DEEPK GUPTA, Jaipur V. ITO, BEHROR

ITA 900/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4934 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 29-12-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA DHK
• Assessee Lawyers: GHANSHYAM THAKURIA; KISH AN MORE
• Keywords: Unexplained cash credit; Peak credit
• Section: 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 900/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI DEEPAK GUPTA PROP. VOP JAWANPURA THAKURAN VIA-BHABRU, TEHSIL,VIRAT NAGAR JAIPUR CUKE VS. THE ITO WARD- BEHROR ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AJAPG 6987 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY:SHRI GHANSHYAM THAKURIA, ADVOCATE & S HRI KISHAN MORE, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL. CIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 10 /11/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A), ALWAR DATED 29-10-2014 FOR THE ASSESSMENT YEAR 2009-10 WHEREIN THE ASSESSEE IS AGGRIEVED, THAT THE LD. CIT (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 3,94,000/- PLUS THE ADDITIONAL ADDITION OF RS. 98,000/- OF CASH CREDITORS U/S 68 OF THE ACT. ITA NO. 900/JP/2014 SHRI DEEPAK GUPTA S ITO, WARD- BEHROR, ALWAR . 2 2.1 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE FIL ED THE WRITTEN SUBMISSION WHICH HAS BEEN TAKEN INTO CONSIDERATION. THE LD. DR RELIED ON THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN QUESTIO N. IT IS NOTED FROM THE RECORD THAT ADDITION OF RS. 8,41,000/- WAS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH CREDITS U/S 68 OF THE ACT IN THE C ASES OF CASH CREDITORS. IN APPELLATE PROCEEDINGS, THE LD. CIT(A) AFTER TAKI NG INTO CONSIDERATION THE ASSESSMENT ORDER, REMAND REPORT AS WELL AS SUB MISSIONS AND THE DOCUMENTS PRODUCED BY THE ASSESSEE BEFORE HIM DELET ED THE FOLLOWING ADDITIONS IN THE CASES OF THE FEW OF THE CASH CREDI TORS U/S 68 OF THE ACT. (1) SHRI RAMESH CHAND SHARMA RS. 2,00,000/- (2) SHRI ROHIT AGARWAL RS. 98,000/- (3) SHRI KISHAN LAL VERMA RS. 49,000/- (4) SHRI DILIP AGARWAL RS. 1,00,000/- 2.2 HOWEVER, THE LD. CIT(A) CONFIRMED THE ADDITION S IN THE CASES OF FOLLOWING CASH CREDITORS ON ACCOUNT OF PEAK CREDIT , NO BANK PASS BOOK, NO PHOTO ID OF THE CREDITOR AND GENUINENESS & CREDI TWORTHINESS OF THE CREDITORS COULD NOT BE PROVED BEFORE THE LOWER AUTH ORITIES FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE THIS BENCH. THE CONCLU SIVE OBSERVATION OF THE ITA NO. 900/JP/2014 SHRI DEEPAK GUPTA S ITO, WARD- BEHROR, ALWAR . 3 LD. CIT(A) FOR NOT GRANTING RELIEF TO THE ASSESSEE IN THE CASE OF THE FOLLOWING CASH CREDITORS IS CONCISELY AS UNDER (1) IN THE CASE OF SHRI GOPAL AGARWAL, THE LD. CIT( A) CONFIRMED THE ADDITION TO THE TUNE OF RS. 1.98 LACS BEING THE PEAK CREDIT AND THE SOURCE OF THE FUNDS AS WELL AS GENUINENESS OF THE T RANSACTIONS COULD NOT BE VERIFIED. THE APPELLANT AS WELL AS THE CREDITOR COU LD NOT PLACE ON RECORD SUFFICIENT EVIDENCE TO DISCHARGE THE ONUS. (2) IN THE CASE OF SHRI PAWAN KUMAR SHARMA, THE LD. CIT(A) CONFIRMED THE ADDITION TO THE TUNE OF RS. 49,000/- AS THE ASSESSEE FAILED TO FURNISH THE EVIDENCE TO PROVE THE IDENTITY (NO PHOT O ID & NO COPY OF BANK ACCOUNT WAS FILED), CREDITWORTHINESS AND GENUINENES S OF THE TRANSACTIONS. (3) IN THE CASE SMT. MEENA TAK, THE LD. CIT(A) CONF IRMED THE ADDITION TO THE TUNE OF RS. 1,47,000/- AS THE BANK ACCOUNT OF THE CREDITOR COULD NOT BE FILED. (4) IN THE CASE OF SMT. MANSI BINDAL, THE LD. CIT(A ) CONFIRMED THE ADDITION TO THE TUNE OF RS. 98,000/- AS THE ASS ESSEE FAILED TO FURNISH THE EVIDENCE TO PROVE THE IDENTITY (NO PHOTO ID OF THE CREDITOR WAS FILED), CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S 2.3 AS REGARDS THE DISALLOWANCE OF ADDITION OF RS. 1,98,000/- IN THE CASE OF THE SHRI GOPAL AGARWAL, THE LD. AR OF THE A SSESSEE SUBMITTED THAT THE DETAILS FROM THE BANK OF BARODA AND HDFC BANK C OULD NOT BE OBTAINED FROM THE BANKS AS THE BANKS HAD REFUSED TO GIVE THE STATEMENTS BEING IT VERY OLD. HOWEVER, IN SPITE OF EFFORTS BY THE ASSESSEE, BOTH THE ITA NO. 900/JP/2014 SHRI DEEPAK GUPTA S ITO, WARD- BEHROR, ALWAR . 4 BANKS PROVIDED THE STATEMENT OF ACCOUNT/ DETAILS IN RESPECT OF SHRI GOPAL AGARWAL. THE MODUS OPERANDI IS THAT RS. 49,000/- WA S ADVANCED ON 31-08-2009 VIDE CHEQUE NO. 0025926 OF HDFC BANK, RS . 1.00 LAC WAS ADVANCED ON 1-09-2009 VIDE CHEQUE NO. 500961 AND RS . 49,000/- WAS ADVANCED ON 5-09-2009 VIDE CHEQUE NO. 500962 BOTH T HROUGH BANK OF BARODA. THE REPAYMENT BY THE ASSESSEE OF RS. 98,000 /- WAS MADE ON 9-12-2009 VIDE CHEQUE NO.501487. THUS THE AMOUNT OF RS. 98,000/- WAS SQUARED UP AND REMAINING UNSECURED LOAN OF RS. 1.00 LAC WAS IN THE HANDS OF THE ASSESSEE. SHRI GOPAL HAS FILED THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA BEARING NO. RJ/07/055/ 153176 ISSUED ON 30-08-1995. IN VIEW OF THE ABOVE EVIDENCES AND BANK DETAILS / STATEMENTS, IT IS NOT JUSTIFIED TO UPHOLD THE ADDITION CONFIRME D BY THE LD. CIT(A). IN SUCH A SITUATION, THE SAME IS DIRECTED TO BE DELETE D. 2.4 AS REGARDS THE DISALLOWANCE OF ADDITION OF RS. 49,000/- IN THE CASE OF THE SHRI PAWAN KUMAR, IT IS NOTICED THAT THE ASS ESSEE RECEIVED A LOAN OF RS. 49,000/- ON 8-09-2009 VIDE CHEQUE NO. 625101 OF UCO BANK. THE ASSESSEE FILED THE BANK DETAILS/ STATEMENTS IN WHIC H RS. 49,000/- WAS WITHDRAWN FROM UCO BANK A/C OF SHRI PAWAN KUMAR. T HE ASSESSEE FILED THE IDENTITY CARD IN RESPECT OF SHRI PAWAN K UMAR ISSUED BY ITA NO. 900/JP/2014 SHRI DEEPAK GUPTA S ITO, WARD- BEHROR, ALWAR . 5 ELECTION COMMISSION OF INDIA ON 28-03-2003. HENCE, IN SUCH A SITUATION, THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF T HE CREDITOR IS PROVED. THUS THE AMOUNT OF RS. 49,000/- IS ALSO DIRECTED TO BE DELETED. 2.5 AS REGARDS THE DISALLOWANCE OF ADDITION OF RS. 1,47,000/- IN THE CASE OF THE SMT. MEENA TAK, IT IS NOTICED FROM THE BANK STATEMENT OF SMT. MEENA TAK THAT RS. 49,000/- EACH WERE WITHDRAWN ON THREE OCCASIONS IN THE NAME OF TRIVENI ENTERPRISE VIDE CHEQUE NO. 6473 03 DATED 2-09-09, CHEQUE NO.647304 DATED 02-09-09 AND CHEQUE NO 64730 5 DATED 4-09-09 FROM HER INDUSLAND BANK A/C. THE ASSESSEE FILED THE IDENTITY CARD IN RESPECT OF SMT. MEENA TAK ISSUED BY ELECTION COMMI SSION OF INDIA ON 11-10-2002. HENCE, IN SUCH A SITUATION, THE IDENTIT Y, GENUINENESS AND CREDITWORTHINESS OF THE CREDITOR IS PROVED. THUS TH E AMOUNT OF RS. 1,47,000/- IS ALSO DIRECTED TO BE DELETED. 2.6 AS REGARDS THE DISALLOWANCE OF ADDITION OF RS. 98,000/- IN THE CASE OF THE MANSI BINDAL, THE LD. AR OF THE ASSESSEE SUB MITTED THAT THE ASSESSEE HAD OBTAINED LOAN OF RS. 98,000/- ON 7-09- 2009 VIDE CHEQUE NO.749480 AND 74981 RESPECTIVELY. HOWEVER, ON PERUS AL OF THE RECORD, IT IS NOTICED THAT THE ASSESSEE HAD NOT PRODUCED THE B ANK ACCOUNT OF THE CREDITOR AND SOURCE OF PROVIDING LOAN TO THE ASSESS EE COULD NOT BE ITA NO. 900/JP/2014 SHRI DEEPAK GUPTA S ITO, WARD- BEHROR, ALWAR . 6 ESTABLISHED AND ALSO THE IDENTITY OF THE CREDITOR I S NOT PROVED. IN SUCH A SITUATION, THE ADDITION OF RS. 98,000/- IS CONFIRME D IN THE HANDS OF THE ASSESSEE. CONCLUSIVELY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 /11/ 2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10 /11/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI DEEPAK GUPTA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- BEHROR, ALWAR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 900/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR