BHADRESH RATANPAL SHAH, MUMBAI V. ITO 3(2), KALYAN, MUMBAI

ITA 667/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84450 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 22-10-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 24-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Assessee Lawyers: NATASHA MANGAT
• Keywords: Additional evidence; Onus to prove
• Section: 68

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM) . . , , ./I.T.A. NO.667/MUM/2011 ( / ASSESSMENT YEAR : 2005-06) MR.BHADRESH RATANPAL SHAH, A-203, SANSKAR DHAM, OPP. SHARDA MANDIR, LAL CHOWKI, AGRA ROAD, KALYAN, MUMBAI-421301. / VS. INCOME TAX OFFICER, 3(2), KALYAN, MUMBAI. ( / APPELLANT) .. ( / RESPONDENT) ./ ./PAN/GIR NO. : ACKPS4869F ! / ASSESSEE BY MS. NATASHA MANGAT ' ! / REVENUE BY R N DSOUZA # $ ' %& / DATE OF HEARING : 12.12..2014 '( ' %& /DATE OF PRONOUNCEMENT : 17.12..2014 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 15.11.2010 PASSED BY LD CIT(A)-I, THANE AND IT RELA TES TO THE ASSESSMENT YEAR 2005-06. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.4.00 LAKHS MADE U/S 68 OF THE AC T. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. DU RING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER EXAMI NED UNSECURED LOANS RECEIVED BY THE ASSESSEE. THE ASSESSEE HAD BORROWE D A SUM OF RS.4.00 LAKHS FROM A PERSON NAMED SHRI KULDEEP NEHRA AND SINCE HE COULD NOT PROVE THE SAID LOAN, HE OFFERED THE SAME AS HIS INCOME. ACCORDING LY, THE AO ASSESSED THE ABOVE SAID AMOUNT OF RS.4.00 LAKHS AS THE INCOME OF THE ASSESSEE. IN THE ITA. NO667/MUM/2011 2 APPELLATE PROCEEDINGS BEFORE LD CIT(A), THE FIRST A PPELLATE AUTHORITY ALSO CONFIRMED THE ADDITION FOR THE REASON THAT THE ASSE SSEE HIMSELF HAD VOLUNTARILY OFFERED THE ABOVE SAID AMOUNT OF RS.4.00 LAKHS AS H IS INCOME. 3. THE ASSESSEE HAS FILED THIS APPEAL CHALLENGI NG THE ADDITION OF RS.4.00 LAKHS, EVEN THOUGH IT WAS VOLUNTARILY OFFERED BY HI M. THE LD COUNSEL FOR THE ASSESSEE, ON THE EARLIER OCCASION, SUBMITTED THAT T HE ASSESSEE WAS CONSTRAINED TO OFFER THE ABOVE SAID AMOUNT OF RS.4.00 LAKHS AS HIS INCOME, SINCE HE HAD LOST CONTACT WITH THE CREDITOR. SHE FURTHER SUBMITTED T HAT THE ASSESSEE HAS SINCE ESTABLISHED CONTACT WITH THE CREDITOR SHRI KULDEEP NEHRA AND ACCORDINGLY PRAYED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE AO IN ORDER TO ENABLE THE ASSESSEE TO FURNISH NECESSARY DOCUMENTS TO PROVE TH E LOAN. HOWEVER, THE BENCH DIRECTED THE LD A.R TO FURNISH THE DOCUMENTS THAT ARE INTENDED TO BE BROUGHT ON RECORD AS ADDITIONAL EVIDENCES BEFORE TH E TRIBUNAL. ACCORDINGLY THE CASE WAS ADJOURNED TO 12.12.2014. HOWEVER, ON THAT DATE, THE LD A.R SUBMITTED THAT THE ASSESSEE COULD NOT CONTACT SHRI KULDEEP NE HRA AND HENCE HE COULD NOT FURNISH NECESSARY DOCUMENTS. WHEN SPECIFICALLY ASK ED AS TO WHETHER THE ASSESSEE WOULD BE IN A POSITION TO PROVE THE LOAN C REDIT BY FURNISHING ALL THE DOCUMENTS, THE LD A.R FAIRLY ADMITTED THAT THE SAME WOULD BE DIFFICULT FOR THE ASSESSEE. HOWEVER, THE LD A.R FURNISHED COPY OF TH E BANK ACCOUNT OF THE ASSESSEE TO SHOW THAT THE LOAN AMOUNT WAS REPAID BY WAY OF BANK DEMAND DRAFT. 4. WE HAVE ALREADY NOTICED THAT THE ASSESSEE HAS OF FERED THE UNSECURED LOAN OF RS.4.00 LAKHS OBTAINED FROM SHRI KULDEEP NE HRA, SINCE HE COULD NOT PROVE THE SAME. BEFORE US ALSO, THE ASSESSEE HAS E XPRESSED HIS INABILITY TO PROVE THE SAID LOAN CREDIT. THERE SHOULD NOT BE AN Y DISPUTE THAT THE PRIMARY BURDEN TO PROVE THE CASH CREDIT IS PLACED UPON THE ASSESSEE U/S 68 OF THE ACT, I.E., THE ASSESSEE HAS TO PROVE THE THREE MAIN INGR EDIENTS, VIZ., THE IDENTITY OF THE CREDITOR, THE CREDIT WORTHINESS OF THE CREDITOR AND THE GENUINENESS OF TRANSACTIONS. IN THE INSTANT CASE, ADMITTEDLY, THE ASSESSEE HAS FAILED TO PROVE THESE THREE MAIN INGREDIENTS IN RESPECT OF THE LOAN OF RS.4.00 LAKHS OBTAINED FROM SHRI KULDEEP NEHRA. BEFORE US, THE LD A.R PLA CED RELIANCE ON THE DECISIONS RENDERED BY SMC BENCH OF TRIBUNAL IN THE CASE OF M/ S G.S. FAB (P) LTD VS. ITO (ITA NO.1990/DEL/2012 DATED 30-08-2012 DELHI) AND M /S AIR INN SALES & SERVICES VS. ITO (ITA NO.2758/MUM/2011 DATED 19-12- 2012 MUMBAI). WE ARE ITA. NO667/MUM/2011 3 OF THE VIEW THAT THE ASSESSEE CANNOT TAKE SUPPORT O F THESE DECISIONS FOR THE REASON THAT THE ASSESSEE HIMSELF HAS AGREED TO OFFE R THE ABOVE SAID AMOUNT OF RS.4.00 LAKHS AS HIS INCOME BEFORE THE ASSESSING OF FICER. THE CONTENTION OF THE REPAYMENT OF LOAN WILL ALSO NOT ABSOLVE THE ASSESSE E FROM DISCHARGING THE PRIMARY BURDEN PLACED UPON HIM U/S 68 OF THE ACT. ACCORDINGLY, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN CONFIRMING THE ASSESSMENT OF RS.4.00 LAKHS, REFERRED ABOVE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 17TH DEC , 2014. '( # )* +, 17TH DEC,2014 ( ' $ - SD SD- ( /SANJAY GARG) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ) # $ MUMBAI: 17TH DEC,2014. . . ./ SRL , SR. PS !'#$ %$&' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. # .% ( ) / THE CIT(A)- CONCERNED 4. # .% / CIT CONCERNED 5. /0 %1 , & 1 , ) # $ / DR, ITAT, MUMBAI CONCERNED 6. 2 3$ / GUARD FILE. 4 # / BY ORDER, TRUE COPY 5 (ASSTT. REGISTRAR) & 1 , ) # $ /ITAT, MUMBAI