MESEAGE AABSHAAR , JAMMU V. INCOME TAX OFFICER WARD-1 (1), JAMMU

ITA 613/ASR/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2965 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 23-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Set aside
• Section: 68; 139; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No.613/Asr/2019 Assessment Year: 2008-09 M/s Aabshaar C/o M/s Bhatia Sons Building, Apsra Road, Gandhinagar, Jammu, J & K. [PAN: AAFFA2123B] (Appellant) Vs. ITO, Ward 1(1), J & K Jammu. (Respondent) Appellant by None . Respondent by Ms. Amanpreet Kaur, Sr.DR Date of Hearing 21.09.2022 Date of Pronouncement 26.09.2022 ORDER Per:Anikesh Banerjee, JM: The instant appeal of the assessee is filed against the order of the ld. Commissioner of Income Tax(Appeals),Jammu, [in brevity the CIT(A)] bearing appeal no.CAJ/10004/2010-11, date of order 10.05.2019, the order passed u/s I.T.A. No.613/Asr/2019 Assessment Year: 2008-09 2 250(6) of the Income Tax Act 1961, [in brevity the Act] for A.Y. 2008-09.The impugned order was emanated from the order of the ld. Income Tax Officer, Ward 1(1), Jammu, (in brevity the AO) order passed u/s 143(3) of the Act, date of order 24.12.2010. 2. The brief fact of the case is that the assessee has taken unsecured loan from Sh. Shan Bhatia amount of Rs.1,50,000/-. During the assessment proceeding the assessee produced the documents and two cheques, dated 17.09.2007 in favour of assessee bearing no. 504997 and 504998 for payment of Rs.1,50,000/- respectively. As per the ld. AO, there was no corresponding entries in the bank account of the assessee related those cheques. Accordingly, the genuineness of the transaction was not proof before the assessing authority. Further the delay payment of EPF amount of Rs.28,686/- was added back for violation of section 36(1)(viia) of the Act. The deposit was made after the due date, as provided by the respective Act but amount was paid before filing of the return u/s 139 of the Act. The assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) upheld the order of the ld. AO. 3. Being aggrieved assessee filed an appeal before us. 4. The ld. Sr. DR argued and relied on the order of the revenue authorities. I.T.A. No.613/Asr/2019 Assessment Year: 2008-09 3 5. During hearing before ITAT, none was present on behalf of the assessee. The matter was taken upwith the consent of the ld. Sr. DR for adjudication. We heard the submissionof the ld. Sr. DR and considered the order of the revenue authorities. 5.1 The observation of the ld. AO in para 3.1 is reproduced as below: “3.1 It is seen that the assessee has shown to have received an amount of Rs. 1,50,000/- from Sh.Shan Bhatia as unsecured loan during the year. During the course of assessment proceedings, the assessee vide Para 10(a) of the questionnaire dated 26.10.2010 was asked to furnish complete address, mode of acceptance of loans indicating cheque/draft no alongwith name of bank wherein credited The assessee was also asked to furnish confirmation from the person advancing the loan. Again vide order sheet entries dated 12.11.2010 ,26.11.2010 and 03.12.2010. the assessee was asked to furnish the above details. In response to above, the assessee furnished a copy of ledger account of Sh.Shan Bhatia as appearing in the books of accounts of the assessee firm. As per this ledger account, the assessee has received two cheques bearing no.504997 for Rs. 1,00,000/- and Cheque no.504998 for Rs.50,000/- on 17.09.2007 in its account maintained with Union Bank of India I.T.A. No.613/Asr/2019 Assessment Year: 2008-09 4 C/C 51341.No confirmation/other details have been filed by the assessee.” 5.2 In other hand, the observation of the ld. CIT(A) in para 2.4 page no. 5 of the order of ld. CIT(A) is reproduced as below: - “2.4 In respect of unsecured loan of Rs.1,50,000/-, the Assessing Officer has made addition after providing proper opportunity to the assessee. The Assessing Officer has observed that as per ledger account furnished, the assessee has received two cheques bearing no. 504997 for Rs. 1,00,000/- and Cheque no. 504998 for Rs. 50,000/- on 17.09.2007 in its account maintained with Union Bank of India C/C 51341. No confirmation/other details have been filed by the assessee. However, as per the copy of bank statement of C/C 51341 of the assessee firm maintained by Union Bank of India, Raghunath Bazar, Jammu from 01.04.2007 to 31.03.2008, there are no such credit entries vide two cheques bearing no. 504997 for Rs. 1,00,000/- and Cheque no. 504998 for Rs. 50,000/- from Sh. Shan Bhatia. Even the bank account of Sh. Shan Bhatia maintained with Oriental Bank of Commerce, Hazratganj Branch, Lucknow, copy of which was provided by the assessee in support of his contention, does not mention any such entries. I.T.A. No.613/Asr/2019 Assessment Year: 2008-09 5 The Assessing Officer has observed that in fact, entry dated 13.09.2007 highlighted by the assessee for Rs. 50,160/- is on account of issue of some draft and having a different cheque no. 128454, whereas, as per assessee ledger a/c, the cheque nos are 504997 for Rs. 1,00,000/- and Cheque no. 504998 for Rs. 50,000/-. The Authorized Representative has not been able to controvert the findings of the Assessing Officer that the cheques are not tallying. In view of the above, it is held that the genuineness of the transaction is not proved and the A.O. has rightly added Rs. 1,50,000/- as unexplained credit u/s 68 of the Act. The same is upheld and the ground relating to this addition is also dismissed.” 5.3 Both the orders are related to consider the documents filed by the assessee. The assessee is tried to substantiate its claim by filing the evidence. But there is a contrary view in between the ld. AO and ld. CIT(A). The ld. AO had accepted that the assessee had filed the ledger account, confirmation and cheques during assessment. But the ld. CIT(A) had summarized the order and had controverted the fact of the ld. AO. Related to payment of EPF no such any specific finding was made by the ld. CIT(A). In our opinion the assessee should get a further opportunity of hearing before the ld. CIT(A). We set aside the matter before the ld. I.T.A. No.613/Asr/2019 Assessment Year: 2008-09 6 CIT(A) for further adjudication. Needless to say, that the ld. CIT(A) shall provide proper and adequate opportunity of being heard to the assessee in set aside proceedings. The evidence/explanations submitted by assessee in its defence shall be admitted by the ld. CIT(A) and adjudicated by the ld. CIT(A) on merits in accordance with law. We order accordingly. 6. In the result, the appeal bearing ITA No. 613/Asr/2019 is allowed for statistical purpose. Order pronounced in the open court on 26.09.2022 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order