Shri Manoj Kumar Saraf, Surat V. The Income tax Officer,OSD-II,Range-2, Surat

MA 173/AHD/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0151 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 03-02-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 02-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# $ , %& % ' BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.173/AHD/2011 ( IN ./ IN I.T.A. NO.28/AHD/2009) ( # ( )( / ASSESSMENT YEAR : 2005-06) SHRI MANOJ KUMAR SARAF PROP.M/S.PRECISION ENGINEERS, 644, AJANTA SHOPPING CENTRE,RING ROAD, SURAT # / VS`. THE INCOME TAX OFFICER RANGE-2 SURAT ./ ./ PAN/GIR NO. : AKUPS 9932 M ( / APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI TEJ SHAH / RESPONDENT BY : SHRI Y.P.VERMA, SR.D.R. ! ' / DATE OF HEARING : 15/03/2013 #$%& ! / DATE OF PRONOUNCEMENT : 3/5/13 '( / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS PETITION HAS BEEN FILED ON 02/11/2011 AND THE ASSESSEE HAS RAISED THE FOLLOWING OBJECTION:- F. ASSESSEES AR ALSO RELIED ON THE FOLLOWING DEC ISIONS WHICH WERE ALSO CITED BEFORE CIT(A) KHANDELWAL CONSTRUCTIONS V/S. CIT (1997) 227 ITR 900 (GAU) MA NO.173/AHD/2011 (IN ITA NO.28/AHD/2009) SHRI MANOJ KUMAR SARAF VS. ITO ASST.YEAR 2005-06 - 2 - DCIT V/S.ROHINI BUILDERS 256 ITR 360 (GUJ.) (SPL FILED BY THE DEPARTMENT DISMISSED BY HONORABLE SUPREME COURT 254 ITR (STA) 275) NATHURAM PREMCHAND V/S.CIT (1963) 49 ITR 561 (ALL) NIRANJANLAL RAMBALABH V/S.CIT (1956) 26 ITR (NAG) FURTHER ASSESSEES AR ALSO RELIED ON THE DECISION O F CIT V/S ORISSA CORPORATION 159 ITR 78 SC (1986). 4. ASSESSEES ABOVE ARGUMENTS WERE NOT REBUTTED BY LD.DEPARTMENT REPRESENTATIVE IN THE COURSE OF HEARI NG OF APPEAL. HOWEVER, HONORABLE TRIBUNAL ACCEPTED THE ARGUMENT O F THE LD.DEPARTMENT REPRESENTATIVE THAT CONFIRMATION OF G OPAL KRISHNA WAS NOT SIGNED BY HIM BUT SOMEBODY ELSE ON HIS BEHA LF HAD SIGNED THE SAID CONFIRMATION. THIS ARGUMENT WAS MADE FOR THE FIRST TIME BY LD.DR BEFORE HONORABLE TRIBUNAL WITHOUT PLACING ANY EVIDENCE. IN FACT, GOPAL KRISHNA IS THE PROPRIETARY FIRM AND ITS PROPRIETOR NAME IS SANJEEV MAKHARIYA AND THAT IS WHY IT APPEAR ED TO LD.DEPARTMENT REPRESENTATIVE AND HONORABLE TRIBUNAL THAT HE DID NOT SIGN THE CONFIRMATION. IN FACT, THE CONFIRMATI ON WAS SIGNED BY SANJEEV MAKHARIYA ONLY AS PROPRIETOR OF GOPAL KRISH NA. THE RUBBER STAMP OF M/S.GOPAL KRISHNA AS PROPRIETOR FIR M WAS AFFIXED IN THE CONFIRMATION. THE DETAILS CORRESPONDING TO PAN NUMBER CAN BE DOWNLOADED BY ANY PERSON OF THE WORLD REFERR ING TO THE LINK HTTPS://ONLINESERVICES .TIN.NSDL.COM/ETAXNEW/SUBMIT TDSN?RKEY=- 1381602539. MOREOVER, THE HONORABLE TRIBUNAL DISCU SSED VARIOUS CASE LAWS IGNORING THE CASE LAW OF GUJARAT HIGH COURT IN CASE OF DCIT V/S ROHINI BUILDERS 256 ITR 360 AND SU PREME COURT IN CASE OF ORISSA CORPORATION 159 ITR 78 CITED SUPR A. ASSESSING OFFICER SHOULD HAVE MADE THE FURTHER ENQUIRIES AND CROSS CHECKED THE INCOME TAX RECORDS OF THE LENDERS TO TEST THE A UTHENTICITY OF THE CONFIRMATION. MOREOVER, M/S.GOPAL KRISHNA DID NOT RESPOND TO NOTICE U/S.133(6) WHICH DID NOT MEAN THAT HIS CONFI RMATION IS NON- GENUINE. ON THE CONTRARY SILENCE PROVES THAT HE HA S GIVEN THE LOAN TO THE ASSESSEE UNLESS THERE IS ANY CORROBORATIVE E VIDENCE TO SUGGEST OTHERWISE. MA NO.173/AHD/2011 (IN ITA NO.28/AHD/2009) SHRI MANOJ KUMAR SARAF VS. ITO ASST.YEAR 2005-06 - 3 - 2. FROM THE SIDE OF THE APPLICANT, LD.AR MR.TEJ SHA H APPEARED AND PLEADED THAT DURING THE COURSE OF HEARING, IT WAS B ROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THE IMPUGNED LOAN AMOUNT WAS DULY SUPPORTED BY CONFIRMATION LETTER, ETC. THE ASSESSEE HAS FURNISH ED THE CONFIRMATION LETTER ALTHOUGH THE SAME WAS SIGNED BY THE PROPRIET OR OF THE CONCERN. THIS FACT WAS MISUNDERSTOOD BY THE REVENUE AUTHORIT IES AS ALSO BY THE TRIBUNAL, HENCE A MISTAKE HAS BEEN COMMITTED WHICH IS TO BE RECTIFIED, HENCE THIS PETITION DESERVES TO BE ACCEPTED. 3. FROM THE SIDE OF THE REVENUE, LD.SR.DR MR.Y.P.VE RMA HAS PLEADED THAT THE ORDER OF THE TRIBUNAL IS A WELL-REASONED O RDER PRONOUNCED AFTER DUE CONSIDERATION OF FACTS AS ALSO LAW APPLICABLE. THE LD.DR HAS RELIED ON THE FINDINGS OF THE TRIBUNAL IS AS FOLLOWS:- 13. WE HAVE HEARD BOTH THE PARTIES AND GONE THRO UGH THE FACTS OF THE CASE. UNDISPUTEDLY, THE ASSESSEE DID NOTHI NG EXCEPT FILING CONFIRMATIONS OF THE AFORESAID TWO CREDITORS BEFORE THE AO. THE LD.CIT(A) CONCLUDED THAT MERE FILING OF A CONFIRMAT ION LETTER COULD NOT BE TREATED AS SUFFICIENT EVIDENCE OF THE GENUIN ENESS OF THE CASH CREDITS, SINCE ANY ONE COULD SIGN A CONFIRMATION LE TTER AND PROVIDE A PAN. THUS, THE ASSESSEE FAILED TO DISCHARGE THE INITIAL BURDEN WHICH LAY ON HIM. THE ENQUIRIES MADE BY THE AO ALS O DREW A BLANK. EVEN BEFORE THE LD. CIT(A), THE AR HIMSELF EXPRESSED HIS INABILITY TO HAVE THE CONFIRMATIONS AUTHENTICATED N OR PRODUCED ANY EVIDENCE, ESTABLISHING CREDITWORTHINESS OF THE AFOR ESAID CREDITORS OR GENUINENESS OF THE TRANSACTIONS. THE REVENUE NO W CLAIMED BEFORE US THAT EVEN THE SAID CONFIRMATION OF SHRI G OPAL KRISHNA IS NOT SIGNED BY HIM AND SOMEBODY ELSE ON HIS BEHALF H AD SIGNED THE SAID CONFIRMATION. IN SUMATI DAYAL V. CIT [1995] 2 14 ITR 801, THE HONBLE SUPREME COURT RULED THAT THE BURDEN IS ON THE ASSESSEE TO PROVE THAT AMOUNTS CREDITED IN ACCOUNTS DID NOT MA NO.173/AHD/2011 (IN ITA NO.28/AHD/2009) SHRI MANOJ KUMAR SARAF VS. ITO ASST.YEAR 2005-06 - 4 - REPRESENT INCOME IN TERMS OF SECTION 68 OF THE ACT .. IT IS WELL SETTLED THAT MERE IDENTIFICATION OF CREDITOR OR REC EIPT OF AMOUNT THROUGH BANKING CHANNEL IS NOT SUFFICIENT TO SATISF Y THE REQUIREMENT OF A GENUINE CREDIT. IN THE LIGHT OF VIEW TAKEN IN THE AFORESAID DECISIONS, ESPECIALLY WHEN NOT A WHISPER HAS BEEN M ADE BEFORE US REGARDING CREDITWORTHINESS OF THE AFORESAID TWO CRE DITORS AND GENUINENESS OF THE TRANSACTIONS NOR ANY SUCH MATERI AL HAS BEEN PLACED BEFORE THE LOWER AUTHORITIES AND EVEN BEFORE US, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE LD.C IT(A). CONSEQUENTLY ADDITION OF RS.2,60,000/- IN TERMS OF THE PROVISIONS OF SEC.68 OF THE ACT THE INTEREST OF RS.12,825/- CL AIMED ON SUCH CASH CREDITS IS UPHELD. THUS, GROUND NOS.3 & 4 IN THE APPEAL ARE DISMISSED. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE FIND NO FORCE IN THIS PETITION. CERTAIN FAILURES WERE RECORDED S INCE INCEPTION OF THE CASE IN RESPECT OF THE CONFIRMATIONS SUBMITTED. THOSE E RRORS WERE NOT SATISFACTORILY EXPLAINED. EVEN THOSE ERRORS WERE D ISCUSSED AT THE TIME OF THE STAGE OF FIRST APPEAL BUT THE AR HAD EXPRESSED HIS INABILITY TO DEAL ANYTHING BUT TO PLACE RELIANCE ON CASE-LAWS AND THE CONTENTIONS SUBMITTED DURING THE PROCEEDINGS. THIS FACT WAS DULY NOTICED BY THE RESPECTED CO- ORDINATE BENCH AND THEREUPON AFTER DETAILED DISCUSS ION ON FACTS AS ALSO ON LAW ARRIVED AT A CONCLUSION THAT THE ASSESSEE HAD F AILED TO ESTABLISH THE CREDITWORTHINESS, HENCE THE INVOCATION OF THE PROVI SIONS OF SECTION 68 WAS UPHELD. SINCE A WELL-REASONED ORDER HAS BEEN PASSED BY THE RESPECTED COORDINATE BENCH, THEREFORE WE ARE FORBID DEN TO REVIEW THAT ORDER. WHILE PASSING THE DECISION, THE TRIBUNAL WA S CONSCIENTIOUS ABOUT ALL THOSE FACTS. THE SCOPE OF THE PROVISIONS OF SE CTION 254(2) OF THE ACT IS VERY LIMITED. A MISTAKE WHICH IS APPARENT FROM AN ORDER CAN ONLY BE RECTIFIED. SUCH A MISTAKE CAN BE A CALCULATION MIS TAKE OR A GLARING MA NO.173/AHD/2011 (IN ITA NO.28/AHD/2009) SHRI MANOJ KUMAR SARAF VS. ITO ASST.YEAR 2005-06 - 5 - MISTAKE WHICH CAN BE APPRECIATED ON THE FACE OF THE RECORDS ITSELF. IF WE ACCEPT THIS PETITION, THEN THIS MAY TANTAMOUNT TO R EVIEW OF AN ORDER OF THE TRIBUNAL. A POWER OF REVIEW HAS TO BE STATUTO RILY CONFIRMED. IT CANNOT BE INFERRED. POWER OF REVIEW HAS NOT BEEN C ONFIRMED TO THE TRIBUNAL. THEREFORE, WE CANNOT SIT AS A JUDGE ON OUR OWN DECISION OF RESPECTED COORDINATE BENCH. WE THEREFORE HOLD THAT NO APPARENT MISTAKE HAS BEEN POINTED OUT THROUGH THIS PETITION, HENCE D ISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DISMISSED. SD/- SD/- ( ).*$+ *,& ) ( * * - ' ' ' ) ' ./ ' ( A. MOHAN ALANKAMONY ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 03/ 05 /2013 0!. ., ./. ./ T.C. NAIR, SR. PS %+ , -./ 0%/) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 234 5 ' / CONCERNED CIT 4. 5 ' ( ) / THE CIT(A)-II, SURAT 5. 789 / /34, ! 34&, +*'2' / DR, ITAT, AHMEDABAD 6. 9:; < / GUARD FILE. %+# / BY ORDER, 7 / //TRUE COPY// 1/ 2 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD