Ashok Kumar Gupta, Kaushambi V. ITO, Allahabad

ITA 63/ALLD/2013

• Counselvise Citation: 6320714 RSA 2013
• Duration Of Justice: 2 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2004-2005
• Appeal Filed On: 11-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K SINGH
• Assessee Lawyers: PRAVEEN GODBOLE
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH ALLAHABAD BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER ITA NO. 63 /ALLD/201 3 ASSESSMENT YEAR: 200 4 - 0 5 ASHOK KUMAR GUPTA VS. ITO, RANGE - 2(1), MOORATGANJ KAUSHAMBI ALLAHABAD. (APPELLANT ) (RESPONDENT) ASSESSEE BY : SHRI PRAVEEN GODBOLE , A.R. REVENUE BY : SHRI A. K. SINGH , DR. DATE OF HEARING: 0 5 .08.2015 ORDER PER : P.K. BANSAL , A CCOUNTANT MEMBER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) , ALLAHABAD DATED 08.10.2012 FOR ASSESSMENT YEAR 2004 - 0 5 . 2. THE ASSESSEE HAS TAKEN AS MANY AS 14 GROUNDS OF APPEAL BUT SINCE THE GROUND NO.1 TO 4 NOT PRESSED , THE SAME STAND DISMISSED AS NOT PRESSED. 3. GROUNDS NO.5 TO 8 AND 1 2 RELATE TO THE ADDITION OF RS.1,45,000/ - U/S.68 OF THE INCOME TAX, ACT, 1961. THE FACTS 2 RELATING TO THE GROUNDS ARE THAT THE ASSESSING OFFICER EXAMINING THE BANK ACCOUNT OF THE ASSESSEE NOTED THAT THE ASSESSEE MADE CASH DEPOSIT S. I N REPLY THERETO THE ASSESSEE SUBMITTED A SUM OF RS.1,60,000/ - , WAS TAKEN AS LOAN FROM DIFFERENT FARMERS . OUT OF THIS, A SUM OF RS.1,45,000/ - WAS DEPOSITED IN THE BANK ACCOUNT. THE DETAILS OF THE FARMERS ALONG WITH THEIR NAMES , ADDRESSES AND THE AMOUNT WAS DULY SUBMITTED BY THE ASSESSEE , IT APPEARS AT PAGE 2 OF THE ASSESSMENT ORDER . O UT OF THESE TEN PERSONS, STATEMENT S OF EIGHT PERSONS WERE RECORDED ON OATH. THE ASSESSING OFFICER FOUND FROM THEIR STATEMENTS THAT THEY ALL ARE FARMERS AND ACQUAINTED WITH T HE ASSESSEE. ALL THESE PERSONS HAVE GIVEN CASH LOAN TO THE ASSESSEE OUT OF THEIR PAST SAVINGS KEPT IN THEIR HOME. THE Y DO NOT REMEMBER THE DATE AND THE MONTH OF THE PAYMENT OF THE LOAN, LOAN REPAYMENT RECEIPT WAS RECEIVED BY THEM IN CASH WITHIN TWO YEARS O F TAKING THE LOAN. THE DATE AND TIME OF THE REPAYMENT HAS ALSO NOT BEEN REMEMBERED BY THEM. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE DID NOT DISCHARGE HIS ONUS AND THEREFORE HE ADDED A SUM OF RS. 1,45,000/ - . 4. WHEN THE MATTER WENT BEFORE T HE CIT(A), THE CIT(A) HAS CONFIRMED THE ADDITION BY HOLDING AS UNDER: 3.2 I CONFIRM THE ADDITION OF RS.1,45,000/ - BECAUSE THE ASSESSEE FAILED TO PROVE THE CAPACITY OF THE LENDERS AND THE GENUINENESS OF THE TRANSACTIONS. THE ASSESSEE SHOWED THE LOAN 3 FROM T EN PERSONS. AL L OF THEM ONLY EIGHT PERSONS APPEARED BEFORE THE ASSESSING OFFICER. BUT THE PERSONS WHO APPEARED DID NOT HAVE PRECISE KNOWLEDGE OF ADVANCING THE LOAN, VIZ. THE DATE AND THE AMOUNT ADVANCED TO THE ASSESSEE. SIMILARLY, THESE PERSONS DID NOT HAV E THE PRECISE KNOWLEDGE OF REPAYMENT. THE ASSESSEE FAILED TO PRODUCE EVIDENCES IN RESPECT OF CREDIT WORTHINESS OF THE LENDERS. THE PERSONS WHO HAD BANK ACCOUNTS COULD MAKE THE ADVANCE BY CHEQUE/DRAFT. BUT THE SUMS WERE ADVANCED BY THE CASH. THESE PERSONS H AVE NOT ADVANCED EXCEEDING RS.2,000/ - TO RS.3,000/ - TO ANY OTHER PERSON BEFORE LENDING THE MONEY TO THE ASSESSEE. THE TOTALITY OF THE CIRCUMSTANCES HOLDS ME TO BELIEVE THE CAPACITY OF THE LENDERS AND THE GENUINENESS OF THE TRANSACTION. I, THEREFORE, HOLD T HAT THE ADDITION WAS CORRECTLY MADE BY THE ASSESSING OFFICER. 5. H EARD THE RIVAL SUBMISSION AND CAREFULLY CONSIDER ED THE SAME. IN MY OPINION, WHEN THE S UM IS FOUND CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE , T HE ONUS IS ON THE ASSESSEE TO PROVE TH E IDENTITY CREDIT WORTHINESS OF THE PARTY AS WELL AS GENUINENESS OF THE TRANSACTION. IT IS NOT THE CASE OF THE ASSESSEE THAT THE AMOUNT DEPOSITED IN THE BANK DOES NOT REPRESENT AMOUNT CREDITED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE SO THAT THE PROVISION O F SECTION 68 CANNOT BE APPLIED. I NOTED THAT THE DEPOSITS HAVE BEEN RECEIVED FROM THE FARMERS . T HEY FILED THEIR CONFORMITY LETTER. COPY OF STATEMENTS OF EIGHT FARMERS WAS RECORDED. ALL OF THEM HAVE RECEIVED BACK THE AMOUNT . M ERELY THE AMOUNT HAS BEEN RECEI VED BY THE ASSESSEE IN CASH DOES NOT MEAN THAT THE ASSESSEE FAILED TO PROVE THE IDENTITY , CREDITWORTHINESS OF THE DEPOSITORS AS WELL AS GENUINENESS OF THE TRANSACTION. FARMERS ARE HOLDING THE LAND , IT IS NOT DENIED THAT THE AMOUNT OF THE LOAN RANGES FROM R S.14,000/ - TO 4 RS.18,000/ - . THE EVIDENCE OF SHRI KISHANBHAI ARE AVAILABLE AT PAGE S 18 TO 42. THE PA RTIES HAVE ALSO ACCEPTED THAT THEY ADVANCE D THE LOAN. IN THESE CIRCUMSTANCES, I AM OF THE VIEW THAT THE ASSESSEE HAS DULY DISCHARGE D HIS ONUS AND I, THEREFORE , DELETE THE ADDITION OF RS.1,45,000/ - . THUS, THE GROUNDS NO.5 TO 8 AND 12 STAND ALLOWED. 6. THE GROUNDS NO.9 TO 11 RELATE TO SUSTAINING THE ADDITION OF RS.43291/ - . THE FACTS RELATING TO THESE GROUNDS ARE THAT THE ASSESSING OFFICER HAS NOTED THAT THE ASSE SSEE HAS NOT MAINTAINED REGULAR BOOKS OF ACCOUNT FOR MEDICAL STORE AND PRIVATE MEDICAL PRACTICE. THE ASSESSEE HAS RETURNED THE GP @10.2%. THE ASSESSING OFFICER ESTIMATE D THE SALE AT RS.10 LACS AS AGAINST THE SALE SHOWN BY THE ASSESSEE AT RS.871143 AND APPL IED THE RATE @11% AND THUS MADE AN ADDITION OF RS.43,291/ - . 7. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A), THE CIT(A) CONFIRMED THE ADDITION. 8 . IN MY OPINION, ESTIMATE IS ALWAYS AN ESTIMATE . S O FAR THE SALE OF THE ASSESSEE IS CONCERN ED , THE ASSESSE E HAS GIVEN FULL DETAIL AND THEREFORE THERE WAS NO REASON TO MAKE THE ESTIMATE OF THE SALE . T HE ASSESSING OFFICE R ESTIMATE D THE PROFIT @11 % WHILE THE ASSESSEE HAS DISCLOSED PROFIT @10.2% . T HE ASSESSING OFFICER EVEN THOUGH REJECTED THE ESTIMATE MADE BY THE ASSESSEE BUT HAS NOT GIVEN ANY COMPARATIVE INSTANCE HOW THE G.P. @10.2% TO BE DISCLOSED BY THE ASSESSEE HAS NOT FAIR AND REASONABLE EVEN NO EVIDENCE WAS BROUGHT ON RECORD WHICH MAY 5 PROVE THAT THE ASSESSEE HAS MADE THE INVESTMENT IN RESPECT OF EXTRA PROFIT EARNED. 9 . IN VIEW OF THIS FACT, I SET ASIDE THE ORDER OF THE CIT(A) AND DELETE THE ADDITION MADE BY ASSESSING OFFICER. 10 . GROUNDS NO.13 AND 14 ARE GENERAL IN NATURE DOES NOT REQUIRE ANY ADJUDICATION , THEREFORE STAND DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 / 9 /201 5 . SD/ - ( P.K. BANSAL ) ACCOUNTANT MEMBER DATED: 2 / 9 /201 5 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESP ONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR