M/s Rajan Suri (HUF), New Delhi V. ACIT, New Delhi

ITA 6482/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4789 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 29-08-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 07-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: B S SISTANI
• Keywords: Search and seizure; Opportunity of being heard; Additional evidence
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : DELHI BENCHES : SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA. NO.6482/DEL./2015 ASSESSMENT YEAR 2011-2012 M/S. RAJAN SURI (HUF), M-12, JANGPURA EXTENSION, NEW DELHI 110 014. PAN AAJHR1971G VS. THE ACIT, CIRCLE-32(1) NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI B.S. SISTANI, C.A. FOR REVENUE : SHRI T. VASANTHAN, SR. D.R. DATE OF HEARING : 07.08.2017 DATE OF PRONOUNCEMENT : 22 .08.2017 THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF THE LD. CIT(A)-18, NEW DELHI, DATED 12 TH OCTOBER, 2015 FOR A.Y. 2011-2012, CHALLENGING THE ADDITION OF RS. 10 LAKHS UNDER SECTION 68 OF THE I.T. ACT. EARLIER, THE APPEAL OF THE ASSESSEE WAS DISMISSED VIDE ORDER DATED 21.09.2016. ON THE MISCE LLANEOUS APPLICATION FILED BY THE ASSESSEE, THE TRIBUNAL REC ALLED THE EX- PARTE ORDER DATED 21.09.2016 AND DIRECTED THE REGIS TRY TO FIX THE APPEAL FOR HEARING ON 07.08.2017. ORDER 2 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ASSESSEE-HU F FILED THE RETURN OF INCOME DECLARING TOTAL INCOME AT RS.6 ,56,880. THE A.O. FOUND THAT AN AMOUNT OF RS.30 LAKHS HAS BEEN A DVANCED TO SHAKUNTALA EDUCATION AND WELFARE SOCIETY AND THE SO URCE WAS EXPLAINED TO BE VARIOUS AMOUNT RECEIVED FROM MR. RA JAN SURI, M/S. ANKUR CARPET AND M/S. KAMBOJ CONSULTANCY PVT. LTD., ETC., THE A.O. EXAMINED THE CREDIT FROM M/S. KAMBOJ CONSULTAN CY PVT. LTD., OF RS.10 LAKH AND AFTER ENQUIRY, MADE THE ADDITION OF RS. 10,00,000 FOR AN UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT. 3. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND WRITTEN SUBMISSIONS OF ASSESSEE IS REPRO DUCED IN THE APPELLATE ORDER IN WHICH IT WAS EXPLAINED THAT THER E WAS A SEARCH AND SEIZURE OPERATION CARRIED OUT ON SHAKUNTALA EDU CATION AND WELFARE SOCIETY ON 17 TH SEPTEMBER, 2010. ON THE BASIS OF POST SEARCH INVESTIGATION, THE CASE OF THE ASSESSEE WAS REOPENED IN WHICH IT WAS FOUND THAT ASSESSEE HAS RECEIVED LOAN OF RS.10 LAKHS FROM M/S. KAMBOJ CONSULTANCY PVT. LTD. THE A.O. REJ ECTED THE CONTENTION OF ASSESSEE OF RECEIPT OF GENUINE LOAN O N THE REASONS THAT THE GROSS TOTAL INCOME OF THE COMPANY IS ONLY RS.1,09,451, 3 CREDIT IN THE BANK STATEMENT HAS NOT BEEN EXPLAINED . ON THE BASIS OF ENQUIRIES OF THE INSPECTOR, IT WAS KNOWN THAT RE GISTERED OFFICE OF CREDITOR IS ACTUALLY A RESIDENTIAL PREMISES AND NO WORK OR EMPLOYEES OF THE COMPANY COULD BE SEEN IN THE PREMI SES. IT WAS ALSO KNOWN THAT SHRI PARIKSHIT MEHTA, C.A. IS THE D IRECTOR OF THE COMPANY WHO HAS ARRANGED THE LOAN FOR THE ASSESSEE AND KNOWN TO MR. RAJAN SURI. THE A.O. THEREFORE, QUESTIONED THE CREDITWORTHINESS OF THE CREDITOR COMPANY. THE ASSESSEE FURTHER EXPLA INED THAT ASSESSEE PROVIDED CONFIRMATION ON THE CREDITOR, COP Y OF THE BANK STATEMENT AND COPY OF THE INCOME TAX RETURN OF THE CREDITOR COMPANY. THE COMPANY HAS ALSO REPLIED TO THE A.O. I N RESPONSE TO THE NOTICE UNDER SECTION 133(6) OF THE I.T. ACT. TH E A.O. DEPUTED HER INSPECTOR TO GET THE ADDRESS OF THE COMPANY AND PHY SICALLY VERIFIED ALSO. HOW THE RESIDENTIAL ADDRESS OF ONE OF THE DIR ECTOR CANNOT BE REGISTERED OFFICE OF THE COMPANY, PRESENCE OF THE E MPLOYEES AT THE VISIT OF THE INSPECTOR IS NOT NECESSARY. WHY C.A. O F THE ASSESSEE WHO IS A FAMILY FRIEND OF ASSESSEE CANNOT HELP THE ASSESSEE. 4. . THE LD. CIT(A), HOWEVER, DID NOT ACCEPT THE CONTENT ION OF ASSESSEE AND RELYING UPON SEVERAL DECISIONS, DISMIS SED THE APPEAL 4 OF ASSESSEE ON THIS GROUND. THE LD.CIT(A) CONFIRME D THE FINDING OF THE A.O. AS NOTED ABOVE AND ALSO ONOTED IN HIS FIN DINGS THAT ASSESSEE COULD NOT PRODUCE THE PROFIT AND LOSS ACCO UNT OF THE COMPANY ETC., AND CHOSE TO PRODUCE THE INCOMPLETE B ALANCE SHEET FROM THE REGISTRAR OF COMPANIES SITE. IT CLAIMED T HE AMOUNT OR ADVANCE AS LOAN BUT CREDIT WAS NOT APPEARING IN THE BALANCE SHEET. LD.CIT(A) THEREFORE, NOTED THAT BURDEN IS UPON THE ASSESSEE TO PROVE THE GENUINE CREDIT, HAS NOT BEEN DISCHARGED A ND ACCORDINGLY, DISMISSED THE APPEAL OF ASSESSEE. 5. I HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE PARTIES. LEARNED COUNSEL FOR THE ASSESSEE REITERATE D THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND F ILED APPLICATION UNDER RULE-29 OF THE APPELLATE TRIBUNAL RULES FOR ADMISSION OF THE ADDITIONAL EVIDENCE I.E., AUDITED ACCOUNTS OF M/S. KAMBOJ CONSULTANCY PVT. LTD., HDFC BANK STATEMENT F OR F.Y. NOVEMBER 2015 TO SHOW LOAN AMOUNT HAVE BEEN REPAID THROUGH BANKING CHANNEL, CONFIRMATION OF ACCOUNTS OF ASSESS EE WITH M/S. KAMBOJ CONSULTANCY PVT. LTD., ENDING 31 ST MARCH, 2016 AND CONFIRMATION ACCOUNT OF DEBASHREE ENTERPRISES PVT. LTD., IN THE 5 BOOKS OF M/S. KAMBOJ CONSULTANCY PVT. LTD. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE DOCUMENTS HAVE BE EN OBTAINED NOW RECENTLY WHICH GOES TO THE ROOT OF THE MATTER A ND PROVE THAT ASSESSEE ALSO RETURNED THE AMOUNT IN QUESTION THROU GH BANKING CHANNEL. THEREFORE, BURDEN UPON ASSESSEE HAVE BEEN DISCHARGED TO PROVE THE GENUINENESS OF THE CREDIT. HE HAS SUBMITT ED THAT THE MATTER COULD BE RESTORED BACK TO THE A.O. FOR RE-CO NSIDERATION ON ADMISSION OF ADDITIONAL EVIDENCES. 6. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 7. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM OF TH E VIEW THAT ADDITIONAL EVIDENCES SINCE RELEVANT AND GOES TO THE ROOT OF THE MATTER, THEREFORE, THEY SHOULD BE ADMITTED FOR THE PURPOSE OF DISPOSAL OF THE APPEAL. IT IS AN ADMITTED FACT THAT ASSESSEE FILED CONFIRMATION FROM THE CREDITOR, ITS COPY OF THE BAN K STATEMENT AND ACKNOWLEDGMENT OF THE INCOME TAX RETURN BEFORE A.O. THE CREDITOR ALSO FILED REPLY DIRECTLY TO THE A.O. IN RESPONSE T O LETTER UNDER SECTION 133(6) OF THE I.T. ACT. THE LD. CIT(A) DID NOT ACCEPT THE GENUINE CREDIT IN THE MATTER BECAUSE THE RESIDENTIA L ADDRESS OF THE 6 DIRECTOR IS THE REGISTERED OFFICE OF THE COMPANY AN D THAT THE DIRECTOR OF THE CREDITOR IS THE C.A. OF MR. RAJAN S URI WHO HAS ARRANGED THE LOAN FOR THE ASSESSEE. THIS MAY NOT BE A RELEVANT CRITERIA FOR THE PURPOSE OF DECIDING THE GENUINE C REDIT IN THE MATTER BECAUSE ASSESSEE HAS ONLY TO SATISFY CONDITI ONS OF SECTION 68 OF I.T ACT I.E. IDENTITY, CREDITWORTHINESS OF CR EDITOR AND GENUINENESS OF TRANSACTION. THE LD. CIT(A) CONFIRM ED THE ORDER OF THE A.O. BECAUSE THE ASSESSEE DID NOT PRODUCE THE P & L A/C ETC., OF CREDITOR COMPANY. THE ASSESSEE HAS NOW OBTAINED THE AUDITED ACCOUNT OF THE CREDITOR WHICH SHOWS THAT THEY HAVE SUFFICIENT INCOME AND THAT CREDIT HAS BEEN SHOWN IN THEIR ACCO UNT IN THE NAME OF THE ASSESSEE. THE LOAN AMOUNT IS REFUNDED T O THE CREDITOR LATER ON WHICH HAS BEEN SUPPORTED BY COPY OF THE BA NK STATEMENT OF THE CREDITOR AND THEIR CONFIRMATIONS. THEREFORE, THESE ADDITIONAL EVIDENCES ARE RELEVANT TO THE MATTER IN ISSUE AND G OES TO THE ROOT OF THE MATTER. THEREFORE, THESE ADDITIONAL EVIDENCES A RE ADMITTED FOR HEARING. SINCE THESE ADDITIONAL EVIDENCES WERE NOT BEFORE THE A.O AND A.O HAD NO OPPORTUNITY TO EXAMINE THE SAME AT T HE ASSESSMENT STAGE, THEREFORE, THE MATTER REQUIRES RE -CONSIDERATION AT THE LEVEL OF THE A.O. I, ACCORDINGLY, SET ASIDE THE ORDERS OF THE 7 AUTHORITIES BELOW AND RESTORE THE APPEAL OF ASSESSE E TO THE FILE OF A.O. WITH A DIRECTION TO RE-DECIDE THE MATTER IN IS SUE, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. ASSESSEE IS DIRECTED TO FILE COPIES OF THE ADDITION AL EVIDENCES SO ADMITTED, BEFORE A.O. FOR DISPOSAL OF THE MATTER. 8. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 22 ND AUGUST, 2017 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI. 6. GUARD FILE. //BY ORDER// ASST. REGISTRAR : ITAT DELHI BEHCHES : DELHI.