Shri Nitinchandra Subhashchandra Shah, Vadodara V. The Deputy Commissioner of Income Tax, Circle-3(1), Baroda

ITA 654/AHD/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5325 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 16-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHIVA SEWAK
• Assessee Lawyers: NM DARJEE
• Section: 143(3); 131; 68

Judgement Text

SSMC-ITA NO. 654/AHD/2017 NITINCHANDRA SUBHASHCHANDRA SHAH VS. DCIT AY : 2012-13 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO. 654/AHD/2017 ASSESSMENT YEAR : 2012-13 NITINCHANDRA SUBHASHCHANDRA SHAH ........... .APPELLANT A-4, PANCHRATNA SOCIETY, B/H. VALLABHA ACHARYA HOSPITAL, NEAR KALADARSHAN CHAR RASTA, VAGHODIA ROAD, VAODARA-390 025 [PAN : AFHPS 9975 A] VS. DY. COMMISSIONER OF INCOME-TAX .......................RESPONDENT CIRCLE 3(1), BARODA APPEARANCES BY: NM DARJEE FOR THE APPELLANT SHIVA SEWAK, FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 08.10.2018 DATE OF PRONOUNCING THE ORDER : 15.10.2018 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF ORDER DATED 27 TH JANUARY 2017 PASSED BY THE CIT(A) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME-TAX A CT, 1961, FOR THE ASSESSMENT YEAR 2012-13. 2. GRIEVANCE OF THE APPELLANT IS AS FOLLOWS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW A ND FACTS IN CONFIRMING THE ADDITION OF CASH CREDITS IN THE NAME OF AMBICA INVESTMENTS RS.10,00,000/- MADE BY THE ASSESSING OFFICER. THE LD. CIT(A) OUGHT TO HAVE CONSIDERED THE AFFIDAV IT FILED BY THE ASSESSEE AND EVIDENCE PRODUCED BEFORE HIM. THE LD. AO MAY KI NDLY BE DIRECTED TO DELETE THE ADDITION OF CASH CREDIT AS ABOVE. 3. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIA L FACTS NEED TO BE TAKEN NOTE OF. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, IT WAS, INTER ALIA, SSMC-ITA NO. 654/AHD/2017 NITINCHANDRA SUBHASHCHANDRA SHAH VS. DCIT AY : 2012-13 PAGE 2 OF 3 NOTED THAT THE ASSESSEE HAD SHOWN A CREDIT OF RS.10 ,00,000/- FROM AMBICA INVESTMENTS. THE ASSESSEE WAS, HOWEVER, UNABLE TO GIVE ANY DETAILS ABOUT THE SAID AMBICA INVESTMENTS, AND THE ASSESSING OFFICER, THEREFORE, ADDED RS.10,00,000/- TO THE INCOME OF THE ASSESSEE AS UNE XPLAINED CREDIT. AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CI T(A) BUT WITHOUT ANY SUCCESS. LEARNED CIT(A) CONFIRMED THE ACTION OF THE ASSESSIN G OFFICER BY OBSERVING AS FOLLOWS:- 4.1. IN RESPECT OF UNSECURED LOAN OF RS.10,00,000/ - SHOWN IN THE NAME OF AMBICA INVESTMENTS, THE AO ISSUED SUMMON U/S 131 AT THE ADDRESS GIVEN BY THE APPELLANT DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, BUT THE SAME WAS RETURNED UNSERVED. THE APPELLANT DID NOT FILE NECESSARY DOCUMENTARY EVIDENCES SUCH AS BANK STATEMENT AND CO PY OF RETURN OF INCOME TO PROVE GENUINENESS OF TRANSACTION AND CRED ITWORTHINESS OF THE DEPOSITOR. DURING THE COURSE OF APPELLATE PROCEEDIN GS, THE ID.AR HAS ONLY FURNISHED COPY OF ACCOUNT, WHICH IS NOT SIGNED BY A MBICA INVESTMENTS. EVEN FULL ADDRESS OF AMBICA INVESTMENTS IS NOT AVAI LABLE ON THE COPY OF ACCOUNT WHICH IS IN THE FORM OF CONFIRMATION OF ACC OUNT. TO PROVE THE GENUINENESS OF TRANSACTION, THE APPELLANT HAS FURNI SHED ONLY BANK ACCOUNT NO. I.E. 03010400000009 WITH BANK OF BARODA, ANKLAV , TAL. BORSAD, DIST. ANAND. DURING THE COURSE OF REMAND PROCEEDINGS, THE AO MADE ENQUIRIES FROM THE BANK OF BARODA AND NOTICED THAT THE BANK A CCOUNT NUMBER GIVEN BY THE APPELLANT WAS NOT PERTAINING TO AMBICA INVES TMENTS. IN FACT, THIS BANK ACCOUNT WAS BELONGING TO AMBICA FINANCE. PERUS AL OF THE BANK STATEMENT REVEALED THAT THERE WAS NO ENTRY OF RS. 1 0,00,000/- CLAIMED TO HAVE BEEN GIVEN TO THE APPELLANT ON 24.05.2011. UND ISPUTEDLY, AMBICA INVESTMENTS IS NOT ASSESSED TO TAX. THE ID.AR VIDE WRITTEN REPLY DATED 20.01.2017 HAS VERY CLEARLY ADMITTED THAT AMBICA IN VESTMENTS IS NOT TRACEABLE. THUS IN VIEW OF THE ABOVE FACTS AND CIRC UMSTANCES, IT IS CRYSTAL CLEAR THAT IDENTITY AND CAPACITY OF AMBICA INVESTME NTS HAS REMAINED TOTALLY UNEXPLAINED. SINCE THE ENTRY OF LOAN OF RS.10,00,00 0/- WAS NOT FOUND TO BE RECORDED IN THE BANK ACCOUNT GIVEN BY THE APPELLANT , THE GENUINENESS OF TRANSACTION IS ALSO NOT PROVED. ACCORDINGLY, THE CA SE LAWS RELIED UPON BY THE ID.AR ARE NOT APPLICABLE IN THE CASE OF APPELLANT. THEREFORE, I HOLD THAT SOURCE OF RS.10,00,000/- LOAN IN THE NAME OF AMBICA INVESTMENTS HAS REMAINED TOTALLY UNEXPLAINED WITHIN THE MEANING OF SECTION 68 AND ACCORDINGLY, THE ADDITION MADE ON THIS ACCOUNT IS C ONFIRMED. 4. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE ME. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 6. I FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO PR ODUCE ANY WHEREABOUTS ABOUT AMBICA INVESTMENTS OR ANY EVIDENCES ABOUT ITS MEANS TO HAVE GIVEN THE LOAN OF RS.10,00,000/-. IT IS WELL SETTLED IN LAW THAT THE ONUS OF PROVING IDENTITY AND MEANS OF THE LENDER, AS ALSO GENUINENESS OF THE TRA NSACTION, IS ON THE ASSESSEE AS IS HELD BY HONBLE HIGH COURTS IN CASES OF CIT V S. UNITED COMMERCIAL AND INDUSTRIAL CO. LTD (187 ITR 596) AND CIT VS. PRECIS ION FINANCE PVT LTD (208 ITR SSMC-ITA NO. 654/AHD/2017 NITINCHANDRA SUBHASHCHANDRA SHAH VS. DCIT AY : 2012-13 PAGE 3 OF 3 465). THAT ONUS IS CLEARLY NOT DISCHARGED ON THE F ACTS OF THIS CASE. LEARNED COUNSEL FOR THE ASSESSEE NOW SUBMITS THAT HE HAS LO CATED THE BANK BRANCH IN WHICH ACCOUNT OF THE LENDER EXISTS AND THE MATTER M AY BE REMITTED TO THE FILE OF THE ASSESSING OFFICER SO AS TO ENABLE HIM TO ASCERTAIN COMPLETE DETAILS. I AM NOT INCLINED TO ACCEPT THIS PLEA AND PRAYER FOR THE MAT TER BEING RESTORED TO THE FILE OF THE ASSESSING OFFICER; IT WILL ONLY AMOUNT TO DELAY IN THIS ADJUDICATION PROCESS REACHING FINALITY. IN ANY CASE, AT NO STAGE, THE A SSESSEE HAS TAKEN ANY SERIOUS STEPS IN THIS REGARD AND MISERABLY FAILED IN DISCHA RGING HIS ONUS. LEARNED COUNSELS PLEA LACKS, IN MY HUMBLE UNDERSTANDING, A NY SERIOUSNESS AND GENUINENESS. IN VIEW OF THESE DISCUSSIONS, AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, I APPROVE THE STAND OF THE AUTHORITIES BELOW AND DECLINE TO INTERFERE IN THE MATTER. 7. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER P RONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF OCTOBER, 2018. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) AHMEDABAD, THE 15 TH DAY OF OCTOBER, 2018 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ... ORDER PREPARED AS PER 4 PAGES MANUSCRIPTS OF HONBLE AM, WHICH ARE ATTACHED HEREWITH-15.10.18 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 15.10.2018...... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: ... 15.10.2018..... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: ... 15.10.2018. 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : . 15.10.2018. 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 8. DATE OF DESPATCH OF THE ORDER: ......