Jhankar Shroffin Pvt. Ltd., Surat V. The Income tax Officer,Ward-1(3), Surat

MA 215/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7585 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 15-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VINOD GOSWAMI
• Assessee Lawyers: J P SHAH
• Keywords: Unexplained cash credit
• Section: 68; 69; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI, JM AND SHRI A. K. GARO DIA, AM) M. A. NO.215/AHD/2011 ((IN ITA NO.2830/AHD/2004:A.Y. 2001-02) JANKAR SHROFFIN PVT. LTD., 5/1334-B, HARIPURA, KALJUG STREET, BHAWANIWAD, SUART 395 003 VS THE INCOME TAX OFFICER, WARD 1 (3), AAYAKAR BHAVAN, OPP. NEW CIVIL HOSPITAL, MAJURA GATE, SURAT 395001 (APPLICANT) (RESPONDENT) APPLICANT BY SHRI J. P. SHAH, AR RESPONDENT BY SHRI VINOD GOSWAMI, SR. DR DATE OF HEARING: 03-02-2012 DATE OF PRONOUNCEMENT: 07-02-2012 ORDER PER BHAVNESH SAINI : THIS ORDER SHALL DISPOSE OF THE MISC. APPLICATION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 14-05-2010. 2. THIS MISC. APPLICATION IS MAINLY FILED WITH REGA RD TO THE FINDINGS OF THE TRIBUNAL GIVEN ON GROUND NO.4 WHEREBY THE AS SESSEE CHALLENGED THE ADDITION OF RS.20,90,088/- ON ACCOUN T OF UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. THE SAID GROUND NO.4 WAS CONSIDERED AND DECIDED BY THE TRIBUNAL IN PARAGRAPH S 8 TO 10 OF THE ORDER AND DISMISSED THE SAME. IT IS NOTED IN THE OR DER THAT THE ASSESSEE FAILED TO FURNISH THE DETAILS CALLED FOR B Y THE AO. THEREFORE, THE AO TREATED THE SAME AS UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. THE SOLE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE MA NO.215/AHD/2011 (IN ITA NO. 2830/AHD/2004 - AY 2001-02) JANKAR SHROFFIN PVT. LTD. VS ITO, W-1(3), SURAT 2 BEFORE THE TRIBUNAL WAS THAT AS THE ASSESSEE EARNS COMMISSION INCOME @ 12 PAISE TO 25 PAISE PER RS.100/- INCLUDIN G BANK COMMISSION, THE AUTHORITIES BELOW WERE NOT JUSTIFIE D IN ADDING RS.20,90,088/- AS UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. THE TRIBUNAL FOUND NO MERIT IN THE ARGUMENT OF THE LEAR NED COUNSEL FOR THE ASSESSEE BECAUSE ACCORDING TO THE SECTION 68 OF THE IT ACT THE ASSESSEE WAS REQUIRED TO ESTABLISH THE NATURE AND S OURCE OF THE CASH CREDIT TO THE SATISFACTION OF THE ASSESSING AUTHORI TIES AND IN THE ABSENCE OF WHICH THE AO HAS POWER TO TREAT THE SAME AS UNEXPLAINED CASH CREDIT. THE TRIBUNAL IN ITS CONSIDERED OPINION HELD THAT THE EXPLANATION OF THE ASSESSEE CANNOT BE ACCEPTED IN V IEW OF SPECIFIC PROVISIONS CONTAINED U/S 68 OF THE IT ACT. IN THE C ONSIDERED ONION OF THE TRIBUNAL WHEN THE ASSESSEE CLAIMS TO HAVE RECEI VED CHEQUES OR DRAFTS OF CREDIT I.E. CASH IS NOT IMMEDIATELY GIVEN TO THE CHEQUES OR DRAFTS PROVIDED THEN THE LAW REQUIRE THE ASSESSEE T O PROVE THE NATURE AND SOURCES OF SUCH CREDITS BY ESTABLISHING IDENTITY AND GENUINENESS OF THE TRANSACTIONS. THIS GROUND WAS AC CORDINGLY DISMISSED ON MERIT. 3. THE LEARNED COUNSEL FOR THE ASSESSEE BESIDES REF ERRING TO THE MISC. APPLICATION ALSO REFERRED TO LETTERS ADDRESSE D TO THE AO IN WHICH IT WAS PRECISELY REQUESTED THE AO TO EXERCISE HIS P OWERS FOR GETTING CLARIFICATION FROM THE CONCERN BANK. THE LEARNED CO UNSEL FOR THE ASSESSEE SUBMITTED THAT ON GROUND NO.2 WITH REGARD TO ADDITION U/S 69 OF THE IT ACT, THE ISSUE OF RS.8,41,079/- WAS RE STORED TO THE FILE OF THE AO FOR VERIFICATION BY EXERCISING THE POWERS AV AILABLE UNDER THE ACT WITH THE AO. THE LEARNED COUNSEL FOR THE ASSES SEE, THEREFORE, MA NO.215/AHD/2011 (IN ITA NO. 2830/AHD/2004 - AY 2001-02) JANKAR SHROFFIN PVT. LTD. VS ITO, W-1(3), SURAT 3 SUBMITTED THAT THE TRIBUNAL DID NOT GIVE IDENTICAL DIRECTION ON GROUND NO.4 OF THE APPEAL ABOVE WHICH IS GIVEN ON GROUND N O.2 OF THE APPEAL. THEREFORE, THERE APPEARS MISTAKE APPARENT O N RECORD AND THE ORDER OF THE TRIBUNAL MAY BE RECTIFIED. 4. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER AND THAT BOTH THE ISSUES ARE DIFFERENT BEFORE THE TRIBUNAL. THE TRIBUNAL CORRECTLY EXAMINE D THE ISSUE U/S 68 OF THE IT ACT ON MERIT AND RIGHTLY DISMISSED THIS G ROUND OF APPEAL OF THE ASSESSEE WHICH HAS NO CO-RELATION WITH THE FIND INGS ON OTHER ISSUE. THEREFORE, THERE IS NO MISTAKE APPARENT ON R ECORD AND THE MISC. APPLICATION OF THE ASSESSEE MAY BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL ON RECORD. IT IS WELL SETTLED LAW THAT TRIBUNAL HAS NO POWER TO REVIEW ITS EARLIER ORDER. IT IS ALSO WELL SETTLED LAW THAT THE TRIBUNAL SHOULD NOT CHANGE THE VIEW ALREADY TAKEN ON MERIT. WE RELY UPO N THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF ANAM ICA BUILDERS, 251 ITR 581, DECISION OF THE HONBLE ANDHRA PRADESH HIG H COURT IN THE CASE OF IDEAL ENGINEERS, 251 ITR 743 AND THE DECISI ON OF THE HONBLE M. P. HIGH COURT IN THE CASE OF AGRAWAL WAREHOUSING AND LEASING LTD., 257 ITR 235. ON GROUND NO.2, THE ISSUE WAS WI TH REGARD TO UNEXPLAINED CASH U/S 69 OF THE IT ACT IN WHICH EXCE SS CASH WAS FOUND DURING THE COURSE OF SURVEY AND THE ASSESSEE CONSISTENTLY EXPLAINED THAT THE AMOUNT IN QUESTION WAS PAYABLE B Y THE ASSESSEE AGAINST CHEQUES DISCOUNTING WHICH WAS THOUGH SHOWN AS PAYMENT IN ITS CASH BOOK AS THE MONEY WAS TAKEN OUT OF CASH-BO X BUT IT WAS NOT MA NO.215/AHD/2011 (IN ITA NO. 2830/AHD/2004 - AY 2001-02) JANKAR SHROFFIN PVT. LTD. VS ITO, W-1(3), SURAT 4 ACTUALLY HANDED OVER. THE AO WAS REQUESTED TO VERIF Y THE FACT OF DEPOSIT OF CHEQUES FROM THE BANK DIRECTLY AS THE BA NK WAS NOT GIVING COPIES OF THE CHEQUES TO THE ASSESSEE AND THE ASSES SEE HAS NO LEGAL AUTHORITY TO COMPEL THE BANK TO GIVE COPY OF THE CH EQUES OR DRAFTS. THE TRIBUNAL ON CONSIDERATION OF THE FACTS AND MATE RIAL ON RECORD RESTORED THE MATTER BACK TO THE FILE OF THE AO FOR PROPER VERIFICATION OF THE EXPLANATION OF THE ASSESSEE BY EXERCISING POWER S AVAILABLE UNDER THE ACT. HOWEVER, ON GROUND NO.4 THE ISSUE IS DIFFE RENT WHICH IS UNEXPLAINED CREDIT U/S 68 OF THE IT ACT. IT WAS FOU ND BY THE AO THAT THE ASSESSEE OBTAINED CASH CREDITS FROM SEVERAL PER SONS AND THE ASSESSEE WAS ASKED TO PROVE THE GENUINENESS OF THE CREDITS BY FILING CONFIRMATION ETC. AND OTHER DETAILS BUT THE ASSESSE E DID NOT FILE THE EVIDENCE BEFORE THE AO TO HIS SATISFACTION. SINCE T HE ASSESSEE DID NOT DISCHARGE ITS BURDEN OF PROVING GENUINENESS OF THE CREDIT IN THE MATTER, THEREFORE, ADDITION U/S 68 OF THE IT ACT WA S MADE. THE SOLE CONTENTION OF THE ASSESSEE BEFORE THE TRIBUNAL WAS THAT SINCE IT WAS EARNING MEAGER COMMISSION INCOME, THEREFORE, ADDITI ON U/S 68 OF THE IT ACT IS NOT JUSTIFIED. THE CONTENTION OF THE ASSE SSEE WAS TURNED DOWN IN VIEW OF THE SPECIFIC PROVISIONS CONTAINED U /S 68 OF THE IT ACT WHICH REQUIRES THAT THE ASSESSEE SHOULD PROVE THE I DENTITY OF THE CREDITORS, THEIR CREDITWORTHINESS AND GENUINENESS O F THE TRANSACTION IN THE MATTER. SINCE, THE ASSESSEE COULD NOT PROVE THE INGREDIENTS OF SECTION 68 OF THE IT ACT; THEREFORE, THE TRIBUNAL D ISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. THESE FACTS, THEREFORE, WOULD SHOW THAT THE TRIBUNAL CONSIDERED THE ISSUE ON MERIT ON BOTH THE GROUNDS SEPARATELY AND THERE IS NO LAW TO SAY THAT ON TWO DIFFERENT GROUNDS ON MERIT THE TRIBUNAL SHOULD PASS IDENTICAL ORDER. THE FACTS OF EACH OF MA NO.215/AHD/2011 (IN ITA NO. 2830/AHD/2004 - AY 2001-02) JANKAR SHROFFIN PVT. LTD. VS ITO, W-1(3), SURAT 5 THE GROUNDS HAVE BEEN CONSIDERED SEPARATELY, THEREF ORE, THERE IS NO MERIT IN THE CONTENTION OF THE ASSESSEE THAT THE TR IBUNAL SHOULD GIVE SIMILAR DIRECTION ON EACH GROUND. SINCE, BOTH THE G ROUNDS HAVE BEEN CONSIDERED SEPARATELY ON MERIT, THEREFORE, THE TRIB UNAL CANNOT REVIEW ITS EARLIER ORDERS AS WELL AS CANNOT TAKE A DIFFERE NT VIEW IN THE MATTER IN THE MISC. APPLICATION. THERE IS NO MISTAKE APPAR ENT ON RECORD. THEREFORE, MISC. APPLICATION OF THE ASSESSEE HAS NO T MERIT AND IS DISMISSED. 6. IN THE RESULT, THE MISC. APPLICATIONS OF THE ASS ESSEE IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ABOVE. SD/- SD/- (A. K. GARODIA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD