MAHESH CHAND GUPTA, Alwar V. ITO, Alwar

ITA 689/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5447 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: DHARMENDRA KUMAR GUPTA
• Keywords: Unexplained cash credit; Salary income; Additional evidence
• Section: 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 689/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI MAHESH CHAND GUPTA S/O SHRI NARAIN LAL GUPTA R/O 1-KA-317, SHIVAJI PARK ALWAR CUKE VS. THE ITO WARD- 1 (4) ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AJOPG 4364 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI DHARMENDRA KUMAR GUPTA, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11/01/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 23 /02/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A), ALWAR DATED 10-07-2014 FOR THE ASSESSMEN T YEAR 2009-10 PRAYING THEREIN THAT THE LD. CIT(A) HAS ERRED IN RE STRICTING THE ADDITION TO RS. 5,79,900/- U/S 68 OF THE I.T. ACT, 1961. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED THE RETURN OF INCOME ON 28-03-2011 DECLARING SALARY INCOME RECEI VED FROM SHRI ITA NO. 689/JP/2014 SHRI MAHESH CHAND GUPTA VS. ITO, WARD- 1 (4), ALWAR . 2 SANTOSH KUMAR, WINE CONTRACTOR, NEEMRANA AND SHRI H EERA LAL S/O SHRI MAHAVEER PRASAD,WINE CONTRACTOR JONAYACHA KAL, BEHR OR AND INCOME FROM OTHER SOURCES. BESIDES ABOVE, ASSESSEE OBTAINE D UNSECURED LOAN OF RS. 18,33,900/- FROM 98 PERSONS. IN ORDER TO VERIFY THEM LD. AO, ASKED THE ASSESSEE TO FURNISH EVIDENCE AND POSTAL ADDRESS ES OF 98 CASH CREDITORS IN TERMS OF SEC. 68. ASSESSEE FURNISHED THE AFFIDAV ITS IN SUPPORT THEREOF AND DID NOT COMPLY ANY FURTHER IN INFORMATION IN RE SPECT OF 61 CASH CREDITORS AMOUNTING TO RS. 11,24,900/-, WHICH WAS A DDED AS ASSESSEES INCOME AS UNEXPLAINED CASH CREDITS IN TERMS OF SEC. 68. 2.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WHERE THE ADDITIONAL EVIDENCE WAS FILED, LD. CIT(A) CALLED FOR A REMAND REPORT FROM AO. OUT OF SUCH LIST, NOTICES SENT TO 16 CASH CREDITORS CA ME BACK AS UNSERVED. THIS FACT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE WHO AGAIN FAILED TO PRODUCE THEM. THE LD. CIT(A) CONFIRMED AFTER GIVING PART RE LIEF FOR THE EXPLAINED CASH CREDITORS, RETAINED THE ADDITION OF RS. 5,79,9 00/- AS UNEXPLAINED CASH CREDITS BY FOLLOWING OBSERVATIONS: 4.6 HAVING CONSIDERED THE EVIDENCE AVAILABLE ON RC ORD, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DISCHARGE THE ONUS AS REQUIRED U/S 68 OF I.T. ACT WITH REGARD TO THE AMO UNT OF RS. 5,45,000/- RECEIVED FROM 29 PERSONS. THESE PERSONS HAVE APPEARED BEFORE THE AO AND HAVE ACCEPTED THE FACT OF HAVING ADVANCED THE MONEY TO THE APPELLANT. HOWEVER, AS REGARDS THE AMO UNT OF RS. ITA NO. 689/JP/2014 SHRI MAHESH CHAND GUPTA VS. ITO, WARD- 1 (4), ALWAR . 3 5,79,000/- IS CONSIDERED, THE APPELLANT HAS CLEARLY FAILED TO FURNISH ANY SATISFACTORY EVIDENCE BEFORE THE AO EITHER AT T HE STAGE OF ASSESSMENT OR IN THE COURSE OF APPELLANT PROCEEDING S. THE APPELLANT COULD NOT FURNISH ANY EVIDENCE WITH REGAR D TO THEIR BANK ACCOUNT, PAN ETC AND ALSO COULD NOT PRODUCE THESE C REDITORS BEFORE THE AO. 4.7 IN VIEW OF THE ABOVE DISCUSSIONS, I CONFIRM THE ADDITION OF RS. 5,79,000/- OUT OF THE TOTAL ADDITIO N OF RS. 11,24,900/- MADE BY THE AO U/S 68 OF THE I.T. ACT. 2.3 AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL WHE REIN THE LD. AR CONTENDS THAT:- (I) THE LD. CIT(A) WAS REQUESTED TO ENFORCE THE ATTENDANCE IF REQUIRED AND OR TO MAKE DIRECT CONFIR MATION / VERIFICATION FROM THE SAID CREDITORS AS PAN NOS. WE RE SUBMITTED OR THE MATTER MAY BE REFERRED TO THE AO IN RESPECT OF THE CASH CREDITORS. (II) THE ASSESSEE DISCHARGED HIS ONUS IN RESPECT OF IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE I MPUGNED CASH CREDITORS. RELIANCE IS PLACED AS UNDER:- (1) CIT VS. PRECISION FINANCE (P) LTD., 208 ITR 465 (CAL.) (2) CIT VS. U.M. SHAH, (SHRENIK TRADING) 90 ITR 396 (BOM.) (3) ADDL. CIT VS. HANUMAN AGARWAL [1985] 151 ITR 15 0 (PAT.) ITA NO. 689/JP/2014 SHRI MAHESH CHAND GUPTA VS. ITO, WARD- 1 (4), ALWAR . 4 (4) CIT VS. ROHINI BUILDERS 254 ITR 275 (STATUTE) 2.4 THE LD. DR ON THE OTHER HAND VEHEMENTLY CONTEND S THAT A HUGE NO. OF CASH CREDITS WERE RECEIVED ONLY IN CASH WHICH N EEDED PROPER VERIFICATION DURING THE COURSE OF ASSESSMENT PROCEE DINGS. ASSESSEE EXCEPT PRODUCING STEREOTYPE AFFIDAVITS DID NOT FURNISH ANY FURTHER DOCUMENTARY EVIDENCE OR POSTAL ADDRESSES OF THE CASH CREDITORS DESPITE REPEATED OPPORTUNITIES OFFERED BY LD. AO. SINCE ASSESSEE FAI LED TO DISCHARGE HIS ONUS IN TERMS OF SEC. 68, THE AO WAS LEFT WITH NO C HOICE BUT TO ADD THE AMOUNT AS UNEXPLAINED CASH CREDIT U/S 68. IN FIRST APPEAL, THE LD. CIT(A) WAS MORE THAN REASONABLE IN ADMITTING THE ADDITIONA L EVIDENCE DESPITE ASSESSEES NON COOPERATION IN ASSESSMENT PROCEEDING S BESIDES CALLING FOR A REMAND REPORT. THE ASSESSEE WHILE FILING THE ADDI TIONAL EVIDENCE HAS MISREPRESENTED THE FACTS THAT THE AO WAS IN HURRY T O COMPLETE THE ASSESSMENT WHICH IS A WRONG STATEMENT INASMUCH AS T HE AO STARTED THE ASSESSMENT PROCEEDINGS FROM 12-09-2011 ITSELF AND F ACT THAT OUT OF 98 CASH CREDITORS 37 WERE PRODUCED BY THE ASSESSEE IND ICATES THAT THE ASSESSEE WAS GIVE FULL OPPORTUNITY AND THERE WAS NO HURRIED ASSESSMENT AS ALLEGED. REASONS FOR NON PRODUCTION OF CASH CREDIT ORS BY THE ASSESSEE WERE BEST KNOWN TO HIM. THE FACTS THAT CREDITORS A RE KNOWN ARE ITA NO. 689/JP/2014 SHRI MAHESH CHAND GUPTA VS. ITO, WARD- 1 (4), ALWAR . 5 ACKNOWLEDGED BY THE ASSESSEE HIMSELF, THEREFORE THE ONUS TO PRODUCE THEM LIES ON THE ASSESSEE. THERE IS NO PLEADING THA T THE AMOUNTS WERE REPAID, THEREFORE, IT IS DIFFICULT TO BELIEVE THAT CREDITORS WHO HAVE GIVEN LOANS TO ASSESSEE WILL BECOME UNTRACEABLE. BESIDES IN PARA 4.4 OF THE LD. CIT(A)S ORDER, FOLLOWING HAS BEEN MENTIONED. 4.4 A COPY OF THE REMAND REPORT WAS FORWARDED TO THE APPELLANT FOR FILING OF COUNTER COMMENTS AND IN RES PONSE TO THIS NO REPLY HAS BEEN FILED. AGAIN AN OPPORTUNITY WAS GIVE N BUT THE APPELLANT HAS FAILED TO FURNISH ANY REPLY TO THE RE MAND REPORT AND THEREFORE, THE MATTER IS DECIDED ON MERITS. IT CLEARLY INDICATES THAT THE ASSESSEE DID NOT FILE ANY COUNTER COMMENTS ON THE REMAND REPORT. THUS ALL THE PLEAS RAISED BY THE ASSESSEE NOW ABOUT NOT GIVING PROPER OPPORTUNITY ETC. ARE AFTERTHOUGHT. DE SPITE AVAILING THE OPPORTUNITIES, THE ASSESSEE HAS NOT DISCHARGED HIS ONUS U/S 68 AND BEFORE ITAT IT IS BEING PROJECTED THAT THE ASSESSEE HAS DI SCHARGED HIS ONUS WHICH IS NOT BORNE OUT FROM THE RECORD. THE ORDERS OF THE LOWER AUTHORITIES ARE RELIED ON. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND MERIT IN THE CONTENTION S OF THE LD. DR. THE ASSESSEES PLEA THAT THE AO WAS IN HURRY TO COMPLET E ASSESSMENT IS BASELESS AND DISPROVED BY LD. DR. SINCE RELEVANT AP PROPRIATE EVIDENCE ITA NO. 689/JP/2014 SHRI MAHESH CHAND GUPTA VS. ITO, WARD- 1 (4), ALWAR . 6 WAS NOT PRODUCED BEFORE THE AO IN ORIGINAL PROCEEDI NGS, THE ADDITIONS WERE MADE. THE LD. CIT(A) DESPITE THERE BEING NO DE MONSTRATIVE HURRY ON THE PART OF LD. AO IN FRAMING THE ASSESSMENT; IN TH E INTEREST OF JUSTICE ADMITTED THE ADDITIONAL EVIDENCE AND FORWARDED IT TO AO FOR VERIFICATION AND REMAND REPORT. THIS EXERCISE PRESUPPOSES THAT T HE ASSESSEE WILL RENDER FULL COOPERATION AND AVAIL THE OPPORTUNITY PROVIDED IN THE FORM OF SECOND INNINGS. AGAIN 16 CREDITORS WERE NOT PRODUCED AND E VIDENCE PRODUCED IN THIS BEHALF WAS INSUFFICIENT. THE COPY OF THE REMAN D REPORT WAS PROVIDED TO THE ASSESSEE, NO REJOINDER OR COUNTER COMMENTS W ERE OFFERED BY THE ASSESSEE BEFORE THE LD. CIT(A). IF THE ASSESSEE HAD ANY OBJECTIONS ON THE REMAND REPORT, IT OUGHT TO HAVE BEEN RAISED. THE AS SESSEE ON ONE HAND CANNOT REMAIN SILENT ON REMAND REPORT AND ON THE OT HER HAND CONTENDING BEFORE ITAT THAT AO WAS NO JUSTIFIED AND IT HAS DIS CHARGED ITS ONUS. THE ASSESSEE'S STAND IS SELF CONTRADICTORY AND DEMONSTR ATES THAT HE DID NOT HAD ANY OBJECTION ON REMAND REPORT. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND NO INFIRMITY IN THE ORDER OF THE LD. C IT(A) RETAINING THE ADDITION OF RS. 5,79,900/- IN RESPECT OF 16 CASH C REDITORS. THUS THE APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO. 689/JP/2014 SHRI MAHESH CHAND GUPTA VS. ITO, WARD- 1 (4), ALWAR . 7 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 / 0 2/2016 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 23 /02/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MAHESH CHAND GUPTA, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 1 (4), ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 689/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR