Anil Patel, Indore V. Income Tax Officer 4 (3), Indore

ITA 418/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7213 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MAURYA
• Assessee Lawyers: NIRANJAN PURANDAR
• Section: 68

Judgement Text

[ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.418/IND/2018 ASSESSMENT YEAR: 2012-13 SHRI ANIL PATEL 50, PATEL NAGAR INDORE-452001 (M.P.) / VS. ITO - 4(3) INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. ABSPP3168K APPELLANT BY SHRI NIRANJAN PURANDAR, A.R. RESPONDENT BY SHRI R.P. MAURYA, D.R. DATE OF HEARING: 27.06.2019 DATE OF PRONOUNCEMENT: 30.07.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE LD. CIT(A)-2, INDORE DATED 16.1.2018 PERTAINING T O THE ASSESSMENT YEAR 2012-13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 2 1. THE LD. RESPONDENT FAILED TO SEE FROM DEPARTMENTAL RECORDS/FILE ITSELF, THAT THE LOAN TAKEN OF RS.2000000/- FROM SH RI PARAS RAM KHATRI PERTAINS TO A.Y. 2010-11 & NOT TO THE SUBJEC T YEAR. ON THIS GROUND ALONE ADDITION MADE U/S 68 OF IT ACT IS BAD IN LAW & DESERVE DELETION. 2. THE LD. RESPONDENT FAILED TO SEE FROM DEPARTMENTAL RECORDS/FILE ITSELF, THAT THE LOAN TAKEN OF RS.50000/- FROM SHRI VINEET PODDAR ALSO PERTAINS TO AY 2010-11 & NOT TO THE SUBJECT YE AR. ON THIS GROUND ALONE ADDITION MADE U/S 68 OF IT ACT IS BAD IN LAW & DESERVE DELETION. 3. THE LD. RESPONDENT FAILED TO SEE FROM DEPARTMENTAL RECORDS/FILES ITSELF, THAT THE LOAN TAKEN OF RS.525000/- DURING T HE SUBJECT ASSESSMENT YEAR BY A/C PAYEE CHEQUE FROM MR. SARDAR MAL JAIN COULD NOT BE CONFIRMED BY THE LENDER, SINCE HE WAS DEAD AT SUCH RELEVANT TIME. 4. THE REASON FOR NON REPLY TO NOTICE OF A.O. U/S 133( 6) ISSUED TO THE DECEASED LENDER INQUIRING THE FACT OF LOAN TRANSACT ION FROM HIM, CANNOT BE A GROUND TO MAKE ADDITION U/S 68 OF IT AC T FOR NO FAULT OF APPELLANT. 5. THE LD. RESPONDENT FAILED & IGNORED TOTALLY THE VIT AL NOTINGS OF THE POST MAN DATED 14.3.2015, OVER LEAF THE ENVELOPE ST ATING THAT EXPIRED & REFUSED TO TAKE AS THE RETURNED ENVELOP E IS VERY MUCH AVAILABLE IN THE FILE OF A.O., DULY SEEN BY THE A.R . OF APPELLANT ALSO. 2. THE FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL IN COME AT RS.10,88,730/- ON 31.3.2013. THE CASE OF THE ASSES SEE WAS PICKED UP FOR SCRUTINY ASSESSMENT UNDER CASS. ACCORDINGLY, A NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) WAS ISSUED TO T HE ASSESSEE BY THE A.O. THEREAFTER, THE A.O. PROCEEDED TO [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 3 MAKE ASSESSMENT. THE A.O. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE MADE ADDITIONS IN RESPECT OF DISALLOWANCE OF EXPENDITURE RELATED TO CAR, TELEPHONE AN D MOBILE AMOUNTING TO RS.52,802/-, RS.22,501/- & RS.96,650/- RESPECTIVELY. FURTHER, THE A.O. MADE ADD ITION IN RESPECT OF UNSECURED LOAN FROM SHRI PARAS RAM KHATRI AND SHRI VINIT PODDAR AMOUNTING TO RS.25,75,000/-. T HUS, THE A.O. COMPUTED INCOME OF THE ASSESSEE AT RS.38,35,683/- AGAINST THE DECLARED INCOME OF RS.10,88,730/-. 3. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A), WHO AFTER CONSIDERING THE SUBMISS IONS PARTLY ALLOWED THE APPEAL, THEREBY, THE LD. CIT(A) CONF IRMED THE ADDITION OF RS.25,75,000/- MADE U/S 68 OF THE ACT AND REST OF THE ADDITION WAS DELETED. AGAINST THIS, THE AS SESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. GROUND NO.1 TO 4 ARE AGAINST CONFIRMING THE ADDITION MADE U/S 68 OF THE ACT OF [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 4 RS.25,75,000/-. LD. COUNSEL FOR THE ASSESSEE REITER ATED THE SUBMISSIONS AS MADE IN THE STATEMENT OF FACTS. IT IS SUBMITTED THAT THE CASH CREDITS AMOUNTING TO RS.20 LAK HS. IT WAS STATED THAT THIS AMOUNT WAS TAKEN BY THE ASSESSEE ON 13.9.2007. THE ASSESSEE HAD PROVIDED THE ENTIRE D ETAILS OF THE LENDER, HOWEVER, HE COULD NOT OBTAIN THE CONFIRMATION FROM THE CREDITOR AS THE LENDER HAS FILED A CIVIL SUIT FOR RECOVERY OF HIS MONEY DUE FROM THE COMPANY IN WHICH THE APPELLANT HAPPENS TO BE A DIRECTOR. IN RESPE CT OF LOAN AMOUNTING TO RS.5,25,000/- IN THE NAME OF SARDARMAL JAIN, S/O PRITHVIRAJ JAIN. IT WAS STATED THAT THE ASSESS EE HAD RECEIVED THE AMOUNT ON 30.3.2012 THROUGH RTGS. I N THIS CASE, COMPLETE DETAIL OF THE LENDER WAS GIVEN. T HE NOTICE SENT BY THE A.O. WAS RETURNED BACK WITH THE RE MARK EXPIRED. IN RESPECT OF THE CASH CREDIT RECEIVED F ROM SHRI VINIT PODDAR IT WAS STATED THAT THE AMOUNT WAS TAKEN IN [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 5 THE FINANCIAL YEAR 2009-10 AND IT WAS DULY REFLECTED IN THE OUTSTANDING BALANCE AS ON 1.4.2011. 4. PER CONTRA, LD. D.R. OPPOSED THESE SUBMISSIONS AND SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. LD. D.R. SUBMITTED THAT ONUS WAS ON THE ASSESSEE TO PROVE THE IDENTITY OF THE CREDITORS, GENUINENESS OF TRANSACTION S AND CREDITWORTHINESS OF THE CREDITORS. LD. D.R. SUBMIT TED THAT THE ASSESSEE GROSSLY FAILED TO PROVE GENUINENESS OF T HE TRANSACTIONS AND CREDITWORTHINESS OF THE CREDITORS, THEREFORE, THE REQUIREMENT OF LAW REMAINED UNFULFILLE D. THUS, THE AUTHORITIES BELOW WERE JUSTIFIED TO MAKE ADD ITION AND SUSTAINING THE SAME. 5. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LD. CIT(A) HAS DECIDED THE ISSUE AS UNDER:- [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 6 [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 7 [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 8 6. IT IS THE CASE OF THE ASSESSEE THAT LOAN FROM SHRI P ARAS RAM KHATRI AND SHRI VINEET PODDAR WAS TAKEN DURING THE ASSESSMENT YEAR 2010-11 AND IN RESPECT OF SARDARMAL JAIN, IT IS STATED THAT HE HAD EXPIRED, SO THE CONFIRMAT ION COULD NOT BE OBTAINED. AFTER CONSIDERING THE SUBMIS SIONS OF THE ASSESSEE, THAT THE SUBJECT LOAN FROM SHRI PARAS R AM KHATRI AND VINEET PODDAR WAS TAKEN IN THE ASSESSMENT YEAR 2010-11, AND THE REVENUE HAS NOT REBUTTED THE [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 9 SUBMISSIONS. MOREOVER, LD. CIT(A) RECORDED THE FACT THAT BANK STATEMENT WAS ENCLOSED TO PROVE THAT THE MONEY WAS CREDITED INTO THE BANK ACCOUNT ON 14.9.2007. IN RESP ECT OF LOAN OF RS.5,25,000/-, IT IS STATED THAT THE AMOUNT WAS RECEIVED DURING THE YEAR UNDER CONSIDERATION BY WAY O F ACCOUNT PAYEE CHEQUE BUT THE CONFIRMATION COULD NOT BE OBTAINED DUE TO UNTIMELY DEMISE OF THE LENDER. HENC E, LOOKING TO THE PECULIARITY OF THE FACTS AND MORE PARTIC ULARLY WHEN THE A.O. HAS NOT MADE ANY ENQUIRY REGARDING DEMISE OF THE LENDER AND THE MONEY CREDITED IN THE ACCOUNT DURING THE ASSESSMENT YEAR 2010-11 AS CLAIMED BY THE ASSESSEE. THE ISSUE IS RESTORED BACK TO THE A.O. TO DECIDE IT AFRESH AFTER MAKING PROPER ENQUIRY. THE ASSESSEE WOULD COOPERATE IN THE PROCEEDINGS BEFORE THE A.O. THE GR OUNDS RAISED IN THE APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. [ITA NO.418/IND/2018] [SHRI ANIL PATEL, INDORE] 10 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 30 . 07.2019. SD/- (KUL BHARAT) JUDICIALMEMBER INDORE; DATED : 30/07/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE