The ITO, 3(2), Bhopal V. Shri Manoj Kumar Jain, Bhopal

ITA 537/IND/2010

• Counselvise Citation: 53722714 RSA 2010
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: RAMNIWAS GURJAR
• Keywords: Onus to prove
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.537/IND/2010 A.Y. 2006-07 ITO-3(2), BHOPAL APPELLANT VS MANOJ KUMAR JAIN PROP. M/S. NEHA SALES & SERVICES & MANOJ OIL AGENCIES, BHOPAL PAN AASPJ 4613 L RESPONDENT DEPARTMENT BY : SHRI ARUN DEWAN, SR. DR ASSESSEE BY : SHRI RAMNIWAS GURJAR, CA DATE OF HEARING : 18.8.2011 DATE OF PRONOUNCEMENT : 5.9.2011 O R D E R PER JOGINDER SINGH THIS APPEAL IS BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A)-II, BHOPAL, DATED 14.5.2010, ON THE GROUND THAT 2 THE LD. FIRST APPELLATE AUTHORITY ERRED IN DELETIN G THE ADDITION OF RS. 11,65,542/- OUT OF THE TOTAL ADDITION OF RS. 12 ,66,931/- MADE ON ACCOUNT OF SUNDRY CREDITORS, AS THE ASSESSE E FAILED TO DISCHARGE ITS PRIMARY ONUS TO PROVE THE GENUINENESS OF THE SAME. 2. DURING HEARING OF THIS APPEAL, WE HAVE HEARD SHR I ARUN DEWAN, LD. SR. DR AND SHRI RAM NIWAS GURJAR, L D. COUNSEL FOR ASSESSEE. THE CRUX OF THE ARGUMENT ON B EHALF OF THE REVENUE IS IN SUPPORT OF THE ASSESSMENT ORDER, WHEREAS THE LD. COUNSEL FOR ASSESSEE DEFENDED THE IMPUGNED ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BRIEF FAC TS ARE THAT THE ASSESSEE IS A PROPRIETOR OF M/S. NEHA SALES & SERVI CE AND M/S. MANOJ OIL AGENCY DECLARED INCOME OF RS. 3,40,310/-I N ITS RETURN FILED ON 31.3.2007. AS PER THE REVENUE, SUNDRY CRED ITORS WORTH RS. 12,66,931/- WERE FOUND APPEARING IN THE BALANCE SHEET OF M/S. NEHA SALES. AS PER THE ASSESSING OFFICER IN TH E ABSENCE OF VERIFICATION/CONFIRMATION, THE IMPUGNED AMOUNT W AS TREATED 3 AS UNEXPLAINED WITHIN THE MEANING OF SECTION 68 OF THE ACT. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION OF RS. 11,65,542/- OUT OF RS. 12,66,931/-, WHICH IS UNDER CHALLENGE BE FORE THIS TRIBUNAL. WE FIND THAT DURING PROCEEDINGS BEFORE TH E LD. CIT(A), THE ASSESSEE MOVED APPLICATION UNDER RULE 46A AND F ILED WRITTEN SUBMISSIONS ALONGWITH DOCUMENTS IN SUPPORT OF ITS CLAIM, WHICH WERE REFERRED TO THE ASSESSING OFFICER FOR CARRYING OUT VERIFICATION. ON RECEIPT OF THE REPLY OF THE AS SESSING OFFICER AND IN VIEW OF EVIDENCES FILED BY THE ASSESSEE, THE LD. CIT(A) DELETED THE ADDITION WHEREVER HE WAS SATISFIED AND SUSTAINED IT PARTLY. THE AMOUNT OF RS. 12,66,931/- WAS DULY SHOW N IN THE AUDITED BALANCE SHEET BY THE ASSESSEE. WE FURTHER F IND THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS INDIVIDUALLY EXAMINED EACH CASE OF EIGHT CREDITORS, NAMELY, ESSAR OIL LIMITED ( RS. 1,01,389/- ), MANOJ PETROLE UM TRANSPORT ( RS. 5,29,970/- ), DARA BULK CARRIER ( RS. 9772/-) , HARISH CHANDRA ( RS. 5 LAKHS ), JAGJEET KHER ( RS. 57,168/ - ), ROHAN TRANSPORT ( RS. 38,553/-), R. S. RAI (RS. 10,000/- ) AND SWAMY TRANSPORT ( RS. 20,079/-) TOTALING RS. 12,66,931/-. THESE 4 CREDITORS ALSO FILED CONFIRMATIONS WITH FULL ADDRES S AND PAN NUMBERS. WE ARE SATISFIED THAT THERE WAS NO JUSTIFI CATION TO ADD THE IMPUGNED AMOUNT (WHICH WAS DELETED BY THE LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) ) U/S 68 OF TH E ACT, BECAUSE THE ASSESSEE DULY DISCHARGED ITS ONUS CAST UPON HIM, ESPECIALLY WHEN EVERY AMOUNT HAS BEEN DULY EXPLAINE D BY THE ASSESSEE BY FURNISHING CONFIRMATION, PAN NUMBERS OF THE CREDITORS. IN VIEW OF THESE FACTS, WE FIND NO INFIR MITY IN THE IMPUGNED ORDER. THE SAME IS UPHELD. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH SEPTEMBER, 2011. SD SD (R.C.SHARMA) (JOGINDER SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5.9.2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE CPU* 188 5