Sri Ramawatar Agarwalla, V. I.T.O.,

ITA 74/RAN/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0038 (ITAT-RANCHI)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 24-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHOUDHARY ORAN
• Assessee Lawyers: DEVESHPODDER; S K PODDER
• Keywords: Unexplained investment
• Section: 133A; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI SMC BENCH, RANCHI BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER ITA NO.74/RAN/2013 ASSESSMENT YEAR :2010-11 SRI RAMAWATAR AGARWALLA PROP: RAMAWATAR SARYANARAYAN RANI BAZAR, KATRAS, DHANBAD, JHARKHAND V S INCOME TAX OFFICER, WARD-II(3), DHANBAD PAN/GIR NO. : ACCPA 5850G (APPELLANT ) .. (RESPONDENT) APPELLANT BY : SHRI S.K.PODDER, ADVOCATE & SHRI DEVESH PODDER, ADVOCATE RESPONDENT BY : SHRI CHOUDHARY ORAN, DR DATE OF HEARING : 05-09-2016 DATE OF PRONOUNCEMENT : 09-09-2016 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.05.2013 OF COMMISSIONER OF INCOME TAX (APPEALS), DHANBAD (JHARKHAND) RELATING TO ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE IS AN INDIVIDUAL. HE CARRIES ON BU SINESS OF RETAILER IN CLOTH. THERE WAS A SURVEY U/S 133A OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT) CONDUCTED ON 12.03,2010 IN TH E BUSINESS PREMISES OF M/S RAMAWATAR SATYANARAYAN. IN COURSE OF SURVEY A DIARY WHICH WAS MARKED RS-01 WAS FOUND BY THE OFFICER CONDUCTIN G THE SURVEY. 2 ITA NO.74/RAN/2013 AY:2010-11 ACCORDING TO THE REVENUE, APART FROM THE BUSINESS O F DEALING IN CLOTH THE ASSESSEE WAS ALSO CARRYING ON MONEY-LENDING BUS INESS AND THE DIARY FOUND IN THE COURSE OF SURVEY CONTAINED A REC ORD OF MONEY LENT BY THE ASSESSEE TO VARIOUS PERSONS IN THE COURSE OF HIS MONEY LENDING BUSINESS. THE PERSONS TO WHOM MONEY WAS LENT AND TH E TOTAL VALUE OF TRANSACTIONS OF MONEY LENDING TO VARIOUS PARTIES IS LISTED AT PAGE NO. 2 AND 3 OF THE ORDER OF ASSESSING OFFICER. IT IS THE CLAIM OF THE REVENUE THAT THE MONIES WERE LENT IN CASH BY THE ASSESSEE T O VARIOUS PERSONS. THE MONEY LENT TO EACH OF THE PERSON IN THE LIST GI VEN IN THE ORDER OF ASSESSMENT SHOWS THAT MONIES LENT TO EACH PERSON WA S IN EXCESS OF RS.20,000/-. THE TOTAL OF THE SUMS LENT BY THE ASSE SSEE AS FOUND IN THE DIARY WAS SUM OF RS.39,10,300/-. 3. THE ASSESSEE FILED RETURN OF INCOME FOR AY 2010- 11 DECLARING TOTAL INCOME OF 2,83,645/-. THE ASSESSING OFFICER VIDE LETTER DATED 10.12.2012,20.12.2012 AND 17.01.2013 CALLED UPON TH E ASSESSEE TO FURNISH THE DETAILS OF THE TRANSACTIONS RECORDED IN THE SEIZED DIARY FOUND AT THE TIME OF SURVEY AND ALSO FURNISH NAME A ND COMPLETE ADDRESSES OF THE PERSONS WITH WHOM THE TRANSACTIONS WERE MADE. ACCORDING TO THE AO THE ASSESSEE DID NOT FURNISH AN Y DETAILS. ON 18.01.2013 AND AO ISSUED LETTER TO THE ASSESSEE CAL LING UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY THE TRANSACTIONS R ECORDED IN THE SEIZED DIARY SHOULD NOT BE TREATED AS UNEXPLAINED I NVESTMENT U/S 69 OF THE ACT AND ADDED TO THE TOTAL INCOME OF ASSESSEE. THE ASSESSEE CLAIMED BEFORE THE AO THAT TRANSACTIONS RECORDED IN THE DIARY WERE THE TRANSACTIONS OF CREDIT SALES BY THE ASSESSEE TO VAR IOUS CUSTOMERS IN THE BUSINESS OF TRADING IN CLOTH. ACCORDING TO THE AO, THE ASSESSEE WAS REQUESTED TO FURNISH THE DETAILS OF THE CREDIT SALE S AND THE CASE WAS FIXED FOR HEARING ON 07.02.2013. SINCE THERE WAS N O REPLY BY THE ASSESSEE, THE AO TREATED THE TRANSACTIONS FOUND ON THE DIARY AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT AND ADDED THE SUM OF 39,10,300/- TO THE TOTAL INCOME OF ASSESSEE. 3 ITA NO.74/RAN/2013 AY:2010-11 4. ON APPEAL BY THE ASSESSEE, LD. CIT(A) CONFIRMED THE ORDER OF AO OBSERVING AS FOLLOWS:- 6. I HAVE CONSIDERED THE FACTS OF THE CASE AND ALS O PERUSED XEROX COPY OF THE ABOVE DIARY FURNISHED BY THE APPE LLANT. FROM A PERUSAL OF THE SAME, IT IS CLEAR THAT THE APPELLANT HAS BEEN ADVANCING LOANS IN CASH TO VARIOUS PERSONS AND LEDG ER ACCOUNTS OF THESE PERSONS HAVE BEEN DULY MAINTAINED. THE AMO UNTS GIVEN ARE IN ROUND FIGURES AND AMOUNTS RECEIVED BACK ARE ALSO REFLECTED. THE SAME ARE NOT SALES AS WRONGLY CLAIME D IN THE APPELLATE PROCEEDINGS. ON THE ONE HAND, IT IS CLAIM ED THAT GOODS WERE SOLD ON CREDIT IN SMALL PLACE TO VILLAGERS, ON THE OTHER HAND, THERE ARE ENTRIES OF AMOUNTS LIKE RS.3 LACS. RS.5 L ACS, RS. 8 LACS ETC WHICH IS CONTRARY TO THE CLAIM IN THE APPELLAT E PROCEEDINGS. THE TOTAL AMOUNT OF LOANS ADVANCED IS MORE THAN RS. 40 LAKHS BUT THE TOTAL TURNOVER OF CLOTH BUSINESS SHOWN BY THE A PPELLANT IN RETURN OF INCOME FILED AFTER THE SURVEY IS RS.17,85 ,700/- ONLY. THE ENTRIES ARE VERY CLEAR AND WITHOUT ANY ABBREVIA TIONS. NO PRESUMPTION, ASSUMPTION, SURMISES, CONJECTURES, GUE SSWORK, EXTRAPOLATION OR DECODING IS REQUIRED TO UNDERSTAND THE SAME. THE CASE LAWS CITED ARE NOT RELEVANT AT ALL. THE NE T AMOUNT OF OUTSTANDINGS TOWARDS THE APPELLANT ARE AT ABOUT RS. 40 LACS. BUT NO SUCH SUNDRY DEBTORS ARE APPEARING IN THE STATEME NT OF AFFAIRS AS ON 31.03.2010. FURTHER, IT WAS CLARIFIED BY SHRI RAMADHNIN RABIDAS, ITO, WARD-II(3), DHANBAD WHO ALSO ATTENDED THE APPELLATE PROCEEDINGS THAT SPECIFIC QUERIES REGARDI NG FURNISHING OF BALANCE SHEET AND OTHER DETAILS OF PROPRIETARY C ONCERN OF THE ASSESSEE M/S RAMAWATAR SATAYNARAYAN WERE RAISED DUR ING THE ASSESSMENT PROCEEDINGS. MOREOVER, THE APPELLANT WAS REQUIRED TO FURNISH DETAILS LIKE COMPLETE ADDRESSED, PANS OF THESE DEBTORS ETC., HOWEVER, NO SUCH DETAILS WERE EVER FURNISHED AND INFACT, NO PROPER COMPLIANCE WAS EVEN MADE IN THE ASSESSMEN T PROCEEDINGS. THEREFORE, SEEN FROM ANY ANGLE, THE AB OVE AMOUNTS ARE LOAN TRANSACTIONS AS CONTENDED. THE APPELLANT I S HIDING THE IDENTITIES OF THESE PERSONS AND NOT COMING FORWARD WITH COMPLETE DETAILS WHICH WOULD FURTHER FORTIFY THE FACT THAT S UCH LOANS GIVEN REPRESENT UNDISCLOSED INCOME. DURING THE ASSESSMENT YEAR UNDER CONSIDERATION, AS OBSERVED IN THE ASSESSMENT ORDER, THE APPELLANT HAS ADVANCED LOANS OF RS.39,10,300 + RS.5 5,000 = 39,65,300/-. HOWEVER, THE APPELLANT RECEIVED BACK S OME REPAYMENTS ALSO DURING THE YEAR AS UNDER:- PAYMENTS DATE 100.00 RECEIVED 03/01/2010 50.00 RECEIVED 06/02/2010 5,000.00 RECEIVED 28/11/2009 4 ITA NO.74/RAN/2013 AY:2010-11 20,000.00 RECEIVED 18/11/2009 2,000 RECEIVED 05/02/2010 5,000 RECEIVED 08/02/2010 2,000 RECEIVED 11/01/2010 2,000 RECEIVED 05/02/2010 1,500.00 RECEIVED 10/03/2010 1,000.00 RECEIVED 02/12/2009 296.00 RECEIVED 02/12/2009 210.00 RECEIVED 06/01/2010 825.00 RECEIVED 05/02/2010 3,660.00 RECEIVED 04/03/2010 1,640.00 RECEIVED 03/12/2009 1,100.00 RECEIVED 06/01/2010 1,100,00 RECEIVED 05/02/2010 1,300.00 RECEIVED 04/03/2010 5,000.00 RECEIVED 01/11/2009 2,000.00 RECEIVED 01/11/2009 500.00 RECEIVED 05/01/2010 10,00.00 RECEIVED 07/01/2010 525.00 RECEIVED 7/12/2009 4,00,000 RECEIVED 04/01/2010 3,500.00 RECEIVED 07/12/2009 3,500.00 RECEIVED 08/01/2010 3,500.00 RECEIVED 09/20/2010 3,500.00 RECEIVED 09/03/2010 70,000.00 RECEIVED 30/10/2009 21,000.00 RECEIVED 16/12/2009 300.00 RECEIVED 02/12/2009 300.00 RECEIVED 03/01/2010 300.00 RECEIVED 06/02/2010 300.00 RECEIVED 04/03/2010 600.00 RECEIVED 05/01/2010 300.00 RECEIVED 27/01/2010 300.00 RECEIVED 02/03/2010 400.00 RECEIVED 09/09/2010 500.00 RECEIVED 09/01/2010 350.00 RECEIVED 09/01/2010 3,000.00 RECEIVED 09/01/2010 200.00 RECEIVED 10/02/2010 2,200.00 RECEIVED 03/12/2009 20,000.00 RECEIVED 30/01/2010 3,000.00 RECEIVED 30/01/2010 100.00 RECEIVED 30/01/2010 80.00 RECEIVED 03/12/2009 80.00 RECEIVED 30/01/2010 5 ITA NO.74/RAN/2013 AY:2010-11 5,000.00 RECEIVED 15/06/2009 4,000.00 RECEIVED 01/07/2009 500.00 RECEIVED 05/02/2010 700.00 RECEIVED 31/07/2009 200.00 RECEIVED 10/12/2009 1,500.00 RECEIVED 20/01/2010 4,000.00 RECEIVED 20/10/2010 1,600.00 RECEIVED 22/11/2009 5,000.00 RECEIVED 27/11/2009 1,350.00 RECEIVED 21/12/2009 1,000.00 RECEIVED 05/02/2010 350.00 RECEIVED 08/02/2010 1,200.00 RECEIVED 08/12/2009 1,950,00 RECEIVED 06/01/2010 3,000.00 RECEIVED 12/02/2010 3,100.00 RECEIVED 06/03/2010 10,000.00 RECEIVED 01/12/2009 600.00 RECEIVED 01/12/2009 600.00 RECEIVED 04/01/2010 12,000.00 RECEIVED 04/01/2010 750.00 RECEIVED 15/02/2010 1,4000.00 RECEIVED 15/02/2010 330.00 RECEIVED 03/03/2010 10,000.00 RECEIVED 12/02/2010 50.00 RECEIVED 15/11/2009 2,050.00 RECEIVED 09/12/2009 2,050.00 RECEIVED 16/02/2010 1,200.00 RECEIVED 03/12/2009 25,000.00 RECEIVED 03/12/2009 1,200.00 RECEIVED 03/01/2010 1,200.00 RECEIVED 31/01/2010 5,000.00 RECEIVED 18/12/2009 12,000.00 RECEIVED 12/02/2010 12,000.00 RECEIVED 25/02/2010 14,000.00 RECEIVED 04/11/2009 10,500.00 RECEIVED 04/02/2010 9,000.00 RECEIVED 13/12/2009 150,000.00 RECEIVED 28/01/2010 3,000.00 RECEIVED 02/01/2010 3,000.00 RECEIVED 07/02/2010 500.00 RECEIVED 09/02/2010 3,000.00 RECEIVED 05/03/2010 1,200.00 RECEIVED 02/03/2010 TOTAL RS.5,55,146/- 6 ITA NO.74/RAN/2013 AY:2010-11 7. SINCE THE ABOVE AMOUNT OF RS.5,55,146/- WAS AVAI LABLE FOR ADVANCING THE LOANS, RELIEF TO THIS EXTENT IS ALLOW ED AND BALANCE ADDITION OF RS.34,10,154/- IS CONFIRMED. 5. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSES SEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 6. THE LIMITED PRAYER OF THE LD. COUNSEL FOR THE AS SESSEE BEFORE ME WAS THAT SUFFICIENT OPPORTUNITY WAS NOT GIVEN TO TH E ASSESSEE TO EXPLAIN ITS CASE EITHER BY THE ASSESSING OFFICER OR BY THE LD. CIT(A) AND THEREFORE THE ORDER OF LD. CIT(A) SHOULD BE SET ASIDE AND THE ISSUE SHOULD BE REMANDED TO THE FILE OF AO FOR CONSIDERAT ION AFRESH WITH A LIBERTY TO THE ASSESSEE TO SUBSTANTIATE ITS CLAIM B Y FILING THE REQUIRED EVIDENCE. THE LD. DR RELIED ON THE ORDER OF LD. CIT (A). 7. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. PERUSA L OF THE RECORD SHOWS THAT IT WAS ONLY ON 17.12.2012 THAT COPY OF T HE IMPOUNDED DOCUMENT WAS FURNISHED BY THE AO TO THE ASSESSEE. QUERIES WITH REGARD TO THE IMPOUNDED DOCUMENT WAS RAISED BY THE AO VIDE LETTER DATED 17.01.2013. ANOTHER QUERY LETTER DATED 01.02. 2013 WAS ISSUED AND THEREAFTER THE ORDER OF ASSESSMENT WAS PASSED O N 13.03.2013. THE APPELLATE PROCEEDINGS BEFORE LD CIT(A) COMMENCE D BY INITIATION OF APPEAL BY THE ASSESSEE ON 22.03.2013 AND THE APPELL ATE ORDER WAS PASSED ON 24.05.2013. FROM THE ABOVE DATES, IT IS C LEAR THAT ASSESSEE DID NOT HAVE PROPER AND ADEQUATE OPPORTUNITY TO EXP LAIN ITS STAND BEFORE THE REVENUE AUTHORITY. I, THEREFORE, SET ASI DE THE ORDER OF LD. 7 ITA NO.74/RAN/2013 AY:2010-11 CIT(A) AND REMIT THE ISSUE RAISED IN THE APPEAL BY ASSESSEE TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION AFTER AFF ORDING ASSESSEE OF BEING HEARD AND FILING REQUIRED EVIDENCE TO PROVE H IS CASE. 8. IN THE RESULT, APPEAL OF ASSESSEE TREATED AS ALLOWE D FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON 09/09 /2016 SD/- (N.V.VASUDEVAN ) JUDICIAL MEMBER RANCHI , DATED 09/09/2016 *DKP ,PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT-CONCERNED 2. THE RESPONDENT CONCERNED 3. THE CIT(A) CONCERNED 4. CIT , CONCERNED 5. DR, ITAT, RANCHI 6. GUARD FILE. BY ORDER, //TRUE COPY // SR.PS, ITAT, RANCHI