SAPNA RAJKUMAR JETHRA, THANE V. INCOME TAX OFFICER WARD 1(1), THANE

ITA 7054/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7254 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 12-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIRAMA KARTHIKEYAN
• Keywords: Depreciation; Additional evidence

Judgement Text

1 IN THE INCOME-TAX APPELLATE TRIBUNAL G BENCH MUMB AI BEFORE SHRI G.S. PANNU, VICE-PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 7054/MUM/2017 (ASSESSMENT YEAR 2013-14 ) MRS. SAPNA RAJKUMAR JETHRA, OFFICE NO. 19, SHRIKANT INDUSTRIAL ESTATE, ADIVASIPADA, ROAD NO.21, MANDAL COMPOUND, WAGLE INDUSTRIAL ESTATE, THANE-400604 PAN: ADHPJ9443J VS. ITO- WARD (3)(3) ROOM NO. 16Z, B WING, 6 TH FLOOR, ASHAR I.T. PARK, AMBIKA NAGAR, WAGLE INDL. ESTATE, THANE-400604. APPELLANT RESPONDE NT APPELLANT BY : SHRI MAYUR KISNADWALA (AR) RESPONDENT BY : SHRI ABHI RAMA KARTHIKEYAN (SR. DR) DATE OF HEARING : 06.06.2019 DATE OF PRONOUNCEMEN T : 24.07.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-2 [THE LD. CIT (A)], THANE DATED 24.10.2017 FOR ASSESSMENT YEAR 2013-14. THE A SSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ADDITION U/S.68 OF THE I.T. ACT - RS.22,97,500/- MA Y BE DELETED 1. THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION MADE OF RS.22,97,500/- U/S.68 OF THE ACT WITHOUT APPRECIATING THAT THE APP ELLANT HAS DISCHARGED HER ONUS OF PROVING THE CASH CREDITS AND HENCE, THE ADD ITION CONFIRMED OF RS.22,97,500/- U/S.68 OF THE ACT IS UNJUSTIFIED AND LIABLE TO BE DELETED. 2. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE LOA NS WERE TAKEN FROM THE FAMILY MEMBERS OF THE APPELLANT AND THEY HAD ALL CO NFIRMED THE LOAN GIVEN ITA NO . 7054/MUM/2017-MRS. SAPNA RAJKUMAR JETHRA 2 TO THE APPELLANT AND ALL ARE ASSESSED TO TAX AND FI LING RETURN OF INCOME AND ALL THE DOCUMENTARY EVIDENCES IN THIS REGARDS WERE DULY FILED BEFORE BOTH THE LOWER AUTHORITIES AND HENCE, THE ADDITION CONFI RMED OF RS.22,97,500/- U/S.68 OF THE ACT IS WITHOUT ANY JUSTIFICATION AND LIABLE TO BE DELETED. 3. THE LD. CIT(A) FURTHER FAILED TO APPRECIATE THAT THE HUGE LOSS INCURRED WAS DUE TO HIGH RATE OF DEPRECIATION ALLOWED ON GAS CYLINDERS @60% WHICH WAS THE REASON ATTRIBUTABLE FOR INCURRING HUG E LOSS AND THE OBSERVATION AND ALLEGATIONS MADE IN PARA 5 OF THE O RDER IS CONTRARY TO THE FACTS OF THE CASE AND NEITHER ANY DISALLOWANCE OUT OF EXPENSES IS MADE NOR PROVED OTHERWISE AND HENCE, THE ADDITION CONFIRMED OF RS.22,97,500/- U/S.68 OF THE ACT IS UNJUSTIFIED AND LIABLE TO BE D ELETED. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS EN GAGED IN THE BUSINESS OF TRADING IN INDUSTRIAL GASES, FILED HER RETURN OF INCOME FOR ASSESSMENT YEAR 2013-14 ON 29.09.2013 DECLARING LOS S OF RS. 24,69,262/-. THE RETURN OF INCOME WAS SELECTED FOR SCRUTINY. DURING THE ASSESSMENT, THE ASSESSING OFFICER NOTED THAT THE AS SESSEE HAS RECEIVED UNSECURED LOAN FROM HER FAMILY MEMBERS AGGREGATING TO RS. 22,98,000/-. THE ASSESSEE WAS ASKED TO FURNISH THE LOAN CONFIRMATION, INCOME TAX RETURNS (ITRS), COMPUTATION SHEET AND B ANK STATEMENT OF CREDITORS. THE ASSESSEE FURNISHED THE REQUISITE DET AILS. THE ASSESSEE HAS SHOWN THE LOAN FROM HIS SON NAMELY SATYEN JETHRA OF RS. 3,56,000/-, RAJKUMAR JETHRA (HUSBAND) OF RS. 5,76,000/-, SATYEN JETHRA (HUF OF SON) RS. 7,50,000/- AND SONAM S. JETHRA (DAUGHTER-I N-LAW) OF RS. 6,15,000/-. ON PERUSAL OF REQUISITE DETAILS, THE AS SESSING OFFICER TOOK HIS VIEW THAT CASH DEPOSIT WERE MADE IN THE BANK AC COUNT OF CREDITORS ITA NO . 7054/MUM/2017-MRS. SAPNA RAJKUMAR JETHRA 3 AND LOAN WAS GIVEN AGAINST SUCH CASH DEPOSIT. THE L OAN CREDITORS HAS SOURCE OF INCOME BY WAY OF SALARY, HIRING CHARGES, INTEREST OF LOAN FROM THE ASSESSEE. IN CASE OF RAJKUMAR JETHRA A CAS H OF RS. 6,00,000/- WAS DEPOSITED AND LOAN OF RS. 5,76,000/- WAS GIVEN. HOWEVER, AS PER ITR, ANNUAL INCOME OF CREDITOR IS SALARY FROM ASSES SEE OF RS. 3,00,000/-, HIRING FROM ASSESSEE OF RS. 1,31,000/-. IN CASE OF SATYEN JETHRA, CASH OF RS. 3,00,000/- ON TWO OCCASION WERE DEPOSITED AND LOAN OF RS. 3,56,000/- WAS GIVEN. AS PER HIS ITR, THE SO URCE OF HIS INCOME IS SALARY FROM ASSESSEE OF RS. 3,00,000/- AND COMMISSI ON OF RS. 2.06 LAKHS. IN CASE OF SONAM S. JETHRA, CASH WAS DEPOS ITED OF RS. 7,25,000/- AND LOAN WAS GIVEN FOR RS. 6,15,000/-. B ANK STATEMENT OF SATYEN JETHRA WAS NOT PRODUCED. 3. THE ASSESSING OFFICER TREATED THE ENTIRE LOAN AS UN EXPLAINED CASH CREDIT. ON APPEAL BEFORE THE LD. CIT(A), THE ACTION OF ASSESSING OFFICER WAS CONFIRMED WITH ALMOST SIMILAR OBSERVATION. THE LD. CIT(A) ALSO CONCLUDED THAT ASSESSEE FAILED TO GIVE ANY SATISFAC TORY EXPLANATION AND MERELY STATED THAT ALL WERE ASSESSED TO TAX AND HAV ING THEIR INDEPENDENT SOURCE OF INCOME. NO CREDIBLE DOCUMENTS WERE FURNIS HED BY ASSESSEE IN ALL THE CREDITORS WERE CLOSELY HELD FAMILY MEMBE RS. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ITA NO . 7054/MUM/2017-MRS. SAPNA RAJKUMAR JETHRA 4 4. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPR ESENTATIVE (AR) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS FILED CO PY OF CONFIRMATION OF LEDGER, ITR ACKNOWLEDGMENT, COMPUTATION OF INCOME O F ALL THE CREDITORS. IN ADDITION, THE ASSESSEE HAS ALSO FILED THE SALE PROCEED OF SHARES OF RAJKUMAR JETHRA, HIS BANK STATEMENT, BANK PASS-BOOK AND RETURN OF INCOME WITH COMPUTATION FOR ASSESSMENT YE AR 2010-11 TO 2012-13. THE ASSESSEE HAS ALSO FILED THE BANK STATE MENT OF ALL THE CREDITORS. THE LD. AR OF THE ASSESSEE FURTHER SUBMI TS THAT ALL LOANS WERE RECEIVED BY ASSESSEE THROUGH CHEQUES FROM HER RELAT IVES. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT DUE TO LACK OF PR OFESSIONAL ADVICE, THE CONFIRMATION OF CREDITOR I.E. SATYEN JETHRA HUF AND SONAM JETHRA WERE FURNISHED BEFORE THE LOWER AUTHORITIES. 5. THE LD. AR OF THE ASSESSEE SUBMITS THAT HE HAS FILE D THE CONFIRMATION OF BOTH THE CREDITORS AND PRAYED THAT THESE EVIDENCES MAY BE ADMITTED AS ADDITIONAL EVIDENCE. THE LD. AR OF THE ASSESSEE HAS ALSO FILED THE AFFIDAVIT OF ASSESSEE. THE LD. AR OF THE ASSESSEE P RAYED THAT CONFIRMATION OF LENDER IS FILED FOR THE FIRST TIME BEFORE THE TRIBUNAL. THEREFORE, THE APPEAL OF THE ASSESSEE MAY BE RESTOR ED TO THE FILE OF ITA NO . 7054/MUM/2017-MRS. SAPNA RAJKUMAR JETHRA 5 ASSESSING OFFICER FOR VERIFICATION OF DOCUMENTS AND TO PASS THE ORDER AFRESH. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUBMI TS THAT THE ASSESSING OFFICER HAS ALREADY EXAMINED THESE DOCUME NTS AND CONFIRMATION. THE ASSESSEE HAS ALREADY AVAILED SUFF ICIENT OPPORTUNITIES. THE LD. DR PRAYED FOR DISMISSED OF THE APPEAL OF AS SESSEE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT THERE IS NO DISPUTE ABOUT THE IDENTITY OF CREDITORS. THE DISPUT E IS ABOUT THE CAPACITY OF THE CREDITOR TO LEND THE MONEY TO THE ASSESSEE. BEFORE US, THE ASSESSEE HAS FILED CONFIRMATION OF ACCOUNT OF SATYE N JETHRA HUF AND SONAM S. JETHRA ABOUT THE CONFIRMATION OF LOAN. THE ASSESSEE HAS ALSO PRAYED FOR ADMISSION OF ADDITIONAL EVIDENCE. IN SUP PORT OF CONTENTION OF LD. AR OF THE ASSESSEE HAS FILED AFFIDAVIT OF AS SESSEE. IN THE AFFIDAVIT, THE ASSESSEE HAS STATED THAT SHE HAS AVAILED LOAN T HROUGH CHEQUES FROM HER RELATIVES. DUE TO LACK OF PROFESSIONAL ADVICE, THE CONFIRMATION OF THE LOAN WAS FILED BEFORE THE LOWER AUTHORITIES. 8. WE HAVE NOTED THAT THE IDENTITY OF PARTIES IS NOT I N DISPUTE. THE DISPUTE BEFORE US IS ONLY WITH REGARD TO THE CAPACITY/CREDI TWORTHINESS OF THE LENDER. THE ASSESSEE BEFORE US HAS FILED CONFIRMATI ON OF ACCOUNTS OF SATYEN JETHRA HUF AND SONAM S. JETHRA. THE LD. AR O F THE ASSESSEE ITA NO . 7054/MUM/2017-MRS. SAPNA RAJKUMAR JETHRA 6 FURNISHED THE CASH FLOW OF THE LENDERS, THESE DOCUM ENTARY EVIDENCES IF FILED FOR THE FIRST TIME BEFORE THE TRIBUNAL. 9. CONSIDERING THE FACT THAT ALL THE EVIDENCES RELIED BY LD. AR OF THE ASSESSEE IS FILED FOR THE FIRST TIME BEFORE THE TRI BUNAL. AND THE EVIDENCES HAS RELEVANCY WITH THE ISSUES RAISED BY THE ASSESSEE, THEREFORE, WE ADMIT THE ADDITIONAL EVIDENCE FURNIS HED BY THE ASSESSEE. WE ALSO ADMIT THE CASH FLOW STATEMENT FURNISHED BY ASSESSEE. CONSIDERING THE FACT THAT THE ABOVE STATED DOCUMENT S/ EVIDENCES ARE FURNISHED FOR THE FIRST TIME BEFORE THE TRIBUNAL, T HEREFORE, RESTORE THE APPEAL TO THE FILE OF ASSESSING OFFICER TO EXAMINE THE ISSUE AFRESH AND PASS THE ORDER IN ACCORDANCE WITH LAW. 10. IN THE RESULT, APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 24/07/2019. SD/- SD/- G.S. PANNU PAWAN SINGH VICE-PRESIDENT JUDICIAL MEMBER MUMBAI, DATE: 24.07.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR G BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI