M/s Industrial Filters & Fabrics Pvt. Ltd., V. The ACIT 5(1),

ITA 734/IND/2007

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0103 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-08-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2007
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Assessee Lawyers: ANIL KHANDELWAL
• Keywords: Additional evidence
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI M.L. GUSIA, ACCOUNTANT MEMBER PAN NO. :AAACI3900J I.T.A.NO. 734/IND/2007. A.Y. : 2004-05 INDUSTRIAL FILTERS & FABRICS PVT.LTD., ACIT, RING ROAD SQUARE, VS 5(1), MUSAKHEDI, INDORE. INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI ANIL KHANDELWAL, C. A. RESPONDENT BY : SMT. APARNA KARAN, ADDL. CIT DR O R D E R PER SAINI, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) II, INDORE, DATED 17 TH SEPTEMBER, 2007, FOR ASSESSMENT YEAR 2004- 05. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE P ARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND M ATERIAL AVAILABLE ON RECORD. -: 2: - 2 3. ON GROUND NO.1, THE ASSESSEE CHALLENGED THE AD HOC DISALLOWANCE OF TELEPHONE EXPENSES OF RS. 50,000/-. THE ASSESSEE IS A COMPANY. THE A.O. DISALLOWED 20% OUT OF TELEPHONE E XPENSES FOR NON- BUSINESS PURPOSE WITHOUT POINTING OUT AS TO WHICH O F THE TELEPHONE EXPENSES WERE INCURRED FOR NON-BUSINESS PURPOSES. T HE LD. CIT(A), HOWEVER, RESTRICTED THE ADDITION TO RS. 50,000/-. C ONSIDERING THE ASSESSEE TO BE A COMPANY HAVING LEGAL JURISTIC PERSON, THERE FORE, DISALLOWANCE OUT OF TELEPHONE EXPENSES ON SUCH A REASON IS UNWARRANT ED UNDER THE LAW. WE, ACCORDINGLY, SET-ASIDE THE ORDERS OF THE AUTHOR ITIES BELOW AND DELETE THE ADDITION. AS A RESULT, GROUND NO.1 OF THE ASSES SEE IS ALLOWED. 4. ON GROUND NO.2, THE ASSESSEE CHALLENGED THE ADDITIO N OF UNSECURED LOAN OF RS. 2,22,911/-. THE A.O. NOTED TH AT THE ASSESSEE HAS SHOWN UNSECURED LOAN FROM MRS. MANSI MAHESHWARI. TH E ASSESSEE COULD NOT SUBSTANTIATE THE CLAIM AND EVEN FAILED TO PRODU CE CONFIRMATION FROM THE PARTY. IT WAS SUBMITTED BEFORE THE LD. CIT(A) T HAT CREDITOR MRS. MANSI MAHESHWARI IS DAUGHTER-IN-LAW OF THE DIRECTOR . COPY OF THE BANK STATEMENTS OF THE DEPOSITOR WAS SUBMITTED TO PROVE THE GENUINENESS OF THE TRANSACTION. COPY OF THE PASS-PORT WAS SUBMITTED TO PROVE THE IDENTITY OF THE DEPOSITOR. IT WAS EXPLAINED THAT MATRIMONIAL DI SPUTES WERE GOING ON -: 3: - 3 BETWEEN THE CREDITOR BEING DAUGHTER IN LAW OF THE D IRECTOR WITH HER HUSBAND, THEREFORE, CONFIRMATION COULD NOT BE OBTAI NED. THE LD. CIT(A), HOWEVER, CONFIRMED THE ADDITION, BECAUSE ASSESSEE H AS FAILED TO PROVE CREDITWORTHINESS OF THE CREDITOR AND THE GENUINENES S OF THE TRANSACTION. THE ADDITION WAS, ACCORDINGLY, CONFIRMED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SAME SUBMISSION MADE BEFORE THE LD. CIT(A) AND HAS FILED PAPER BOOK ON THE DATE OF HEARING ON 28 TH AUGUST, 2009, IN WHICH CONFIRMATION OF THE DEPOSITOR AND PAN NUMBER ARE FILED, WHICH WERE NEVE R FILED BEFORE THE AUTHORITIES BELOW. HE HAS, THEREFORE, SUBMITTED THA T THE ADDITION MAY BE DELETED. ON THE OTHER HAND, THE LD. DEPARTMENTAL RE PRESENTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND OBJECT ED TO THE FILING OF THE CONFIRMATION OF THE DEPOSITOR AND PROOF OF PAN OF T HE DEPOSITOR ON THE GROUND THAT IT IS ADDITIONAL EVIDENCE AND ASSESSEE HAS NOT TAKEN ANY STEP FOR OBTAINING PERMISSION OF THE BENCH FOR ADMISSION OF THE ADDITIONAL EVIDENCE. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE ARE O F THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN THE MATTER. T HE DEPOSITOR IS ADMITTEDLY DAUGHTER-IN-LAW OF THE DIRECTOR OF THE ASSESSEE. IT WAS SUBMITTED BEFORE -: 4: - 4 THE A.O. THAT SINCE MATRIMONIAL DISPUTE WAS GOING O N BETWEEN DAUGHTER- IN-LAW OF THE MANAGING DIRECTOR WITH HER HUSBAND, T HEREFORE, CONFIRMATION COULD NOT HAVE BEEN OBTAINED. HOWEVER, THE ASSESSEE HAS NEVER MADE ANY REQUEST FOR SUMMONING OF THE DEPOSIT OR FOR EXAMINATION BEFORE THE A.O. ON OATH U/S 131 OF THE INCOME-TAX A CT, 1961. RULE 29 OF THE APPELLATE TRIBUNAL RULES PROVIDES :- 29. THE PARTIES TO THE APPEAL SHALL NOT BE ENTIT LED TO PRODUCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENT ARY BEFORE THE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES A NY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED OR ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR, IF T HE INCOME-TAX AUTHORITIES HAVE DECIDED THE CASE WITHOU T GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO AD DUCE EVIDENCE EITHER ON POINTS SPECIFIED BY THEM OR NOT SPECIFIED BY THEM, THE TRIBUNAL, FOR REASONS TO BE RECORDED, MAY ALLOW SUCH DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO BE FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED. 7. THE ASSESSEE HAS NOT MOVED ANY PROPER PETITION BEFO RE THE TRIBUNAL SEEKING ADMISSION OF THE ADDITIONAL EVIDEN CE IN THIS REGARD. THEREFORE, THE LD. DEPARTMENTAL REPRESENTATIVE IS J USTIFIED IN CONTENDING -: 5: - 5 THAT CONFIRMATION OF THE DEPOSITOR AND HER PAN NUMB ER COULD NOT HAVE BEEN CONSIDERED IN EVIDENCE AT THE SECOND APPELLATE STAGE. CONSIDERING THE FACTS AND CIRCUMSTANCES, AS NOTED ABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW IN MAKING TH E ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSITS IN RESPECT OF SMT. MANSI MA HESHWARI. THE BURDEN IS UPON THE ASSESSEE TO PROVE IDENTITY, CRED ITWORTHINESS OF THE CREDITOR AND THE GENUINENESS OF THE TRANSACTION IN THE MATTER. THE ASSESSEE HAS, HOWEVER, FAILED TO PROVE ANY OF THE CONDITIONS REFERRED TO ABOVE. WE, ACCORDINGLY, DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE. 8. AS A RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY A LLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 28 TH AUGUST, 2009. SD/- SD/- M. L. GUSIA BHAVNESH SAINI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28 TH AUGUST, 2009. CPU* 288