M/s Ch. Shanker Shah Isher Dass, Jammu V. The Asstt. Commissioner of Income-tax, Jammu

ITA 533/ASR/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1451 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 28-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V K SINGH
• Assessee Lawyers: ARUN GUPTA
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (JAMMU CAMP; JAMMU ) BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S.KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A NO. 533(ASR)/2014 ASSESSMENT YEARS: 2008-09 M/S CH. SHANKAR SHAH ISHER DASS SOUTH X 3-B/C, GANDHI NAGAR, JAMM. PAN: AADFC0132G VS. ACIT CIRCLE-1, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. ARUN GUPTA (CA.) RESPONDENT BY: SH. K.V.K SINGH (DR.) DATE OF HEARING: 01.12.2015 DATE OF PRONOUNCEM ENT: 10.12.2015 ORDER PER T.S.KAPOOR (A.M): THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A), JAMMU, DATED 12.06.2014 FOR THE ASST. YEAR. 2008-09. THE ASSESSEE HAS TAKEN FOUR GROUNDS OF APPEAL, HOWEVER, THE CRUX OF GREIVANCE OF ASSESSEE IS THE ACTION OF LEARNED CIT(A) BY WHICH HE HAS UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER U/S. 68 AMOUNTING TO RS.3,50,000/ -. 2. THE BRIEF FACTS OF THE CASE AS NOTED IN THE ASSE SSMENT ORDER ARE THAT ASSESSEE IS A PARTNERSHIP FIRM AND IT FILED ITS RET URN OF INCOME ON 30.11.2008. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. DURING THE ASSESSMENT 2. ITA NO.53 3(ASR)/2015 ASST. YEAR 200 8-09 PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT TH E ASSESSEE HAD INTRODUCED AN AMOUNT OF RS.3,50,000/- IN THE YEAR THROUGH PART NERS CAPITAL ACCOUNT I.E., THROUGH SH. ROHIT JAIN 2 LACS AND THROUGH SH. NEER AJ JAIN TO THE EXTENT OF RS.1.50 LACS. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THIS FRESH CAPITAL. IN RESPONSE THE ASSESSEE SUBMITTED THAT SH. ROHIT J AIN AND SH. NEERAJ JAIN (PARTNERS) HAD INTRODUCED THE AMOUNT OF RS.2,00,000 /- AND RS.1,50,000/- RESPECTIVELY OUT OF THEIR FAMILY AND PERSONAL SAVIN GS FOR EARLIER YEARS. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD NO T FILED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF ITS CLAIM, THEREFORE, HE MAD E THE ADDITION OF RS.3,50,000/- AS UNEXPLAINED DEPOSITS U/S 68 OF THE ACT. 3. AGGREIVED THE ASSESSEE FILED AN APPEAL BEFORE CI T(A) AND SUBMITTED THAT SH. ROHIT JAIN HAD TAKEN AN AMOUNT OF RS.60,000/- F ROM HIS FATHER SH. PARJAN JAIN AND FURTHER AN AMOUNT OF RS.1,40,000/- FROM D EEPAK KUMAR JAIN WHO IS UNCLE OF SH. ROHIT JAIN. IT WAS FURTHER EXPLAINED T HAT SH. NEERAJ JAIN HAD INTRODUCED THE AMOUNT OF RS.1,50,000/- BY BORROWING FROM HIS FATHER TO THE TUNE OF RS.1,50,000/-. THE ASSESSEE ALSO SUBMITTED PAN NOS. OF THE PERSONS FROM WHOM PARTNERS HAD BORROWED THE AMOUNT AND ALSO SUBMITTED THE COPY OF ACCOUNTS OF CONCERNS IN WHICH THEY WERE PARTNERS SH OWING THEREIN THE WITHDRAWAL OF MONEY. THE LEARNED CIT(A) UPHELD THE ADDITION BY HOLDING AS UNDER: THESE AMOUNTS WERE WITHDRAWN IN CASH AND RE-DEPOSI TED INTO THE PARTNERS CAPITAL ACCOUNT IN CASH. THE EXPLANATION OFFERED BE FORE THE AO WAS A CRYPTIC ONE THAT THE SOURCE WAS FAMILY AND PERSONAL SAVINGS AND AT THAT TIEM THE EXPLANATIN 3. ITA NO.53 3(ASR)/2015 ASST. YEAR 200 8-09 ABOUT THE MONEY RECEIVED FROM FATHER WAS NOT PUTFOR TH. THIS IS A NEW ASSERTION WHICH CANNOT BE ADMITTED AT THIS STAGE. I DO NOT FI ND ANY REASON AS TO WHY THE APPELLANT COULD NOT STATE THIS BEFORE THE AO AT THE TIME OF ASSESSMENT PROCEEDINGS. OTHERWISE ALSO, THE EXPLANATION IS NOT CONVINCING AS TO WHY THE CASH WAS WITHDRAWN FROM THE BANKS OF LENDER AND INTRODUC ED AS CAPITAL IN CASH. THERE IS NO SATISFACTORY ANSWER AS TO WHY THE SAID TRANSACTIONS WERE NOT COMPLETED BY THE INSTRUMENT OF CHEQUE. THE APPELLAN T HAS STATED THAT IT HAS DISCHARGED THE ONUS BY STATING SO. I HAVE HEARD THE RIVAL ARGUMENTS AND FOR ABOVE REASONS, THE ARGUMENT OF THE APPELLANT DOES N OT APPEAR CONVINCING. THUS THE ADDITION OF RS.3,15,000/- IS CONFIRMED. 4. AGGREIVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AR, AT THE OUTSET, SUBMITTED THAT TH E ASSESSEE HAD EXPLAINED THE SOURCE OF LENDERS ALONG WITH THE PAN NOS. AND H AD ALSO FURNISHED COPIES OF ACCOUNTS OF THE FIRMS FROM WHERE THE AMOUNTS WERE W ITHDRAWN FOR LENDINGS TO THE PARTNERS OF THE FIRM AND THERFORE, ASSESSEE HAD FULLY EXPLAINED THE SOURCES AND IT WAS NOT REQUIRED TO FURTHER PROVE THE SOURCE OF SOURCE. RELIANCE IN THIS RESPECT WAS PLACED ON THE DECISION OF ITAT, AMRITSA R BENCH IN THE CASE OF ACIT VS. MAHAVIR METALS & ALLOYS IN ITA NO.582(ASR)/1994 . 6. ON THE OTHER HAND, LEARNED DR HEAVILY RELIED UPO N THE ORDER OF AUTHORITIES BELOW AND SUBMITTED THAT THE EXPLANATIO N WAS NOT FILED BEFORE THE ASSESSING OFFICER AND BEFORE THE CIT(A), IT WAS A F RESH EXPLANATION AND THEREFORE, LEARNED CIT(A) HAD RIGHTLY REJECTED THE SAME. 7. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE HAD SUBMITTED THAT THE FRESH CAPITAL IN THE FIRM WAS IN TRODUCED OUT OF THEIR FAMILY AND PERSONAL SAVINGS FROM EARLIER YEARS. THE ASSESS ING OFFICER MADE THE 4. ITA NO.53 3(ASR)/2015 ASST. YEAR 200 8-09 ADDITION BY HOLDING THAT NO DOCUMENTARY EVIDCENCE O F SOURCE OF THESE CREDITS WAS FILED. BEFORE LEARNED CIT(A), THE ASSESSEE HAD SUBMITTED THAT SH. ROHIT JAIN HAD BORROWED MONEY FROM HIS FATHER AND UNCLE A MOUNTING TO RS.60,000/- AND RS.1,40,000/- RESPECTIVELY AND HAD FURNISHED PA N NOS. OF THESE TWO PERSONS. SIMILARLY, AS REGARDS THE ADDTION OF CAPIT AL BY SH. NEERAJ JAIN, IT WAS SUBMITTED THAT THE AMOUNT OF RS.1,50,000 WAS BORROW ED FROM HIS FATHER SH. DEEKPAK KUMAR JAIN. THE ASSESSEE BEFORE THE CIT(A) ALSO CLAIMED TO HAVE FILED COPY OF ACCOUNT OF THE CONCERNS FROM WHERE THE MONE Y HAS BEEN RECEIVED. THIS EVIDENCE WAS NOT FILED BEFORE THE CIT(A) AND THE LE ARNED CIT(A) HAS NOT ADMITTED THIS NEW ASSERTION. IN VEIW OF THE ABOVE, WE ARE OF THE OPINION THAT MATTER SHOULD BE RE-ADJUDICATED BY ASSESSING OFFICE R WHO SHOULD EXAMINE THE EVIDENCE OF SOURCES AS FILED BY ASSESSEE BEFORE LEA RNED CIT(A) AS THESE WERE NOT EXAMINED BY THE ASSESSING OFFICER. 8. IN VIEW OF THE ABOVE, THE APPEAL FILED BY TH E ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH DECEMBER, 2015. SD/- SD/- (A.D.JAIN) (T.S.KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 10.12.2015 PK/PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A) 4. THE CIT 5. ITA NO.53 3(ASR)/2015 ASST. YEAR 200 8-09 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.