Naincy Convent Educational & Social Welfare Society, Ghaziabad V. Addl. CIT, Ghaziabad

ITA 681/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6759 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 31-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Onus to prove
• Section: 133(6); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 681/DEL/2019 ASSESSMENT YEAR: 2010-11 NAINCY CONVENT EDUCATIONAL & VS. ADDL. CIT, RANGE -I, SOCIAL WELFARE SOCIETY, CGO COMPLEX-I, 25, NAVYUG MARKET, GHAZIABAD GHAZIABAD (PAN: AAATN5566E) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. RINKU SINGH, SR. DR. ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER DATED 30.11.2018 PASSED BY THE LD. COMMISSIONER OF INCOME TAX(A), G HAZIABAD RELATING TO ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS :- 1. THE LD. CIT(A), GHAZIABAD HAS ERRED IN LAW, ON FACTS AND SURROUNDING CIRCUMSTANCES IN UPHOLDING WHOPPING ADDITION OF RS. 50,00,000/- BEING THE ENTI RE CASH CREDIT THROUGH CHEQUE AS APPEARING IN THE BANK ACCOUNT MAINTAINED BY THE APPELLANT, ON ILLOGICAL A ND IRRELEVANT GROUNDS HAVING NO SANCTITY IN LAW. 2. THE APPELLANT CRAVES FOR PERMISSION TO ADD, ALT ER, MODIFY, DELETE AND / OR VARY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE AFORESAID APPEAL CAME UP FOR HEARING ON 08. 07.2019 BY ISSUING NOTICE RPAD AND ON THE WRITTEN REQUEST OF THE ASSE SSEES AR THE CASE WAS ADJOURNED FOR 22.10.2019. ON 22.10.2019, AGAIN ON THE WRITTEN REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE THE CAS E WAS ADJOURNED FOR 06.02.2020 FOR WHICH BOTH PARTIES WERE INFORMED IN THE COURT. ON 2 06.02.2020 NEITHER THE ASSESSEE ATTENDED NOR FILED ANY ADJOURNMENT APPLICATION. KEEPING IN VIEW THE FACTS AND CIRCUMS TANCES OF THE CASE, I AM OF VIEW THAT NO USEFUL PURPOSE WOULD BE SERVED T O SEND THE NOTICE AGAIN AND AGAIN TO THE ASSESSEE, THEREFORE, I AM D ECIDING THE APPEAL EXPARTE QUA ASSESSEE AFTER HEARING THE LD. DR. 3. AT THE TIME OF HEARING, LD. DR RELIED UPON THE O RDER PASSED BY THE REVENUE AUTHORITIES AND STATED THAT LD. CIT(A) HAS ELABORATELY DISCUSSED THE ISSUE IN DISPUTE AND DECIDED THE SAME AGAINST T HE ASSESSEE BY PASSING THE WELL REASONED ORDER AND AFTER GIVING AD EQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE, HE REQUESTED TH AT THE APPEAL FILED BY THE ASSESSEE MAY BE DISMISSED. 4. I HAVE HEARD LD. DR AND GONE THROUGH THE ORDER P ASSED BY THE REVENUE AUTHORITIES, I AM OF THE VIEW THAT LD. CIT (A) HAS DECIDED THE ISSUES IN DISPUTE ELABORATELY AGAINST THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, THE FINDINGS OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE MENTIONED AT PAGE NOS. 6-7 ARE REPRODUCED AS UNDE R:- I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT, ASSESSMENT ORDER AND ALL THE CASE LAWS REFERRED TO THEREIN. 5.1 GROUND NO. 1: THE APPELLANT HAS CHALLENGED THE ADDITION OF RS. 50,00,000/- MADE BY THE AO BEING UNDISCLOSED INCOME CONTENDING THAT APPELLANT RECEIVED DONATION OF RS. 50,00,000/- THROUGH CHEQUE ISSUED BY LGO SOCIETY NA MELY SOCIETY FOR WELFARE OF HANDICAPPED PERSONS (SOWHAP) . ACCORDING TO THE APPELLANT SI OF ECONOMIC OFFENCE WI NG VIDE MEMO NUMBER 590 DT. 27.11.2013 CONFIRMED THE TRANSF ER OF ABOVE SAID AMOUNT TO THE APPELLANT'S ACCOUNT. ACCORD ING TO THE APPELLANT, ENQUIRY HAS BEEN CONDUCTED BY THE AO AT A DIFFERENT ADDRESS AND APPELLANT REQUIRED AO TO CONDU CT ENQUIRY AT ANOTHER ADDRESS. 3 5.1.1 EXAMINATION OF FACTS REVEALS THAT THE PROCEED INGS U/S 147 WERE INITIATED ON RECEIPT OF INFORMATION FROM' CIT (INVESTIGATION), KOLKATA, REGARDING DONATION BEING RECEIVED FROM SOWHAP FRAUDULENTLY. MODUS OPERANDI WAS THAT IN LIEU OF CASH VARIOUS BENEFICIARY RECEIVED DONATION THROU GH CHEQUE. ACCORDING TO THE INFORMATION RECEIVED THE APPELLANT RECEIVED DONATION OF RS. 50,00,000/- DURING THE AY 2010-11. 5.1.2 BASED ON ABOVE FACTS AO INITIATED PROCEEDINGS U/S 147. THE AO REQUIRED APPELLANT TO SUBSTANTIATE GENUINENES S OF TRANSACTION ENTERED INTO BY THE APPELLANT WITH SOW HAP. THE APPELLANT'S MAIN CONTENTION DURING ASSESSMENT PROCE EDINGS WAS THAT AMOUNT WAS RECEIVED THROUGH CHEQUE. THE AO MADE ENQUIRY U/S. 133(6) AT THE ADDRESS GIVEN BY THE APP ELLANT WHEREIN THE REPLY RECEIVED CONTRADICTED THE FACT TH AT APPELLANT HAS RECEIVED DONATION. HOWEVER, IT IS NOTED THAT EV EN ACCORDING TO THE APPELLANT, ECONOMIC OFFENCE WING H AS ISSUED A MEMO INVESTIGATING THE GENUINENESS OF TRANSACTION OF RECEIPT OF ABOVE SAID DONATION. MERELY RECEIPT OF D ONATION THROUGH CHEQUE DOES NOT SUBSTANTIATE APPELLANT'S CO NTENTION THAT TRANSACTION IS GENUINE, ESPECIALLY CONSIDERING THE FACTS THAT THE ALLEGED DONOR WAS INVOLVED IN ISSUING CHEQ UES FOR DONATION BY ACCEPTING CASH FOR WHICH INVESTIGATION WAS CARRIED ON EVEN BY THE ECONOMIC OFFENCE WING. THE APPELLANT HAS TO PROVE GENUINENESS OF TRANSACTION BY ESTABLISHING TH E NATURE OF TRANSACTION, IDENTITY OF THE DONOR AND ITS CREDITWO RTHINESS. IN THE PRESENT CASE APPELLANT HAS FAILED TO DISCHARGE THE PRIMARY ONUS AND BURDEN OF PROOF REGARDING ABOVE SAID TRANS ACTION ESPECIALLY CONSIDERING THE CIRCUMSTANTIAL EVIDENCES WHICH BELIE APPELLANT'S CLAIM. KEEPING IN VIEW ABOVE FACTS IT I S HELD THAT APPELLANT FAILED TO SUBSTANTIATE THE GENUINENESS OF THE TRANSACTION TO THE EXTENT OF RS. 50,00,000/- ALLEGE DLY RECEIVED FROM SOWHAP, DURGAPUR AND ACCORDINGLY THE ADDITION I S 4 CONFIRMED U/S 68. ACCORDINGLY THESE GROUNDS OF APPE AL ARE DISMISSED. 4.1 AFTER GOING THROUGH THE FINDINGS OF THE LD. CIT (A), I DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER, HENCE, I UPHOLD TH E SAME AND DISMISS THE GROUNDS RAISED BY THE ASSESSEE. SINCE THE ASSES SEE DID NOT APPEAR BEFORE THE BENCH IN SPITE OF THE KNOWING THE DATE O F HEARING, WHICH WAS PRONOUNCED IN THE OPEN COURT, THEREFORE, I HAVE DEC IDED THE CASE OF THE ASSESSEE EXPARTE. HOWEVER, IN THE INTEREST OF JUSTI CE, I AM GIVING THE LIBERTY TO THE ASSESSEE TO APPROACH THIS BENCH UND ER RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 AND SATI SFY THE BENCH FOR NON-APPEARANCE AND THAT APPLICATION WILL BE DECIDED ON MERITS IN ACCORDANCE WITH LAW. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED ON 07/02/2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 07/02/2020 SRB COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES