTHORITY HAS MISDIRECTED ITSELF BY HOLDING THAT THERE WAS NO NEED TO CONFRONT THE STATEMENT OF SH. I.T.A .NO.-4151/DEL/2014 PAGE 4 OF 4 PRADEEP KUMAR BANSAL AS HE WAS ASSESSEES WITNESS. THE LOAN HAD BEEN ADVANCED BY SMT. SHASHI BALA BANSAL THE PRINCIPAL PERSON OF M/S SOLU NA RESORTS AND NOT HER HUSBAND THUS WHY HAS THE STATEMENT OF THE HUSBAND BEEN RELIED UP ON. AS ADMITTEDLY IT IS THE STATEMENT OF THE WIFE WHICH SHOULD HAVE BEEN TAKEN AND IF THE FACTS STATED ARE CONTRARY TO THE RECORD THEN THE WITNESS BECOMES THE REVENUES WITNESS OR A HOSTILE WITNESS AND THUS MUST BE CONFRONTED TO THE ASSESSEE. MOREOVER, THE SAID STAT EMENT HAS NOT EVEN BEEN CONFRONTED TO THE ASSESSEE AND HAS BEEN MADE AVAILABLE TO THE ASS ESSEE ONLY DURING THE APPELLATE PROCEEDINGS AND ONLY THE RELEVANT EXTRACT HAS BEEN EXTRACTED IN THE IMPUGNED ORDER. THE ORDER OF THE CIT(A) IN THE CIRCUMSTANCES CANNOT BE SAID TO BE A SPEAKING ORDER ADDRESSING THE FACTS AND THE ARGUMENTS ADVANCED. THE IMPUGNED ORDER ACCORDINGLY IS SET ASIDE AND THE ISSUE IS RESTORED BACK TO THE CIT(A) WITH A DIR ECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE ASSE SSEE SHALL BE AFFORDED A REASONABLE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST 2016. SD/- (DIVA SINGH ) JUDICIAL ME MBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR, ITAT NEW DELHI