Shri Shiv Shanker Gupta, Lucknow V. Income Tax Officer- IV(4), Lucknow

ITA 673/LKW/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1609 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 22-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B P YADAV
• Keywords: Unexplained cash credit
• Section: 68

Judgement Text

I.T.A. NO.673/LKW/2018 ASSESSMENT YEAR:2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.673/LKW/2018 ASSESSMENT YEAR:2006-07 SHRI SHIV SHANKAR GUPTA, 69, RAM NAGAR, AISHBAGH, LUCKNOW. PAN:ADGPG1373D VS. INCOME TAX OFFICER-IV(4), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A)-2, LUCKNOW DATED 29/08/2018 PERTAINING TO AS SESSMENT YEAR 2006- 2007. 2. AT THE OUTSET, LEARNED A. R. INVITED OUR ATTENTI ON TO THE FACT THAT THERE HAS OCCURRED A DELAY OF 11 DAYS IN FILING THE APPEA L AND IN THIS RESPECT OUR ATTENTION WAS INVITED TO THE AFFIDAVIT DULY SIGNED BY THE ADVOCATE OF THE ASSESSEE WHEREIN HE HAS STATED THAT DUE TO ILL HEAL TH OF HIS WIFE, THE FILING OF APPEAL GOT DELAYED. LEARNED A. R. STATED THAT IN V IEW OF THESE FACTS AND CIRCUMSTANCES, THE DELAY MAY BE CONDONED AND THE AP PEAL OF THE ASSESSEE MAY BE HEARD ON MERITS. LEARNED D. R. HAD NO OBJECT ION TO CONDONATION OF DELAY. I, HAVING FOUND THE REASON FOR DELAY IN FIL ING THE APPEAL REASONABLE, CONDONED THE DELAY AND ASKED LEARNED A. R. TO PROCE ED WITH HIS ARGUMENTS. APPELLANT BY SHRI B. P. YADAV, COST ACCOUNTANT RESPONDENT BY S HRI AJAY KUMAR, D.R. DATE OF HEARING 05/09/2019 DATE OF PRONOUNCEMENT 06/09/2019 I.T.A. NO.673/LKW/2018 ASSESSMENT YEAR:2006-07 2 3. LEARNED A. R. SUBMITTED THAT HE HAS TAKEN AN ADD ITIONAL GROUND OF APPEAL, WHICH IS PURELY A LEGAL ISSUE AND WHICH IS COMING OUT OF THE FACTS OF THE CASE. THE ADDITIONAL GROUND TAKEN BY THE ASSES SEE READS AS UNDER: THE ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING ADDITION OF RS.4,21,100/- U/S 68 OF THE I.T. ACT BY TREATING THE CHEQUE DEPOSITS IN THE BANK ACCOUNT AS UNEXPLAINED CASH CREDITS DESPITE THE FACT THAT THE APPELLANT DOES NO T MAINTAIN BOOKS OF ACCOUNT AND THEREFORE, THE CHARGING OF SEC TION 68 CANNOT BE PRESSED INTO SERVICE. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN VIEW OF THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF NATIONAL THERM AL POWER CO. LTD. VS. CIT 229 ITR 383 (SC), THE ADDITIONAL GROUND MAY BE ADMITTED AND ADJUDICATED. LEARNED D. R. HAD NO OBJECTION TO THE ADMISSION OF ADDITIONAL GROUND AND THEREFORE, LEARNED A. R. WAS ASKED TO PR OCEED WITH HIS ARGUMENTS ON THE ADDITIONAL GROUND. 4. LEARNED A. R. STATED THAT IT IS UNDISPUTED THAT THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT AND ASSESSING OFFI CER HAS MADE AN ADDITION OF RS.4,21,100/- ON THE BASIS OF ENTRIES F OUND IN THE BANK STATEMENTS OF THE ASSESSEE U/S 68 OF THE ACT, WHICH IS NOT PERMISSIBLE AS THE PROVISION OF SECTION 68 CLEARLY STATES THAT ANY AMO UNT CREDITED IN THE BOOKS OF ACCOUNT CAN ONLY BE ADDED AS PER THE PROVISIONS OF SECTION 68 OF THE ACT. LEARNED A. R. FURTHER STATED THAT ASSESSEE HAD RECE IVED ALL UNSECURED LOANS THROUGH CHEQUES AND IN THIS RESPECT FILED COPY OF B ANK STATEMENT HIGHLIGHTING THE ENTRIES OF RECEIPT OF CHEQUES. TH E LEARNED A.R. PLACED HIS RELIANCE ON THE ORDER OF HON'BLE PATNA HIGH COURT I N THE CASE OF CIT BIHAR VS. BIHARI BROS (P) LTD FOR THE PROPOSITION THAT ON CE THE ASSESSEE HAD RECEIVED UNSECURED LOANS THROUGH CHEQUES AND ASSESS EE SUBMITTED THE DETAILS OF CREDITORS, THE ASSESSEE IS DEEMED TO HAV E DISCHARGED ITS ONUS. I.T.A. NO.673/LKW/2018 ASSESSMENT YEAR:2006-07 3 5. LEARNED D. R., ON THE OTHER HAND, PLACED HIS REL IANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 6. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. I FIND THAT ASSESSEE HAD FILED RE TURN OF INCOME DECLARING INCOME OF RS.71,530/-. THE ASSESSEE IS ENGAGED IN DEALING OF BATTERIES OF MOTOR VEHICLE AND HAD DECLARED A TURNOVER OF RS.17, 95,807/- ON WHICH PROFIT OF RS.1,48,154/- WAS OFFERED TO TAX. THE RETURN WA S FILED UNDER THE PROVISIONS OF SECTION 44AF OF THE ACT, WHICH ESTABL ISHES THAT THE ASSESSEE WAS NOT MAINTAINING BOOKS OF ACCOUNT. I FURTHER FI ND THAT THE ASSESSING OFFICER HAS MADE AN ADDITION OF RS.4,21,100/- OUT O F VARIOUS CHEQUES CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAD FILED CONFIRMA TIONS REGARDING RECEIPT OF UNSECURED LOANS FROM THESE PERSONS. I FURTHER F IND THAT THESE ADDITIONS WERE MADE ON THE BASIS OF ENTRIES IN THE BANK STATE MENT AS THE ASSESSEE WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT. THE ADDI TION U/S 68 CAN ONLY BE MADE IF ANY UNEXPLAINED SUM IS FOUND CREDITED IN TH E BOOKS OF ACCOUNT OF THE ASSESSEE. HERE IS A CASE WHERE THE SUM WAS NOT FOUND CREDITED IN THE BOOKS OF ACCOUNT AND THEREFORE, THE ADDITION MADE U /S 68 IS NOT SUSTAINABLE AND HENCE THE ORDER OF LEARNED CIT(A) IS REVERSED A ND THE APPEAL OF THE ASSESSEE IS ALLOWED. SINCE WE HAVE ADJUDICATED THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE, THE REMAINING GROUNDS DO NOT CALL FOR ANY ADJUDICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 06/09 /2019) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:06/09/2019 *SINGH I.T.A. NO.673/LKW/2018 ASSESSMENT YEAR:2006-07 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW