M.J.Cherian, Alappuzha V. ITO, Alappuzha

ITA 446/COCH/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69106 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-10-2013
• Assessment Year: 2000-2001
• Appeal Filed On: 20-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Keywords: Unexplained cash credit
• Section: 131

Judgement Text

1 ITA NO.445 & 446/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 445 & 446/COCH/2010 (ASSESSMENT YEARS 1999-2000 & 2000-01) M.J. CHERIAN VS ITO, WD.1 FANCY JEWELLERS ALAPPUZHA MULLACKAL, ALLEPPEY PAN : ABWPJ2395N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ARUN RAJ RESPONDENT BY : SHRI K.K. JOHN DATE OF HEARING : 22-10-2013 DATE OF PRONOUNCEMENT : 29-11-2013 O R D E R PER N.R.S. GANESAN (JM) THESE APPEALS OF THE ASSESSEE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF CIT(A) BOTH DATED 25-03-2010 FOR THE ASSE SSMENT YEARS 1999- 2000 AND 2000-01. SINCE COMMON ISSUE ARISES FOR CO NSIDERATION, WE HEARD THESE TWO APPEALS TOGETHER AND DISPOSE OF THE M BY THIS COMMON ORDER. 2 ITA NO.445 & 446/COCH/2010 2. LET US FIRST TAKE THE ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 1999-2000. THE ONLY GROUND OF APPEAL IS WITH REGAR D TO ADDITION OF RS.3,60,000 TOWARDS UNEXPLAINED CASH CREDIT. 3. SHRI ARUN RAJ, THE LD.REPRESENTATIVE FOR THE ASS ESSEE SUBMITTED THAT THE ASSESSEE FURNISHED THE CONFIRMATION LETTERS FRO M THE CREDITORS. THE CIT(A) CALLED FOR REMAND REPORT ON THE BASIS OF THE CONFIRMATION LETTERS FILED BY THE ASSESSEE. ACCORDING TO THE LD.REPRESENTATIV E, THE ASSESSEE HAS DISCHARGED HIS DUTIES AS AN ASSESSEE, THEREFORE, IT WAS FOR THE REVENUE TO MAKE FURTHER INVESTIGATION IF THEY WANTED TO MAKE A NY ADDITION. HOWEVER, THE CIT(A) REJECTED THE CLAIM OF THE ASSESSEE ON TH E GROUND THAT THE ASSESSEE HAS NOT DISCHARGED HIS ONUS. THE LD.REPRE SENTATIVE FURTHER SUBMITTED THAT SOME OF THE CREDITORS WERE EXAMINED BY THE ASSESSING OFFICER; BUT NO OPPORTUNITY WAS GIVEN TO THE ASSESS EE TO CROSS EXAMINE THOSE CREDITORS, WHO WERE EXAMINED BY THE ASSESSING OFFICER. REFERRING TO THE STATEMENT SAID TO BE RECORDED FROM SHRI THOMAS JOSEPH, THE LD.REPRESENTATIVE SUBMITTED THAT SHRI THOMAS JOSEPH WAS ASSESSEES FRIEND AND NOW HE IS NOT IN GOOD TERMS WITH THE ASS ESSEE, THEREFORE, HE MADE A CONTRARY STATEMENT BEFORE THE ASSESSING OFFI CER AFTER GIVING THE CONFIRMATION LETTER. 3 ITA NO.445 & 446/COCH/2010 4. WE HEARD SHRI K.K. JOHN, THE LD.DR ALSO. ACCORD ING TO THE LD.DR, THE ASSESSEE HAS TO PROVE THE GENUINENESS OF THE TR ANSACTION, CREDITWORTHINESS OF THE CREDITORS AND IDENTITY OF T HE CREDITORS. IN THIS CASE, THE ASSESSEE HAS FILED CONFIRMATION LETTERS SAYING THAT THE CREDITORS HAVE PAID THE MONEY. HOWEVER, SOME OF THE CREDITORS DEN IED OF HAVING GIVEN THE MONEY. THE ASSESSEE HAS NOT FURNISHED PERMANEN T ACCOUNT NUMBERS OF THE RESPECTIVE CREDITORS. THEREFORE, THE CONFIR MATION LETTERS ARE NOT COMPLETE IN THE SENSE THAT THE CREDITORS ARE NOT ID ENTIFIABLE. THEREFORE, THE CREDITWORTHINESS OF THE CREDITORS, IDENTITY OF THE CREDITORS AND GENUINENESS OF THE TRANSACTION WERE NOT PROVED BY THE ASSESSEE. HENCE, THE ASSESSEE HAS NOT DISCHARGED HIS ONUS. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS WE LL SETTLED PRINCIPLES OF LAW THAT TO ESTABLISH A CREDIT, THE ASSESSEE HAS TO NEC ESSARILY PROVE THE IDENTITY OF THE CREDITOR, CREDITWORTHINESS OF THE CREDITOR A ND GENUINENESS OF THE TRANSACTION. IN THIS CASE, THE ASSESSEE FILED CONF IRMATION LETTERS BEFORE THE CIT(A) IN THE COURSE OF THE FIRST APPELLATE PROCEED INGS. THE CIT(A) CALLED FOR REMAND REPORT FROM THE ASSESSING OFFICER. IT I S ALSO A FACT THAT THE ASSESSEE HAS NOT GIVEN THE PERMANENT ACCOUNT NUMBER S OF THE CREDITORS, COPY OF INCOME-TAX RETURNS, COPY OF BANK ACCOUNTS, ETC. ON EXAMINATION, ONE OF THE CREDITORS, SHRI THOMAS JOSEPH, WHO APPEA RED IN RESPONSE TO 4 ITA NO.445 & 446/COCH/2010 SUMMONS ISSUED U/S 131 OF THE ACT, HAS DENIED THE C LAIM OF THE ASSESSEE THAT HE GIVEN ANY MONEY TO THE ASSESSEE. THE FACT REMAINS IS THAT THE ASSESSEE HAS NOT PRODUCED COMPLETE INFORMATION WITH REGARD TO THE CREDITORS AND THEIR CREDITWORTHINESS. THEREFORE, T HIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS NOT DISCHA RGED HIS ONUS OF PROVING THE CREDIT. HENCE, THIS TRIBUNAL DO NOT FI ND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY, THE ORD ER OF THE CIT(A) IS CONFIRMED. 6. NOW COMING TO ASSESSMENT YEAR 2000-01, THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDITION OF RS.1,02,000 TOWARDS UN EXPLAINED CREDIT. 7. WE HEARD SHRI ARUN RAJ, THE LD.REPRESENTATIVE FO R THE ASSESSEE AND SHRI K.K. JOHN, THE LD.DR. 8. IN THIS CASE ALSO, THE ASSESSING OFFICER EXAMINE D SHRI MONU GEORGE, WHO IS THE NEPHEW OF THE ASSESSEE. SHRI MONU GEORG E MADE A STATEMENT THAT HE HAS NOT ENTERED INTO ANY MONEY TRANSACTION WITH THE ASSESSEE. SHRI GEORGEKUTTY ALSO CLAIMED THAT HE HAD NO TRANSA CTION WITH THE ASSESSEE. ONE SHRI TENZ Z MALAYALI HAS ALSO CLAIME D THAT HE WAS AN EMPLOYEE OF THE BUSINESS CONCERN RUN BY THE ASSESSE E. IN VIEW OF THE ABOVE, THE CIT(A) CAME TO THE CONCLUSION THAT THE A SSESSEE HAS FAILED TO 5 ITA NO.445 & 446/COCH/2010 ESTABLISH THE GENUINENESS OF THE TRANSACTIONS, CRED ITWORTHINESS OF THE CREDITORS AS ALSO THE IDENTITY OF THE CREDITORS. I N THE ABSENCE OF ANY FURTHER MATERIAL, THIS TRIBUNAL IS OF THE CONSIDERED OPINIO N THAT THE ASSESSEE MISERABLY FAILED TO ESTABLISH THE CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTIONS. THEREFORE, THIS T RIBUNAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACC ORDINGLY, THE ORDER OF THE CIT(A) IS CONFIRMED. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASS ESSEE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH NOVEMBER, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 29 TH NOVEMBER, 2013 PK/- COPY TO: 1. M.J. CHERIAN, FANCY JEWELLERS, MULLACKAL, ALLEPP EY 2. ITO, WD.1, ALAPPUZHA 3. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM 4. THE COMMISSIONER OF INCOME-TAX(A)-IV, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH