Mr. Anil Kumar Gupta, Ghaziabad V. ITO, Ghaziabad

ITA 5005/DEL/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6710 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 29-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: SATISH K GUPTA
• Keywords: Business income
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 5005/DEL/2013 A.Y. : 2008-09 ANIL KUMAR GUPTA 114, AFGANAN STREET, DELHI GATE, GHAZIABD UP 201001 (PAN: ACRPG3803E) VS. ITO, WARD 1(1), CGO COMPLEX, HAPUR CHUNGI, GHAZIABAD 201 011 (UP) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SATISH K. GUPTA, ADV. DEPARTMENT BY : SH. FR MEENA, SR. DR ORDER ASSESSEE HAS FILED THIS APPEAL AGAINST THE IMPUGNED ORDER DATED 07.5.2013 PASSED BY THE LD. CIT(A), MUZAFFARNA GAR RELEVANT TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS: - 1. THAT THE ASSESSMENT ORDER PASSED U/S. 143(3) IS ILLEGAL, UNJUST AND ARBITRARY. 2. THAT THE LD. LOWER AUTHORITIES HAD ERRED IN LAW AND ON FACTS IN MARKING AN ENHANCEMENT IN BUSINESS INCOME BY RS. 1,05,500/- AS BOGUS DEPOSITS. 3. THE LD. LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FACTS NOT ACCEPTING THE DEPOSITS TAKEN 2 IN CASH AGGREGATING TO RS. 1,05,500/- FROM FOLLOWING PERSONS. SH. ASHOK GARG RS. 18,000/- SMT. MAMTA AGARWAL RS. 18,500/- SH. PAWAN AGARWAL RS. 18,000/- SH. RAJEEV KUMAR RS. 10,000/- SMT. PRATIBHA GUPTA RS. 10,000/- SHRI SATISH KUMAR RS. 18,000/- SHRI VIPIN KUMAR RS. 13,000/- RS. 1,05,500/- 4. THAT THE OBSERVATIONS OF THE LD. LOWER AUTHORITIES ARE INCONSISTENT WITH THE FACTS AND LEGAL POSITION OF THE CASE. 5. THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE APPELLANT RESERVES ITS RIGHT TO ADD OR DELETE ONE OR MORE GROUNDS. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A FIRM DERIVING INCOME FROM TRADING OF MILL STORES AND HARD WARE IN THE NAME AND STYLE OF M/S PANCHSHEEL TRADERS, GHAZIABAD . RETURN DECLARING INCOME OF RS. 1,28,080/- WAS FILED ON 30. 9.2008. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS GATHERED BY THE AO THAT THE ASSESSEE HAS RAISED LOANS BELOW RS. 20,000 /- IN CASH FROM THE FOLLOWING SEVEN PERSONS:- SH. ASHOK GARG RS. 18,000/- SMT. MAMTA AGARWAL RS. 18,500/- 3 SH. PAWAN AGARWAL RS. 18,000/- SH. RAJEEV KUMAR RS. 10,000/- SMT. PRATIBHA GUPTA RS. 10,000/- SHRI SATISH KUMAR RS. 18,000/- SHRI VIPIN KUMAR RS. 13,000/- RS. 1,05,500/- THUS, THE AO REQUIRED THE ASSESSEE TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE DEPOSITORS AND GENUINENES S OF THE TRANSACTIONS. IN RESPONSE THE ASSESSEE FURNISHED LI ST OF PERSONS FROM WHOM UNSECURED LOANS WERE RAISED DURING THE YEA R ALONGWITH COPIES OF LEDGER ACCOUNTS OF THE DEPOSITORS AS APPEARI NG IN THE BOOKS OF THE ASSESSEE. AO OBSERVED THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF DEPOSITO RS AS WELL AS GENUINENESS OF TRANSACTIONS AND BASED ON THIS PRO POSITION, HE ADDED THE AMOUNT OF RS. 1,05,500/- TO THE INCOME OF THE ASSESSEE U/S. 68 OF THE I.T. ACT, 1961 AND COMPLETED THE ASSES SMENT AT AN INCOME OF RS. 2,33,580/- U/S. 143(3) OF THE I.T. AC T, 1961 VIDE HIS ORDER DATED 06.12.2010. 3. AGAINST THE ORDER OF THE LD. AO, ASSESSEE APPEAL ED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 07.7. 2013 HAS 4 DISMISSED THE APPEAL OF THE ASSESSEE AND SUSTAINED THE ADDITION IN DISPUTE. 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), AS SESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. LD. COUNSEL OF THE ASSESSEE HAS FILED THE PAPER BOOK CONTAINING PAGES 1 TO 65 ATTACHING THEREWITH THE COPY O F FACTS OF THE CASE; COPY OF GROUNDS OF APPEAL BEFORE ITAT; COPY OF APPELLATE ORDER OF CIT(A); COPY OF GROUNDS OF APPEAL BEFORE CIT(A); COPY OF SUBMISSIONS BEFORE CIT(A); COPY OF REJOINDER TO REMA ND REPORT DATED 7.5.2013; COPY OF LEDGER ACCOUNTS FILED ALONGW ITH REPLY DATED 9.8.2010 AND CERTIFIED COPIES OF ORDER SHEET. HE FU RTHER STATED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ENTIRE DETAILS WERE FURNISHED BEFORE THE AO AS AND WHEN ASKED FOR. REGA RDING THE UNSECURED LOANS RECEIVED IN CASH THE ASSESSEE HAD F URNISHED THE DOCUMENTS AND PAPERS TO ESTABLISH THE IDENTITY, CREDITWO RTHINESS AND THE GENUINENESS OF THE TRANSACTIONS AND THE CONFI RMATION OF THE AMOUNT. HE FURTHER STATED THAT ALL THE ABOVE UNSECURED LOANS WERE TAKEN IN THE BUSINESS OF M/S PANCH SHEEL TRADER S, PROPRIETOR ANIL KUMAR AND WERE APPEARING IN THE CASH BOOK OF THE ASSESSEE. THE DEPOSITS WERE ACCEPTED IN CASH AS GENUINE BUSINE SS NEEDS IN DAY TO DAY BUSINESS AND THE SAME WERE REPAID IN CASH. AS THE 5 AMOUNT WAS PETTY NO BANKING CHANNEL WAS INVOLVED TO ME ET THE BUSINESS CONTINGENCY. HENCE, HE SUBMITTED THAT ASSESSE E HAS ESTABLISHED ALL THREE INGREDIENTS OF SECTION 68 OF THE I.T. ACT, 1961 AND REQUESTED TO DELETE THE ADDITION. 6. ON THE OTHER HAND, LD. SR. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND STATED THAT LD. CIT(A) HAS PASSE D A WELL REASONED ORDER WHICH DOES NOT NEED ANY INTERFERENCE O N MY PART, HENCE, THE APPEAL OF THE ASSESSEE MAY BE DISMISSED. 7. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECOR DS ESPECIALLY THE IMPUGNED ORDER AND THE PAPER BOOK FILE D BY THE ASSESSEE CONTAINING PAGES 1 TO 65 ATTACHING THEREWITH TH E COPY OF FACTS OF THE CASE; COPY OF GROUNDS OF APPEAL BEFORE ITAT; COPY OF APPELLATE ORDER OF CIT(A); COPY OF GROUNDS OF APPEA L BEFORE CIT(A); COPY OF SUBMISSIONS BEFORE CIT(A); COPY OF REJOINDE R TO REMAND REPORT DATED 7.5.2013; COPY OF LEDGER ACCOUNTS FILED ALONGWITH REPLY DATED 9.8.2010 AND CERTIFIED COPIES OF ORDER SHEET. I FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ENTIRE DETAILS WERE FURNISHED BEFORE THE AO AND WITH REGARD TO UNSECURED L OANS RECEIVED IN CASH, THE ASSESSEE HAD FURNISHED THE DO CUMENTS AND PAPERS TO ESTABLISH THE IDENTITY, CREDITWORTHINESS AND TH E GENUINENESS OF THE TRANSACTIONS AND THE CONFIRMATION OF THE AMOUNT. 6 I FIND CONSIDERABLE COGENCY IN THE ASSESSEES COUNS EL SUBMISSIONS THAT ALL THE UNSECURED LOANS WERE TAKEN IN THE BUSIN ESS OF M/S PANCH SHEEL TRADERS, PROPRIETOR ANIL KUMAR AND WERE APPEA RING IN THE CASH BOOK OF THE ASSESSEE. THE DEPOSITS WERE ACCEP TED IN CASH AS GENUINE BUSINESS REQUIREMENT IN DAY TO DAY BUSINESS AND THE SAME WERE REPAID IN CASH. I FURTHER FIND THAT AS THE AMO UNT WAS PETTY NO BANKING CHANNEL WAS INVOLVED TO MEET THE BUSINESS CON TINGENCY. IN MY CONSIDERED VIEW, THESE EVIDENCES ESTABLISHED THAT ADDITION IN DISPUTE IS NOT SUSTAINABLE IN THE EYES OF LAW AND THE REFORE, THE SAME IS HEREBY DELETED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/2/2017. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 10/2/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT ASSISTANT REGISTRAR, ITAT, DELHI BENCHES