M/s Gauyam Construction & Suppler, Fatehpur V. ITO, Fatehpur

ITA 429/ALLD/2012

• Counselvise Citation: 42920714 RSA 2012
• Duration Of Justice: 3 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 17-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PANDEY
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH ALLAHABAD BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER ITA NO. 429 /ALLD/201 2 ASSESSMENT YEAR: 200 5 - 0 6 M/S. GAUTAM CONSTRUCTIONS & SUPPLIER, BINDAKI, FATEHPUR. PAN: AAFFG 5842F VS INCOME TAX OFFICER , RA NGE - 2(4) , FATEHPUR . (APPELLANT) (RESPONDENT) REVENUE BY : SHRI A.K. PANDEY , D.R., ASSESSEE(S) BY : NONE / DATE OF HEARING : 10 / 0 9 /2015 / DATE OF PRONOUNCEMENT: 24 / 09/ 2015 ORDER PER: P.K. BANSAL ACCOUNTANT MEMBER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CI T(A) ALLAHABAD DATED 2 4 .0 2.2012 FOR ASSESSMENT YEAR 2005 - 06 . 2. NONE APPEARED ON BEHALF OF THE ASSESSEE , I THEREFORE DECIDED TO DISPOSE OF THE APPEAL AFTER HEARING THE LEARNED DR. 3. AFTER HEARING THE LEARNED DR, I NOTED THAT THE APPEAL FILED BY THE ASS ESSEE IS DELAYED BY 78 DAYS. THE ASSESSEE MOVED AN 2 APPLICATION FOR CONDONATION OF DELAY. I NOTED FROM THE APPLICATION OF CONDONATION OF DELAY THAT THE ASSESSEE COULD NOT GET IMPUGNED ORDER AS THE CHAMBER OF THE COUNSEL WAS UNDERGOING REPAIR AND WAS AFFECTE D BY TERMITE . A S SOON AS THE ASSESSEE GOT RECORD THE ASSESSEE IMMEDIATELY FILED THE APPEAL. THIS FACT IS CLEAR FROM THE COPY OF THE ORDER AS WELL AS THE AFFIDAVIT OF THE ADVOCATE OF THE ASSESSEE. I FIND THAT EXPLANATION GIVEN BY THE ASSESSEE IS PALPABLE ON E. 4. A FTER HEARING THE LEARNED DR AND GOING THROUGH THE ORDER OF THE TAX AUTHORITIES BELOW, I NOTED THAT THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO THE ADDITION OF RS.10 LAC WHICH IS BEING CONTRIBUTED BY THE PARTNER OF THE FIRM , NAMELY , SMT. PRAT IBHA SINGH RS.2,50,000/ - , SUSHIL SINGH RS.2,50,000/ - , SUNIL SINGH RS.2,50 ,000/ - , GIRIRAJ KUMARI RS.2,50,000/ - I NOTED THAT THE ASSESSEE EVEN THOUGH SUBMITTED THE COPY OF THE PASS BOOK IN THE CASE OF SMT. PRATIBHA SINGH , SUSHIL SINGH , SUNIL SINGH BUT SINCE THE ASSESSING OFFICER WAS NOT SATISFIED THEREFORE HE MADE THE ADDITION IN THE HANDS OF THE FIRM. THE FIRM HAS BEEN CREATED AND THE CAPITAL GAIN HAS BEEN CONTRIBUTED DURING THE IMPUGNED ASSESSM E NT YEAR. THE ASSESSING OFFICER DID NOT TAKE ANY ACTION AGAINST THE PARTNERS OF THE FIRM . T HE ISSUE INVOLVED IN THIS APPEAL , IN MY OPINION , IS DULY COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. JAISWAL MOTOR 3 FINANCE , 141 ITR 706 (ALL) . THE HONBLE HIGH COURT HAS HELD AS UNDER: IF THERE ARE CASH CREDIT ENTRIES IN THE BOOKS OF A FIRM, IN WHICH THE ACCOUNTS OF THE INDIVIDUAL PARTNERS EXIST, AND IT IS FOUND AS A FACT THAT CASH WAS RECEIFVED BY THE FIRM FROM ITS PARTNERS, THEN, IN THE ABSENCE OF ANY MATERIAL TO INDICATE THAT THEY WE RE THE PROFITS OF THE FIRM, IT COULD NOT BE ASSESSED IN THE HANDS OF THE FIRM. THE ITO FOUND CERTAIN DEPOSITS IN THE ACCOUNTS OF THE PARTNERS IN THE BOOKS OF THE ASSESSEE - FIRM IN THE FIRST YEAR OF ASSESSMENT OF THE FIRM. THE ASSESSEE EXPLAINED THAT THE SO URCE OF THE DEPOSITS WAS THE AGRICULTURAL INCOME OF THE PARTNERS, WHICH WAS REJECTED BY THE ITO. THE AAC AFFIRMED THE ORDER OF THE ITO. THE TRIBUNAL FOUND THAT THE DEPOSITS HAD BEEN MADE BY THE PARTNERS AS THEIR CAPITAL, BECAUSE WITHOUT THESE INVESTMENTS T HEY COULD NOT HAVE BECOME PARTNERS AND THAT THE ASSESSEE HAD DISCHARGED THE ONUS OF PROVING THE DEPOSITS IN ITS ACCOUNTS AND WAS NOT FURTHER REQUIRED TO EXPLAIN THE SOURCE OF THE DEPOSITS IN THE HANDS OF THE DEPOSITORS. ON A REFERENCE HELD, THAT THE ONUS P LACE ON THE ASSESSEE BY S.68OF THE IT ACT, 1961, WAS DISCHARGED BY THE ASSESSEE. RESPECTFULLY FOLLOWING THE AFORESAID DECISION , I DELETE THE ADDITION OF RS.10 LAC. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON THIS DAY, THE 24 SEPTEMBER, 2015 AT ALLAHABAD . SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER DATED: 24 / 09 /201 5 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDE D TO: 4 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR 5 1. DATE OF DICTATION - 09 .09.2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER - .09 .2015 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT . 5. DATE ON WHICH THE FAIR ORDER COMES TO THE SR.P.S. . 6. DATE ON WHICH THE FILE GOES TO THE B ENCH CLERK - 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER