M/s. Patel Babubhai Kantilal & Co., Surat V. The ACIT., Circle-6, Surat

MA 120/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7464 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 14-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA
• Section: 68

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , . ! !,'# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.120/AHD/2011 ( IN I.T.A.NO.3445/AHD/2008) [ ! % ! % ! % ! % / / / / ASSESSMENT YEAR : 2004-05] M/S.PATEL BABUBHAI KANTILAL & CO. 5/663, HARIPURA BHAVANIWAD, SURAT (ORIGINAL RESPONDENT) ! ! ! ! / VS. THE ASST.CIT CIRCLE-6 SURAT (ORIGINAL APPELLANT) ' '# ./() ./ PAN/GIR NO. : AAEFP 7192 E ( APPLICANT ) .. ( RESPONDENT ) APPLICANT BY : SHRI P.M. MEHTA A.R. RESPONDENT BY : SHRI VINOD TANWANI, D.R. !* + ,#/ // / DATE OF HEARING : 06/01/2012 - % + ,# / DATE OF PRONOUNCEMENT : 13.1.12 './ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS PETITION DATED 14/07/201 1, THE APPLICANT HAS POINTED OUT ALLEGED MISTAKES IN THE O RDER OF THE TRIBUNAL DATED 13/05/2011; RELEVANT PORTION AS ARGUED BEFORE US REPRODUCED BELOW:- 3. THE ASSESSING OFFICER AT PAGE-2 OF HIS ORDER H AS MENTIONED THAT HE ISSUED NOTICED U/S.133(6) TO THE CREDITORS BUT IN 7 CASES NOTICES WERE RETURNED UNDELIVERED BY THE POSTAL AUT HORITIES. THIS ITA NO .120/AHD/2011 (IN ITA NO.3445/AHD/2008) M/S.PATEL BABUBHAI KANTILAL VS. ACIT ASST.YEAR 2004-05 - 2 - RAISED SOME DOUBTS IN THE MIND OF THE ASSESSING OFF ICER AND HE ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE TO FURNISH FURTHER EVIDENCES. COMPLETE DETAILS SUPPORTED BY DOCUMENTA RY EVIDENCES WERE FURNISHED TO THE ASSESSING OFFICER WHICH ARE R EPRODUCED AT PAGE-4 OF THE ASSESSMENT ORD3ER IN THE FORM OF A CH ART. IN SPITE OF THE FACT THAT THE ASSESSEE HAD COMPLETELY DISCHARGE D ITS ONUS, THE ASSESSING OFFICER DISALLOWED ALL THE CREDITS U/S.68 WHICH INCLUDED THE AMOUNTS IN THE NAMES OF THOSE DEPOSITORS ON WHO M NOTICES U/S.133(6) WERE PROPERLY SERVED. IT IS NOTABLE THA T THE ASSESSING OFFICER, DURING THE COURSE OF ENTIRE ASSESSMENT PRO CEEDINGS, NEVER ASKED THE ASSESSEE TO PRODUCE THE CREDITORS BEFORE HIM. HE EVEN DID NOT ISSUE ANY SUMMONS U/S.131 BUT ONLY ISSUED N OTICES AS MENTIONED ABOVE U/S.133(6) CALLING FOR CERTAIN INFO RMATION WHICH WAS ALREADY SUPPLIED BY THE ASSESSEE TO THE ASSESSI NG OFFICER. ALL THE DEPOSITORS WERE EXISTING INCOME-TAX ASSESSEES A ND COMPLETE DETAILS ABOUT THEM WERE ALREADY AVAILABLE WITH THE INCOME-TAX DEPARTMENT. NOTICES ISSUED TO SOME OF THE CREDITOR S MAY HAVE BEEN RETURNED UNDELIVERED ON ACCOUNT OF THE FACT TH AT AT THE PARTICULAR POINT OF TIME WHEN THE POSTAL AUTHORITIE S WENT TO THEIR ADDRESSES, THEY MAY NOT HAVE BEEN FOUND THERE. HOW EVER, INSOFAR AS THE ASSESSEE IS CONCERNED, COMPLETE ADDRESSES WE RE MADE AVAILABLE. THESE ADDRESSES ARE ALREADY THERE WITH THE INCOME-TAX DEPARTMENT IN THE RETURNS OF INCOME FILED BY THE DE POSITORS AND FURTHER THE SAME ARE EVIDENCED FROM THE BANK PASS-B OOK. IT IS A WELL-KNOW FACT THAT BANK ACCOUNTS ARE OPENED BY A B ANK AFTER VERIFYING DOCUMENTARY EVIDENCE REGARDING THE ADDRES S. NOTHING MORE COULD HAVE BEEN DONE BY THE ASSESSEE. 2. ON THE BASIS OF THE ABOVE REFERENCE, FROM THE SI DE OF THE ASSESSEE, LD.AR MR.P.M.MEHTA HAS ARGUED THAT THERE WAS NO NO TICE FROM THE SIDE OF THE REVENUE TO PRODUCE THE CASH CREDITORS BUT TH E NOTICES WAS ONLY U/S.133(6) OF THE ACT TO PLACE CERTAIN INFORMATION BEFORE THE A.O. IT WAS A MISTAKE ON THE PART OF THE TRIBUNAL TO COMMEN T THAT THE BASIC REASON FOR INVOCATION OF THE PROVISIONS OF SECTION 68 OF THE ACT WAS NON- ITA NO .120/AHD/2011 (IN ITA NO.3445/AHD/2008) M/S.PATEL BABUBHAI KANTILAL VS. ACIT ASST.YEAR 2004-05 - 3 - PRODUCTION OF CASH CREDITORS, LD.AR HAS STATED. HE HAS ALSO MENTIONED THAT SOME OF THE DECISIONS; NAMELY, CIT V. SMT. P.K . NOORJAHAN 237 ITR 570 (SC), CIT V. ORISA CORPORATION PVT.LTD. 159 IT R 78(SC), DCIT V. ROHINI BUILDERS 256 ITR 36 (GUJ.) AND CIT V. JEE TA KHAN 292 ITR 597(P&H) HAVE NOT BEEN DISCUSSED BY THE TRIBUNAL. ON ACCOUNT OF THESE FACTS, HE HAS ARGUED THAT THE ORDER MAY BE RE CALLED AND A FRESH ORDER DESERVES TO BE PASSED ACCORDINGLY. 3. FROM THE SIDE OF THE REVENUE, LD.DR MR.VINOD TAN WANI HAS PLACED RELIANCE ON THE FINDINGS OF THE TRIBUNAL; RE LEVANT PARAGRAPH NO.3 REPRODUCED BELOW:- 3. ON HEARING THE SUBMISSIONS OF BOTH THE SIDES AN D ON DUE CONSIDERATION OF THE WRITTEN SUBMISSIONS OF THE ASS ESSEE, WE HAVE NOTICED THAT THE BASIC REASON FOR THE ASSESSING OFF ICER FOR INVOKING THE PROVISIONS OF SECTION 68 OF THE I.T.AC T WERE THAT THE CREDITORS COULD NOT BE PRODUCED BY THE ASSESSEE AS ITS WITNESS BEFORE THE ASSESSING OFFICER. THOUGH THE ASSESSING OFFICER HAS ISSUED THE NOTICE U/S.133(6) OF THE I.T.ACT, BUT TH OSE NOTICES WERE RETURNED UNSERVED WITH THE REMARKS LEFT. THE MAI N PLANK OF THE ARGUMENT OF THE REVENUE IS THAT IF THOSE PERSONS WE RE HAVING INCOME-TAX RETURNS AND ALSO HAVING BANK ACCOUNTS, T HEN THEIR ADDRESSES AS ALSO THEIR IDENTITY SHOULD BE EASILY E STABLISHED BY THE ASSESSEE. MOREOVER, A TAXPAYER FILING A RETURN SHO ULD ALSO BE AVAILABLE AT THE ADDRESS INFORMED TO THE REVENUE DE PARTMENT AND IT WAS ALTOGETHER STRANGE THAT THOSE PARTIES WERE N OT FOUND PRESENT WHEN THE SUMMONS WERE ISSUED TO THEM. ONE MORE AS PECT WAS TOUCHED DURING THE COURSE OF HEARING AND ENQUIRED T HAT WHETHER THE LOAN AMOUNTS IN QUESTION ARE STILL OUTSTANDING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE OR THEY HAVE BEEN RETURNED BACK BY THE ASSESSEE. IN OUR OPINION, THIS FACT CAN BE ASCERTA INED BY THE ASSESSING OFFICER AFTER ENQUIRY. WE ARE ALSO OF TH E VIEW THAT THE ASSESSEE SHOULD MAKE ADEQUATE EFFORTS TO PRODUCE TH E WITNESSES TO ITA NO .120/AHD/2011 (IN ITA NO.3445/AHD/2008) M/S.PATEL BABUBHAI KANTILAL VS. ACIT ASST.YEAR 2004-05 - 4 - ESTABLISH ITS CLAIM OF GENUINE LOANS. ALTHOUGH THE DOCUMENTARY EVIDENCES WERE PLACED BEFORE THE ASSESSING OFFICER AND THOSE DOCUMENTARY EVIDENCES WERE INDICATING THAT THE LOAN S HAVE BEEN TAKEN THROUGH A/C.PAYEE CHEQUES FROM THE PERSONS HAVING THEIR INCOME-TAX RECORD BUT BECAUSE OF THEIR NON-APPEARAN CE, A DOUBT HAD ARISEN AND BECAUSE OF THAT REASON IT IS THE LEG AL OBLIGATION OF THE ASSESSEE TO REMOVE THE SAID DOUBT. WE, THEREFO RE, REMAND THIS ISSUE BACK TO THE STAGE OF THE ASSESSING OFFICER TO BE DECIDED AS PER THE OBSERVATIONS MADE HEREINABOVE. THIS GROUND OF THE REVENUE MAY BE TREATED AS ALLOWED BUT FOR STATISTIC AL PURPOSES ONLY. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSCIENTIOUS VIEW THAT THE TRIBUNAL HAS EXPRESSED TWO OPINIONS, ONE WAS THAT THE ASSESSEE HAD FAILED TO PRODUCE ITS WITNESS ES, I.E. CASH CREDITORS BEFORE THE AO. THE AO HAD INVOKED THE PROVISIONS O F SECTION 68 SINCE THE ASSESSEE HAD FAILED TO ESTABLISH THE GENU INENESS OF THE CASH CREDITS IN THE ABSENCE OF THE PRESENCE OF THE CASH CREDITORS. THE OTHER REASON OBSERVED BY THE TRIBUNAL WAS THAT THE AO HAD ISSUED NOTICES U/S.133(6) OF THE ACT, BUT THOSE RETURNED UNSERVED WITH THE REMARKS LEFT. HENCE THE TRIBUNAL HAS TAKEN A VIEW THA T IF THOSE CASH CREDITORS HAVE FILED THE INCOME-TAX RETURNS AND THE AMOUNT IN QUESTION WAS TRANSACTED THROUGH BANK, THEN THERE SHOULD NOT BE ANY DIFFICULTY IN COMPLYING WITH THE SAID NOTICES AS ALSO TO ESTABLIS H THE IDENTITY OF THOSE PERSONS. IN ADDITION TO THE ABOVE REASONS, ONE MOR E ASPECT WAS ALSO FOUND BY THE TRIBUNAL THAT THE AO COULD HAVE MADE AN ENQUIRY ABOUT THE POSITION OF THE OUTSTANDING LOANS AND WHETHER THOS E LOANS WERE RETURNED BACK BY THE ASSESSEE. ON ACCOUNT OF THAT REASON , IT WAS THOUGHT PROPER TO RESTORE THE ISSUE BACK TO THE AO, SO THAT HE CAN ASCERTAIN THE SAID FACT AFTER PROPER ENQUIRY. AS FAR AS THE CASE LAWS AR E CONCERNED, THE ITA NO .120/AHD/2011 (IN ITA NO.3445/AHD/2008) M/S.PATEL BABUBHAI KANTILAL VS. ACIT ASST.YEAR 2004-05 - 5 - ALLEGATION IS INCORRECT BECAUSE THE CASE OF ROHINI BUILDERS (SUPRA) WAS MENTIONED IN THE ORDER. THE TRIBUNAL HAS HELD T HAT DUE TO NON- COMPLIANCE A DOUBT HAD ARISEN, HENCE TO REMOVE THAT DOUBT, THE MATTER WAS REMANDED BACK. SINCE THE SAID DECISION WAS TAK EN ON THE FACTS OF THE CASE, THEREFORE, OTHER CASE LAWS CITED APPEARED TO HAVE NOT BEEN DISCUSSED. TOTALITY OF THE CIRCUMSTANCES, THUS, WA RRANTS NOT TO INTERFERE WITH THOSE FINDINGS. WE HEREBY HOLD THAT THE MIS CELLANEOUS PETITION HAS NO FORCE, HENCE DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION F ILED BY THE ASSESSEE IS DISMISSED. SD/- SD/- ( . ! ! ) ( ) '# ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 13 / 01 /2012 /,..!, .!../ T.C. NAIR, SR. PS '. + 01 2'1% '. + 01 2'1% '. + 01 2'1% '. + 01 2'1%/ COPY OF THE ORDER FORWARDED TO : 1. '3 / THE APPLICANT 2. 04'3 / THE RESPONDENT. 3. 5 / CONCERNED CIT 4. 5() / THE CIT(A)-II, AHMEDABAD 5. 189 0! , , / DR, ITAT, AHMEDABAD 6. 9: ;* / GUARD FILE. '.! '.! '.! '.! / BY ORDER, 41 0 //TRUE COPY// < <<