Asstt. Commissioner of Income Tax-1, Kanpur V. Shri Yogesh Gupta, Kanpur

ITA 578/LKW/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92204 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-06-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 18-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M M MISHRA
• Keywords: Unexplained cash credit; Search and seizure; Opportunity of being heard
• Section: 68

Judgement Text

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 NO.578/LKW/2013 ASSESSMENT YEAR:2007-08 ACIT-1 KANPUR V. SHRI. YOGESH GUPTA PROP. M/S SIDDARTH CONSTRUCTIONS SHOP NO.10&11, CANAL EXPRESS ROAD, KANPUR TAN/PAN:AEI[G0361G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. AMIT NIGAM, D.R. RESPONDENT BY: SHRI. M.M. MISHRA, ADVOCATE DATE OF HEARING: 19 06 2015 DATE OF PRONOUNCEMENT: 30 06 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) DELETING THE ADDITION OF RS.19.95 LAKHS MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT APPEARING IN THE NAME OF M/S SIDDHARTHA ENTERPRISES UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT') WITHOUT APPRECIATING THE FACT THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS NOT PROVIDED COMPLETE DETAILS OF THE REFERRED CASH CREDITS. 2. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOTICED CREDIT BALANCE OF RS.19.95 LAKHS IN THE NAME OF M/S SIDDHARTHA ENTERPRISES. THE ASSESSEE WAS REQUIRED TO DISCHARGE ITS ONUS UNDER SECTION 68 OF THE ACT IN :- 2 -: RESPECT OF THE CREDIT ENTRIES. IN RESPONSE THERETO, THE ASSESSEE HAS FURNISHED A WRITTEN REPLY CONTENDING THEREIN THAT THERE WAS A RAID BY THE KANPUR ELECTRICITY SUPPLY CORPORATION ON VARIOUS PREMISES OF THE ASSESSEE ON THE CHARGES THAT THE ELECTRICAL INSTRUMENTS WERE STOLEN. THESE PREMISES WERE CO-OWNED BY THE ASSESSEE AND HIS FATHER AND THESE PREMISES WERE SEALED BY THE POLICE SUBSEQUENT TO THE SEARCH AND FOR THESE REASONS THE ASSESSEE COULD NOT FILE THE RELEVANT EVIDENCE TO PROVE THE GENUINENESS OF THE TRANSACTION AND IDENTITY & CREDITWORTHINESS OF THE CREDITOR. 3. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS DELETED THE ADDITION HAVING NOTICED THAT AS PER DETAILS FURNISHED BEFORE HIM ALL THE CASH CREDIT ENTRIES ARE THROUGH ACCOUNT PAYEE CHEQUE AND THE FIRM BELONGS TO THE FATHER OF THE ASSESSEE WHO IS DECEASED AND THEREFORE, NO ADDITION UNDER SECTION 68 OF THE ACT IS CALLED FOR. 4. AGGRIEVED, THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT WHATEVER EVIDENCE WAS FILED BEFORE THE LD. CIT(A), THE SAME WAS NOT CONFRONTED TO THE ASSESSING OFFICER AND THE LD. CIT(A) HAS ACCEPTED THE SAME AND DELETED THE ADDITION, THEREFORE, THERE IS A VIOLATION OF PROVISIONS OF RULE 46A OF THE RULES. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS SUBMITTED THAT THE ASSESSEE HAS FURNISHED ALL THE RELEVANT EVIDENCE AND THE BANK STATEMENTS BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS CALLED A REMAND REPORT THEREON AND AFTER HAVING CONSIDERED THE REMAND REPORT, HE DELETED THE ADDITION. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT UNDISPUTEDLY THE ASSESSEE HAS NOT FURNISHED THE DETAILS OF CASH CREDIT INTRODUCED IN THE NAME OF M/S SIDDHARTHA ENTERPRISES, BUT BEFORE THE LD. CIT(A) THE ASSESSEE CLAIMED THAT HE HAS FILED BANK STATEMENT AND OTHER RELEVANT EVIDENCE TO PROVE THE :- 3 -: GENUINENESS OF THE CASH CREDIT. BEFORE US THE ASSESSEE HAS FILED THE COPY OF THE BANK ACCOUNT TO ESTABLISH THAT THE AMOUNT WAS RECEIVED THROUGH ACCOUNT PAYEE CHEQUE FROM M/S SIDDHARTHA ENTERPRISES, WHICH WAS OWNED BY HIS FATHER. HE HAS ALSO PLACED RELIANCE UPON THE CONFIRMATION LETTER GIVEN BY THE CREDITOR. ON A CAREFUL PERUSAL OF ALL THESE EVIDENCE, WE FIND THAT THE FATHER OF THE ASSESSEE, SHRI. RAMESH CHANDRA GUPTA, PROPRIETOR OF M/S SIDDHARTHA ENTERPRISES WAS EXPIRED ON 31.3.2009, BUT CONFIRMATION WITH REGARD TO THE CASH CREDIT WAS OBTAINED BY SMT. MANORAMA DEVI GUPTA ON 1.4.2007. THE ASSESSEE TOOK A PLEA THAT THE CONFIRMATION WAS OBTAINED FROM THE WIFE OF THE DECEASED FATHER WHEREAS THE FACTS ARE OTHERWISE, AS THE CONFIRMATION WAS OBTAINED ON 1.4.2007 WHEN HIS FATHER WAS ALIVE. SINCE THE CONFIRMATION WAS NOT OBTAINED FROM THE PROPRIETOR OR THE AUTHORIZED PERSON OF M/S SIDDHARTHA ENTERPRISES, IT HAS NO VALUE IN THE EYES OF LAW. 7. SO FAR AS THE BANK ACCOUNT IS CONCERNED, IT IS NOT CLEAR WHETHER THE STATEMENT WAS ISSUED BY THE BANKERS OR IT WAS PREPARED BY THE ASSESSEE, AS IT DOES NOT BEAR THE SEAL OR THE SIGNATURE OF THE BANKERS. MOREOVER, FROM ITS PERUSAL WE FIND THAT AT DIFFERENT POINT OF TIME THERE WAS NEGATIVE BALANCE IN THE BANK ACCOUNT OF THE ASSESSEE. THEREFORE, IT IS NOT CLEAR HOW THE PAYMENT WAS MADE OUT OF NEGATIVE BALANCE WITH THE BANK. DURING THE COURSE OF HEARING, A SPECIFIC QUERY WAS RAISED WITH REGARD TO THE CREDIT FACILITIES OBTAINED BY THE ASSESSEE FROM BANK, BUT NO SATISFACTORY REPLY WAS FURNISHED. 8. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT COMPLETE DETAILS WERE NOT FURNISHED BEFORE THE LD. CIT(A) AND THE LD. CIT(A) WITHOUT PERUSING THE SAME HAS DELETED THE ADDITION. THEREFORE, THIS ISSUE REQUIRES A FRESH ADJUDICATION BY THE ASSESSING OFFICER. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER :- 4 -: FOR RE-ADJUDICATION OF THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:30 TH JUNE, 2015 JJ:1906 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR