Dy. Commissioner of Income Tax-VI , Lucknow V. M/s. Triangle Construction Co, Lucknow

ITA 5/LKW/2013

• Counselvise Citation: 523714 RSA 2013
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-07-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 03-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARE BEING DISPOSED OF
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.05 & 06/LKW/2013 ASSESSMENT YEAR:2005 - 06 DY.C.I.T. - VI, LUCKNOW. VS. M/S TRIANGLE CONSTRUCTION M - 518/C, AASHIYANA COLONY, LUCKNOW. PAN:AADFT8212G (APPELLANT) (RESPONDENT) O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE REVENUE, WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT(A) - II, LUCKNOW BOTH DATED 09/11/2012 FOR THE SAME ASSESSMENT YEAR I.E. 2005 - 06 IN RESPECT OF QUANTUM PROCEEDINGS AND PENALTY PROCEEDINGS U/S 271D OF THE ACT. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE INSPITE OF NOTICE HENCE, WE PROCEED TO DECIDE THESE APPEALS OF THE REVENUE EX - PA RTE QUA THE ASSESSEE. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE APPELLANT BY SHRI RAJIV JAIN, CIT, D.R. RESPONDENT BY NONE DATE OF HEARING 24/07/2014 DATE OF PRONOUNCEMENT 07 /08/2014 2 AUTHORITIES B ELOW. WE FIND THAT AN ADDITION OF RS.19.40 LAC WAS MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT IN RESPECT OF RECEIPT OF FRESH LOAN BY THE ASSESSEE IN THE PRESENT YEAR, WHICH INCLUDED RECEIPT OF CASH LOAN OF RS.9.40 LAC. APART FROM MAKING THIS ADDITIO N OF RS.9.40 LAC AS INCOME U/S 68, THE ASSESSING OFFICER ALSO IMPOSED PENALTY U/S 271D FOR RECEIPT OF CASH LOAN. WHEN THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), THE CIT(A) UPHELD THE ADDITION TO THE EXTENT OF RS.9.40 LAC, WHICH WAS RECEI VED BY THE ASSESSEE IN CASH. THERE IS NO APPEAL BY THE ASSESSEE FOR SUCH CONFIRMATION OF ADDITION TO THE EXTENT OF RS.9.40 LAC. UNDER THESE FACTS, THE ADDITION IN RESPECT OF RECEIPT OF CASH LOAN STANDS CONFIRMED. WHEN THE ASSESSING OFFICER HIMSELF IS STA TING THAT THE AMOUNT OF CASH LOAN IS NOT A LOAN BUT OWN MONEY O F THE ASSESSEE, THEN IT CANNOT BE SAID THAT THE ASSESSEE HAS RECEIVED ANY LOAN FROM OUTSIDER TO THIS EXTENT. OWN MONEY CANNOT BE RECEIVED BY THE ASSESSEE AS LOAN. UNDER THESE FACTS, PENALTY IM POSED BY THE ASSESSING OFFICER IN RESPECT OF THIS CASH LOAN IS NOT SUSTAINABLE. HENCE, REGARDING THE ORDER OF CIT(A) FOR DELETION OF PENALTY OF RS.9.40 LAC, NO INTERFERENCE IS CALLED IN THE ORDER OF CIT(A). WE, THEREFORE, DECLINE TO INTERFERE IN TH IS ORD ER OF CIT(A). 4.1 REGARDING THE DELETION OF ADDITION OF RS.10 LAC IN RESPECT OF RECEIPT OF LOAN BY WAY OF CHEQUE FROM SHRI R. C. VERMA AND SHRI S. P. TIWARI OF RS.5 LAC EACH, WE FIND THAT THIS ADDITION WAS DELETED BY CIT(A) MERELY ON THE BASIS THAT THES E LOANS WERE RECEIVED THROUGH BANKING CHANNEL AND THEREFORE, NO ADDITION IS JUSTIFIED. IN OUR CONSIDERED OPINION, EVEN IF LOAN IS RECEIVED THROUGH BANKING CHANNEL, IT IS THE DUTY OF THE ASSESSEE TO ESTABLISH THE CREDITWORTHINESS OF THE LOAN CREDITORS AND THE GENUINENESS OF THE TRANSACTION. IN THE PRESENT CASE, THE ASSESSEE HAS FAILED TO DO IT. IN OUR CONSIDERED OPINION, TH IS ORDER OF CIT(A) ON THIS ISSUE IS NOT SUSTAINABLE . WE, THEREFORE, REVERSE THE ORDER OF CIT(A) ON THIS ISSUE AND RESTORE THAT OF THE A.O. 3 5. IN THE RESULT, THE APPEAL OF THE REVENUE IN QUANTUM PROCEEDINGS I.E. I.T.A. NO.06/LKW/2013 IS ALLOWED WHEREAS THE APPEAL IN PENALTY PROCEEDINGS I.E. I.T.A. NO.05/LKW/2013 IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 /0 8 /2014 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR