Abusaad Ahmad, Lucknow V. Astt. Commissioner of Income Tax, Lucknow

ITSSA 234/LKW/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3686 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 12-03-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: YOGESH AGARWAL
• Keywords: Search and seizure
• Section: 143(3); 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER IT (SS) A NO. 234/LKW/2017 ASSESSMENT YEAR: 2009 - 10 ABUSAAD AHMED 4/202, VISHAL KHAND GOMTI N AGAR, LUCKNOW V. ACIT CENTRAL CIRCLE - 1 LUCKNOW T AN /PAN : (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI YOGESH AGARWAL, ADVOCATE RESPONDENT BY: SHRI V. K. BORA, D.R. DATE OF HEARING: 12 0 3 201 8 DATE OF PRONOUNCEMENT: 16 0 3 201 8 O R D E R PER P ARTH A SARATHI CHAUDHURY, J.M : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - III, LUCKNOW DATED 14/10/2015. 2 . AT THE OUTSET, WE NOTICE THAT THERE HAS BEEN A DELAY OF 482 DAYS IN FILING OF THE APPEAL AND AN APPLICATION FOR CONDONATI N OF DELAY ALONG WITH AN AFFIDAVIT IN SUPPORT OF THE CONDONATION PE T ITION HAS BEEN FILED BY THE ASSESSEE. WE ARE CONVINCED WITH THE REASONS APPEARING IN THE CONDONA TION PETITION AND AFFIDAVIT AND , THEREFORE, WE CONDONE THE DELAY AND PROCEED TO HEAR THE AP PEAL. 3 . THE ASSESSEE HAS TAKEN GROUNDS OF APPEAL AS APPEARING ON RECORD. ITA NO.234/LKW/2017 PAGE 2 OF 4 4 . THE BRIEF FACTS IN THIS CASE ARE THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 14.09.2010 AT THE RESIDENTIAL AND BUSINESS PREMISES BELONGING TO VIJAY INFRASTRUCTURE LIMITED GRO UP OF CASES ON 14.09.2010. A NOTICE UNDER SECTION 153A OF THE ACT WAS ISSUED ON 02.08.2011 REQUIRING THE ASSESSEE TO FILE HIS RETURN OF INCOME. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 2009 ON 28.01.2013 SHOWING TOTAL INCOME OF RS.11,88,580/ - . ASSESSMENT WAS COMPLETED ON 31.03.2013 UNDER SECTION 153A READ WITH SECTION 143(3) OF THE ACT ON TOTAL INCOME OF RS. 26,68,580/ - WITH VARIOUS ADDITIONS AND DISALLOWANCES AS APPEARING IN THE ASSESSMENT ORDER. 5 . AGAINST THE ASSESSMENT ORDER, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A). IN THE GROUNDS OF APPEAL BEFORE THE LD. CIT(A) ALSO, ADDITION OF RS.17,80,000/ - MADE BY THE ASSESSING OFFICER WAS CONTESTED. 6 . THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAD TAKEN LOAN S FROM DIFFERENT PARTIES OF RS. 17,80,000/ - . THE ASSESSING OFFICER ADDED THE SAME TO THE INCOME OF THE ASSESSEE AS THE SAME WERE NOT SATISFACTORILY EXPLAINED. THE ASSESSEE FILED WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A), IN WHICH IT WAS STATED THAT THE LOANS HAVE BEEN RECEIVED THROUGH BANKING CHANNELS. THE SUBMISSIONS, OF THE ASSESSEE WERE ADMITTED UNDER RULE 46A AND FORWARDED TO THE ASSESSING OFFICER FOR EXAMINATION AND REPORT. THE AO HAS SUBMITTED HIS REMAND REPORT WHICH WAS PROVIDED TO THE ASSESSEE FOR COMMENTS. 7 . THE LD. CIT(A) AFTER CONSIDERING THE ASSESSING OFFICERS ORDER, SUBMISSIONS OF THE ASSESSEE, REMAND REPORT AND REJOINDER FILED BY THE ASSESSEE, OBSERVED AND HELD THAT THERE IS A LOAN TAKEN OF RS.17,80,000/ - BY THE ASSESSEE ALLEGEDLY FROM M/S VIRGIN BUILDE RS (P) ITA NO.234/LKW/2017 PAGE 3 OF 4 LTD. FROM THE REMAND REPORT, IT IS FOUND THAT THE ASSESSEE HAD SPECIFICALLY STATED DURING THE ASSESSMENT PROCEEDINGS THAT NO LOAN WAS GIVEN OR ACCEPTED DURING THE YEAR UNDER CONSIDERATION. FURTHER, M/S VIRGIN BUILDERS (P) LTD. HAS ALSO NOT PROVIDED ANY DETAILS IN THE ASSESSMENT PROCEEDINGS WITH REGARD TO THE LOAN TAKEN. THE ESSENTIAL INGREDIENTS OF SECTION 68 ARE (1) IDENTITY OF CREDITOR; (2) CREDITWORTHINESS OF THE CREDITOR AND (3) GENUINENESS OF THE TRANSACTION. THIS ONUS UNDER SECTION 68 OF THE ACT WAS NOT PROVED BY THE ASSESSEE AND THE LD. CIT(A) THEREFORE UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. 8 . AT THE TIME OF HEARING BEFORE US, THE LD. A.R. OF THE ASSESSEE VEHEMENTLY ARGUED THAT ALL THE DETAILS REQUIRED AS PER SECTION 68 ARE AVAILABL E AND DETAILS OF LOAN FROM M/ S VIRGIN BUILDERS (P) LTD . ARE ALSO WITH THE ASSESSEE. THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT IF AN OPPORTUNITY IS GIVEN, ALL THESE DOCUMENTS REGARDING LOAN TAKEN CAN BE PLACED BEFORE THE ASSESSING OFFICER. 9 . THE LD. D.R. D ID NOT HAVE ANY OBJECTION FOR RESTORING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. 10 . WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS AND SINCE THE LD. A.R. OF THE ASSESSEE STATES THAT RELEVANT DOCUMENTS IN RELATION TO THE LOAN TAK EN FROM M/ S VIRGIN BUILDERS (P) LTD . ARE THERE WITH THE ASSESSEE AND THAT ASSESSEE CAN DEMONSTRATE IT IN FRONT OF THE ASSESSING OFFICER, THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF T HE ASSESSING OFFICER AND DIRECT THE ASSESSEE TO PRODUCE BEFORE THE ASSESSING OFFICER ALL THE RELEVANT DETAILS AND DOCUMENTS AND THE ITA NO.234/LKW/2017 PAGE 4 OF 4 ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE. 11 . IN THE RESULT, APPEA L OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 / 0 3 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16 TH MARCH , 201 8 JJ: 1203 COPY FORWARDED TO: 1 . APPE LLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR