MS Prerna Ajmera, Indore V. THE ITO 1(3), Indore

ITA 435/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5829 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 02-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDES

Judgement Text

SMT. PRERNA AJMERA ITA NO. 435/IND/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI O.P. MEENA, AM ITA NO.435/IND/2016 A.Y.2007-08 SMT. PRERNA AJMERA INDORE PAN AEVPA 2380L ::: APPELLANT VS INCOME TAX OFFICER 1(3) INDORE ::: RESPONDENT APPELLANT BY SHRI S.S. DESHPANDES RESPONDENT BY SHRI MOHD JAVED DATE OF HEARING 17.8.2016 DATE OF PRONOUNCEMENT 17.8.2016 O R D E R PER SHRI D.T. GARASIA, JM THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-22, NEW DELHI, DATED 16. 2.2016 HAVING CONCURRENT JURISDICTION OVER CIT(A)-II, INDOR E. SMT. PRERNA AJMERA ITA NO. 435/IND/2016 2 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE IS MANUFACTURING AUTOMOBILE COMPONENTS. DURING THE COURS E OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER FOUN D THAT THE ASSESSEE HAS TAKEN LOAN FROM THE FOLLOWING PARTIES :- (I) SHRI M.C. AJMERA GRAND FATHER 45,000/- (II) SMT. HEENA PUJARA EMPLOYEE 20,000/- (III) SHRI ABHAY KUMAR AJMERA FATHER 45,000/- (IV) SHRI ARPIT AJMERA BROTHER 95,000/- (V) SMT. ANITA AJMERA MOTHER 50,000/- (VI) KU.ABHILASHA AJMERA COUSIN SISTER 40,000/- (VII) SHRI AVEG AJMERA COUSIN BROTHER 40,000/- TOTAL - 3,55,000 DURING THE COURSE OF ASSESSMENT PROCEEDINGS CONFIRMATIONS OF ALL THE LOAN CREDITORS WERE FILED. TH E ASSESSING OFFICER ISSUED SUMMONS TO ALL THE CREDITOR S EXCEPT KU. ASHTHA AND SHRI AVEG AJMERA. THE ASSESSEE IS A YOUNG BUSINESS LADY AND ALL THE FAMILY MEMBERS USED TO SUPPORT HER IN THE FINANCIAL REQUIREMENTS. SHRI M.C. AJMERA IS THE GRAND-FATHER OF THE ASSESSEE AND HE STATED SMT. PRERNA AJMERA ITA NO. 435/IND/2016 3 THAT HE HAS 7 SONS WHO ARE MAINTAINING HIM AND HIS WIFE HAS GIVEN HIM RS. 1,50,000/- AT THE TIME OF HER DEATH. HE HAS GIVEN LOAN OF RS.45,000/- TO THE ASSESSEE, SMT. HE ENA PUJARA HAS ADVANCED RS.20,000/- AND SHE IS AN EMPLOYEE AND ASSESSED TO TAX, SHRI ABHAY KUMAR AJMERA IS THE MANAGER OF THE CONCERN AND HE DERIVES INCOME FROM RENT AL AND TRANSPORT. HE IS ASSESSED TO TAX AND HE HAS GIVEN INCOME TAX RETURN, COMPUTATION OF BALANCE SHEET WHICH CLEARLY PROVES THAT HE HAS THE CAPACITY FOR MAKING CASH DEPOSIT AND ADVANCING THE LOAN TO THE ASSESSEE. SHRI AR PIT AJMERA HAS DEPOSITED RS. 25,000/- ON 21.2.2007 IN HIS BANK ACCOUNT WHICH WAS ADVANCED TO THE ASSESSEE. HE WAS REPAID A SUM OF RS.43,000/- ON 26.3.2007. OUT OF THE SAID DEPOSIT HE WITHDREW RS.35,000/- IN CASH FROM BANK ON 28.3.2007. THE AMOUNT OF RS. 35,000/- SO WITHDRAWN FROM BANK ON 28.3.2007 AND CASH OF RS.10,000/- AVAILABLE WITH HIM WERE DEPOSITED BY HIM IN CASH ON 29.3.2007 AND OU T OF SMT. PRERNA AJMERA ITA NO. 435/IND/2016 4 THESE DEPOSITS AND OLD BANK BALANCE A SUM OF RS. 50,000/ - WAS AGAIN ADVANCED TO THE ASSESSEE. AS SUCH, HE ADVANCED RS. 95,000/- TO THE ASSESSEE. HE HAS FILED THE BANK STATEMENT. SMT. ANITA AJMERA HAS GIVEN RS. 50,000/- TO THE ASSESSEE. SHRI KU. ABHILASHA AJMERA IS AN INCOME TAX ASSESSEE. SHE IS A COMMISSION AGENT OF ICICI PRUDENTIAL AND HE HAS INCOME OF RS.2 LACS. SHE HAS DEPOSITED RS.40,000/- ON 24.3.2007 AND SHE HAS GIVEN THE LOAN O F RS.40,000/-. SHRI AVEG AJMERA COULD NOT BE PRODUCED . THE MATTER WAS CARRIED IN APPEAL AND THE LEARNED CIT(A) HAS CONFIRMED THE SAME. NOW THE ASSESSEE IS IN APPEAL BEFOR E THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE SIDES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT IN RESPECT OF T HE LOAN FROM KU. ASHTHA AJMERA AND AVEG AJMERA, THEY DID NOT REMAIN PRESENT BEFORE THE ASSESSING OFFICER. WE ARE, THEREFORE, OF THE VIEW THAT ALL THE TRANSACTIONS OF LOAN WERE SMT. PRERNA AJMERA ITA NO. 435/IND/2016 5 BY ACCOUNT PAYEE CHEQUE BUT IN THE ACCOUNT OF THE ASSESSEE CASH HAS BEEN DEPOSITED PRIOR TO ISSUING THE CHEQUE. THEREFORE, IF THE LENDER DID NOT REMAIN PRESE NT BEFORE THE REVENUE AUTHORITIES, WE ARE OF THE VIEW TH AT THE AUTHORITIES BELOW WERE JUSTIFIED IN TREATING BOTH THE LENDERS AS THEIR GENUINENESS OF THE TRANSACTION IS NOT PROVED. MOREOVER, THEIR CAPACITY IS ALSO NOT PROVED. THEREFORE , WE ARE OF THE VIEW THAT THE REVENUE AUTHORITIES ARE JUSTIF IED IN TREATING THE SAME AS INCOME OF THE ASSESSEE. HENCE, THE ADDITION IS JUSTIFIED. 4. IN THE CASE OF SHRI M.C. AJMERA WE FIND THAT HE IS AGED ABOUT 86 YEARS AND HE HAS NO SOURCE OF INCOME. HE HAD CASH OF RS. 1.5 LACS FROM HIS SPOUSE WHO EXPIRED ON 15.8.2002. WE ARE, THEREFORE, OF THE VIEW THAT THE LE ARNED CIT(A) IS JUSTIFIED IN TREATING THIS CREDITOR AS HAVIN G NO CAPACITY TO ADVANCE THE LOAN. THEREFORE, THE ASSESSEE FAIL ED SMT. PRERNA AJMERA ITA NO. 435/IND/2016 6 TO PROVE THE CAPACITY OF THE LENDER TO ADVANCE THE LOAN . WE, THEREFORE, CONFIRMED THE FINDINGS OF THE LOWER AUTHO RITIES. 5. IN RESPECT OF SMT. HEENA PUJARA WHO HAS GIVEN LOAN O F RS.20,000/- TO THE ASSESSEE, WE FIND THAT SHE IS AN EMPLOYEE OF THE ASSESSEE FIRM. THEREFORE, WE ARE OF THE VIEW THAT THAT IT IS NOT POSSIBLE FOR AN EMPLOYEE TO GIVE LOAN TO THE OWNER OF THE FIRM AND BEFORE GIVING THE CHEQUE TH E ASSESSEE HAS DEPOSITED RS. 20,000/- IN THE BANK ACCOUNT . THE ASSESSEE COULD NOT PROVE THE SOURCE OF RS.20,000 /-. THEREFORE, THE AUTHORITIES BELOW WERE JUSTIFIED IN H OLDING THAT SHE HAS NO CAPACITY TO ADVANCE THE LOAN. WE CONFIRM THE SAME. 6. IN THE CASE OF ABHAY KUMAR AJMERA WE FIND THAT HE IS AN EMPLOYEE OF THE ASSESSEE AND HE IS DRAWING SALARY AND HE HAS DEPOSITED THE MONEY PRIOR TO GIVING THE LOAN. THEREFORE, THE TRANSACTION CANNOT BE CONSIDERED TO BE SMT. PRERNA AJMERA ITA NO. 435/IND/2016 7 GENUINE. THEREFORE, THE AUTHORITIES BELOW ARE JUSTIFI ED AND WE CONFIRM THEIR ORDERS. 7. IN RESPECT OF SRI ARPIT AJMERA WE FIND THAT HE IS AN ENGINEERING STUDENT AND HE HAS GIVEN LOAN TO THE ASSESS EE COMPANY OF RS.95,000/- BUT BEFORE ISSUING THE CHEQUE THE CASH WAS DEPOSITED. THEREFORE, IT IS THE BOUNDEN DUT Y OF THE ASSESSEE TO PROVE THE SAME WHICH THE ASSESSEE HAS FAILED TO DO. THEREFORE, THIS TRANSACTION IS NOT GENUI NE. THEREFORE, WE CONFIRM THE SAME. 8. IN RESPECT OF SMT. ANITA AJMERA WE FIND THAT SHE IS RUNNING COACHING CLASSES AND SHE HAS GIVEN RS.50,000/- TO THE ASSESSEE AND SHE HAS REMAINED PRESENT BEFORE THE ASSESSING OFFICER AND SHE HAS CONFIRMED GIVING THE LO AN. THEREFORE, AUTHORITIES BELOW ARE NOT JUSTIFIED IN TRE ATING THE SAME AS NON-GENUINE. THEREFORE, WE ALLOW THIS GROUND. SMT. PRERNA AJMERA ITA NO. 435/IND/2016 8 9. IN THE CASE OF KU. ABHILASHA AJMERA WE FIND THAT SHE HAS STATED THAT SHE IS RECEIVING THE COMMISSION FROM I CICI PRUDENTIAL COMPANY AND SHE WAS DEPOSITING THIS COMMISSION IN THE BANK ACCOUNT AND SHE HAS RECEIVED THE COMMISSION AND SHE HAS GIVEN IT TO THE ASSESSEE. THERE FORE, WHEN SHE IS ASSESSED TO TAX, SHE HAS THE CAPACITY TO ADVANCE THE LOAN. THEREFORE, HER TRANSACTION SEEMS TO BE GENUINE. WE DELETE THE SAME. 10. IN RESPECT OF SHRI M.C. AJMERA, SMT. HEENA PUJARA, SHRI ABHAY AJMERA, SHRI ARPIT AJMERA, SMT. ASTHA AJMER A AND SHRI AVEG AJMERA, WE DO NOT CONSIDER THEM TO BE HAVING CAPACITY TO ADVANCE THE LOAN BUT IN RESPECT OF SM T. ANITA AJMERA AND KU. ASBHILASHA AJMERA, THEY HAVE THEIR INDEPENDENT SOURCE OF INCOME. THEREFORE, WE DELETE THE SAME. 11. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. SMT. PRERNA AJMERA ITA NO. 435/IND/2016 9 PRONOUNCED IN OPEN COURT ON 17 TH AUGUST, 2016 SD SD (O.P. MEENA) (D.T. G ARASIA) ACCOUNTANTMEMBER JUDICIAL MEMB ER 17 TH AUGUST, 2016 DN/- SMT. PRERNA AJMERA ITA NO. 435/IND/2016 10