Shri Shyama Kumar Gupta, Hardoi V. I.T.O.-3(3), Hardoi

ITA 716/LKW/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0876 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 06-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

I.T.A. NO.716/LKW/2017 ASSESSMENT YEAR:2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.716/LKW/2017 ASSESSMENT YEAR:2013-14 SHRI SHYAMA KUMAR GUPTA, 138, MANGLI PURWA, RAILWAY GANJ, HARDOI. PAN:AFNPG 9567 Q VS. INCOME TAX OFFICER-3(3), HARDOI. (APPELLANT) (RESPONDENT) O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A), BAREILLY, DATED 17/08/2017 PERTAINING TO AS SESSMENT YEAR 2013- 2014. IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FO LLOWING GROUNDS OF APPEAL: 1. THAT THE LEARNED CIT(A) ERRED ON FACTS AND IN L AW IN CONFIRMING THE ADDITION OF RS.23,00,000/- U/S 68 OF THE I.T. ACT BEING AMOUNT OF LOAN RECEIVED FROM MANAGER SING H, WHICH IS CONTRARY TO FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED CIT(A) ERRED ON FACTS AND IN LA W IN CONFIRMING THE DISALLOWANCE OF RS.36,480/- OUT OF QUALITY CLAIM AND DISCOUNT EXPENSES IN SPITE OF EVIDENCE P RODUCED. APPELLANT BY SHRI SANJAY SAXENA, C.A. RESPONDENT BY S HRI C. K. SINGH, D. R. DATE OF HEARING 12/11/2018 DATE OF PRONOUNCEMENT 16/11/2018 I.T.A. NO.716/LKW/2017 ASSESSMENT YEAR:2013-14 2 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT ADDI TION OF RS.23,00,000/- WAS MADE BY THE ASSESSING OFFICER U/ S 68 OF THE ACT BY HOLDING THAT THE CREDITWORTHINESS OF THE UNSECURED LOAN CREDITOR WAS NOT PROVED. IT WAS SUBMITTED THAT THE ASSESSEE HAD TAK EN AN UNSECURED LOAN OF RS.23,00,000/- FROM SHRI MANAGER SINGH AND ASSES SING OFFICER HAD RECORDED HIS STATEMENT ALSO WHEREIN HE HAS VERIFIED AND CONFIRMED THAT THE SAID UNSECURED LOAN WAS PROVIDED TO THE ASSESSE E. IN THIS RESPECT MY ATTENTION WAS INVITED TO PAGES 4 TO 11 OF THE PAPER BOOK WHERE A COPY OF THE STATEMENT OF THE LENDER SHRI MANAGER SINGH WAS PLACED. MY ATTENTION WAS ALSO INVITED TO PAGES 12 TO 14 OF THE PAPER BOO K WHERE COPY OF BANK PASS BOOK OF SHRI MANAGER SINGH WAS PLACED AND IT W AS ARGUED THAT ALL THE PAYMENTS WERE RECEIVED THROUGH BANKING CHANNELS AND THERE WAS SUFFICIENT BALANCE IN THE BANK ACCOUNT FOR MAKING A DVANCE TO THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT A PART OF THE UNSECUR ED LOAN WAS REPAID THROUGH BANKING CHANNEL IN SUBSEQUENT YEARS AND MY ATTENTION WAS INVITED TO PAGES 15 TO 21 OF THE PAPER BOOK WHERE COPIES OF ACCOUNTS OF SHRI MANAGER SINGH FOR THE SUBSEQUENT YEARS WAS PLACED. IT WAS ARGUED THAT THE ASSESSEE HAD DISCHARGED ITS ONUS BY SUBMITTING THE NECESSARY DETAILS AND ASSESSING OFFICER HIMSELF HAD RECORDED THE STAT EMENT OF LENDER AND HAD FOUND NOTHING ADVERSE IN THE STATEMENT AND THER EFORE, THE ADDITION WAS NOT WARRANTED. 3. LEARNED D. R. HOWEVER, INVITED MY ATTENTION TO T HE COPY OF PASS BOOK PLACED AT PAGES 12 TO 14 OF THE PAPER BOOK AND MY SPECIFIC ATTENTION WAS INVITED TO THE ENTRIES OBTAINED BY THE ASSESSEE AND IT WAS SUBMITTED THAT IMMEDIATELY BEFORE THE ISSUANCE OF CHEQUES TO THE ASSESSEE THERE WAS DEPOSIT OF CASH AMOUNT IN THE BANK ACCOUNT. MY SPE CIFIC ATTENTION WAS INVITED TO PAGE 13 OF THEPB WHERE SUCH ENTRIES WERE REFLECTED. THEREFORE, I.T.A. NO.716/LKW/2017 ASSESSMENT YEAR:2013-14 3 IT WAS ARGUED THAT TRANSACTION WAS NOT GENUINE AND MERE DEPOSIT OF CASH IN THE BANK ACCOUNT CANNOT PROVE CREDITWORTHINESS O F CREDITOR. 4. LEARNED A. R., IN HIS REJOINDER, SUBMITTED THAT AFTER THE TWO ENTRIES OF RS.9,00,000/- AND RS.8,00,000/- THE ASSESSEE HAD RECEIVED FURTHER AMOUNT OF RS.6,00,000/- ON 22/11/2012 WHICH WAS REC EIVED OUT OF MATURITY OF INSURANCE POLICY ON 29/08/2012 AND MY A TTENTION WAS INVITED TO ENTRY OF RS.8,31,808/- ON 29/08/2012. 5. I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THR OUGH THE MATERIAL PLACED ON RECORD. I FIND THAT THE STATEMENT OF THE LENDER SHRI MANAGER SINGH WAS RECORDED BY THE ASSESSING OFFICER AND A C OPY OF WHICH WAS PLACED AT PAGES 5 TO 11 OF THE PAPER BOOK. IN THE STATEMENT RECORDED BY THE ASSESSING OFFICER THE LENDER HAD DULY ADMITTED OF HAVING ADVANCED THE AMOUNT TO THE ASSESSEE. THE ADVANCES WERE ALSO MAD E THROUGH CHEQUES. HOWEVER, IT WAS POINTED OUT BY LEARNED D. R. THAT B EFORE THE ISSUE OF CHEQUES OF RS.9,00,000/- AND RS.8,00,000/- THERE WA S A DEPOSIT OF RS.14,00,000/- ON 22/03/2012 THEREFORE, IT WAS ARG UED THAT ENTRIES WERE NOT GENUINE. THE ASSESSING OFFICER HAS ALSO RECORD ED IN HIS ASSESSMENT ORDER THAT SHRI MANAGER SINGH WAS SPECIFICALLY ASKE D AS TO WHETHER THE LOAN GIVEN TO FIRMS HAD BEEN REPAID FULLY OR PARTLY AND IN RESPONSE HE HAD SIMPLY STATED THAT HE WAS NOT AWARE OF THE FACT. T HE ASSESSING OFFICER HAD FURTHER NOTED THAT SHRI MANAGER SINGH WAS A GOV ERNMENT EMPLOYEE AND HE WAS ASKED AS TO WHETHER HE HAD INTIMATED TO THE DEPARTMENT FOR MAKING LOAN TO THE ASSESSEE TO WHICH HE STATED THAT HE WAS NOT AWARE OF ANY SUCH SERVICE RULES. THE FACTS AND CIRCUMSTANCE S OF THE CASE, SPECIFICALLY THE OBSERVATIONS MADE BY THE ASSESSING OFFICER AND THE FACT OF HAVING DEPOSITED RS.14,00,000/- IN CASH BEFORE THE ISSUE OF CHEQUES TO THE ASSESSEE REQUIRES READJUDICATION AND THEREFORE, I S ET ASIDE THE ORDER OF I.T.A. NO.716/LKW/2017 ASSESSMENT YEAR:2013-14 4 LEARNED CIT(A) TO THE FILE OF THE ASSESSING OFFICER WHO SHOULD READJUDICATE ON THE ISSUE AFTER TAKING INTO ACCOUNT THE FACTS AN D CIRCUMSTANCES OF THE CASE. NEEDLESS TO SAY THE ASSESSEE WILL BE PROVIDE D SUFFICIENT OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 16/11 /2018) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:16/11/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW