M/s. Mahalaxmi Housing & Finstock Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(4), Ahmedabad

ITSSA 21/AHD/2011

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0958 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Assessee Lawyers: PRIJESH SHAH
• Keywords: Unexplained cash credit; Charitable institution; Onus to prove; Condonation of delay
• Section: 68; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER 1. (SS) ./ IT(SS)A NO.19/AHD/2011 A.Y.2006-07 2. (SS) ./ IT(SS)A NO.21/AHD/2011 A.Y.2007-08 1-2. MAHALAXMI HOUSING & FINSTOCK PVT.LTD. 1, NARAYAN CHAMBERS 2 ND FLOOR NR.NEHRU BRIDGE CORNER ASHRAM ROAD, AHMEDBAD / VS. 1-2. THE ACIT CENTRAL CIRCLE-1(4) AHMEDABAD % & ./ ./ PAN/GIR NO. AABCM 0367 R ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) %( + / APPELLANT BY : SHRI PRIJESH SHAH, AR )*%( , + / RESPONDENT BY : SMT. NIDHI SRIVASTAVA, CIT-DR -. , /& / DATE OF HEARING 29/07/2015 0123 , /& / DATE OF PRONOUNCEMENT 14/08/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : BOTH THESE APPEALS BY THE ASSESSEE ARE DIRECTED AG AINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME TA X(APPEALS)-I, AHMEDABAD [CIT(A) IN SHORT] DATED 18/11/2010 AND 18/10/201 0 PERTAINING TO ASSESSMENT YEARS (AYS) 2006-07 AND 20 07-08 IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 2 - RESPECTIVELY. SINCE IDENTICAL GROUNDS HAVE BEEN R AISED IN BOTH THESE APPEALS BY THE ASSESSEE, THEREFORE THESE APPEALS WE RE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FO R THE SAKE OF CONVENIENCE. 2. FIRST, WE TAKE UP THE ASSESSEES APPEAL IN IT( SS)A NO.19/AHD/2011 FOR AY 2006-07 AS A LEAD CASE. THE ASSESSEE HAS RA ISED THE FOLLOWING GROUND OF APPEAL:- 1. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.17,87,000/- OF UNSECURED LOAN AS UNEXPLAINED CAS H CREDIT U/S.68 OF THE I.T.ACT, 1961 WHICH IS REQUESTED TO BE QUASHED. 2.1. BRIEFLY STATED FACTS ARE THAT A SEARCH ACTION U/S.132(1) OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS TH E ACT) WAS CARRIED OUT IN THE CASE OF NEPTUNE GROUP OF CASES BY THE IT O INVESTIGATIONS, UNIT-1, AHMEDABAD. SUBSEQUENTLY, THE ASSESSMENT U/ S.153A(1)(B) R.W.S.144 OF THE ACT WAS FRAMED VIE ORDER DATED 31/ 12/2008. WHILE FRAMING THE ASSESSMENT, THE AO MADE ADDITION ON ACC OUNT OF UNEXPLAINED CASH CREDIT AMOUNTING TO R.17,87,000/-. AGAINST TH E ASSESSMENT ORDER, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD.CIT(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, PARTLY ALLOWED THE APPEAL, THEREBY THE CIT(A) DIRECTED THE AO TO VERIFY THE FACTS IN CASE THE FACTS ARE FOUND TO BE CORRECT, THEN THE ADDITION TO BE RESTRICTED TO R S.1 LAC. THE PRESENT APPEAL WAS ORIGINALLY FILED AGAINST THE CONFIRMATIO N OF ENTIRE ADDITION OF RS.17,87,000/-, HOWEVER, THE ASSESSEE HAS REVISED T HE GROUND RESTRICTING IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 3 - THE GROUND TO THE EXTENT OF ADDITION OF RS.1 LAC. THE APPEAL WAS BARRED BY 18 DAYS. THE REASON FOR CONDONATION OF DELAY IN FILING THE APPEAL, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT MR.BHOLA BHAI V.PATEL HAS BEEN THE DIRECTOR OF MAHALAXMI HOUSING AND FINSTOCK PVT. LTD. SINCE MANY YEARS AND HE HAS BEEN HANDLING THE ALMOST AFFAIRS O F THE COMPANY. APART FROM THE SAME, HIS WIFE SMT.DEVIBEN BHOLABHAI PATEL IS ALSO A DIRECTOR BUT THE BUSINESS AND OTHER AFFAIRS, DAY-TO-DAY TRAN SACTIONS, ETC.ARE HANDLED BY THE MAIN DIRECTOR MR.BHOLABHAI V.PATEL O NLY. IN ADDITION TO THE SAME, THE DIRECTOR MR.BHOLABHAI V.PATEL HAS BEE N AT A VERY SENIOR POST BEING RASTRIYA SACHIV OF NATIONAL CONGRESS P ARTY AND WORKING AT ALL OVER INDIA LEVEL. SINCE DIRECTOR MR.BHOLABHAI V.PATEL HAS THE RESPONSIBILITIES AND DUTIES OF HIS POLITICAL PARTY AT ALL OVER INDIA LEVEL, HE HAS TO TRAVEL A LOT AND TO VARIOUS PLACES ALL OVER INDIA ESPECIALLY DELHI, HIMACHAL PRADESH, HARYANA, CHENNAI, ETC.AS DIRECTED BY THE HIGHER AUTHORITIES OF NATIONAL CONGRESS PARTY. FURTHER, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT HONBLE CIT(A)-I, AHMEDABAD HAVE DISMISSED THE APPEAL OF MAHALAXMI HOUSING AND FINSTOCK PVT.LT D. OF AY 2007-08 FILED BEFORE HIM AND SUCH ORDER WAS DELIVERED ON 26 /10/2010. THE ORDER WAS HANDED OVER TO ASSESSEE COMPANYS OFFICE AND GI VEN TO DIRECTOR MR.BHOLABHAI V.PATEL, BUT MEANWHILE, THE DIRECTOR W AS URGENTLY CALLED TO DELHI ON THE PARTY WORK. SO, HE URGENTLY WENT T O DELHI ALONG WITH HIS MANY OTHER PAPERS IN HIS BAG INCLUDING THE CITA(S ORDER OF MAHALAXMI HOUSING AND FINSTOCK PVT.LTD. THE LD.COUNSEL FOR THE ASSESSEE ALSO IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 4 - SUBMITTED THAT AFTER REACHING TO DELHI, THE DIRECTO R MR.BHOLABHAI V.PATEL WAS MUCH ENGAGED IN PARTY MEETINGS AND OTHER PROGRA MS. MEANWHILE, DURING THE COURSE OF THESE MEETINGS AND PROGRAMS, S UCH ORDER WAS MIXED WITH OTHER DOCUMENTS AND LITERATURES OF THE PARTY. WHEN DIRECTOR MR.BHOLABHAI V.PATEL CAME BACK TO AHMEDABAD AFTER C OMPLETION OF PARTY WORK ASSIGNED TO HIM, HE WAS ASKED BY THE STA FF TO GIVE THE COPY OF SUCH ORDER FOR TAKING NECESSARY ACTIONS LIKE APPEAL ETC. AT THAT TIME, THE DIRECTOR NOTICED THAT SUCH ORDER IS NOT IN HIS BAG. DIRECTOR MR.BHOLABHAI V.PATEL IMMEDIATELY CALLED TO DELHI OFFICE STAFF TO FIND SUCH ORDER BUT THE SAME COULD NOT BE FOUND BY THE STAFF MEMBERS OF THE PARTY. WHEN HE VISITED DELHI OFFICE THEREAFTER, HE VERIFIED ALL TH E BUNCHES OF THE PARTY LITERATURES AND DOCUMENTS AND FOUND THE ORDER BETWE EN THEM. HE IMMEDIATELY SENT SUCH ORDER AT AHMEDABAD TO THE COM PANY OFFICE BUT MEANWHILE THE TIME LIMIT OF 60 DAYS WAS ALREADY BEE N COMPLETED. DUE TO THE ABOVE REASON, THE APPEAL COULD NOT BE FILED WIT HIN THE STIPULATED TIME OF 60 DAYS AFTER RECEIPT OF THE ORDER FROM CIT(A)S OFFICE. THIS IS A BONA FIDE REASON DUE TO WHICH THERE HAS BEEN A LITTLE DE LAY OF AROUND 18 DAYS IN FILING OF THE APPEAL BEFORE ITAT, AHMEDABAD. THERE WAS NO INTENTION ON THE PART OF THE COMPANY OF MAKING THE DELAY IN FILI NG OF THE APPEAL. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT CONSIDER ING THE ABOVE, HUMBLY REQUEST THE HONBLE BENCH OF ITAT TO CONDONE THE DE LAY IN FILING OF APPEAL. CONSIDERING THE SUBMISSION MADE BY THE LD .COUNSEL FOR THE ASSESSEE AND ALSO THE CASE-LAWS RELIED UPON BY THE ASSESSEE (INCLUDING THE IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 5 - CASE-LAW RENDERED BY THE HONBLE HIGH COURT OF MADR AS IN THE CASE OF SREENIVAS CHARITABLE TRUST VS. DCIT REPORTED AT 280 ITR 357 : 154 TAXMAN 377), WE CONDONE THE DELAY IN FILING THE APP EAL. 3. THE ONLY GROUND IN THIS APPEAL IS AGAINST CONFIR MATION OF ADDITION OF RS.1 LAC. THE LD.COUNSEL FOR THE ASSESSEE REITE RATED THE SUBMISSIONS AS WERE MADE VIDE WRITTEN SUBMISSIONS DATED 15/06/2015 . 3.1 ON THE CONTRARY, SR.DR SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE WRITTEN SUBMISSIONS AS MADE BY THE LD.COUNSEL F OR THE ASSESSEE ARE REPRODUCED HEREUNDER:- AT THE OUTSET, WE MENTION THE FACT THAT WE HAVE RE VISED THE GROUND OF APPEAL. A SEPARATE LETTER REVISING THE GROUND OF APPEAL HAS B EEN SUBMITTED SEPARATELY ON TODAY. FACTUAL BACKGROUND 01. THE ASSESSEE IS A PVT. LTD. COMPANY BEING A BUI LDER. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE COMPANY HAS INCURRED A LOSS AMOUNTING TO RS.83,961.50. THE COMPANY HAS FILED THE RETURN OF INCOME HAS BEEN FIL ED ON 05/12/2006 VIDE ACKNOWLEDGEMENT NO.90298074. THE BOOKS OF ACCOUNTS HAVE BEEN MAINTAINED AND THE SAME HAVE BEEN AUDITED. IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 6 - 02.AT THE TIME OF ASSESSMENT PROCEEDINGS, THE DETAI LS WERE SUBMITTED TO THE ASSESSING OFFICER INCLUDING THE PROFIT AND LOSS ACCOUNT, BALA NCE SHEET, AUDIT REPORT ETC. THEREAFTER, THE NEW ASSESSING OFFICER TOOK THE CHAR GE IN THE FIRST WEEK OF DECEMBER- 2008 AND ON 31/12/2008, THE ASSESSING OFFICER PASSE D THE ORDER MAKING THE ADDITION UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 AMOUNT ING TO RS. 17,87,000/-. 03. BEFORE, HONOURABLE CIT(A), VIDE SUBMISSION DAT ED 16/11/2010, ASSESSEE SUBMITTED THE CONFIRMATIONS, IDENTITY PROOFS, RETUR N OF INCOME, LEDGER, BANK STATEMENT, ETC OF THE THREE PARTIES NAMELY 'MANGALD EEP DEVELOPERS PVT. LTD.', 'MANGAL SAGAR ASSOCIATES & DEVELOPERS PVT. LTD.' & 'POPATLAL B PATEL' IN RESPECT OF WHOM THE ASSESSING OFFICER MADE THE ADDITION IN ITS ASSESSMENT ORDER. 04. HONOURABLE CIT(A) AFTER CONSIDERING THE SUBMI SSION OF THE ASSESSEE, PASSED THE APPELLATE ORDER ON 18/11/2010 DIRECTING THE ASSESSI NG OFFICER TO VERIFY WHETHER THE FACTS SUBMITTED BY THE ASSESSEE ARE CORRECT AND IF THE SAME ARE FOUND CORRECT THEN ADDITION OF RS. 16,87,000/- IN RESPECT OF THE TWO P ARTIES NAMELY 'MANGALDEEP DEVELOPERS PVT. LTD.' & 'MANGAL SAGAR ASSOCIATES & DEVELOPERS PVT. LTD.' ARE TO BE DELETED AND THE ADDITION IN RESPECT OF MR. POPATLAL B. PATEL AMOUNTING TO RS.1,00,000/- BEING THE FRESH CREDIT INTRODUCED DUR ING THE YEAR UNDER CONSIDERATION WAS CONFIRMED. 05.HERE, LEARNED CIT(A) FAILED TO PASS THE SPEAKING ORDER DUE TO THE FACT THAT HE HAS NOT MENTIONED AS TO WHY THE UNSECURED LOAN AMOUNTIN G TO RS.1,00,000/- IN RESPECT OF POPATLAL B. PATEL IS UNEXPLAINED AND WHY THE SUCH ADDITION MADE BY THE ASSESSING OFFICER IS CONFIRMED. 06.WHILE CONFIRMING SUCH ADDITION IN RESPECT OF POP ATLAL B. PATEL THE LEARNED CIT(A) FAILED TO APPRECIATE THE FOLLOWING DOCUMENTS WHICH WERE SUBMITTED VIDE SUBMISSION DATED 16/11/2010. SR.NO. DOCUMENT SUBMITTED REMARK 6.1. RETURN OF INCOME & PAN REVEALING THE FACT THAT THE ASSESSEE HAS BEEN HAVING THE ADEQUATE IDENTITY, INCOME TAX RETURN FILER AND BEING ASSESSED TO TAX. 6.2. CONFIRMATION ON THE COPY OF ACCOUNT OF UNSECURED LOAN HOLDERS BOOKS REVEALING THE FACT THAT THE ASSESSEE HAS TAKEN UNSECURED LOAN WHICH HAS BEEN CONFIRMED BY THE UNSECURED LOAN HOLDER. IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 7 - 6.3. BANK PASS BOOK OF UNSECURED LOAN HOLDER REVEALING THE FACT THAT THE AMOUNT HAS BEEN GIVEN TO THE ASSESSEE THROUGH ACCOUNT PAYEE CHEQUE AND THERE HAS BEEN A SUFFICIENT BALANCE IN THE UNSECURED LOAN HOLDERS BANK ACCOUNT WHICH PROVES THE CAPACITY AND CREDITWORTHINESS 07. THE TRANSACTION HAS BEEN DONE THROUGH ACCOUNT PAYEE CHEQUE AND THE UNSECURED LOAN HOLDER'S PASS BOOK ALSO DOES NOT REVEAL ANY CA SH DEPOSIT IMMEDIATELY PRIOR TO ISSUANCE OF LOAN CHEQUE. THE SOURCE OF SOURCE IS AL SO THROUGH ACCOUNT PAYEE CHEQUE. SUCH DOCUMENTARY EVIDENCES ARE SUFFICIENT ENOUGH TO PROVE THE IDENTITY, CAPACITY, GENUINENESS, CREDITWORTHINESS OF THE UNSECURED LOAN HOLDER POPATLAL B PATEL. CASE LAWS: 08.GUJARAT HIGH COURT - CIT V. SACHITEL COMMUNICATI ONS (P.) LTD. - [2014] 51 TAXMANN.COM 205 (GUJARAT)/[2014] 227 TAXMAN 219. SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CREDIT (LOANS) ASSESSMENT YEAR 2006-07 COMMISSIONER (APPEALS) AND TRIBUNAL CONCURRENTLY FO UND THAT ASSESSEE PROVED IDENTITY OF CREDITOR AND CAPACITY TO PAY AND THAT P AYMENT WAS MADE THROUGH BANKING CHANNEL WHETHER NO ADDITION COULD BE MADE ON ACCOUN T OF UNSECURED LOAN HELD, YES [PARA 3] [IN FAVOUR OF ASSESSEE]. WHERE ASSESSEE PROVED IDENTITY OF CREDITOR , ITS CAPACITY AND FURTHER TRANSACTION, WAS MADE THROUGH BANK, ANY ADDITION AS UNEXPLAINED UNSECURED LOANS WOULD BE UNSUSTAINABLE. 09. GUJARAT HIGH COURT - CIT V. DHARAMDEV FINANCE (P.) LTD. - [2014] 51 TAXMANN.COM 205 (GUJARAT)/[2014] 227 TAXMAN 219. II. SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CRE DITS (BURDEN OF PROOF) VARIOUS ADDITIONS WERE MADE TO ASSESSEE'S INCOME ON ACCOUNT OF CASH CREDITS IT WAS FOUND THAT IN RESPECT OF SAID CREDITS ASSESSEE HAD FILED PAN OF CREDITORS, THEIR CONFIRMATION AND THEIR BANK STATEMENT WHICH ESTABLISHED THEIR CR EDITWORTHINESS. MOREOVER, TRANSACTIONS WERE MADE THROUGH BANKING CHANNELS. WHETHER ANY ADDITION COULD NOT BE MADE TO ASSESSEE'S INCOME UNDER SECTION 68 HELD, YES [PARA 5] [IN FAVOUR OF ASSESSEE]. IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 8 - NO ADDITION ON ACCOUNT OF CASH CREDITS BE MADE, WHE RE ASSESSEE HAD GIVEN PAN OF CREDITORS, THEIR CONFIRMATION AND THEIR BANK STATEM ENT WHICH ESTABLISHED THEIR CREDITABILITY. 10. GUJARAT HIGH COURT - CIT V. APEX THERM PACKAGIN G (P.) LTD. - [2014] 42 TAXMANN.COM 473 (GUJARAT)/[2014] 222 TAXMAN 125. SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CREDIT (UNSECURED LOAN) ASSESSMENT YEAR 200708 WHETHER WHEN FULL PARTICULARS, INCLUSIVE OF CONFIRMATION WITH NAME, ADDRESS AND PAN NUMBER, COPY OF INCOME TAX RETURNS, BALANCE SHEET, PROFIT AND LOSS ACCOUNT AND COMPUTATION OF TOTAL INCOME IN RESPECT OF ALL CREDITORS/LENDERS WERE FURNISHED AND WHEN IT HAD BEEN FOUND THAT LOANS WERE FURNISHED THROUGH CHEQUES AND LOAN ACCOUNT WERE DULY REFLECTED IN BALANCE SHEET, ASSES SING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION HELD, YES [PARA 6] [IN FAVOUR OF AS SESSEE]. IT : WHERE NAME, ADDRESS, PAN, COPY OF IT RETURNS, BALANCE SHEET, PROFIT AND LOSS ACCOUNT OF ALL CREDITORS/LENDERS AS WELL AS THEIR C ONFIRMATION HAD BEEN FURNISHED, ASSESSING OFFICER COULD NOT MAKE ADDITION ON ACCOUN T OF UNSECURED LOAN AND INTEREST THEREON. 11. GUJARAT HC - CIT VS. SAILESHKUMAR RASIKLAL MEH TA - 224 TAXMAN 212. SECTION 68 OF THE INCOME TAX ACT, 1961 CAS H CREDIT [BURDEN OF PROOF] ASSESSMENT YEARS 2001-02 TO 2003-04 ASSESSING OFFIC ER MADE ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN HANDS OF ASSESSEE. IT WAS FOUND THAT ALL TRANSACTIONS WERE ROUTED THROUGH BANKING CHANNELS AND ASSESSEE H AD DULY EXPLAINED SOURCE OF INCOME WHETHER ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING SAME AS UNDISCLOSED INCOME AND IN MAKING ADDITION UNDER SECTION 68 HELD , YES (PARA 3] [IN FAVOUR OF ASSESSEE]. IT: WHERE TRANSACTIONS WERE ROUTED THROUGH BANK AND ASSESSEE HAD EXPLAINED SOURCE OF INCOME, ADDITIONS UNDER SECTION 68 COULD NOT BE MADE PARA 3: 3. HAVING HEARD MS. MAUNA BHATT, LEARNED COUNSEL AP PEARING ON BEHALF OF THE APPELLANT AND ON PERUSAL OF THE IMPUGNED COMMON JUD GMENT AND ORDER PASSED BY THE ITAT AS WELL AS THE FINDING GIVEN BY THE CIT(A) WHI LE DELETING THE ADDITIONS MADE BY IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 9 - THE ASSESSING OFFICER, IT APPEARS THAT ON APPRECIAT ION OF EVIDENCE AND CONSIDERING THE FACT THAT THE ADDITIONS MADE BY THE ASSESSING OFFIC ER ROUTED THROUGH THE BANK AND THE ASSESSEE EXPLAINED THE SOURCE OF INCOME AND CONSIDE RING THE SAME THE CIT(A) HAS DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER , WHICH WAS MADE BY THE ASSESSING OFFICER TREATING THE SAME AS UNDISCLOSED INCOME. THE ASSESSEE SUCCESSFULLY PROVED THE SOURCE OF INCOME AND THE SAME WAS ROUTED THROUGH THE BANK. TH US, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING THE SAME AS UNDISCLOSED INCOME AND IN MAKING THE ADDITIONS UNDER SECTION 68 OF THE INCOME TAX ACT. |L2.GUJARAT HC - CIT VS. HARISHBHAI RAOJIBHAI PATEL HUF - 219 TAXMAN 125. SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CREDIT [DEPOSITS] ASSESSING OFFICER MADE CERTAIN ADDITION UNDER SECTION 68 ON GROUND TH AT ASSESSEE WAS UNABLE TO ESTABLISH IDENTITY AND CREDITWORTHINESS OF DEPOSITO R AND GENUINENESS OF TRANSACTION ON APPEAL, COMMISSIONER (APPEALS) AS WELL AS 'TRIBU NAL DELETED ADDITION BY RECORDING FINDING OF FACT THAT SAID AMOUNT WAS GIVE N BY ONE T STAYING IN UK BY CHEQUE FROM HIS NRE ACCOUNT AND SAID FACT HAD BEEN CONFIRMED BY 'J' WHETHER ORDER PASSED BY TRIBUNAL COULD BE INTERFERED WITH HELD, N O [PARA 2] [IN FAVOUR OF ASSESSEE]. IT: WHEN IT WAS ESTABLISHED THAT AMOUNT IN QUESTION WAS PAID BY NRI TO ASSESSEE FROM HIS NRE ACCOUNT, NO ADDITION COULD BE MADE UND ER SECTION 68 ON THAT ACCOUNT. 13. AHMEDABAD ITAT - SHANTILAL KESHAVLAL BHA TT VS. ITO - ITA NO. 2919/AHD/2011. PARA 6: 6 AFTER HEARING BOTH THE PARTIES AND PERUSING THE R ECORD, WE FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT THE ASSESSEE RECEIVED T HE SUM OF RS.4,00,000/-FROM SHRI N I VYAS THROUGH BANKING CHANNEL. IN SUPPORT OF HIS C LAIM, BANK PASSBOOK OF THE DEPOSITOR ALONG WITH PAN CARD AND LETTER OF CONFIRM ATION FROM SHRI VYAS ARE ALREADY ON RECORD. THUS, THE IDENTITY AND CREDITWORTHINESS OF THE DEPOSITOR IS ESTABLISHED. WE FURTHER FIND THAT THE SUM HAS ALREADY BEEN REPAID B Y THE ASSESSEE TO MR. VYAS THROUGH THE BANKING CHANNEL IN INSTALLMENTS IN SUPPORT OF W HICH NECESSARY EVIDENCE IS ALSO ON RECORD. THEREFORE, THE GENUINENESS OF THE TRANSACTI ON IS ALSO ESTABLISHED. IN THE LIGHT OF THESE UNDISPUTED FACTS OF THIS CASE, THE ADDITIO N MADE BY THE AO AND SUSTAINED BY THE LEARNED CIT(A) IS HEREBY DELETED. THE FIRST GRO UND OF ASSESSEE'S APPEAL IS ALLOWED. IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 10 - 14JUUNEDABAD ITAT - SARJAN CORPORATION VS. ACIT - 2 5 TAXMANN.COM 426. 1. SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CRED IT ASSESSMENT YEAR 2005 06. WHEN CONFIRMATION OF ALL PARTIES, FROM WHICH UNSECURED L OANS WERE RECEIVED BY ASSESSEE, WERE FURNISHED ALONG WITH THEIR PERMANENT ACCOUNT N UMBERS, COPY OF ACKNOWLEDGEMENT OF INCOME TAX RETURNS, ETC., AND NO ENQUIRY WAS MADE BY ASSESSING OFFICER, NO ADDITION COULD BE MADE UNDER SECTION 68 IN RESPECT OF SAID UNSECURED LOANS [IN FAVOUR OF ASSESSEE]. 15 AHMEDABAD ITAT - ROHINI BUILDERS VS. DCIT - 117 TAXMAN 25. SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CREDITS ASSESSMENT YEAR 1989-90 WHETHER BY PROVING IDENTITY OF CREDITORS BY GIVING THEIR COMPLETE ADDRESSES, GUR NOS./PAN AND COPIES OF ASSESSMENT ORDERS WHEREVER R EADILY AVAILABLE AND ALSO BY PROVING CAPACITY OF CREDITORS BY SHOWING RECEIPTS O F LOAN AMOUNTS TOY ACCOUNT PAYEE CHEQUES DRAWN FROM CREDITORS' BANK ACCOUNTS, ASSESS EE HAS DISCHARGED INITIAL ONUS WHICH LAY ON IT IN TERMS OF SECTION 68 HELD, YES WH ETHER UNDER LAW ASSESSEE COULD BE ASKED TO PROVE SOURCE OF CREDITS IN ITS BOOKS OF AC COUNT BUT NOT SOURCE OF SOURCE HELD, YES WHETHER AS PHRASEOLOGY EMPLOYED IS 'MAY' AND NO T 'SHALL' IN SECTION 68, UN- SATISFACTORINESS OF EXPLANATION DOES NOT AND NEED N OT AUTOMATICALLY RESULT IN DEEMING AMOUNT CREDITED IN BOOKS AS ASSESSEES INCOME HELD, YES WHETHER TAKING INTO CONSIDERATION TOTALITY OF FACTS AND CIRCUMSTANCES O F CASE AND, IN PARTICULAR FACT THAT ASSESSING OFFICER HAD NOT DISALLOWED INTEREST CLAIM ED/PAID IN RELATION TO THOSE CREDITS AND TDS HAD BEEN DEDUCTED OUT OF INTEREST PAID/CRED ITED TO CREDITORS, REVENUE WAS NOT JUSTIFIED IN MAKING ADDITION HELD, YES 16. AHMEDABAD ITAT - B.S.CORPORATION VS. ACIT - 112 TAXMAN 111. SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CREDITS ASSESSMENT YEAR 1988-89 DURING RELEVANT ACCOUNTING YEAR ASSESSEE HAD TAKEN CERTAIN LOANS WHICH WERE TREATED AS NOT GENUINE AND ADDITIONS MADE CONFIRMATIONS OF DEPOSIT ORS WERE FILED BEFORE ASSESSING OFFICER WHO ALSO EXAMINED THEM MONEY WAS ADVANCED T HROUGH BANK ACCOUNTS AND DEPOSITORS HAD DISCLOSED RESPECTIVE AMOUNTS IN THEI R VOLUNTARY DISCLOSURE RETURNS WHETHER EVEN THOUGH IT WAS ESTABLISHED THAT SUCH AM OUNTS WERE UNDISCLOSED INCOME OF RESPECTIVE CREDITORS, YET AS ASSESSING OFFICER C OULD NOT ESTABLISH ANY LINK THAT AMOUNTS IN FACT BELONGED TO ASSESSEE, ADDITION MADE WAS NOT JUSTIFIED HELD, YES 17. AHMEDABAD ITAT - DIMCO SILK MILLS VS. ITO - 107 TAXMAN 41. IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 11 - SECTION 68 OF THE INCOME TAX ACT, 1961 CASH CREDITS ASSESSMENT YEAR 1989-90 WHETHER, WHERE ASSESSEE RECEIVED AMOUNTS APPEARING AS DEPOSITS IN ACCOUNTS OF THIRD PARTIES THROUGH ACCOUNT PAYEE CHEQUES AND FILED CON FIRMATION AND OTHER MATERIALS TO SUPPORT GENUINENESS OF THOSE PARTIES, ADDITION MADE ON ACCOUNT OF UNEXPLAINED CASH CREDITS IN THOSE ACCOUNTS COULD BE SUSTAINED HELD, NO 18. MUMBAI ITAT - ACIT VS. DISHA CONSTRUCTIONS - 43 CCH 0317. CONSPECTUS: CASH CREDITS CREDITWORTHINESS OF CREDITORS ASSESS EE WAS ENGAGED IN THE LINE OF CIVIL CONSTRUCTION ACTIVITY AO HAD CALLED FOR DET AILS OF FRESH LOANS OBTAINED DURING THE YEAR RELEVANT TO A/Y FROM THE LOAN CREDITORS, THEIR RESPECTIVE INCOME TAX RETURNS AND BANK STATEMENTS RELEVANT TO THE LOAN TR ANSACTIONS BUT AO HAD ALLEGED THAT THAT CREDITORS HAD DISCLOSED INCOME AT A LOW LEVEL, WHICH HAD NO COMMENSURATE WITH THE LOAN GIVEN TO THE ASSESSEE AO HAD CONCLUDED T HAT THE ASSESSEE HAD FAILED TO PROVE THE CREDIT WORTHINESS OF FEW CREDITOR AND ASS ESSED LOAN CREDITORS AGGREGATING TO SPECIFIED AMOUNT AS INCOME OF THE ASSESSEE U/S 6 8 ON APPEAL, CIT(A) HAD CONCLUDED THAT THE ASSESSEE HAD DISCHARGED THE PRIM ARY BURDEN PLACED UPON THE ASSESSEE U/S 68 AND THE AO HAD FAILED TO REBUT THE SAME CIT(A) HAD DELETED THE ASSESSMENT MADE U/S 68 FOR BOTH A/Y'S 2008-09 AND 2009-10 HELD, TH E INITIAL BURDEN OF PROOF TO PROVE THE CASH CREDITS WAS PLACED UPON THE ASSES SEE BUT IF THE DISCHARGES THE INITIAL BURDEN SO PLACED UPON HIM, T HEN THE BURDEN OF PROOF GETS SHIFTED UPON THE AO TO DISPROVE THE SUBMISSIONS OF THE ASSESSEE IN THE INSTANT CASE, SINCE THE ASSESSEE HAD FURNISHED THEIR CONFIRMATION LETTERS, INCOME TAX RETURNS, THE IDENTITY OF ALL THE CREDITORS IN BOTH THE YEARS STA ND ESTABLISHED FURTHER, AO HAD ALSO IDENTIFIED THE OWNERS OF ALL THE CONCERNS IT WAS NOT DISPUTED THAT THE LOAN TRANSACTIONS WERE ROUTED THROUGH THE BANKING CHANNE LS AND HENCE THE GENUINENESS OF THE LOAN TRANSACTIONS WERE ESTABLISHED -- AO HAD NO T BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE EXPLANATION FURNISHED WAS IN ANY M ANNER, UNSATISFACTORY OR THERE WAS NO RELIABLE EVIDENCE WITH THE SSESSEE THUS, C IT(A) HAD GIVEN A DEFINITE FINDING THAT THE EVIDENCES FILED BY THE ASSESSEE REMAINED U N-REBUTTED ADDITION MADE U/S. 68 WAS RIGHTLY DELETED FINDING GIVEN BY CIT(A) WA S UPHELD REVENUES APPEAL FOR A/Y 2008-09 AND 2009-10 WAS DI SMISSED. CONCLUSION: WHERE ASSESSEE HAD DISCHARGED THE INITIAL BURDEN OF PROOF PLACED UPON IT U/S 68, NO ADDITION THEREOF WAS WARRANTED. 19. AGRA ITAT - UMESH ELECTRICALS VS. ACIT - 12 TAX MANN.COM 5 ; 141 TTJ 288 IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 12 - CONSPECTUS: SECTION 68 OF THE INCOME-TAX ACT, 1961 - CASH CREDI TS - ASSESSMENT YEAR 2000-01 - WHETHER OPINION OF ASSESSING OFFICER FOR NOT ACCEPT ING EXPLANATION OFFERED BY ASSESSEE UNDER SECTION 68, AS NOT SATISFACTORY MUST BE BASED ON PROPER APPRECIATION OF MATERIAL AND OTHER SURROUNDING CIRCUMSTANCES AVA ILABLE ON RECORD; AND ASSESSING OFFICER CANNOT REJECT EACH AND EVERY EXPLANATION OF ASSESSEE - HELD, YES - ASSESSEE HAD TAKEN A LOAN OF RS. 1.5 LAKHS FROM ONE 'OP' VID E A BANK DRAFT DATED 6-8-1999 - ASSESSING OFFICER ASKED ASSESSEE TO PROVE GENUINENE SS OF CASH CREDIT, AND ASSESSEE SUBMITTED CONFIRMATION OF 'OP' ALONG WITH ITS PAN N UMBER, COPY OF BANK STATEMENT AS WELL AS COPY OF CASH BOOK - ASSESSING OFFICER, HOWE VER NOTED THAT 'OP' HAD DEPOSITED CASH OF RS. 1.5 LAKHS IN ITS BANK ON SAME DAY, I.E. , 6-8-1999 ITSELF, OUT OF WHICH DEMAND DRAFT IN FAVOUR OF ASSESSEE WAS MADE - ASSES SING OFFICER HELD THAT ASSESSEE HAD NOTHING BUT INTRODUCED HIS OWN MONEY WHICH WAS UNACCOUNTED, IN NAME OF CREDITOR, 'OP', AND THEREFORE, ADDED RS. 1.5 LAKHS AS INCOME OF ASSESSEE - WHETHER SINCE ASSESSEE HAD FILED CONFIRMATION OF 'OP' OF HA VING ADVANCED LOAN TO ASSESSEE AND HAD ALSO SUBMITTED COPY OF BANK STATEMENT AS WE LL AS CASH BOOK OF 'OP', IT COULD BE SAID THAT ASSESSEE HAD PROVED GENUINENESS OF LOA N AND NO ADDITION COULD BE MADE UNDER SECTION 68 -HELD, YES. THANKING YOU, YOURS TRULY, FOR, PRITESH SHAH & ASSOCIATES CHARTERED ACCOUNTANTS SD/- C.A.PRITESH SHAH, PROPRIETOR, AUTHORISED REPRESENTA TIVE 4.1. IT IS THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAD FURNISHED PANS, ADDRESSES, ETC. TO PRO VE THE IDENTITY, GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE DEPOSITORS. WE FIND THAT THE ASSESSEE HAS FILED PANS, ADDRESSES , ETC. FOR DEMONSTRATING THAT THE DEPOSITORS WERE ASSESSED TO TAX. IN VIEW OF THE IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 13 - CASE-LAWS AS RELIED UPON BY THE LD.COUNSEL FOR THE ASSESSEE MORE PARTICULARLY JUDGEMENT OF HONBLE JURISDICTIONAL HI GH COURT IN THE CASE OF CIT VS. DHARAMDEV FINANCE (P.) LTD. REPORTED AT (2014) 51 TAXMANN.COM 205 (GUJ.):: (2014) 227 TAXMAN 219. TH EREFORE, WE DIRECT THE AO TO DELETE THE ADDITION. THUS, GROUND OF ASS ESSEES APPEAL IS ALLOWED. 5. IN THE RESULT, ASSESSEES APPEAL FOR ASST.YEAR 2 006-07 IS ALLOWED. 6. NOW, WE TAKE UP THE ASSESSEES APPEAL IN IT(SS)A NO.21/AHD/2011 FOR AY 2007-08. THE ASSESSEE HAS R AISED THE FOLLOWING GROUND OF APPEAL:- 1. THE LEARNED CIT(A) HAS ERRED CONFIRMING THE ADD ITION OF RS.2,00,000/- OF ESTIMATING INCOME, WHICH IS REQUES TED TO BE QUASHED. 7. IN THIS APPEAL, THE FACTS ARE IDENTICAL TO THE FACTS OF ASSESSEES OWN CASE IN IT(SS)A NO.19/AHD/2011 FOR AY 2006-07(SUPRA ). THE RESPECTIVE REPRESENTATIVES OF THE PARTIES ADOPTED T HEIR ARGUMENTS AS WERE ADVANCED IN IT(SS)A NO.19/AHD/2011(SUPRA), WHEREIN WE HAVE ALLOWED THE ASSESSEES APPEAL WITH A DIRECTION TO AO TO DEL ETE THE ADDITION. ACCORDINGLY, FOR THE SAME REASONING, ASSESSEES APP EAL IN IT(SS)A NO.21/AHD/2011 FOR AY 2007-08 IS ALSO ALLOWED. IT(SS)A NOS.19 & 21/ AHD/2011 MHALAXMI HOUSING & FINSTOCK P.LTD. VS. ACIT ASST.YEARS 2006-07 & 2007-08 RESPECTIVELY - 14 - 8. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON FRIDAY, THE 14 TH DAY OF AUGUST, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED 14/ 08 /2015 6/..-, .-../ T.C. NAIR, SR. PS !'#$#%! / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 789 : / CONCERNED CIT 4. : ( ) / THE CIT(A)-I, AHMEDABAD 5. ;< )-89 , / 893 , 7 / DR, ITAT, AHMEDABAD 6. <= >. / GUARD FILE. / BY ORDER, *; ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 6.8.15(DICTATION-PAD 5- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..7.8.15/10.8.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.14.8.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.8.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER