ITO, New Delhi V. Smt. Ritu Thareja, New Delhi

ITA 4880/DEL/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4032 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 29-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH : F NEW DELHI) (DELHI BENCH : F NEW DELHI) (DELHI BENCH : F NEW DELHI) (DELHI BENCH : F NEW DELHI) BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRES IDENT AND BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRES IDENT AND BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRES IDENT AND BEFORE SHRI G.E. VEERABHADRAPPA, HONBLE VICE PRES IDENT AND SHRI A.D. JAIN, JUDICIAL MEMMBER SHRI A.D. JAIN, JUDICIAL MEMMBER SHRI A.D. JAIN, JUDICIAL MEMMBER SHRI A.D. JAIN, JUDICIAL MEMMBER I.T.A. NO.4880/DEL./2009 I.T.A. NO.4880/DEL./2009 I.T.A. NO.4880/DEL./2009 I.T.A. NO.4880/DEL./2009 (ASSESSMENT YEAR : 2003 (ASSESSMENT YEAR : 2003 (ASSESSMENT YEAR : 2003 (ASSESSMENT YEAR : 2003- -- -04) 04) 04) 04) ITO, WARD 33(3), ITO, WARD 33(3), ITO, WARD 33(3), ITO, WARD 33(3), VS. VS. VS. VS. SMT. RITU THAREJ SMT. RITU THAREJ SMT. RITU THAREJ SMT. RITU THAREJA, A,A, A, NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. PROP. M/S S.P. CONSTRUCTIONS, PROP. M/S S.P. CONSTRUCTIONS, PROP. M/S S.P. CONSTRUCTIONS, PROP. M/S S.P. CONSTRUCTIONS, 21/46, WEST PATEL NAGAR, 21/46, WEST PATEL NAGAR, 21/46, WEST PATEL NAGAR, 21/46, WEST PATEL NAGAR, NEW DELHI NEW DELHI NEW DELHI NEW DELHI- -- -110008. 110008. 110008. 110008. (PAN/GIR NO. : AADPT6320M) (PAN/GIR NO. : AADPT6320M) (PAN/GIR NO. : AADPT6320M) (PAN/GIR NO. : AADPT6320M) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE ASSESSEE BY : NONE REVENUE BY : SHRI S. MOHANTY, SR.DR REVENUE BY : SHRI S. MOHANTY, SR.DR REVENUE BY : SHRI S. MOHANTY, SR.DR REVENUE BY : SHRI S. MOHANTY, SR.DR ORDER ORDER ORDER ORDER PER A.D. JAIN, JM THIS IS DEPARTMENTS APPEAL FOR ASSESSMENT YEAR 2003-04 CONTENDING THAT THE CIT(A) HAS ERRED IN HOLDING THAT THE ASSESSEE HAD DISCHARGED HER ONUS BY FURNISHING DETAILS REGARDING IDE NTITY, CREDITWORTHINESS AND GENUINENESS OF THE PAYERS WITHOUT C ONSIDERING THAT THE ASSESSEE HAD NOT ONLY FAILED TO PROVE THE GEN UINENESS OF THE TRANSACTION, BUT WAS ALSO FAILED TO PRODUCE THE BOOKS O F ACCOUNT AND OTHER DETAILS REGARDING THE BUSINESS ACTIVITY CARRIED O N BY HER. THE INFORMATION WAS RECEIVED FROM THE DIT(INV.), NEW DEL HI THAT THE ASSESSEE HAD RECEIVED `5 LAKHS FROM SANTOSH ON 12.8.03, ` 5 LAKHS FROM SHYAM LAL ON 30.8.03, `3 LAKHS FROM RAJESH KUMAR ON 1 .9.03, `4 LAKHS FROM RAMESH CHAND ON 1.9.03 AND `2 LAKHS FROM RAJESH K UMAR ON 5.9.03, TOTALED AMOUNTING TO ` 19 LAKHS. ACCORDINGL Y, A NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE. THE AMOUNTS HAD BEEN DEPOSITED IN BANK ACCOUNT NO.2052 OF THE ASSESSEE IN SANGLI BANK, KAROL B AGH, NEW DELHI AND WERE DRAWN ON JAI LAXMI COOPERATIVE BANK, FATEH PURI, DELHI. AS I.T.A. NO.4880/DEL./2009 (A.Y. : 2003-04) 2 PER THE DIT(INV.), THE CHEQUES HAD BEEN RECEIVED BY THE ASSESSEE FROM PERSONS, WHO WERE KNOWN ENTRY OPERATORS, AFTER HAVING MADE PAYMENT IN CASH TO THEM. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, DESPITE THE NOTICE TO HER DATED 01.03.11, IS NOT TO THE ASSESSEE BY REGISTERED POST HAVING NOT RETURNED UNSERVED, AS AVAILABLE FROM THE RECORD. HOWEVER, FINDING THAT THE MATTER CAN BE PROCEEDED WITH IN THE ABSENCE OF THE ASSESSEE, WE ARE DOING SO. 3. THE ASSESSEE MAINTAINED THAT THE AMOUNTS WERE RECEIVE D THROUGH ACCOUNT PAYEE CHEQUES. THE CONFIRMATIONS FRO M THE PAYERS WERE FILED, SUBSTANTIATING THE ADDRESSES AND THEIR PANS. THE AO, HOWEVER, WAS NOT SATISFIED. IT WAS OBSERVED THAT THE ASSE SSEE HAD NOT DISCHARGED HER ONUS OF PROVING THE GENUINENESS OF THE T RANSACTION. ACCORDINGLY, THE SUM OF `19 LAKHS WAS ADDED BY THE AO U/S 68 OF THE ACT TO THE INCOME OF THE ASSESSEE. 4. BY VIRTUE OF THE IMPUGNED ORDER, THE CIT(A) DELE TED THE ADDITION OBSERVING THAT THE ASSESSEE HAD FURNISHED THE NECESSARY EVI DENCE IN SUPPORT OF HER CLAIM. 5. AGGRIEVED, THE DEPARTMENT IS IN APPEAL. 6. THE LD.DR HAS CONTENDED THAT THE CIT(A) HAS GONE W RONG IN HOLDING THAT THE ASSESSEE HAD DISCHARGED HER ONUS BY FURN ISHING THE DETAILS REGARDING IDENTITY, CREDITWORTHINESS AND GENUI NENESS OF THE PAYERS; THAT WHILE DOING SO, THE CIT(A) IGNORED THE F ACT THAT THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE TRAN SACTION; AND THAT SHE HAD ALSO FAILED TO PRODUCE THE BOOKS OF ACCOU NT AND OTHER DETAILS REGARDING HER BUSINESS ACTIVITY. 7. WE HAVE HEARD THE LD.DR AND HAVE PERUSED THE MATE RIAL ON RECORD. THE ISSUE IS AS TO WHETHER THE ASSESSEE HAD DISCHAR GED HER ONUS OF PROVING THE IDENTITY AND CREDITWORTHINESS OF T HE PAYERS AND THE GENUINENESS OF THE TRANSACTIONS. IN THIS REGARD, IT IS SE EN THAT THE I.T.A. NO.4880/DEL./2009 (A.Y. : 2003-04) 3 ASSESSEE HAD FILED BEFORE THE AO, THE INCOME-TAX RETURN S OF THE PAYERS. THIS WAS NOT DISPUTED BY THE AO. THE CONFIRMATIONS FRO M ALL THE PARTIES HAD ALSO BEEN FILED. THIS WAS ALSO NOT DISPUTED. THE AO, ON THE OTHER HAND, DID NOT BRING ANY MATERIAL ON RECORD, SO AS TO DISPROVE THE EVIDENCE FILED BY THE ASSESSEE. IT ALSO REMAINS UNDISPUTE D THAT THE TOTAL AMOUNT OF `19 LAKHS WAS, SUBSEQUENTLY, REPAID BY THE ASSESSEE THROUGH ACCOUNT PAYEE CHEQUES. THE CONFIRMATIONS IN THIS REGARD, FROM THE CONCERNED PARTIES, WERE ALSO FILED BEFORE TH E CIT(A). THUS, THOUGH ALL THE RELEVANT EVIDENCES WERE FURNISHED BY T HE ASSESSEE, THE AO DID NOT DEEM IT APPROPRIATE TO MAKE ANY FURTHER ENQUIRY, QUESTIONING THE CORRECTNESS OF THE ASSESSEES CLAIM. IT WA S ONLY THAT THE SUBMISSIONS OF THE ASSESSEE WERE NOT AGREED WITH. AS FO R THE ASSESSEE, SHE DULY PROVED THE IDENTITY, CREDITWORTHINESS O F THE PARTIES AND THE GENUINENESS OF THE TRANSACTIONS. THE REQUIREME NT U/S 68 OF THE ACT WAS, THUS, AMPLY MET BY THE ASSESSEE. 8. IN CIT VS. ORISSA CORPORATION PVT. LTD., 159 I.T. R. 78(SC), IT HAS BEEN HELD THAT WHERE THE ASSESSEE HAD GIVEN THE NAMES AN D ADDRESSES OF THE CREDITORS, IT WAS IN THE KNOWLEDGE OF T HE REVENUE THAT THE CREDITORS WERE INCOME-TAX ASSESSEES; THAT THEIR PANS W ERE ON THE FILE OF THE REVENUE; THAT HOWEVER, THE REVENUE DID NOT PURSUE THE MATTER FURTHER OTHER THAN ISSUANCE NOTICE U/S 131 OF T HE ACT; THAT THE REVNEYE DID NOT EXAMINE THE SOURCE OF INCOME OF THE CREDITORS TO ASCERTAIN AS TO WHETHER THEY WERE CREDITWORTHY OR WER E SUCH WHO COULD ADVANCE LOANS; THAT NO EFFORT WAS MADE TO PURSUE THE SO CALLED CREDITORS; THE ASSESSEE IN THESE CIRCUMSTANCES, COULD NOT D O ANYTHING FURTHER; THAT THEREFORE, IF THE TRIBUNAL CAME TO TH E CONCLUSION THAT THE ASSESSEE HAD DISCHARGED HIS BURDEN, IT COULD NOT BE SAID T HAT SUCH CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO E VIDENCE. 9. HERE ALSO, AS DISCUSSED, THE ASSESSEE HAS AMPLY DISCHARGED HER ONUS U/S 68 OF THE ACT BY PROVING THE IDENTITY AND CR EDITWORTHINESS OF THE CREDITORS AND GENUINENESS OF THE TRANSACTION. THE AO DID NOT I.T.A. NO.4880/DEL./2009 (A.Y. : 2003-04) 4 FOLLOW UP THE MATTER BY PURSUING IT WITH THE CREDITO RS OF THE ASSESSEE. THE ASSESSEE COULD NOT DO FURTHER. AS SUCH, THE CIT(A) C ANNOT BE SAID TO HAVE AT ALL ERRED IN DELETING THE ADDITION MADE. THE CIT(A)S ORDER IS THUS CONFIRMED AND THE GRIEVANCE SOUGHT TO BE RAISED B Y THE DEPARTMENT IS REJECTED AS SHORN OF MERIT. 10. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMEN T IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 06.05.11. SD/- SD/- (G.E. VEERABHADRAPPA) (A.D. JAIN) VICE PRESIDENT JUDICIAL MEMBER DATED: MAY 06, 2011. *SKB* COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A)-XXVI, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. AR/ITAT