S. Venkatesan, Bangalore V. ITO, Bangalore

ITA 946/BANG/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0454 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-03-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: GANGADHAR SASTRY ITP
• Keywords: Onus to prove
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 946/BANG /20 1 4 (ASSESSMENT YEAR: 200 8 - 09 ) SHRI VENKATESAN, NO.7, KAVERI LAYOUT, DC P OST, SUDDAGU NTE P ALYA, BANGALORE - 560029. APPELLANT PAN: AAXPV 2457 P VS. INCOME - TAX OFFICER, WARD 10(2), BANGALORE. ... RESPONDENT APPELLANT BY : SHRI GANGADHAR SASTRY, ITP . RESPONDENT BY : DR.P.K.SRIHARI, ADDL.CIT(DR) . DATE OF HEARING : 17 /03/2016 DATE OF PRONOUNCEMENT : 12 /04/2016 O R D E R PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14/04/2014 OF THE C IT(A), LTU, BANGALORE, FOR THE ASSESSMENT YEAR 200 8 - 0 9 . 2. THE SOLITARY GRO UND RAISED BY THE ASSESSEE IS AS UNDER: ITA NO . 946 / BAN G /201 4 PAGE 2 OF 5 THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE SUNDRY CREDITOR IN RESPECT OF M/S BEIJIA INDUSTRIAL COMPANY LTD. OF RS.7,79,550/ - IS GENUINE & WAS ESTABLISHED BY LEDGER TRANSACTION. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAD SHOWN SUNDRY CREDITORS PERTAINING TO M/S.BE I JIA INDUSTRIAL CO. LTD., OF RS.7,79,550/ - AND TO M/S.S.I.INTERNATIONAL CO., OF RS.1,37,860/ - . ON QUERY FROM THE AO, THE ASSESSEE SUBMITTED THAT THESE CREDITS HAVE CONTINUED EVEN DURING THE SUBSEQUENT YEAR AND THERE HAS BEEN NO BUSINESS TRANSACTION WITH THE SAID CREDITOR. THE AO NOTED THAT NO CONFIRMATION FROM THEE TWO CREDITORS HAS BEEN FURNISHED AND THE CREDITORS CONTINUED TO EXIST WITHOUT ANY FURTHE R BUSINESS TRANSACTION. THEREFORE, THE SAME WAS ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 2. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE CIT(A) AND CONTENDED THAT S UNDRY CREDITORS IN QUESTION DID NOT RELATE TO ASSESSMENT YEAR UNDER CO NSIDERATION. THEREFORE, NO ADDITION U/S 68 CAN BE MADE WHEN THE ASSESSEE HAS NOT INTRODUCED THESE CREDITS DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE HAS RELIED UPON THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. USHA STUD AGRI CULTURAL FARM LTD. ( 301 ITR 384). THE CIT(A) DID NOT ACCEPT THE CONTENTION AND EXPLANATION OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY ITA NO . 946 / BAN G /201 4 PAGE 3 OF 5 THE AO ON THIS ACCOUNT. 3. BEFORE US, LEARNED AR OF THE ASSESSEE SUBMITTED THAT NO NEW CREDIT HAS BEEN IN TRODUCED IN THE BOOKS OF ACCOUNT DURING THE YEAR UNDER CONSIDERATION AND THE ENTIRE AMOUNT OF RS.7,99,550/ - IS BROUGHT FORWARD BALANCE OF THE EARLIER YEARS. THEREFORE, NO ADDITION U/S 68 CAN BE MADE IN THE YE AR UNDER CONSIDERATION WHEN THE CREDIT WAS NOT INTRODUCED IN THE BOOKS OF ACCOUNT DURING THE YEAR. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE JUDGMENT OF THE HON BLE DELHI HIGH COURT IN THE CASE OF USHA STUD AGRICULTURAL FARM LTD. (SUPRA). ON THE OTHER HAND, LEARNED DR HAS SUBMITTED THAT THE ASSESSEE FAILED TO FULFILL REQUISITE CONDITION OF IDENTITY OF CREDITOR AND GENUINENESS OF THE TRANSACTION, DESPITE THE OPPORTUNITIES GIVEN BY THE AO. THEREFORE, THE ASSESSEE FAILED TO DISCHARGE ITS ONUS TO PROVE GENUINENESS OF THE TRANSACTION. HE HAS RE LIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE AMOUNT IN QUESTION IS A BROUGHT FORWARD BALANCE AS SHOWN IN THE ACCOUNT OF THE TWO PARTIES VIZ., M/ S.BEIJIA INDUSTRIAL CO. LTD., AND M/S.S.I.INTERNATIONAL CO., WHO ARE STATED TO BE SUPPLIERS OF THE ASSESSEE. THIS FACT HAS NOT BEEN DISPUTED BY THE CIT(A) AS RECORDED IN PARA.6 OF THE IMPUGNED ORDER: ITA NO . 946 / BAN G /201 4 PAGE 4 OF 5 6. BEFORE ME ALSO THE APPELLANT HAS NOT FURNISHED ANY CONFIRMATION FROM THE IMPUGNED SUNDRY CREDITORS AND ONLY REITERATED THE ARGUMENTS MADE BEFORE THE AO. COPY OF LEDGER ACCOUNT OF BEIJIA INDUSTRIAL CO. LTD. FURNISHED FOR FYS 2005 - 06, 2006 - 07 & 2007 - 08 SHOWS THAT THE TRANSACTIONS HAVE STARTED IN FY 2005 - 06 AND HAVE CONTINUED IN THE TWO FOLLOWING YEARS. THE LEDGER ACCOUNT OF SI INTERNATIONAL COMPANY SHOWS NO TRANSACTIONS DURING FY 2007 - 08 AGAINST THE OPENING BALANCE OF RS.1,37,860(CR.) OF 1.4.2007. THUS IT IS CLEAR THAT THE CIT(A) HAS RECORDED THE FAC T THAT THE ASSESSEE HAS CLAIMED THIS AMOUNT BEING A BROUGHT FORWARD BALANCE IN THE LEDGER ACCOUNTS OF THE CREDITORS OF M/S.BEIJIA INDUSTRIAL CO. LTD., AND M/S.S.I.INTERNATIONAL CO.,. THE AO MADE THE ADDITION ON THE GROUND THAT THE ASSESSEE FAILED TO PRODU CE THE CONFIRMATION OF THE CREDITOR. IT IS PERTINENT TO NOTE THAT THIS AMOUNT WAS SHOWN AS CREDIT FOR THE FINANCIAL YEAR 2005 - 06 AND CONTINUED AS CARRIED FORWARD TILL THIS YEAR, THEN IT WOULD NOT BE A CASE OF CREDIT ENTRIES IN THE BOOKS OF ACCOUNT OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION. THEREFORE, WHEN NO CASH CREDIT WAS ENTERED INTO BOOKS OF ACCOUNT DURING THE YEAR UNDER CONSIDERATION, THEN NO ADDITION U/S 68 OF THE ACT CAN BE MADE IN RESPECT OF THIS AMOUNT OF CREDIT BALANCE SHOWN IN THE BO OKS OF ACCOUNT. AS REGARDS THE GENUINENESS OF THE TRANSACTION IS CONCERNED, IF THE ASSESSEE FAILED TO PROVE THE EXISTENCE OF THE LIABILITY IN QUESTION THEN THE ADDITION CAN BE MADE UNDER THE PROVISIONS OF SEC.41(1) OR SEC.28 OF THE ACT AND NOT U/S 68 OF T HE ACT. ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE RECORD OF THE AO TO RE - EXAMINE THE SAME IN THE LIGHT OF THE JUDGMENT OF THE HON BLE DELHI HIGH COURT IN THE CASE OF USHA STUD AGRICULTURAL ITA NO . 946 / BAN G /201 4 PAGE 5 OF 5 FARM LTD. (SUPRA). THE ASSESSEE IS ALSO DIRECTED TO EXPLAIN THE STATUS OF THE REPAYMENT OF THE LIABILITY. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF APRIL , 2016 S D/ - S D/ - (INTURI RAMA RAO) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : BANGALORE D A T E D : 12 /0 4 /2016 E KS RINIVASULU,SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE