Satpal Goyal, Panchkula V. DCIT, Patiala

ITA 743/CHANDI/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86158 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-02-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 22-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Bogus purchase; Unexplained cash credit; Gift; Additional evidence; Corroborative evidences; Competent authority; Onus to prove; Condonation of delay; Reassessment proceedings
• Section: 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 742/CHD/2014 (ASSESSMENT YEAR : 2003-04) ITA NO. 743/CHD/2014 (ASSESSMENT YEAR : 2005-06) AND ITA NO. 744/CHD/2014 (ASSESSMENT YEAR : 2006-07) SATPAL GOYAL, VS. THE D.C.I.T., HOUSE NO.388, CENTRAL CIRCLE, SECTOR 21, CHANDIGARH. CHANDIGARH. PAN: ADAPG9749F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK AGGARWAL RESPONDENT BY : SHRI S.K.MITTAL, DR DATE OF HEARING : 04.02.2015 DATE OF PRONOUNCEMENT : 10.02.2015 O R D E R PER BHAVNESH SAINI, J.M. : ALL THE ABOVE APPEALS BY THE SAME ASSESSEE ARE DIRECTED AGAINST DIFFERENT ORDERS OF LEARNED COMMIS SIONER OF INCOME TAX (APPEALS)-I, LUDHIANA DATED 15.5.201 4 FOR ASSESSMENT YEARS 2003-04, 2005-06 AND 2006-07. 2. ALL THE APPEALS ARE TIME BARRED BY 17 DAYS. THE ASSESSEE HAS FILED APPLICATION FOR CONDONATION OF DELAY IN A LL THE 2 APPEALS. IT IS EXPLAINED THAT AFTER RECEIVING THE IMPUGNED ORDER, THE ASSESSEE HAS SENT THE SAME TO THE CHARTE RED ACCOUNTANT SHRI SANJAY GOYAL WHO HAS FORWARDED THE PAPERS TO SHRI DEEPAK AGGARWAL IN CHANDIGARH FOR PREPARATI ON OF THE APPEAL ON 2.8.2014 AS SHRI SANJAY GOYAL, CHARTERED ACCOUNTANT WAS BUSY IN THE YEAR ENDING CLOSING. TH E ASSESSEE ALSO SUFFERING FROM VARIOUS DISEASES AND WAS NOT KE EPING WELL AND COULD NOT CONTACT SHRI DEEPAK AGGARWAL AT CHAND IGARH. THEREFORE, DUE TO THESE REASONS, THERE WAS NOMINAL DELAY. 3. CONSIDERING THE EXPLANATION OF THE ASSESSEE AND THAT NOMINAL DELAY IS THERE IN FILING THE APPEAL, WE ARE OF THE VIEW THAT THE ASSESSEE HAS SUFFICIENT CAUSE FOR EXPLAINI NG THE DELAY. THE DELAY IN FILING OF THE APPEALS IS, THER EFORE, CONDONED. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. ALL THE APPEALS ARE DECIDED AS UNDER : ITA NO.742/CHD/2014 : 5. IN THIS APPEAL THE ASSESSEE CHALLENGED NON-ADMIS SION OF ADDITIONAL EVIDENCES BY THE LEARNED CIT (APPEALS) U NDER RULE 46A OF THE INCOME TAX RULES AND ADDITION OF RS.5 LA CS (ACTUAL RS.5,25,000/-) UNDER SECTION 68 OF THE ACT ON ACCOU NT OF UNEXPLAINED GIFTS. THE ASSESSING OFFICER MADE THE ADDITION OF RS.5,25,000/- UNDER SECTION 68 OF THE ACT ON ACCOUN T OF UNEXPLAINED GIFTS. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO FILE CONFIRMATION AND COPY OF BANK ACCO UNT, COPY 3 OF INCOME-TAX RETURN AND OTHER SUPPORTING DOCUMENTA RY EVIDENCE TO ESTABLISH THE GENUINENESS OF THE GIFTS RECEIVED BY THE ASSESSEE. THE ASSESSEE IN ORDER TO COMPLY WIT H THE REQUIREMENT SOUGHT NUMBER OF ADJOURNMENTS BUT COULD NOT FILE NECESSARY EVIDENCE CALLED FOR IN RESPECT OF THE GIF TS RECEIVED FROM FRIENDS AND RELATIVES ON HIS MARRIAGE ANNIVERS ARY. THE ASSESSEE ALSO SHOWN INABILITY TO FILE ANY DOCUMENTA RY EVIDENCE TO ESTABLISH THE GENUINENESS OF THE GIFTS IN THE MATTER. THE ASSESSEE WAS ALSO DIRECTED TO FILE NE CESSARY EVIDENCES OF THE DONORS AND TO PRODUCE THEM BEFORE THE ASSESSING OFFICER FOR CROSS VERIFICATION. HOWEVER, THE ASSESSEE EXPRESSED HIS INABILITY TO PRODUCE THE DONORS BEFOR E THE ASSESSING OFFICER FOR EXAMINATION AND VERIFICATION. THE ASSESSING OFFICER, THEREFORE, NOTED THAT THE ASSESS EE HAS NOT FURNISHED ANY DETAILS OF CLOSE RELATIONSHIP WITH TH E DONORS AND THAT THE AFFIDAVITS ARE NOT BELIEVABLE AND NO G IFT DEED HAVE BEEN EXECUTED. THE GIFTS ARE RECEIVED IN CAS H, THE SOURCE OF WHICH IS NOT EXPLAINED. THE CAPACITY OF THE DONOR TO GIVE GIFTS HAS ALSO NOT BEEN ESTABLISHED. THER EFORE, THE ADDITION OF RS.5,25,000/- WAS MADE ON ACCOUNT OF UNEXPLAINED GIFTS. THE ASSESSEE EXPLAINED BEFORE THE LEARNED CIT (APPEALS) THAT THE GIFTS WERE RECEIVED FROM THE FOLLOWING PERSONS : I) SHRI GURCHARAN SINGH S/O SHRI PRITAM SINGH RS.1,50,000/- II) SHRI GURCHARAN SINGH RS.1,50,000/- S/O SHRI BHAJAN SINGH III) SHRI PARAMJIT SINGH RS.2,25,000/- RS.5,25,000/- 4 6. THE GIFTS ARE RECEIVED IN CASH FROM THE ABOVE DO NORS WHO ARE AGRICULTURISTS ON THE MARRIAGE ANNIVERSARY OF T HE ASSESSEE. THE ASSESSEE FILED AFFIDAVITS ALONGWITH JAMABANDI AS PROOF OF OWNERSHIP OF LAND AND FORM J FOR SALE OF AGRICULTURAL PRODUCE. THEREFORE, THE ASSESSEE HAS DISCHARGED HIS ONUS OF PROVING THE GENUINENESS OF THE GIFTS. IT IS, HOWEVER, ADMITTED THAT THE DONORS ARE NOT RELATED T O THE ASSESSEE. THE ASSESSEE ALSO MOVED FOR ADMISSION O F THE ADDITIONAL EVIDENCES BEFORE THE LEARNED CIT (APPEAL S) WHICH ARE THE COPIES OF CONFIRMATIONS RECEIVED FROM THE D ONORS. THE ASSESSEE, THEREFORE, SOUGHT THE LEARNED CIT (AP PEALS) TO ADMIT THE CONFIRMATIONS AS ADDITIONAL EVIDENCES. T HE ASSESSEE ALSO STATED THAT HE CAN PRODUCE THE DONORS FOR EXAMINATION BUT THE DONORS WERE NEVER PRODUCED. T HE LEARNED CIT (APPEALS) CONSIDERING THE SUBMISSIONS O F THE ASSESSEE NOTED THAT DESPITE GIVING NUMBER OF OPPORT UNITIES TO EXPLAIN THE GENUINENESS OF GIFTS, THE ASSESSEE COUL D NOT FILE SUFFICIENT EVIDENCE AND EVEN ADDITIONAL EVIDENCES S HALL HAVE TO BE CONSIDERED IN THE LIGHT OF RULE 46A OF THE INCOM E TAX RULES. THE LEARNED CIT (APPEALS) NOTED THAT SINCE NO EXCEPTIONAL REASON HAS BEEN EXPLAINED BY THE ASSESS EE, THEREFORE, ADDITIONAL EVIDENCES COULD NOT BE ADMITT ED AND ACCORDINGLY, DISMISSED THE APPEAL OF THE ASSESSEE A S GENUINENESS OF THE GIFTS HAVE NOT BEEN ESTABLISHED IN THE MATTER. 5 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. IT IS NOT IN DISPUTE THAT THE ASSESSEE RECEIVED CASH GIFT S FROM ALL THE ABOVE THREE DONORS. THEREFORE, THE ONUS WOULD BE UPON THE ASSESSEE TO PROVE THE IDENTITY OF THE DONORS, T HEIR CAPACITY TO ADVANCE THE GIFTS AND THE GENUINENESS OF THE GIF TS IN THE MATTER. THE ASSESSEE HAS ACCORDINGLY, EXPLAINED T HAT THE DONORS ARE HIS FRIENDS AND THE GIFTS HAVE BEEN RECE IVED ON HIS MARRIAGE ANNIVERSARY. THE ASSESSEE ACCORDINGLY, FI LED AFFIDAVITS OF THE DONORS ALONGWITH JAMABANDI AS PRO OF OF THE OWNERSHIP OF LAND AND FORM J FOR SALE OF AGRICULT URAL PRODUCE. THE COPIES OF THE AFFIDAVITS ARE FILED ON RECORD IN WHICH TWO AFFIDAVITS OF THE DONORS HAVE ONLY THUMP IMPRESSION AND ONE AFFIDAVIT SIGNED IN PUNJABI. THE AFFIDAVI TS ARE, HOWEVER, IN ENGLISH. IT IS, THEREFORE, CLEAR THAT T HE DEPONENTS OF THE AFFIDAVITS WOULD NOT BE KNOWING LANGUAGE OF THE AFFIDAVITS. THEREFORE, IT IS FOR THE ASSESSEE TO EXPLAIN UNDER WHAT CIRCUMSTANCES THESE AFFIDAVITS HAVE BEEN PREPA RED AND WHETHER DEPONENT ADMIT THE CONTENTS OF THE SAME. TH E ASSESSEE, HOWEVER, FAILED TO ESTABLISH ANYTHING IN THIS REGARD. THE GIFTS ARE IN CASH, THEREFORE, THE VERIFICATION OF THE GIFTS WAS NECESSARY BY PRODUCING THE DONORS FOR EXAMINATI ON BEFORE THE ASSESSING OFFICER. HOWEVER, NO DONOR WAS PROD UCED FOR EXAMINATION AND THE GENUINENESS OF THE GIFTS WAS NO T ESTABLISHED. NO GIFT DEED WAS PRODUCED TO PROVE TH E GENUINENESS OF THE GIFTS. MERELY BECAUSE THE DONO RS HAVE 6 AGRICULTURAL LAND OR FORM J FOR SALE OF AGRICULTU RAL PRODUCE WOULD NOT ESTABLISH THEIR CAPACITY TO ADVANCE THE G IFTS TO THE ASSESSEE. THUS THE ASSESSEE HAS FAILED TO ESTABLI SH THE CREDITWORTHINESS OF THE DONORS AS WELL AS THE GENUI NENESS OF THE TRANSACTION IN THE MATTER. THE ASSESSING OFFI CER WANTED TO VERIFY THE GENUINENESS OF THE GIFTS IN THE MATTE R. THEREFORE, THE ASSESSEE SHALL HAVE TO FILE CONFIRMA TIONS OF THE GIFTS AS WELL AS SUPPORTING EVIDENCES TO PROVE THE GENUINENESS OF THE GIFTS IN THE MATTER. THE ASSESSEE SHALL HAV E TO PRODUCE THE DONORS BEFORE THE ASSESSING OFFICER FOR THEIR E XAMINATION IN ORDER TO FIND OUT THE TRUTH. HOWEVER, THE ASSE SSEE HAS FAILED TO PRODUCE ANY OF THE DONORS BEFORE THE ASSE SSING OFFICER FOR EXAMINATION OF THEIR INCOME, RELATIONSH IP, LOVE AND AFFECTION. IN THE ABSENCE OF SUFFICIENT EVIDENCE O R MATERIAL ON RECORD, THE ASSESSING OFFICER WAS JUSTIFIED IN TREA TING THE GIFTS TO BE NON-GENUINE. MERE FILING OF THE AFFIDAVITS WOULD NOT SERVE ANY PURPOSE. THE AFFIDAVITS ARE LIKE EXAMIN ATION-IN- CHIEF AND UNLESS AND UNTIL THE DEPONENTS OF THE AFF IDAVITS ARE CROSS-EXAMINED, SUCH AFFIDAVITS CANNOT BE READ IN E VIDENCE. NO EVIDENCE OF REASON OR OCCASION OF GIFT HAVE BEE N FILED ON RECORD. NO EVIDENCE OR MATERIAL SHOWING ANY LOVE A ND AFFECTION HAVE BEEN FILED BEFORE THE AUTHORITIES BE LOW. NO SUFFICIENT EVIDENCE HAVE BEEN FILED ON RECORD TO PR OVE THE GENUINENESS OF THE GIFTS IN THE MATTER. IT IS, TH EREFORE, CLEAR THAT THE GIFTS IN THE MATTER ARE NOT GENUINE GIFTS AND ARE ARRANGED AFFAIRS OF THE ASSESSEE. 7 8. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS ANIL KUMAR 292 ITR 552 HELD AS UNDER : IN THE CASE OF GIFTS MERE IDENTIFICATION OF THE DON OR AND SHOWING THE MOVEMENT OF THE GIFT AMOUNT THROUGH BAN KING CHANNELS IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. SINCE THE CLAIM OF GIFT IS MADE BY THE ASSESS EE, THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIFT BUT ALSO HIS CAPACITY TO MAK E SUCH A GIFT. IN ASSESSMENT PROCEEDINGS FOR THE ASSESSMEN T YEAR 1995-96 THE ASSESSING OFFICER OBSERVED THAT THE ASS ESSEE HAD RECEIVED TWO GIFTS OF RS.10 LAKHS EACH FROM N. R. E. ACCOUNTS OF TWO DONORS, NAMELY V AND D. THE ASSESSI NG OFFICER FOUND THAT THE ASSESSEE COULD NOT DISCHARGE HIS ONUS OF PROVING THE CREDIT-WORTHINESS OF THE DONOR S AND HELD THAT THE AMOUNT OF RS.20 LAKHS WHICH HAD BEEN DECLARED BY THE ASSESSEE AS GIFT, WAS IN FACT HIS I NCOME AND ADDED TO HIS TOTAL INCOME UNDER SECTION 68. THE ADDITION WAS DELETED BY THE COMMISSIONER (APPEALS) AND THIS WAS UPHELD BY THE TRIBUNAL. ON APPEAL TO THE H IGH COURT: HELD THAT THERE WAS NOTHING ON RECORD TO SHO W AS TO WHAT WAS THE FINANCIAL CAPACITY OF THE DONORS, WHAT WAS THE CREDIT-WORTHINESS OF THE DONORS, WHAT KIND OF RELATIONSHIP THE DONORS HAD WITH THE ASSESSEE, WHAT WERE THE SOURCES OF FUNDS GIFTED TO THE ASSESSEE AND WHE THER THEY HAD THE CAPACITY OF GIVING LARGE AMOUNTS OF GI FT TO THE ASSESSEE. FURTHER, THE ASSESSEE WAS ASKED TO APPEAR IN PERSON BEFORE THE ASSESSING OFFICER, BUT NEVER APPE ARED. THE ADDITION OF RS.20 LAKHS WAS JUSTIFIED. 9. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS P. MOHANKALA 291 ITR 278 HELD AS UNDER : 8 THE ASSESSEE RECEIVED FOREIGN GIFTS FROM ONE COMMON DONOR. THE PAYMENTS WERE MADE TO THEM BY INSTRUMENT S ISSUED BY FOREIGN BANKS AND CREDITED TO THE RESPECT IVE ACCOUNT OF THE ASSESSEES BY NEGOTIATION THROUGH A B ANK IN INDIA. MOST OF THE CHEQUES SENT FROM ABOARD WERE DR AWN ON THE CITIBANK, N. A. SINGAPORE. THE EVIDENCE INDI CATED THAT THE DONOR WAS TO RECEIVE SUITABLE COMPENSATION FROM THE ASSESSEES. ON THIS MATERIAL THE ASSESSING OFFIC ER HELD THAT THE GIFTS THOUGH APPARENT WERE NOT REAL AND ACCORDINGLY TREATED ALL THOSE AMOUNTS WHICH WERE CR EDITED IN THE ACCOUNT BOOKS OF THE ASSESSEES AS THEIR INCO ME APPLYING SECTION 68 OF THE INCOME-TAX ACT, 1961. TH E ASSESSEES DID NOT CONTEND THAT EVEN IF THEIR EXPLAN ATION WAS NOT SATISFACTORY THE AMOUNTS WERE NOT OF THE NA TURE OF INCOME. THE COMMISSIONER (APPEALS) CONFIRMED THE ASSESSMENT. ON FURTHER APPEAL, THERE WAS A DIFFEREN CE OF OPINION BETWEEN THE TWO MEMBERS OF THE APPELLATE TRIBUNAL AND THE MATER WAS REFERRED TO THE VICE PRE SIDENT WHO CONCURRED WITH THE FINDINGS AND CONCLUSION OF T HE ASSESSING OFFICER AND THE COMMISSIONER (APPEALS). O N APPEAL THE HIGH COURT RE-APPRECIATED THE EVIDENCE A ND SUBSTITUTED ITS OWN FINDINGS AND CAME TO THE CONCLU SION THAT THE REASONS ASSIGNED BY THE TRIBUNAL WERE IN T HE REALM OF SURMISES, CONJECTURE AND SUSPICION. ON APP EAL TO THE SUPREME COURT: HELD, REVERSING THE DECISION OF HIGH COURT, THAT FINDINGS OF THE ASSESSING OFFICER, THE COMMISSIONER (APPEALS) AND THE TRIBUNAL WERE BASED ON THE MATERIAL ON RECORD AND NOT ON ANY CONJECTURES A ND SURMISES. THAT THE MONEY CAME BY WAY OF BANK CHEQUE S AND WAS PAID THROUGH THE PROCESS OF BANKING TRANSAC TION WAS NOT BY ITSELF OF ANY CONSEQUENCE. THE HIGH COUR T MISDIRECTED ITSELF AND ERRED IN DISTURBING THE CONC URRENT FINDINGS OF FACT. 9 10. HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CA SE OF YASH PAL GOEL VS CIT 310 ITR 75 HELD AS UNDER : HELD, DISMISSING THE APPEAL THAT THE FINANCIAL POS ITION OF M. SUGGESTED THAT HE NEITHER HAD THE CAPACITY TO MA KE THE GIFT NOR THE SOURCE FROM WHERE THE GIFT WAS MADE. N O REASON WHATSOEVER HAD BEEN ASSIGNED FOR GIFTING SUC H A HUGE AMOUNT BY M TO THE ASSESSEE. M NEVER VISITED T HE HOME OF THE ASSESSEE AND HENCE THERE WAS NO LOVE AN D AFFECTION. IT WAS NOTHING BUT A SUBTERFUGE TO AVOID INCOME- TAX. THE TRANSACTIONS WERE NOT GENUINE ONES. 11. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE SMT.USHA RANI VS. CIT, 301 ITR 121 HELD AS UNDER : HELD, DISMISSING THE APPEALS, THAT IT WAS FOUND FR OM A PERUSAL OF THE ORDERS ON RECORD THAT THE REASONS WERE RECORDED BY THE COMPETENT AUTHORITY FOR INITIATION OF PROCEEDINGS UNDER SECTION 148 OF THE INCOME-TAX ACT , 1961. THE SUFFICIENCY THEREOF COULD NOT BE GONE I NTO BY THE COURT. IT COULD NOT BE SUCCESSFULLY ARGUED TH AT THE REASONS DID NOT HAVE ANY NEXUS WITH THE MATERIAL AVAILABLE WITH THE ASSESSING OFFICER. THE AUTHORI TIES BELOW HAD DISBELIEVED RECEIPT OF GIFTS. THERE WAS NOTHING ON RECORD TO SHOW THE RELATIONSHIP BETWEEN THE DONO R AND THE DONEE, CAPACITY OF THE DONOR TO MAKE GIFTS AND THE OCCASION THEREFORE. THE ASSESSEE HAD FAILED TO DI SCHARGE THE ONUS TO PROVE THE GIFTS. THE REASSESSMENT PROCEEDINGS WERE VALID. 12. CONSIDERING THE ABOVE DISCUSSIONS, IT IS CLEAR THAT THE ASSESSEE FAILED TO PROVE ANY RELATION WITH THE DONO RS AND THEIR CREDITWORTHINESS. NO SUFFICIENT EVIDENCE OR MATERI AL IS FILED ON RECORD TO PROVE THE GENUINENESS OF THE GIFTS IN THE MATTER. 10 THE ASSESSEE LATER ON FILED CONFIRMATION BEFORE THE LEARNED CIT (APPEALS) FOR ADMISSION OF ADDITIONAL EVIDENCE. H OWEVER, THE THINGS REMAIN SAME THAT TWO OF THE CONFIRMATIONS HA VE ONLY THUMB IMPRESSION OF THE DONORS AND ONE CONFIRMATION IS HAVING SIGNATURE IN PUNJABI. THEREFORE, THE FINDI NGS OF THE ASSESSING OFFICER HAVE NOT BEEN MET BY THE ASSESSEE AT ALL. FURTHER NO REASON HAS BEEN EXPLAINED AS TO WHY THES E COULD NOT BE FILED BEFORE THE ASSESSING OFFICER AT THE ST AGE OF ASSESSMENT PROCEEDINGS RATHER AT THE ASSESSMENT PRO CEEDINGS THE ASSESSEE HAS EXPRESSED INABILITY TO PRODUCE ANY FURTHER EVIDENCE OR BANK STATEMENT OF THE DONORS FOR EXAMIN ATION BEFORE THE ASSESSING OFFICER. THEREFORE, CONDITION OF RULE 46A OF INCOME TAX RULES HAVE NOT BEEN SATISFIED BY THE ASSESSEE IN THE MATTER FOR ADMISSION OF ADDITIONAL EVIDENCE. WE MAY ALSO REFER HERE THE JUDGMENTS OF HON'BLE CALCUTTA HIGH C OURT IN THE CASES BHARATI PRIVATE LIMITED, 111 ITR 951 AND UNIT ED COMMERCIAL & INDUSTRIAL COMPANY PVT. LTD., 187 ITR 596, IN WHICH THE HON'BLE HIGH COURT HELD THAT FOR PROVING THE INGREDIENTS UNDER SECTION 68 OF THE ACT, THE ASSESS EE SHALL HAVE TO PROVE THE IDENTITY OF THE CREDITORS, THEIR CAPACITY AND GENUINENESS OF THE TRANSACTION IN THE MATTER. ME RE FILING OF THE CONFIRMATION IS NOT ENOUGH TO PROVE THE GENUINE NESS OF THE CREDITS IN THE MATTER. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE LEARNED CIT (APPEALS) WAS JUSTIFIED I N REFUSING TO ADMIT THE ADDITIONAL EVIDENCE BECAUSE MERE CONFIRMA TION COULD NOT ESTABLISH ANYTHING IN FAVOUR OF THE ASSES SEE. FURTHER NO REASON HAS BEEN EXPLAINED AS TO WHY THE CONFIRMATION OF THE DONORS WERE NOT FILED BEFORE TH E ASSESSING 11 OFFICER. THE HON'BLE SUPREME COURT IN THE CASE OF DURGA PRASAD MORE 82 ITR 540 AND IN THE CASE OF SUMATI DA YAL 214 ITR 801 HELD THAT COURTS OF TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HUMAN PROBABILITIES. IF THE SAID TEST IS APPLIED IN THIS MATTER, IT IS CLEARLY ESTABLISHED THAT THE ASSESSEE HAS FAILED TO PROVE GENUINE GIFTS IN THE MATTER. WE ACCORDINGLY, DO N OT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE SAME IS ACCORDINGLY, DISMISSED. ITA NO.743/CHD/2014 : 13. IN THIS APPEAL THE ASSESSEE CHALLENGED THE ORDE R OF LEARNED CIT (APPEALS) IN REFUSING TO ADMIT THE ADDI TIONAL EVIDENCE UNDER RULE 46A OF THE ACT AND CONFIRMING ADDITION FOR RS.5,80,000/- ON ACCOUNT OF SUNDRY CREDITORS UN DER SECTION 68 OF THE ACT AS WELL AS ADDITION OF RS.2,5 0,000/- ON ACCOUNT OF UNEXPLAINED CREDITS UNDER SECTION 68 OF THE ACT. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS S HOWN SUNDRY CREDITORS OF RS.7,97,600/- IN THE BOOKS OF A CCOUNT. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SAME. THE ASSESSEE SOUGHT ADJOURNMENT. THE ASSESSING OFFICER ASKED TH E ASSESSEE TO FILE CONFIRMATION OF THE CREDIT BALANCE OF THE AFORESAID AMOUNT. THE ASSESSEE LATER ON FILED CON FIRMATION FROM MUKAT BRICK KLIN, KHOJENAJRA, SUNDRY CREDITORS OF RS.1,17,500/- AND M/S SANDHEOLI BRICKS INDS., SUNDR Y CREDITORS OF RS.1 LACS. HOWEVER, WITH RESPECT TO THE CREDIT BALANCE OF RS.5,80,000/- FROM THE REMAINING CREDITO RS, THE ASSESSEE COULD NOT FILE ANY CONFIRMATION OR DOCUMEN TARY 12 EVIDENCE TO SUPPORT THE SAME. THE DETAILS OF THE SAME ARE AS UNDER : I) SHRI AJAY BANSAL RS.1,71,500/- II) MUKAT BRICKS KLIN DHODAN RS.1,93,700/- III) YASEEN RS. 23,300/- IV) HARI IRON & CEMENT STORE RS.1,67,600/- RS.5,80,100/- 14. THE ASSESSING OFFICER BROUGHT ON RECORD THAT TH E ASSESSEE DID NOT FILE CONFIRMATION OR DOCUMENTARY E VIDENCE AND ALSO THE ASSESSEE COULD NOT PROVIDE ADDRESS, PA N, TELEPHONE NUMBER, SALES TAX NUMBER, ETC. IN RESPECT OF THESE CREDITORS. ON VERIFICATION OF THE BOOKS OF ACCOUN T PRODUCED BY THE ASSESSEE, IT WAS SEEN THAT THERE ARE NO VOUC HERS RELATING TO PURCHASE OF CONSTRUCTION MATERIAL DEBIT ED TO PROFIT & LOSS ACCOUNT. THIS FACT WAS BROUGHT TO THE NOT ICE OF THE ASSESSEE BUT THE ASSESSEE FAILED TO PRODUCE ANY PRI MARY VOUCHERS OR ANY SUPPORTING DOCUMENTS. NO CONFIRMAT ION FROM THESE PARTIES HAVE ALSO BEEN FILED. THE ASSESSING OFFICER, THEREFORE, NOTED THAT ON ONE HAND, THE ASSESSEE HAD DEBITED BOGUS PURCHASES OF CONSTRUCTION MATERIAL IN THE PRO FIT & LOSS ACCOUNT AND ON THE OTHER HAND, HAS CREATED BOGUS SU NDRY CREDITORS OF RS.5,80,100/-. THEREFORE, THE ADDITIO N OF RS.5,80,000 WAS ACCORDINGLY, MADE. THESE PARTIES WERE ALSO NOT PRODUCED BEFORE THE ASSESSING OFFICER FOR EXAMI NATION. IT WAS FURTHER FOUND THAT THE ASSESSEE HAS ALSO NOT FILED CONFIRMATION WITH REGARD TO UNSECURED LOANS TAKEN F ROM SHRI GULJARI LAL OF RS.2,50,000/-. THE ASSESSEE EXPRE SSED HIS INABILITY TO FILE ANY DOCUMENTARY EVIDENCE TO PROVE THE GENUINENESS OF THE LOAN OF RS.2,50,000/-. THEREFO RE, THE 13 SAME WAS CONSIDERED AS UNEXPLAINED CREDIT AND ADDIT ION OF RS.2,50,000/- WAS ALSO MADE. 15. THE ASSESSEE CHALLENGED BOTH THE ADDITIONS BEFO RE THE LEARNED CIT (APPEALS). IT WAS SUBMITTED THAT DUE T O PAUCITY OF TIME CONFIRMATION COLD NOT BE FILED. THE CONFIRMA TION NOW FILED BEFORE THE LEARNED CIT (APPEALS) FOR ADMISSIO N OF ADDITIONAL EVIDENCE. IT WAS SUBMITTED THAT AN AMO UNT OF RS.2,50,000/- WAS RECEIVED FROM SHRI GULJARI LAL OF PANCHKULA THROUGH ACCOUNT PAYEE CHEQUE. THEREFOR E, IN THE PRESENCE OF THESE PARTICULARS, THE ASSESSEE HAS DIS CHARGED HIS ONUS TO PROVE THE GENUINENESS OF THE CREDIT IN THE MATTER. THE ASSESSEE, THEREFORE, SUBMITTED THAT THE ASSESSE E HAS BEEN ABLE TO PROVE THE GENUINENESS OF THE CREDIT IN THE MATTER. THEREFORE, THE ADDITIONAL EVIDENCES MAY BE ADMITTED AND ADDITION MAY BE DELETED. THE LEARNED CIT (APPEALS ), HOWEVER, FOUND THAT NO EXCEPTIONAL CIRCUMSTANCES HAVE BEEN P ROVED. THEREFORE, THE ADDITIONAL EVIDENCE CANNOT BE ADMITT ED AND ACCORDINGLY, REJECTED THE APPEAL OF THE ASSESSEE. 16. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. THE ASSESSING OFFICER HAS SPECIFICALLY FOUND THAT THE A SSESSEE HAS BOOKED BOGUS PURCHASE OF CONSTRUCTION MATERIAL IN T HE PROFIT & LOSS ACCOUNT BECAUSE NO PURCHASE VOUCHERS FOR A S UM OF RS.5,80,100/- HAVE BEEN PRODUCED. THEREFORE, THER E IS NO QUESTION OF ENTERING THE GENUINE CREDIT IN THE BOOK S OF ACCOUNT. THIS FINDING OF FACT HAS NOT BEEN REBUTT ED BY THE ASSESSEE AT ALL. THE ASSESSEE IN THE PAPER BOOK H AS FILED 14 APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE BE FORE THE LEARNED CIT (APPEALS) IN WHICH THE ASSESSEE SOUGHT ADMISSION OF THE CONFIRMATION AND DOCUMENTARY EVIDENCES BEFOR E THE LEARNED CIT (APPEALS). HOWEVER, THE SAME WOULD SH OW THAT IN THE CASE SHRI AJAY BANSAL PHOTOCOPY OF ACCOUNT AND PHOTOCOPY OF BILL HAVE BEEN FILED. IN THE CASE MUKAT BRICK S KLIN DHODAN SAME COPY OF THE ACCOUNT AND COPY OF THE BIL L AND COPY OF CONFIRMATION OF THE ACCOUNT IS FILED. THE SAME IS THE POSITION IN RESPECT OF YASEEN AND HARI IRON & CEMEN T STORE. IT IS, THEREFORE, CLEAR THAT IN NONE OF THE CASES T HE ASSESSEE HAS FILED ANY INDEPENDENT CONFIRMATION. ALL THE OU TSTANDING BALANCE APPEARING IN THE BOOKS OF ACCOUNT OF THE AS SESSEE AS STATED TO HAVE BEEN FROM THE CREDITORS. MERE CONF IRMATION OF THE ACCOUNT OR COPY OF THE ACCOUNT WOULD NOT PROVE THE GENUINENESS OF THE CREDIT IN THE MATTER. AS NOTED ABOVE, SINCE THE PURCHASE VOUCHERS QUA THESE PARTIES HAVE NOT BEEN PRODUCED BEFORE THE ASSESSING OFFICER AT ASSESSMENT STAGE, WOULD PROVE THAT THE ASSESSEE BOOKED BOGUS PURCHASE S IN THE BOOKS OF ACCOUNT AS WELL AS NOTED BOGUS CREDIT ENTR IES IN THE BOOKS OF ACCOUNT. WE HAVE ALREADY REFERRED TO THE J UDGMENTS OF HON'BLE CALCUTTA HIGH COURT IN THE CASES OF BHAR ATI PRIVATE LIMITED AND UNITED COMMERCIAL & INDUSTRIAL COMPANY PVT. LTD. (SUPRA) FOR THE PROPOSITION THAT MERE FILING O F CONFIRMATION IS NOT ENOUGH TO PROVE THE GENUINE CRE DIT, WOULD CLEARLY PROVE THAT THE ASSESSEE FAILED TO PROVE THE GENUINE CREDIT IN THE MATTER. THE ASSESSEE FAILED TO PRO VE THE IDENTITY OF THE CREDITORS, THEIR CAPACITY AND GENUI NENESS OF THE TRANSACTION IN THE MATTER. WHATSOEVER ADDITIONAL EVIDENCES 15 WERE PRODUCED BEFORE THE LEARNED CIT (APPEALS) ARE NOT SUFFICIENT TO DISCHARGE THE ONUS UPON THE ASSESSEE TO PROVE THE GENUINE CREDIT IN THE MATTER. FURTHER THE ASSE SSEE FAILED TO EXPLAIN WHY THE SAME WERE NOT FILED BEFORE THE A SSESSING OFFICER. THEREFORE, THE LEARNED CIT (APPEALS) WAS JUSTIFIED IN REFUSING TO ADMIT THIS ADDITIONAL EVIDENCE. IN THE CASE SHRI GULJARI LAL FOR LOAN OF RS.2,50,000/- EVEN BEFORE U S NO CONFIRMATION OR ANY EVIDENCE HAVE BEEN FILED TO PRO VE THE GENUINENESS OF THE CREDIT. THEREFORE, THE LEARNED CIT (APPEALS) WAS JUSTIFIED IN CONFIRMING BOTH THE ADDI TIONS. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE FAILS AND IS DISMISSED. ITA NO.744/CHD/2014 : 18. THE ASSESSEE SIMILARLY CHALLENGED THE ORDER OF THE LEARNED CIT (APPEALS) IN REFUSING TO ADMIT THE ADDI TIONAL EVIDENCE UNDER RULE 46A AND ADDITION OF RS.1 LAC ON ACCOUNT OF CREDIT IN THE NAME OF SHRI K.C.BANSAL. THE ASS ESSING OFFICER NOTED THAT CREDIT OF RS.1 LAC ON ACCOUNT OF UNSECURED LOAN APPEARED IN THE BOOKS OF ACCOUNT OF THE ASSESS EE WHICH PERTAINS IN THE NAME OF S/SHRI K.C.BANSAL AND VINOD JINDAL. THE ASSESSEE COULD NOT FILE SUFFICIENT EVIDENCE BEF ORE THE ASSESSING OFFICER. THEREFORE, THE ADDITION WAS MA DE ON ACCOUNT OF UNEXPLAINED CREDIT. 19. THE LEARNED CIT (APPEALS) SIMILARLY REFUSED TO ADMIT THE ADDITIONAL EVIDENCE AND DISMISSED THE APPEAL OF THE ASSESSEE. 16 20. ON CONSIDERATION OF THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL OF THE ASSESSEE. THE ASSESSEE SOUGHT ADMISSION OF CO NFIRMATION ISSUED BY SHRI K.C.BANSAL (PB-11) BEFORE THE LEARNE D CIT (APPEALS). HOWEVER, IT WAS NOT EXPLAINED WHY IT W AS NOT FILED BEFORE THE ASSESSING OFFICER. IN THE ABSENCE OF A NY EXCEPTIONAL REASON, THE LEARNED CIT (APPEALS) WAS J USTIFIED IN REFUSING TO ADMIT SUCH ADDITIONAL EVIDENCE. FURTH ER COPY OF THE BANK ACCOUNT OF SHRI K.C.BANSAL IS FILED AT PAG E 14 OF THE PAPER BOOK. THIS, HOWEVER, DISCLOSES THAT WHEN A CHEQUE OF RS.1 LACS DATED 24.3.2006 WAS GIVEN TO THE ASSESSEE , PRIOR TO IT THERE WAS BANK BALANCE OF RS.668.35 AND SHRI K.C .BANSAL MADE DEPOSIT OF RS.1 LAC IN CASH ON SAME DAY IN HIS BANK ACCOUNT ON 24.3.2006. FOR GIVING LOAN TO THE ASSESS EE. THE I.T.A.T. AGRA BENCH IN THE CASE SUMAN GUPTA, 138 IT D 153 CONFIRMED THE ADDITION ON THE SAME FACTS ON DEPOSIT ING CASH BY THE CREDITOR IN HIS BANK ACCOUNT FOR GIVING LOAN TO THE ASSESSEE AND THE ORDER HAS BEEN CONFIRMED BY THE HO N'BLE ALLAHABAD HIGH COURT IN THE CASE SMT.SUMAN GUPTA VS . CIT IN ITA NO.680 OF 2012 DATED 7.8.2012 AND SAME VIEW IS TAKEN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF BLESS ING CONSTRUCTION VS. ITO, 32 TAXMANN.COM 366. CONSIDE RING THE ABOVE, WE ARE OF THE VIEW THAT THE LEARNED CIT (APP EALS) WAS JUSTIFIED IN REFUSING TO ADMIT THE ADDITIONAL EVIDE NCE AT APPELLATE STAGE. MERE FILING OF CONFIRMATION IS T HUS NOT ENOUGH TO PROVE THE IDENTITY OF THE CREDITORS, HIS CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . MERELY BECAUSE THE LOAN IS GIVEN THROUGH CHEQUE IS NO SACR OSANCT TO 17 PROVE NON-GENUINE TRANSACTION TO BE GENUINE TRANSAC TION. IN THIS VIEW OF THE MATTER, THE APPEAL OF THE ASSESSEE FAILS AND IS DISMISSED. 21. IN THE RESULT, ALL THE THREE APPEALS OF THE ASS ESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF FEBRUARY, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10 TH FEBRURAY, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH