ITO, Gwalior V. Shri Deepak Gupta, Gwalior

ITA 68/AGR/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6823 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-06-2010
• Assessment Year: 1997-1998
• Appeal Filed On: 03-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C SHARMA
• Assessee Lawyers: RAJENDER SHARMA
• Keywords: Onus to prove
• Section: 147; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.68/AGR/2009 ASST. YEAR: 1997-98 INCOME-TAX OFFICER, WARD 1(1), VS. SHRI DEEPAK GU PTA, GWALIOR. S/O. SHRI NARESH GUPTA, HEM SINGH KI PARED, GWALIOR. (PAN : NOT MENTIONED). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.C. SHARMA, JR. D.R. RESPONDENT BY : SHRI RAJENDER SHARMA, ADVOCATE ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FIELD BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A) DATED 06.11.2008 BY TAKING THE FOLLOWING EFFECTIVE GROUND S OF APPEAL:- (1) HONBLE CIT(A) HAS ERRED, IN LAW AND FACTS DEL ETING THE ADDITION INTEREST INCOME OF RS.15,923/-. (2) HONBLE CIT(A) HAS ERRED IN LAW AND FACTS DELET ING THE ADDITION INVESTMENT IN M/S VISHNU PATEL U/S 69 AS AN UNEXPLA INED INVESTMENT OF RS.20,00,000/-. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE A.O. IN ITIATED PROCEEDINGS UNDER SECTION 147 OF THE INCOME-TAX ACT, 1961 (THE ACT HEREINAFTER) IN THE CASE OF THE ASSESSEE ON THE BASIS OF THE BALANCE SHEET OF M/S. SHRIKANT YADAV AND M/S VISHNU PATEL FOR THE F.Y. 1996-97 THAT THE 2 ASSESSEE SHRI DEEPAK GUPTA DEPOSITED A SUM OF RS.20 ,00,000/- AS CAPITAL CONTRIBUTION IN THE FIRM M/S. VISHNU PATEL AND RS.5,00,000/- IN THE FIRM M/S . SHRIKANT YADAV. THE ASSESSEE STATED THAT HE HAS NEVER ENTERED INTO PARTNERSHIP FIRM TITLED AS M /S. VISHNU PATEL AND M/S. SHRIKANT YADAV NOR HE HAS INVESTED ANY CAPITAL IN THESE FIRMS. THE AS SESSEE ALSO ASKED THE A.O. TO SUPPLY COPY OF THE PARTNERSHIP DEED. COPY OF THE PARTNERSHIP DEED WAS NOT AVAILABLE WITH THE A.O. AND, THEREFORE, COULD NOT BE SUPPLIED TO THE ASSESSEE. THE A.O. ASKED THE MAIN PARTNER OF THE FIRM SHRI GULJAR SINGH BUT HE ALSO DID NOT SUPPLY COPY O F THE PARTNERSHIP DEED BUT ON THE BASIS OF PRESUMPTION THE A.O. INITIATED PROCEEDINGS IN THE C ASE OF THE ASSESSEE AND ADDED THE SUM OF RS.20,00,000/- AS INCOME OF THE ASSESSEE. HE ALSO MADE AN ADDITION OF RS.11,981/- BEING THE INCOME WHICH THE ASSESSEE WOULD HAVE EARNED. THE ADDITION IN THE INVESTMENT WAS MADE ON PROTECTIVE BASIS WHILE SUBSTANTIVE ADDITION WAS MAD E IN THE HANDS OF THE FIRM. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) AND THE CIT(A) DELETED THE ADDITION BY OBSERVING AS UNDER :- I HAVE GONE THROUGH THE WRITTEN SUBMISSION, ASSESS MENT ORDER AND ORAL ARGUMENTS PUT FORTH BY THE LD. A.R. OF THE APPELLAN T AS WELL AS THE ASSESSING OFFICER. I HAVE ALSO CALLED THE RELEVANT INFORMATI ON FROM THE ASSESSING OFFICER AS WELL AS INCOME TAX AUTHORITIES AT JABALPUR. BUT NO NE OF THE INFORMATION HAS REACHED INSPITE OF VARIOUS REMINDERS. THE ASSESSIN G OFFICER ALSO COULD NOT PLACE THE COPY OF PARTNERSHIP DEED AND OTHER RELEVANT INF ORMATION ESTABLISHING THE FACT THAT THE APPELLANT I.E. DEEPAK GUPTA S/O. SHRI NARE SH GUPTA JOINED THE PARTNERSHIP FIRM M/S VISHNU PATEL AND M/S SHRIKANT YADAV OR/AND INVESTED RS.20,00,000./- AND RS.5,00,000/- IN THOSE FIRMS RE SPECTIVELY. IN VIEW OF ALL THESE, I AM OF THE CONSIDERED OPINION THAT THE ASSESSING O FFICER COULD NOT ESTABLISH THE FACT OF JOINING AS A PARTNER IN BOTH THE FIRMS AND INVESTMENT IN BOTH THE FIRMS BY THE APPELLANT. THEREFORE, IN VIEW OF THESE, THE AD DITION IN THE HANDS OF THE APPELLANT IGNORING THE CONTENTS OF THE AFFIDAVIT FI LED BY THE APPELLANT AND WITHOUT ESTABLISHING THE FACT OF JOINING THE FIRM AS PARTNE R AND INVESTMENT IN BOTH THE FIRMS AS CAPITAL CONTRIBUTION, THE PROTECTIVE ASSES SMENT IN THE HANDS OF THE APPELLANT FOR MAKING ADDITION OF RS.20,00,000/- AND RS.5,00,000/- AS CAPITAL CONTRIBUTION AND BOTH THESE FIRMS AND INCOME OF RS. 1,422/- AND RS.11,981/- FROM BOTH THESE FIRMS IS NOT MAINTAINABLE AND ACCORDINGL Y PROTECTIVE ASSESSMENT OF THE ABOVE SUMS IS HEREBY DELETED. 3 3. THE LD. D.R. BEFORE US RELIED ON THE ORDER OF TH E A.O. WHILE THE LD. A.R. SUBMITTED BEFORE US COPY OF THE AFFIDAVIT FILED BEFORE THE A.O. OF S HRI DEEPAK GUPTA AS WELL AS THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF DILIP KUMAR ROY VS . CIT, 94 ITR 1AND CONTENDED THAT THE BURDEN OF PROOF IS ON THE REVENUE TO PROVE THAT THE ASSESSEE HAS MADE THE INVESTMENT. THE ASSESSEE HAS ASKED THE EVIDENCE FOR THE INVESTMENT BEING MADE IN THE FIRM. BUT NO SUCH EVIDENCE WAS BROUGHT ON RECORD, THE ASSESSEE HAS CATEGORICAL LY DENIED THAT HE HAS NOT MADE ANY INVESTMENT. THEREFORE, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS ALONGWITH THE ORDERS OF THE TAX AUTHORITIES BELOW. IN OUR OPINION, IT IS NOT A FIT CASE WHICH WARRANTS OUR INTERFERENCE. THE ONUS IS ON THE REVENUE TO PROVE THAT THE ASSESSEE HAD MA DE INVESTMENT IN THE FIRM. ADDITION UNDER SECTION 69 CAN BE MADE ONLY IF THE ASSESSEE HAD MAD E THE INVESTMENT OUTSIDE THE BOOKS OF ACCOUNTS. THE ONUS IS ON THE DEPARTMENT TO PROVE T HAT THE ASSESSEE HAS MADE THE INVESTMENT. THE ASSESSEE HAS SUBMITTED THE AFFIDAVIT AND CATEGO RICALLY DENIED THAT HE HAS NOT MADE ANY INVESTMENT. EVEN COPY OF THE PARTNERSHIP DEED WAS ALSO NOT PROVIDED TO THE ASSESSEE. UNDER THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW T HAT THE REVENUE HAS NOT DISCHARGED ITS ONUS. WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A). 5. IN THE RESULT, APPEAL FILED BY THE REVENUE STAND S DISMISSED (ORDER PRONOUNCED IN THE OPEN COURT ON 22.06.201 0). SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 22 ND JUNE, 2010. PBN/* 4 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY