M/s. Himanshu Engg. Works, Ahmedabad V. The ACIT., Circle-6, Ahmedabad

MA 148/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7929 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1996-1997
• Appeal Filed On: 23-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PF JAIN
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AN D SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NO.148/AHD/2010 IN C.O. NO.90 / AHD/2004 (ASSESSMENT YEAR 1996-97) HIMANSHU ENGINEERING WORKS, 620, PHASE IV, GIDC, VATVA, AHMEDABAD VS. ACIT, CIRCLE 6, AHMEDABAD PAN/GIR NO. :AABHF2716F (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI P F JAIN, AR RESPONDENT BY: SHRI SAMIR TEKRIWAL, SR. DR DATE OF HEARING: 02.03.2012 DATE OF PRONOUNCEMENT: 13.04.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE POINTING OUT CERTAIN MISTAKES IN THE TRIBUNAL ORDER IN C.O. NO.9 0/AHD/2004. IT IS SUBMITTED BY THE ASSESSEE IN THE M.A. THAT THE ADDI TION WAS MADE BY THE A.O. AND CONFIRMED BY LD. CIT(A) AND THE TRIBUNAL O N THE BASIS THAT LETTER WRITTEN BY THE A.O. TO THE CREDITORS MR. RAK ESH BANSAL ON BEHALF OF VKS INDUSTRIES HAS COME BACK UNSERVED WITH THE REMA RKS THAT NO SUCH PERSON WAS AVAILABLE AND THAT THE PERSON HAS LEFT T HE ADDRESS GIVEN AND THE ASSESSEE COULD NOT FILE ANY CONFIRMATION FROM R AKESH BANSAL OF THIS M.A.NO148. /AHD/2010 2 AMOUNT. IT IS SUBMITTED IN THE MISCELLANEOUS APPLI CATION THAT FOLLOWING POINTS WERE NOT CONSIDERED BY THE TRIBUNAL WHILE DE CIDING THIS ISSUE:- LETTER WAS WRITTEN BY THE A.O. AFTER 7 YEARS AFTER THE LIMIT OF PERIOD AND HENCE, AS PER THE JUDGMENT OF THE TRIBUN AL IN THE CASE OF SUPER CHEMICAL DISTRIBUTORS AS REPORTED IN 1 SOT 10 2 AND THE JUDGMENT OF HONBLE CALCUTTA HIGH COURT RENDERED IN THE CASE OF MATHER & PLATT INDIA LTD. AS REPORTED IN 168 ITR 49 3, MERELY FOR THIS REASON THAT THE PERSON IS NOT FOUND AT THE ADD RESS AFTER 4 YEAS, IT CANNOT BE HELD THAT HE IS NOT EXISTING AND , THEREF ORE, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE. IT IS ALSO SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT FAX LETTERS FROM VKS INDUSTRIES LTD. CONFIRMING OUTSTANDING BALANCE PLACED ON PAGE 9 OF THE PAPER BOOK, THE SAME WAS NOT CONSIDERED. VARIOUS OTHER C ONTENTIONS ARE ALSO RAISED IN THE MISCELLANEOUS APPLICATION AND, T HEREAFTER, RELIANCE WAS PLACED ON THE JUDGMENT OF HONBLE ALLAHABAD HIG H COURT RENDERED IN THE CASE OF LAXMI ELECTRIC CORPORATION LTD. AS REPORTED IN 188 ITR 398 AND THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF SAURASHTRA KUTCH STOCK EXCH ANGE LTD. AS REPORTED IN 262 ITR 146. 2. IN THE COURSE OF HEARING BEFORE US, LD. A.R. OF THE ASSESSEE REITERATED THE SAME ARGUMENTS WHEREAS, IT IS SUBMIT TED BY THE LD. D.R. THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL O RDER. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND WE FIND THAT IN RESPECT OF CASH CREDIT, THERE ARE THREE INGREDIENTS OF SECT ION 68 OF THE ACT WHICH ARE TO BE FULFILLED BY THE ASSESSEE. THE ASSESSEE HAS TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE CONCERNED CRED ITOR AND ALSO GENUINENESS OF THE TRANSACTION. EVEN IF IT IS ACCEP TED THAT THE IDENTITY OF THE PERSON IN QUESTION CANNOT BE REJECTED ON THIS B ASIS THAT HE COULD NOT BE TRACED AFTER LAPSE OF 7 YEARS, THE ASSESSEE HAS TO ESTABLISH THE 2 ND INGREDIENT I.E. CREDITWORTHINESS OF THIS PERSON AND THE THIRD INGREDIENT I.E. GENUINENESS OF THE TRANSACTION. THE ASSESSEE HAS N OT FURNISHED ANYTHING IN THIS REGARD I.E REGARDING CREDITWORTHINESS OF TH E CREDITOR AND M.A.NO148. /AHD/2010 3 GENUINENESS OF TRANSACTION AND HENCE, WE DO NOT FIN D ANY APPARENT MISTAKE IN THE TRIBUNAL ORDER ON THIS ASPECT. 4. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS DISMISSED. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 9/4 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11/4.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 13/4 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.13/4 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 13/4/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .