DCIT, Dehradun V. Sh. Parvinder Singh Kochar, Dehradun

ITA 4856/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2902 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 12-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Section: 153A; 133(6); 68; 6; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBE R ITA NO. 4856/DEL/2016 AY: 2007-08 DCIT, VS PARVINDER SINGH KOCHAR, CENTRAL CIRCLE, 1, CHANDER ROAD, DEHRADUN. DALNWALA, DEHRADUN. (PAN: ABBPK7321E) (APPELLANT) (RE SPONDENT) APPELLANT BY : SMT. PARAMITA TRIPATHY, CIT DR RESPONDENT BY: NONE DATE OF HEARING: 08.01.2018 DATE OF PRONOUNCEMENT: 21.03.2018 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER DATED 30.03.2016 OF THE LD. COMMISSIONER OF I NCOME TAX (APPEALS)-2, AGRA (CAMP AT DEHRADUN) AND PERTAINS T O ASSESSMENT YEAR 2007-08 WHEREIN VIDE THE IMPUGNED O RDER, THE LD. CIT (A) HAS DELETED THE ADDITION OF RS. 33 LAKH ADDED BY THE ASSESSING OFFICER U/S 68 OF THE INCOME TAX ACT, 196 1 (HEREINAFTER REFERRED TO AS 'THE ACT'). ITA NO.4856/DEL/2016 ASSESSMENT YEAR 2007-08 2 THE GROUNDS RAISED IN THE APPEAL ARE AS UNDER:- 1. THAT THE LD. CIT (A) HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION OF RS.33,00,000/- MADE ON ACC OUNT OF UNEXPLAINED UNSECURED LOANS, WITHOUT APPRECIATIN G THE FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN DELETING THE ADDITION WITHOUT APPRECIATING THE FACT THAT THE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE FAILED TO PROVE IDENTITY AND CREDITWORTHIN ESS OF HIS CREDITOR AND THE GENUINENESS OF THE TRANSACTION WHICH HE HAD WITH THE CREDITOR SH. GUNVEEN SINGH, GURGAON , BURDEN STANDS DISCHARGED. 3. THAT THE ORDER OF THE LD. CIT (A) BEING ERRONEO US IN LAW AND ON FACTS WHICH NEEDS TO BE VACATED AND THE ORDE R OF THE A.O. BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MORE OF THE GROUND OF THE APPEAL AS STATED A BOVE AS AND WHEN NEED FOR DOING SO MAY ARISE. 2. BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/S 13 2 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'T HE ACT') TOOK PLACE IN THE BUSINESS AND RESIDENTIAL PREMISES OF T HE ASSESSEE ON 17.02.2012 AND ACCORDINGLY, NOTICE U/S 153A OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE. IN RESPONSE T O THE NOTICE, THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING T OTAL INCOME AT RS. 9,71,120/-. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAD RECEIVED RS. 50 LAKH AS LOAN FROM ONE MR. GUNVEEN SINGH IN ASSES SMENT YEAR ITA NO.4856/DEL/2016 ASSESSMENT YEAR 2007-08 3 2006-07 OUT OF WHICH RS. 17 LAKH HAD BEEN REPAID. IT WAS ALSO NOTICED THAT THE ASSESSEE HAD RECEIVED UNSECURED LO ANS OF RS. 10 LAKH FROM SHRI A.N. AHUJA AND RS. 4 LAKH FROM SHRI JASMEET SINGH. THE ASSESSEE FILED CONFIRMATION LETTERS FRO M ALL THE THREE PERSONS AS A PROOF OF EVIDENCE OF SOURCE AND IDENTI TY. HOWEVER, WHEN THE ASSESSING OFFICER ISSUED NOTICE U/S 133(6) OF THE ACT TO SHRI A.N. AHUJA AND SHRI JASMEET SINGH, SHRI A.N. A HUJA DENIED HAVING PAID AN AMOUNT OF RS. 10 LAKH AND SHRI JASME ET SINGH FURNISHED THE CONFIRMATION ONLY IN RESPECT OF RS. 3 LAKH. IN THE CASE OF SHRI GUNVEEN SINGH, THE NOTICE WAS RETURNED UN-SERVED. ACCORDINGLY, THE ASSESSING OFFICER WAS OF THE OPINI ON THAT THE ASSESSEE WAS UNABLE TO DISCHARGE THE ONUS CAST UPON HIM IN RESPECT OF THE UNSECURED LOANS AND HE PROCEEDED TO ADD RS. 10 LAKH AS SHOWN FROM SHRI A.N. AHUJA, RS. 33 LAKH (BA LANCE OUTSTANDING) SHOWN FROM SHRI GUNVEEN SINGH AND RS. 1 LAKH FROM THE AMOUNT SHOWN FROM SHRI JASMEET SINGH U/S 6 8 OF THE ACT. 2.1 AGGRIEVED, THE ASSESSEE APPROACHED THE LD. CIT (A) AND CONTESTED THE ADDITION OF RS. 33 LAKH CLAIMED TO HA VE BEEN RECEIVED BY THE ASSESSEE FROM SHRI GUNVEEN SINGH. THE ASSESSEE, HOWEVER, DID NOT CHALLENGE THE REMAINING ADDITION OF ITA NO.4856/DEL/2016 ASSESSMENT YEAR 2007-08 4 RS. 11 LAKH. THE LD. CIT (A), ON FACTS, DELETED TH E ADDITION OF RS. 33 LAKH AND NOW THE DEPARTMENT HAS APPROACHED THE I TAT AND HAS CHALLENGED THE ACTION OF THE LD. CIT (A) IN DEL ETING THE ADDITION. 3. NONE WAS PRESENT ON BEHALF OF THE ASSESSEE WHEN THE APPEAL WAS CALLED OUT FOR HEARING. THE NOTICE FOR HEARING SENT BY THE REGISTRY OF THE ITAT HAS BEEN RETURNED UN-SERVED AN D IS PLACED ON RECORD. THE NOTING ON THE ENVELOPE RETURNED BY THE POSTAL DEPARTMENT MENTIONS LEFT. THEREFORE, LOOKING INT O THE FACTS OF THE CASE WE ARE PROCEEDING TO ADJUDICATE THE APPEAL EX PARTE QUA THE ASSESSEE/RESPONDENT. 4. THE LD. CIT DR PLACED EXTENSIVE RELIANCE ON THE FINDINGS RECORDED BY THE ASSESSING OFFICER AND SUBMITTED THA T SHRI GUNVEEN SINGH HAD NOT ATTENDED IN RESPONSE TO THE N OTICE ISSUED U/S 133(6) OF THE ACT AND, THEREFORE, THE ASSESSING OFFICER HAD NO OPTION BUT TO ADD THE IMPUGNED AMOUNT. 5. WE HAVE HEARD THE LD. CIT DR AND HAVE ALSO PERUS ED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE ASSESSEE HAD CLAIMED TO HAVE RECEIVED THE AMOUNT OF RS. 50 LAKH FROM SHRI GUNVEEN SINGH IN ASSESSMENT YEAR 2006-07 VIDE THREE CHEQUES AND THE CONFIRMATION LETTER OF SHRI GUNVEEN SINGH H AD ALSO BEEN ITA NO.4856/DEL/2016 ASSESSMENT YEAR 2007-08 5 FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AND THE SAME HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER. IT WAS ALSO SUBMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFI CER THAT AN AMOUNT OF RS. 17 LAKH OUT OF RS. 50 LAKH WAS RETURN ED TO SHRI GUNVEEN SINGH ON 13.05.2010 AND 23.05.2010 BY TWO C HEQUES. THE ASSESSING OFFICER HAS ACCEPTED THIS REFUND OF R S. 17 LAKH ALSO AND HAS ONLY ADDED THE AMOUNT OF RS. 33 LAKH B EING THE BALANCE OUTSTANDING AMOUNT. THUS, IT IS EVIDENT TH AT THE ASSESSING OFFICER HAS ACCEPTED A PART OF THE LOAN A ND HAS REJECTED THE BALANCE. THE ONLY REASON FOR THE ASSESSING OFF ICER TO HAVE REJECTED THE ASSESSEES CLAIM IS NON-RESPONSE FROM SHRI GUNVEEN SINGH TO THE NOTICE ISSUED U/S 133(6) OF THE ACT. IT IS ALSO UNDISPUTED THAT THE LOAN TRANSACTION WAS DULY REFLE CTED IN THE BANK ACCOUNT OF THE ASSESSEE. THE LD. CIT (A) HAS ALSO NOTED THAT SHRI GUNVEEN SINGH IS HOLDING A VALID AND ACTI VE PAN AND IS ASSESSED TO TAX. THEREFORE, ON THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, THERE IS NO QUESTION AS TO THE IDENTIT Y, CREDITWORTHINESS OR GENUINENESS OF THE LOAN TRANSAC TION. WE FIND THAT THE LD. CIT (A) HAS ALLOWED RELIEF TO THE ASSE SSEE BY PLACING RELIANCE ON THE JUDGMENT OF THE HONBLE GAUHATI HIG H COURT IN THE CASE OF NEMI CHAND KOTHARI VS. CIT REPORTED IN (2003) 264 ITA NO.4856/DEL/2016 ASSESSMENT YEAR 2007-08 6 ITR 254 (GAUHATI) WHEREIN THE HONBLE HIGH COURT HA D HELD THAT ONCE THE ASSESSEE HAD PROVEN THE IDENTITY, CREDITWO RTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION, HI S BURDEN STANDS DISCHARGED AND THE BURDEN SHIFTS TO THE REVE NUE TO SHOW THAT THE AMOUNTS IN QUESTION ACTUALLY BELONGED TO T HE ASSESSEE. WE FIND THAT THE LD. CIT (A)S RELIANCE ON THIS JUD GMENT OF THE HONBLE GAUHATI HIGH COURT IS WELL PLACED. THEREFO RE, ON FACTS, IT IS OUR CONSIDERED OPINION THAT THERE REMAINED NO CA USE OF ACTION WITH THE ASSESSING OFFICER TO TREAT PART OF THE LOA N AS UNEXPLAINED AS HE HAD ALREADY ACCEPTED THE REFUND OF RS. 17 LAK H FROM THE TOTAL LOAN AMOUNT AS GENUINE. THE ASSESSING OFFICE R HAS ALSO NOT DISPROVED THE CONFIRMATION LETTER RECEIVED FROM SHR I GUNVEEN SINGH AND NOR HAS THERE BEEN ANY FINDING THAT THE C HEQUE AMOUNTS EMANATED FROM THE COFFERS OF THE ASSESSEE A ND, THEREFORE, WE FIND NO REASON TO INTERFERE WITH THE FINDING OF THE LD. CIT (A) AND WE DISMISS THE GROUNDS RAISED BY TH E DEPARTMENT. 6. IN THE RESULT, THE APPEAL OF THE DEPARTMENT STAN DS DISMISSED. ITA NO.4856/DEL/2016 ASSESSMENT YEAR 2007-08 7 ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST MARCH, 2018. SD/- SD/- (PRASHANT MAHARISHI) (SUDHANSH U SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL ME MBER DT. 21 ST MARCH 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR