Shri Ram Gopal Gupta, Bhopal V. THE ACIT 3(1), Bhopal

ITA 966/IND/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3965 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 4 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-01-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 21-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: YOGESH KAUSHIK
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence
• Section: 68; 143(3); 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE HON'BLE KUL BHARAT, JUDICIAL MEMBER AND HON'BLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.966/IND/2016 ASSESSMENT YEAR: 2008-09 SHRI RAM GOPAL GUPTA, 66, DATA COLONY, AIRPORT ROAD BHOPAL / VS. ACIT-3(1) BHOPAL ( APPELLANT ) ( RE VENUE) PAN: AAZPG5377M APPELLANT BY SHRI YOGESH KAUSHIK , C A REVENUE BY SHRI K.G. GOYAL, SR. DR DATE OF HEARING: 16.01.2019 DATE OF PRONOUNCEMENT: 06.01.2019 / O R D E R PER MANISH BORAD, A.M: THIS APPEAL BY ASSESSEE PERTAINING TO A.Y. 2008-09 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INC OME TAX(APPEALS)-2 BHOPAL, (IN SHORT CIT(A)), DATED 30.0 6.2016 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT) FRAMED ON RAM GOPAL GUPTA ITANO.966/IND/2016 2 27.12.2010 BY ACIT, 3(1) BHOPAL. THE ASSESSEE HAS RAISE D FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACT AND IN THE CIRCUMSTANCES OF TH E CASE THE ADDITION OF RS.9,00,000/- AS UNEXPLAINED LOAN UPHEL D BY THE CIT(A), BE HELD TO BE UNJUSTIFIED AND BE QUASHE D. 2. THAT ON FACT AND IN THE CIRCUMSTANCES OF THE CAS E THE ADDITION OF RS.4,55,894/- AS PRESUMPTIVE INTEREST O N DEBIT BALANCE OF M/S. RAJU CONSTRUCTION CO. BE HELD TO BE BAD AND UNJUSTIFIED AND BE QUASHED. 3. THAT ON FACT AND IN THE CIRCUMSTANCES OF THE CAS E, THE APPELLANT PLEADS THAT IN THE ALTERNATIVE AND WITHOU T PREJUDICE TO THE GROUNDS STATED ABOVE THE ADDITION MADE BE HELD HIGH AND BE REDUCED. 2. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE RECO RDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM VEHICLE PLYING AND MATERIAL SUPPLIER. INCOME OF RS.8,48,390/- DISCLOSED IN THE INCOME TAX RETURN FI LED ON 08.10.2008. CASE WAS SELECTED FOR SCRUTINY UNDER CASS FOLLOWED BY NOTICES DULY SERVED U/S 143(2) & 142(1) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS VARI OUS INFORMATION WERE CALLED. LD. ASSESSING OFFICER AFTER M AKING ADDITION FOR UNEXPLAINED CASH CREDIT OF RS.19,00,000/- U/S 68 OF THE ACT FOR WANT OF VERIFICATION OF IDENTITY CREDITWORTHINESS AND GENUINENESS AND AN ADDITION AT RS.4,55,894/- ON ACCOUNT OF PRESUMPTIVE INTEREST ON RAM GOPAL GUPTA ITANO.966/IND/2016 3 OUTSTANDING SUNDRY DEBTOR ASSESSEE INCOME AT RS.37,71,660/-. 3. AGGRIEVED WITH THE ADDITIONS, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) BUT PARTLY SUCCEEDED AS LD . CIT(A) SUSTAINED THE ADDITIONS OF RS.9,00,000/- U/S 6 8 OF THE ACT AND ALSO CONFIRMED THE ADDITION FOR PRESUMPTIV E INTEREST AT RS.4,55,894/-. 4. AGGRIEVED ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE R EQUESTED FOR ADMISSION OF ADDITIONAL EVIDENCES UNDER RULE 46A O F THE I.T. RULES, IN ORDER TO EXPLAIN THE ALLEGED CASH CREDI T OF RS.9,00,000/- WHICH STANDS CONFIRMED BY BOTH THE LOW ER AUTHORITIES AND ALSO SUBMITTED THAT ALL THESE DOCUMENTS ARE SUFFICIENT TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE UNSECURED LOAN TAKEN FROM ANJ U UDAYSHANKAR & C.S. UDAYSHANKAR AT RS.3,00,000/- & RS.6,00,000/-. HE PRAYED FOR ADMITTING ADDITIONAL EVIDENCES AND SETTING ASIDE THE ISSUES TO THE FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION IN LIGHT OF THE FACT TH AT PERMANENT ACCOUNT NO., COPY OF INCOME TAX RETURN, BAN K ACCOUNT AND CONFIRMATION OF THE CASH CREDITORS ARE SUFFICIENT TO EXPLAIN THE CASH CREDITS. RAM GOPAL GUPTA ITANO.966/IND/2016 4 6. AS REGARDS ADDITION FOR PRESUMPTIVE INTEREST OF RS.4,55,894/-, HE SUBMITTED THAT THE LD. CIT(A) HAS N OT GIVEN COGNIZANCE TO THE FACT THAT THE PRESUMPTIVE INTE REST CALCULATED BY LD. ASSESSING OFFICER ON OUTSTANDING S UNDRY DEBTORS IS DEVOID OF THE MERITS BECAUSE THE OUTSTANDI NG BALANCE OF THE SUNDRY DEBTOR WAS NOT THE SAME AS REGULAR TRANSACTIONS TOOK PLACE IN THIS ACCOUNT DURING THE YEAR. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) THOU GH SUPPORTED THE ORDER OF LD. CIT(A) BUT DID NOT OPPOS ED THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE FOR SETTI NG ASIDE ALL THE ISSUES TO THE FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US. ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST TWO ADDITIONS CONFIRMED BY LD. CIT(A) NAMELY UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT AT RS.9,00,000/- & PRESUMPTIVE INTEREST ON DEBIT BALANC E AT RS.4,55,894/-. LD. COUNSEL FOR THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE WHICH WE FIND TO BE RELEVANT FOR ADJUDICATION OF ISSUES RAISED BEFORE US AND THUS WE ADMI T THE ADDITIONAL EVIDENCE. 9. AFTER EXAMINED THE FACTS ON RECORD, IN THE LIGHT O F THE SUBMISSIONS AND ADDITIONAL EVIDENCE SUBMITTED BY THE LD. RAM GOPAL GUPTA ITANO.966/IND/2016 5 COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDERED VI EW THAT THE ASSESSEE DESERVES ONE MORE OPPORTUNITY TO GO BEF ORE THE LD. CIT(A) FOR AFRESH ADJUDICATION, AS THE ADDITIONAL EVIDENCE ADMITTED BY US GOES TO THE ROOT CAUSE OF THE ADDITION AND IT BE IN THE INTEREST OF JUSTICE IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNITY TO PLACE THE NECESSARY DOCUMENTS IN SUPPORT OF ITS CONTENTION THAT THE ADDIT ION U/S 68 OF THE ACT AT RS.9,00,000/- IS UNCALLED FOR. S IMILARLY WITH REGARD TO THE ADDITION FOR PRESUMPTIVE INTEREST AT DEBTOR BALANCE OF M/S RAJU CONSTRUCTION CO. AT RS.4,55,894/-, WE FIND THAT LD. CIT(A) SEEMS NOT TO HAVE LAID HIS HANDS ON THE FACT THAT THERE WERE REGULAR TRANSACTIONS WITH M/S. RAJU CONSTRUCTION CO. DURING T HE YEAR RELATING TO CIVIL CONSTRUCTION BUSINESS. 10. WE THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, ARE OF THE CONSIDERED VIEW THAT ALL THE ISSUE S RAISED BEFORE US NEEDS TO BE SET ASIDE TO THE FILE OF LD. CIT(A) FOR AFRESH ADJUDICATION IN THE LIGHT OF THE ADDI TIONAL EVIDENCES ADMITTED BY US. NEEDLESS TO MENTION THAT PR OPER OPPORTUNITY OF BEING HEARD SHOULD BE PROVIDED TO THE ASSESSEE. RAM GOPAL GUPTA ITANO.966/IND/2016 6 11 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 06 .01.20 19. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 06/01/2019 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR