Smt Jaya Sarda, INDORE V. DY,CIT Circle -2(1), INDORE

ITA 699/Ind/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7134 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-09-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 13-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINEET A D UB E
• Keywords: Unexplained cash credit; Principle of natural justice; Onus to prove; Set aside
• Section: 68

Judgement Text

SMT. JAYA SHARDA - SMC ITA 699 OF 2018 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO. 699/IND/2018 A.Y. 2014-15 SMT. JAYA SARDA, INDORE PAN AAKPL 1108 L :: APPELLANT VS DCIT, CIR. 2(1), INDORE :: RESPONDENT ASSESSEE BY NONE RESPONDENT BY SMT. VINEETA DUBE, SR. DR DATE OF HEARING 26.09.2019 DATE OF PRONOUNCEMENT 29.10.2019 O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT(A)-I, INDORE, DATED 18.5.2018. THE ASSESSEE HAS RAISED NI NE GROUNDS. HOWEVER, THE SUM & SUBSTANCE OF THE GROUNDS OF APPEALS IS TH AT THE ORDER PASSED BY THE LD. CIT(A) IS ERRONEOUS ON THE FACTS AND LAW IN CON FIRMING THE ADDITIONS AT RS.10 LACS ON ACCOUNT OF UNSECURED LOANS ADDED AS U NEXPLAINED CASH CREDITS U/S 68 OF THE I.T. ACT, 1961 & RS.72,660/- ON ACCO UNT OF DISALLOWANCE OF THE GENUINE INTEREST PAID, RESPECTIVELY, WITHOUT CONSID ERING THE WRITTEN SUBMISSION FILED, EXPLANATION OFFERED AND DOCUMENTS SUBMITTED TO PROVE THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTIONS IN S PITE OF THE FACT THAT THE ASSESSEE WAS NOT PROVIDED OPPORTUNITY OF CROSS-EXAM INATION AT ANY LEVEL SMT. JAYA SHARDA - SMC ITA 699 OF 2018 2 DURING THE COURSE OF ASSESSMENT PROCEEDING AS WELL AS APPELLATE PROCEEDINGS ESPECIALLY WHEN ALL THE STATEMENTS AND PROCEEDINGS WERE RECORDED/HELD BEHIND THE BACK OF THE ASSESSEE IN ABSENCE OF ANY C ONFRONTATION. 2. FACTS, IN BRIEF, ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME DECLARING INCOME AT RS.3,70,000/-. THE ASSESSING OFFICER FRAM ED THE ASSESSMENT AT RS.14,44,660/- BY MAKING ADDITIONS OF RS.10 LACS ON ACCOUNT OF UNSECURED LOANS ADDED AS UNEXPLAINED CASH CREDITS U/S 68 OF T HE I.T. ACT, 1961 & RS.72,660/- ON ACCOUNT OF DISALLOWANCE OF THE GENUI NE INTEREST PAID, RESPECTIVELY, ALLEGING THAT THE ASSESSEE FAILED TO PROVE CREDIT WORTHINESS & GENUINENESS OF THE TRANSACTIONS OF OBTAINING UNSECU RED LOAN FROM M/S. JAY JYOTI INDIA P. LTD. AGGRIEVED WITH THE ACTION OF TH E ASSESSING OFFICER, THE ASSESSEE APPROACHED LD. CIT(A), WHO ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. THEREFORE, THE ASSESSEE IS BEFOR E THIS TRIBUNAL. 3. NO ONE APPEARED ON BEHALF OF THE ASSESSEE, HOWEV ER, WRITTEN SYNOPSIS HAS BEEN FILED WHEREIN IT IS CONTENDED THAT THE ASS ESSEE IS AN INDIVIDUAL LADY ENGAGED IN THE BUSINESS OF TRADING IN FUTURES & COM MODITIES. THE RETURN OF INCOME WAS FILED BY THE ASSESSEE DECLARING INCOME A T RS.3,70,000/-. THE ASSESSEE IS THE REGULAR ASSESSEE OF INCOME TAX SINC E LONG AND REGULAR BOOKS OF ACCOUNTS ARE BEING MAINTAINED AS WELL AS DULY AU DITED U/S 44AB OF THE I.T. ACT, 1961. THE ASSESSING OFFICER MADE ADDITIONS AT RS.10 LACS ON ACCOUNT OF UNSECURED LOANS ADDED AS UNEXPLAINED CASH CREDITS U /S 68 OF THE I.T. ACT, 1961 & AT RS.72,660/- ON ACCOUNT OF DISALLOWANCE O F THE GENUINE INTEREST PAID, RESPECTIVELY, ON THE GROUND THAT THE ASSESSEE FAILED TO PROVE CREDIT SMT. JAYA SHARDA - SMC ITA 699 OF 2018 3 WORTHINESS & GENUINENESS OF UNSECURED LOAN OBTAINED FROM M/S. JAY JYOTI INDIA P. LTD. HOWEVER, THE REVENUE AUTHORITIES WERE NOT JUSTIFIED AS THE ASSESSEE FILED RELEVANT DOCUMENTARY EVIDENCES LIKE, COPIES OF ITR, PAN, CONFIRMATIONS OF ACCOUNTS FROM THE LOAN CREDITOR CO ., BANK STATEMENTS SHOWING THAT PAYMENT WAS MADE TO THE ASSESSEE THROUGH RTGS/ ACCOUNT PAYEE CHEQUE, THEREFORE, THE ASSESSEE HAD DISCHARGED HER PRIMARY ONUS OF PROVING IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF TRAN SACTION AND THE REVENUE HAD NOT AT ALL DISCHARGED ITS ONUS TO PROVE OTHERWI SE AND ACTED ONLY UPON SURMISES, CONJECTURES AND GUESS WORK TO MAKE ADDIT IONS. FURTHER, IT IS SUBMITTED THAT THE ONLY BASIS OF ADDITION IS SOME S ORT OF INQUIRY, THAT TOO, CONDUCTED BY ANOTHER ASSESSING OFFICER IN RESPECT O F ANOTHER ASSESSEE AND FOR SOME OTHER ASSESSMENT YEAR AND THE ASSESSING OF FICER DID NOT TAKE ANY PAIN TO ISSUE SUMMONS TO THE CO. IN QUESTION OR TO CARRY OUT ANY SORT OF ENQUIRY OTHERWISE RATHER TO RELY ON THE ENQUIRY MADE IN SOM E OTHER CASE. EVEN NO OPPORTUNITY TO CROSS-EXAMINE THE PERSON, UPON WHOSE STATEMENT, RELIANCE WAS PLACED UNDER ASSESSMENT PROCEEDINGS ESPECIALLY WHEN SUCH STATEMENT HAD BEEN TAKEN BEHIND THE BACK OF THE ASSESSEE AND THER E WAS NO CONFRONTATION AT ALL. THEREFORE, IT IS SUBMITTED THAT THE REVENUE AU THORITIES WERE NOT JUSTIFIED IN MAKING/SUSTAINING THE ADDITIONS. IN SUPPORT OF THE PLEA, RELIANCE IS ALSO PLACED ON THE FOLLOWING CASE-LAWS: 1 . CIT VS. LOVELY EXPORTS P. LTD., (2008) 216 CTR 19 5 (SC); 2. CIT VS. METACHEM INDUSTRIES, 245 ITR 160 (MP); 3. STL EXTRUSION P. LTD., T.O. DATED 10.5.2010 IN I T(SS)A NO.259/IND/2008 (INDORE TRIBUNAL); 4. PCIT VS. HIMACHAL FIBERS LTD. (2018) 98 TAXMANN. COM 173 (SC); SMT. JAYA SHARDA - SMC ITA 699 OF 2018 4 5. PCIT VS. HI-TECH RESIDENCY P. LTD. (2018) 96 TAX MANN.COM 403 (SC); 6. CIT VS. PEOPLES GENERAL HOSPITAL (2013) 35 TAXMA NN.COM 444 (MP) 7. AJIT & AJAY ESTATE AND RESORTS P. LTD. (2018) 33 ITJ 449 (INDORE TRIBUNAL); 8. PCIT VS. CHAIN HOUSE INTERNATIONAL P. LTD. (2018 ) 98 TAXMANN.COM 47 (MP); 9. CIT VS. VAIBHAV COTTON P. LTD. (2013) 36 TAXMANN .COM 429 (MP); 10 CIT VS. HARESH D. MEHTA (2017) 86 TAXMANN.COM 22 (BOM); 11 CIT VS. KAMDHENU STEEL & ALLOYS LTD. (2012) 19 T AXMANN.COM 26 (DEL); 12 CIT VS. RANCHODJIVABHI NAKHAVA, 21 TAXMANN.COM 1 59 (GUJ); 13 ACIT VS. NOBEL FRIENDS FOUNDATION (2010) 14 ITJ 196 (INDORE TRIBUNAL); 14 ACIT VS. PRAMOD KR. SETHI, ITA NO.382/IND/2014 T .O DT. 06.11.2018; 15 MAHENDRA KUMAR AGRAWAL VS. ACIT, ITA NO.742/IND/ 2015 T.O. DT. 05.7.2016; 16 RAJENDRA PD. AGRAWAL VS. ACIT, ITA NO.327/IND/20 15; AND 17 ACIT VS. RIRISH KUMAR SHARDA, ITA NO.30 TO 33/IN D/2012. ON THE OTHER HAND, LD. SR. DR RELIED ON THE ORDER O F THE LD. REVENUE AUTHORITIES BUT COULD NOT CONTROVERT THE SUBMISSION OF THE ASSESSEE THAT AFORESAID CROSS-EXAMINATION WAS NOT ALLOWED. 3. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE OR DERS OF LOWER AUTHORITIES. BEFORE ME, THE ASSESSEE HAS AGITATED T HAT THE ONLY BASIS OF ADDITION IS SOME SORT OF INQUIRY, THAT TOO, CONDUCT ED BY ANOTHER ASSESSING OFFICER IN RESPECT OF ANOTHER ASSESSEE AND FOR SOME OTHER ASSESSMENT YEAR AND THE ASSESSING OFFICER DID NOT TAKE ANY PAIN TO ISSUE SUMMONS TO THE CO. IN QUESTION OR TO CARRY OUT ANY SORT OF ENQUIRY OTHERW ISE RATHER TO RELY ON THE ENQUIRY MADE IN SOME OTHER CASE. EVEN NO OPPORTUNIT Y TO CROSS-EXAMINE THE PERSON, UPON WHOSE STATEMENT, RELIANCE WAS PLACED U NDER ASSESSMENT PROCEEDINGS ESPECIALLY WHEN SUCH STATEMENT HAD BEEN TAKEN BEHIND THE BACK OF THE ASSESSEE AND THERE WAS NO CONFRONTATION AT A LL. THE ASSESSEE HAS ALSO SMT. JAYA SHARDA - SMC ITA 699 OF 2018 5 FILED PAPER BOOK/WRITTEN SUBMISSION/CASE LAWS. CONS IDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT IN ORDER TO PROVIDE NATURAL JUSTICE, THE REQUISITE INQUIRY SHOULD HAVE BEEN DON E BY THE ASSESSING OFFICER AND THE CROSS-EXAMINATION SHOULD HAVE ALSO BEEN ALL OWED BY THE ASSESSING OFFICER, THEREFORE, THE MATTER REQUIRES RECONSIDERA TION AT THE LEVEL OF THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF REVEN UE AUTHORITIES ARE SET ASIDE AND THE MATTER IS RESTORED BACK TO THE FILE O F THE ASSESSING OFFICER. THE ASSESSING OFFICER WOULD DECIDE THE GROUNDS OF APPEA L AFRESH IN TERMS AS INDICATED HEREINABOVE AFTER AFFORDING DUE OPPORTUNI TY OF BEING HEARD TO THE ASSESSEE AS PER LAW AND THE ASSESSEE IS ALSO DIRECT ED TO COOPERATE/APPEAR BEFORE ASSESSING OFFICER IN THIS REGARD BY FURNISHI NG EVIDENCE, IF ANY. 4. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES ONLY. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 29.10.201 9. SD/- (KUL BHARAT) JUDICIAL MEMBER DATED : 29.10.2019 ! VYAS ! COPY TO: APPELLANT/RESPONDENT/PR.CIT(A)/PR.CIT/DR, INDORE