SHRI BHANU HALDIA, Jaipur V. DCIT, Jaipur

ITA 569/JPR/2011

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7781 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 08-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: M L BORAD
• Keywords: Search and seizure
• Section: 153A; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NOS. 569, 570 & 571/JP/2011 ASSESSMENT YEARS : 2002-03 TO 2004-05 PAN : AAKPH 9235 N SHRI BHANU HALDIA VS. THE DCIT S/O SHRI SURAJ NARAYAN HALDIA CENTRAL CIRCLE- 3 PROP. M/S. VIRENDRA ENTERPRISES JAIPUR R/O AB-188, NIRMAN NAGAR, JAIPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI M.L. BORAD DEPARTMENT BY: SHRI SUBHASH CHANDRA DATE OF HEARING: 07-08-2014 DATE OF PRONOUNCEMENT: 05 -09-2014 ORDER PER R.P. TOLANI, JM THESE ARE THE THREE APPEALS FILED BY THE ASSESSEE AGAINST THREE DIFFERENT ORDERS OF THE LD. CIT(A), CENTRAL, JAIPU R DATED 18-03-2011 AND 17-03-2011 FOR THE ASSESSMENT YEARS 2002-03 TO 200 4-05 RESPECTIVELY. THE COMMON GROUNDS ARE RAISED PERTAINING TO ADDITIONS B Y THE ASSESSEE IN ALL THESE YEARS AS UNDER:- 2 (I) ADDITION U/S 68 OF THE ACT OF RS. 1,09,500/-; R S. 78,000/- ; AND RS. 32,000/- FOR THE ASSESSMENT YEARS 2002-0 3, 2003-04 AND 2004-05 RESPECTIVELY. (II) ADDITION ON ACCOUNT OF JEWELLERY FOR THE ASSE SSMENT YEAR 2003-04 2.1 THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS ONE OF THE MEMBER OF HALDIA GROUP OF CASES WHICH WERE SUBJECTED TO PR OCEEDINGS OF SEARCH AND SEIZURE. DURING THE COURSE OF ASSESSMENT PROCEEDING S U/S 153A OF THE ACT, THE AO MADE VARIOUS ADDITIONS MENTIONED ABOVE. THE LD. CIT(A) DELETED MANY OF THEM BUT CONFIRMED THE GROUNDS AS RAISED BY THE ASSESSEE ABOVE. FOR ALL THE ASSESSMENT YEARS I.E. 2002-03 TO 2004 -05, THE LD. CIT(A) CONFIRMED THE ADDITIONS U/S 68 OF THE ACT BY OBSERV ING THAT THE ASSESSEE COULD NOT PRODUCE THE NECESSARY EVIDENCE TO DISCHAR GE THE BURDEN CAST ON THE ASSESSEE. 2.2 AGGRIEVED, THE ASSESSEE IS BEFORE US. 2.3 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT THE ASSESSEE HAS DISCHARGED HIS BURDEN IN TERMS OF SECTION 68 OF THE ACT INASMUCH AS CONFIRMATORY LETTERS FROM THE CASH CREDITORS WERE F ILED. THESE WERE THE INITIAL PERIODS OF THE ASSESSEE'S BUSINESS WHEREIN ALL THE LOANS WERE TAKEN FROM THE RELATIVES AND FRIENDS. THE LD. CIT(A) HAS SUSTAINED THE ADDITIONS ON THE SOLE CRITERIA THAT THE CREDITORS DID NOT HAVE PAN. THE L D. COUNSEL FOR THE ASSESSEE CONTENDS THAT THERE IS NO LEGAL REQUIREMENT UNDER T HE LAW THAT THE PERSON 3 GIVING LOAN OF LESS THAN RS. 20,000/- SHOULD HAVE P AN. THE LD. AR SUBMITTED THAT THE LOANS WERE GIVEN IN CASH AS THE CREDITORS DID NOT HAVE BANK ACCOUNT AND DUE TO THIS LOANS WERE TAKEN IN CA SH. THE LD. AR SUBMITTED THAT THERE IS NO FINDING BY THE AO THAT THE LOANS A RE NOT GENUINE. THE LD. AR OF THE ASSESSEE RELIED ON THE DECISION DATED 07-04- 2014 OF HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT, ALWAR VS. SATYA NARAIN PATNI IN DB ITA NO. 196/2010 FOR THE ASSESSMENT YEAR 2005-06 AS WELL AS THE WRITTEN SUBMISSION WHICH WERE TAKEN INTO CONSIDERAT ION. 2.4 ON THE OTHER HAND, THE LD. DR VEHEMENTLY ARGUED THAT THE ASSESSEE HAS OBLIGATION TO PROVE THE IDENTITY OF THE CASH CR EDITORS, GENUINE OF THE TRANSACTIONS AS WELL AS CREDITWORTHINESS OF THE CRE DITORS. MORE SO, WHEN THE ASSESSEE CLAIMED THAT THE LOANS IN QUESTION WERE T AKEN IN CASH BUT NOWHERE THE ASSESSEE HAS ESTABLISHED THE CREDITWORTHINESS O F THE ANY OF THE CASH CREDITORS. IT IS THE ASSESSEE'S CLAIM THAT HE HAS T AKEN THE LOANS FROM THE RELATIVES AND FAMILY FRIENDS AND IN THAT CASE IT WI LL NOT BE DIFFICULT FOR HIM TO ASK THE SOURCE OF GIVING THE LOANS TO THE ASSESSEE BY THE CREDITORS. SINCE THE CREDITWORTHINESS IS NOT PROVED BY THE ASSESSEE, THE RE IS NO DISCHARGE OF BURDEN IN TERMS OF SECTION 68 OF THE ACT BY THE ASS ESSEE. 3.1 APROPOS THE ADDITION ON ACCOUNT OF GOLD JEWELL ERY AMOUNTING TO RS. 20,207/- 4 3.2 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT AS PER CBDT BOARD CIRCULAR A MALE PERSON CAN HAVE 100 GMS OF GOLD JEW ELLERY BUT IN THE CASE OF THE ASSESSEE , THE GOLD JEWELLERY FOUND WAS LESS THAN 100 GMS. THEREFORE, THE ADDITION SHOULD BE DELETED. 3.3 THE LD. DR SUPPORTED THE ORDERS OF LOWER AUTHOR ITIES. 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE HIMSELF HAS CLAIM ED THAT THE LOANS HAVE BEEN TAKEN FROM THE FRIENDS AND RELATIVES. THUS THE RE IS A PROXIMITY OF RELATIONSHIP OF THE CREDITORS AND THE ASSESSEE. IN SUCH A SITUATION, IT WOULD NOT HAVE BEEN DIFFICULT FOR THE ASSESSEE TO OBTAIN THE INFORMATION ABOUT THE SOURCE OF THE DEPOSITS WHICH WERE TAKEN IN CASH LES S THAN RS. 20,000/-. HOWEVER, THE ASSESSEE FAILED TO DISCHARGE THE BURDE N CAST ON THE ASSESSEE. IN THESE SITUATIONS, WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) SUSTAINING THE ADDITIONS U/S 68 OF THE ACT. 4.4 APROPOS GOLD JEWELLERY ADDITION OF RS. 20,207/- , WE SEE NO JUSTIFICATION IN SUSTAINING THIS ADDITION INASMUCH AS PER BOARDS CIRCULAR THE MALE PERSON CAN POSSESS 100 GMS GOLD JEWELLERY AND IN THIS CASE THE GOLD JEWELLERY IS FOUND LESS THAN 100 GMS FROM THE ASS ESSEE'S PREMISES. THUS THE ADDITION MADE ON ACCOUNT OF JEWELLERY IS DELETED. 5 5.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEARS 2002-03 AND 2004-05 ARE DISMISSED AND APPEAL FOR TH E ASSESSMENT YEAR 2003-04 IS PARTLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05- 09-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 05 TH SEP. 2014 *MISHRA COPY FORWARDED TO:- 1. SHRI BHANU HALDIA, JAIPUR 2. THE DCIT, CIRCLE- 3, JAIPUR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 569/JP/2011) AR ITAT, JAIPUR 6 7 8