JAGDISH NARAIN RAM KISHAN, Dausa V. ITO, Dausa

ITA 935/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5379 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Assessee Lawyers: RAJIV SOGANI
• 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 VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA- @ ITA NO. 935/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 M/S JAGDISH NARAIN RAM KISHAN KHANDELWAL, A-6, NEW ANAJ MANDI, DAUSA. CUKE VS. ITO, WARD-DAUSA LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: AABFJ 2480 N VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI RAJIV SOGANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/02/2016 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 27/04/2016 VKNS'K @ ORDER PER: R.P. TOLANI, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19/09/2013 PASSED BY THE LEARNED CIT(A), ALWAR FOR A .Y. 2008-09 CHALLENGING THE ADDITION OF RS. 1.00 LACS MADE U/S 68 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). ITA 935/JP/2013_ M/S JAGDISH NARAIN RAM KISHAN VS ITO 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE RECEIVED THREE DEMAND DRAFTS OF RS. 35000, 35000 AND 30000 FROM ON E SHRI GHANSHYAM DAS, WHO IS RESIDENT OF MADHYA PRADESH. TH E AMOUNT WAS RECEIVED BY D.D. AS A TRADE ADVANCE FOR CARRYING OU T SOME BUSINESS ON BEHALF OF SHRI GHANSHYAM DAS. THE ASSESSEE CARRIE D OUT THE WORK ON HIS BEHALF, WHICH RESULTED INTO LOSS AND THE AMO UNT OF ABOVE ADVANCE WAS THUS SQUARED UP. DURING THE COURSE OF AS SESSMENT PROCEEDINGS, THE LD ASSESSING OFFICER ASKED FOR EXP LANATION BUT NEVER INSISTED FOR THE ATTENDANCE OF SHRI GHANSHYAM. THE LD ASSESSING OFFICER WAS NOT SATISFIED WITH THE ASSESSEES REPLY A ND ADDED THE AMOUNT U/S 68 OF THE ACT. 3. THE LD CIT(A) IN FIRST APPEAL HAS HELD THAT THE AS SESSEE HAS NOT DISCHARGED ITS ONUS IN TERMS OF SECTION 68 AND CONF IRMED THE ADDITION BY FOLLOWING OBSERVATIONS:- 7.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WE LL AS THE SUBMISSIONS MADE BY THE AR AND FIND THAT THE AO HAD MADE THE ADDITION ON THE GROUND THAT IN RESPECT OF CASH CREDITS OF RS. 1 LAC FROM SHRI GHANSHYAM DAS KHANDELWAL, THE REQUIREMENTS OF SECTION 68 OF THE IT ACT HAVE NOT BEEN COMPLIED WITH. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ONLY COPY OF LEDGER ACCOUNT OF ITA 935/JP/2013_ M/S JAGDISH NARAIN RAM KISHAN VS ITO 3 THE CREDITOR WAS FILED. APART FROM THIS, THE APPELLA NT FAILED TO FILE ANY FURTHER EVIDENCE. IN THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS FILED A CO PY OF THE BANK CERTIFICATE IN SUPPORT OF THE CLAIM THAT T WO DRAFTS OF RS. 35,000 EACH AND ONE DRAFT OF RS. 30,0 00 WAS DEPOSITED IN THE ACCOUNT. 7.4 CONSIDERING THE SUBMISSIONS MADE, I FIND THAT T HE APPELLANT HAS STILL FAILED TO DISCHARGE THE ONUS WHI CH LAY UPON HIM UNDER THE PROVISIONS OF SECTION 68 OF THE IT ACT. THE APPELLANT HAS FAILED TO FURNISH ANY EVIDENC E IN SUPPORT OF THE IDENTITY OF THE CREDITOR- COPY OF VO TER CARD, AADHAR CARD OR ANY OTHER EVIDENCE WAS NOT FILED; CREDITWORTHINESS OF THE CREDITOR - NO DETAILS OF SOU RCES OF INCOME OF THE CREDITOR, SOURCE OF DEPOSITS, IT RETUR N, PAN OR ANY OTHER EVIDENCE, WAS NOT FILED; AND GENUINENES S OF THE TRANSACTION- COPY OF THE BANK ACCOUNT FROM WHERE THE DRAFTS WERE ISSUED WAS NOT FILED. THE BANK CERTIFI CATE MENTIONED ABOVE IS FROM THE BANK OF THE APPELLANT WH ICH DOES NOT CERTIFY IN ANY WAY THE IDENTITY OF THE PERS ON FROM WHOM THE DRAFTS WERE RECEIVED OR OF THE BANK ACCOUNT FROM WHICH THE SAID DRAFTS WERE MADE. IT ALSO DOES NOT PROVIDE ANY CLUE TO THE CREDITWORTHINESS O F THE CREDITOR OR TO THE GENUINENESS OF THE TRANSACTION. THE LD CIT(A) HAS RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF RAJESH KALIA VS. CIT 286 ITR 357, RAM LA L AGARWAL VS CIT ITA 935/JP/2013_ M/S JAGDISH NARAIN RAM KISHAN VS ITO 4 280 ITR 547 (ALL), ITAT HYDERABAD DECISION IN THE CAS E REPORTED AT 023 ITR (TRIB) 0528. 4. LD COUNSEL FOR THE ASSESSEE CONTENDS THAT THE AS SESSEE WAS NEVER INSISTED TO PRODUCE SHRI GHANSHYAM, THEREFORE , HE WAS NOT PRODUCED. THE ASSESSEE FILED COPIES OF ACCOUNT FROM HIS BOOKS WHICH AMOUNTS TO DISCHARGE OF ONUS. 5. THE LD DR, ON THE OTHER HAND, CONTENDS THAT DESPI TE SEVERAL OPPORTUNITIES, THE ASSESSEE FAILED TO ADDUCE ANY PR OVE ABOUT IDENTITY, GENUINENESS OR CREDITWORTHINESS OF SHRI GHANSHYAM DA S. SECTION 68 OBLIGES THE ASSESSEE TO DISCHARGE OF ONUS IN RESPEC T OF THESE INGREDIENTS. IN ABSENCE OF DISCHARGE OF ONUS, THE A SSESSING OFFICER IS LEFT WITH NO CHOICE BUT TO MAKE THE ADDITION U/S 68 OF THE ACT. THE ASSESSEE BEFORE THE HONBLE ITAT ALSO HAS FAILED TO DEMONSTRATE IN DISCHARGING OF ONUS CAST IN TERMS OF SECTION 68 IN EFFECTIVE TERMS. THEREFORE, ADDITION HAS BEEN RIGHTLY SUSTAINED. 6. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT CL EARLY EMERGES THAT THE ASSESSEE FAILED TO DISCHARGE THE ONUS CAST ON I T IN TERMS OF SECTION 68, WHICH HAS BEEN DEALT WITH BY THE ASSESSING OFFICE R AND CIT(A). THE CONFIRMATION OF ADDITION BY THE LD CIT(A) IS SUPP ORTED BY THE CASE ITA 935/JP/2013_ M/S JAGDISH NARAIN RAM KISHAN VS ITO 5 LAWS CITED ABOVE. IN VIEW THEREOF, IN CONSIDERATION O F ALL THE ABOVE, THE ORDER OF LD CIT(A) IS UPHELD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/04/2016. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 27 TH APRIL, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S JAGDISH NARAIN RAM KISHAN KHANDELWAL, DAUSA. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-DAUSA. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 935/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR