SHRI DINESH RATHORE, Ujjain V. THE ACIT 2(1), Ujjain

ITA 616/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5746 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-09-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 10-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: S S DESHPANDE
• Keywords: Onus to prove
• Section: 68

Judgement Text

DINESH RATHORE ITA NO. 616/IND/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI O.P. MEENA, AM ITA NO. 616/IND/2016 A.Y.2004-05 DINESH RATHORE UJJAIN PAN AEXPR 1324L ::: APPELLANT VS ACIT 2(1) UJJAIN ::: RESPONDENT APPELLANT BY SHRI S.S. DESHPANDE RESPONDENT BY SHRI MOHD. JAVED DATE OF HEARING 6.9.2016 DATE OF PRONOUNCEMENT 2 2 .9.2016 O R D E R THIS IS AN APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A), UJJAIN, DATED 30.3.2016. 2. THE ONLY GROUND TAKEN BY THE ASSESSEE IN THIS APPEAL IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONF IRMING DINESH RATHORE ITA NO. 616/IND/2016 2 THE ADDITION OF RS.6,21,500/- AS UNEXPLAINED CASH CREDI TS U/S 68 OF THE ACT. 3. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND PARTNER IN M/S VIKRAMADITYA HOTEL, UJJAIN. THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 49 ,200/- WAS FILED ON 5.1.2007. THE ASSESSING OFFICER MADE THE ADDITION OF RS. 6,21,500/- ON ACCOUNT OF UNEXPLAINED C ASH CREDITS U/S 68 OF THE ACT. ON APPEAL, THE LEARNED CIT( A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER . NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE SIDES. BEFORE US, THE LEARN ED COUNSEL FOR THE ASSESSEE SUBMITTED THE ASSESSEE HAS SUBMITTED DETAILS OF THE PERSONS FROM WHOM THE LOAN HAS BEEN TAKEN BY THE ASSESSEE. THE LEARNED COUNSEL FOR T HE ASSESSEE ALSO SUBMITTED THAT ALL THE CREDITORS ARE MEN O F MEANS AND THEIR IDENTITY, CREDITWORTHINESS AND GENUINENESS IS BEYOND DOUBT. AS SUCH, THE AUTHORITI ES DINESH RATHORE ITA NO. 616/IND/2016 3 BELOW WERE NOT JUSTIFIED IN MAKING AND CONFIRMING THE ADDITION U/S 68 OF THE ACT. 5. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW WITH THE SUBMISSION S THAT IT WAS ONLY AFTER ANALYSING EACH AND EVERY CASH CREDIT THAT THE AUTHORITIES BELOW HAVE MADE AND CONFIRMED THE ADDITION U/S 68 OF THE ACT AND AS SUCH THE ASSESSEE HAS NO CASE. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF TH E ASSESSEE IN THE WAKE OF THE FACTS OF THE CASE. SO FAR AS THE LOAN OF RS. 1 LAC FROM SHRIRAM AHIRWAR IS CONCERNED, WE FIND THAT THE ASSESSEE DID NOT PRODUCE SHRIRAM AHIRWAR BEFORE THE AUTHORITIES BELOW FOR EXAMINATION. IN CASE O F SMT. SUNITA VERMA RS. 70,000/- THE ASSESSEE DID NOT PRODUCE THE BANK STATEMENT. IN THE CASE OF S.D. VERMA RS.99,500/- BANK STATEMENT WAS NOT PRODUCED BY THE ASSESSEE. IN THE CASES OF SHRI SHEFARD MATHEW, SHRI SUD EEP DINESH RATHORE ITA NO. 616/IND/2016 4 VYAS, SHRI ATUL TRIVEDI,SHRI MADANLAL CHOUHAN, SHRI HIMANSHU GANGRADE, SHRI HITENDRA SENGAR AND SHRI HIDAYTULLA SHEKH, THE ASSESSEE FAILED TO ESTABLISH THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS. THE ASSESSEE IS NOT HAVING ANY EVIDENCE WHICH PROVES THAT T HE CAPITAL INTRODUCED BY THESE PERSONS IS GENUINE. IT IS A SETTLED PRINCIPLE OF LAW THAT WHILE CONSIDERING THE QUESTION WHETHER THE ALLEGED CAPITAL INTRODUCTION BY THE ASSESSE E WAS GENUINE TRANSACTION, THE INITIAL ONUS IS ALWAYS UPON THE ASSESSEE AND IF NO EXPLANATION IS GIVEN OR THE EXPLANATION GIVEN BY THE ASSESSEE IS NOT SATISFACTORY, T HE ASSESSING OFFICER CAN DISBELIEVE THE ALLEGED TRANSACTIO N OF CAPITAL INTRODUCTION. IN THE CASES OF THESE PARTIES, TH E ASSESSEE FAILED TO DISCHARGE THE BURDEN OF PROOF BY NO T ESTABLISHING THE GENUINENESS OF TRANSACTION AND CREDIT WORTHINESS OF THESE PARTIES. WE, THEREFORE, FIND NO INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW SO FAR AS THESE PARTIES DINESH RATHORE ITA NO. 616/IND/2016 5 ARE CONCERNED. AS REGARDS CASH CREDIT OF RS. 3,00,0 00/- IN RESPECT OF SHRI NISHANT GHODE, WE FIND THAT THE ASSESS EE HAS PRODUCED SHRI NISHANT GHODE BEFORE THE ASSESSING OFFICER. THE ASSESSEE HAS TAKEN LOAN THROUGH CHEQUE AND PRODUCED THE BANK STATEMENT. SHRI NISHANT GHODE MADE THE CASH DEPOSIT OF RS. 3,00,000/- IN THEN BANK ACCOUN T ON 27.1.2003 AND ISSUED CHEQUE OF RS. 3 LACS ON28.11.2003 , THEREFORE, THE ASSESSING OFFICER AND THE LEARNED CIT( A) HAVE MADE THE ADDITION. DURING THE COURSE OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SHRI NISHANT GHODE IS THE BRANCH MANAGER AND FROM A PERSUAL OF BANK STATEMENT IT IS FOUND THAT NO CASH WAS DEPOSITED PRIOR TO GIVING THE LOAN. ON THE CONTRARY, THE ASSESSE E HAS RECEIVED THE AMOUNT BY TRANSFER ENTRY. THEREFORE, NO ADDITION CAN BE MADE ON THIS COUNT. WE, THEREFORE, IN THE CASE OF LOAN FROM SHRI NISHANT GHODE, WE REVERSE THE ORDERS OF THE AUTHORITIES BELOW WITH THE DIRECTION T O THE DINESH RATHORE ITA NO. 616/IND/2016 6 ASSESSING OFFICER TO DELETE THE ADDITION OF RS. 3 LA CS IN RESPECT OF LOAN TAKEN FROM SHRI NISHANT GHODE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS PAR TLY ALLOWED. PRONOUNCED IN OPEN COURT ON 22 SEPTEMBER, 2016 SD SD (O.P. MEENA) (D.T. G ARASIA) ACCOUNTANTMEMBER JUDICIAL MEMB ER 22 SEPTEMBER, 2016 DN/- DINESH RATHORE ITA NO. 616/IND/2016 7