M/S. KAILASH KHANDELWAL HUF, Jaipur V. ITO, Jaipur

ITA 474/JPR/2011

• Counselvise Citation: 47423114 RSA 2011
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 18-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Section: 68

Judgement Text

1 ITA 474-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER ITA NO. 474/JP/2011 ASSTT. YEAR : 2005-06. M/S. KAILASH KHANDELWAL HUF, VS. THE INCOME-TAX OF FICER, 2245, DHULA HOUSE BAPU BAZAR, WARD 1(1), JAIPUR. JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJEEV SOGANI RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 08.11.2011. DATE OF PRONOUNCEMENT : 18.11.2011 ORDER DATE OF ORDER : 18/11/2011. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE IS OBJECTING IN CONFIRMING AN ADDIT ION OF RS. 2,75,000/- UNDER SECTION 68 OF IT ACT. 3. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTICE D THAT ASSESSEE HAS OBTAINED FRESH LOAN OF RS. 2.75 LACS FROM THREE LADIES NAMED SMT. SANTOSH JAIN, SMT. SWATI JAIN AND SMT. NEETA JAIN FROM WHOM LOANS OF RS. 75,000/- , RS. 1,00,000/- AND RS. 1,00,000/- RESPECTIVELY. CONFIRMATIONS WERE FILED. THE AO NO TICED THAT THE CREDITORS ARE NOT ASSESSED TO TAX AND NOT FILING ANY RETURN OF INCOME . IN THE AFFIDAVIT NO SOURCE OF INCOME 2 HAS BEEN MENTIONED BY THESE THREE LADIES. THEREFORE , THE ASSESSEE WAS REQUIRED TO PRODUCE THESE LADIES FOR EXAMINATION. HOWEVER, THEY COULD NOT BE PRODUCED, THEREFORE, THE AO ADDED THE AMOUNT OF LOAN OF RS. 2.75 LACS IN THE IN COME OF THE ASSESSEE. THE LD. CIT (A) ALSO CONFIRMED THE ACTION OF THE AO. 4. AFTER CONSIDERING THE ORDERS OF THE AUTHORITIES BELOW AND WRITTEN SUBMISSIONS, I FIND THAT ASSESSEE DESERVES TO SUCCEED IN ITS CASE. IT IS SEEN THAT OUT OF THREE LADIES, TWO ARE ASSESSED TO TAX AS PAN NUMBERS OF THESE TWO LAD IES I.E. SMT. SANTOSH JAIN AND SMT. NEETA JAIN WERE PROVIDED. AFFIDAVITS OF ALL THE TH REE LADIES WERE FILED. IT IS ALSO SEEN THAT ASSESSEE HAS PAID INTEREST AFTER EVERY TWO MONTHS A S PER MARKET RULE. IT IS FURTHER SEEN THAT ENTIRE AMOUNT OF LOAN WAS RECEIVED BY CHEQUE A ND HAS BEEN REPAID BY CHEQUE INCLUDING INTEREST. TDS ON THE AMOUNT OF INTEREST WAS DEDUCTED WHERE IT WAS APPLICABLE. CONFIRMATIONS IN THE SHAPE OF AFFIDAVITS WERE FILED . THEY WERE NOT FOUND INCORRECT. THEREFORE, IN VIEW OF THE DECISION OF HONBLE SUPRE ME COURT IN CASE OF ORISSA CORPORATION, 159 ITR 78, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE AS ONUS LAY UPON ASSESSEE WAS DULY DISCHARGED. THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF BHAWANI OIL MILLS (P) LTD., 49 DTR 212 (RAJ.) HAS H ELD THAT WHERE AFFIDAVIT HAS BEEN FILED AND THEY ARE NOT FOUND INCORRECT THEN NO ADDI TION CAN BE MADE UNDER SECTION 68. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, I DELETE THE ADDITION OF RS. 2,75,000/- MADE AND SUSTAINED BY LOWER AUTHORITIES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 6. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 18. 11.2011. SD/- ( R.K. GUPTA ) JUDICIAL MEMBER 3 JAIPUR, D/- COPY FORWARDED TO :- M/S. KAILASH KHANDELWAL HUF, JAIPUR. THE ITO WARD 1(1), JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 474/JP/2011) BY ORDER, AR ITAT JAIPUR.