Sh. Harjinder Singh Raina, Jammu V. The Deputy. Commissioner of Income-tax, Jammu

MA 59/ASR/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1052 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-11-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K BANSAL; SUBHASH DUTT AD VS
• Assessee Lawyers: AMRIK CHAND
• Keywords: Unexplained cash credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.59(ASR)/2013 (ARISING OUT OF I.T.A. NO.258 (ASR)/2010) ASSESSMENT YEAR:2005-06 DY.COMMR. OF INCOME TAX, VS. SH.HARJINDER SINGH RAI NA, PROP. CIRCLE-1, JAMMU. M/S. SINGH & SINGH TRADING CO., JAMMU. 34-D, NEHRU MARKET, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.AMRIK CHAND, DR RESPONDENT BY:SH.S.K.BANSAL & SH. SUBHASH DUTT, AD VS DATE OF HEARING: 22/11/2013 DATE OF PRONOUNCEMENT:27/11/2013 ORDER PER BENCH ; THIS MISC. APPLICATION OF THE REVENUE ARISES FROM THE ORDER OF THE ITAT, AMRITSAR BENCH DATED 22.10.2012 IN ITA NO.258 (ASR)/2010 FOR THE ASSESSMENT YEAR 2005-06. THE MISC. APPLICATION FIL ED BY THE REVENUE IS REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: IN THIS REGARD, IT IS SUBMITTED THAT THE PRESENT APPEAL IS FILED BEFORE THE HONBLE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A) IN APPEAL NO.598/07-08 DATED 22.03.2010 FOR THE A.Y.2005-06 IN THE CASE OF SH.HARJINDER SINGH RAINA PROP. M/S. SINGH & SINGH TRADING CO. NEHRU MARKET, JAMMU. IN THIS CASE, THE HONBLE TRI BUNAL VIDE ITS MA NO.59(ASR)/2013 2 ORDER PASSED IN ITA NO.258(ASR)/2010 DATED 22.10.2 012, ALLOWED THE APPEAL OF THE ASSESSEE. DURING APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) JAMMU REMAND REPORT WAS CALLED FOR FROM THE A.O. TO VERIFY THE DEPOSITORS. DURING THE REMAND PROCEEDINGS, THE ASSESSEE HAD SUBMITTED THAT THE DEPOSITORS ARE NOT TRACEABLE AND FILED AN AFFIDAVI T IN THIS REGARD. THE LD. CIT(A) VIDE ITS ORDER DATED 22.03.2010 DELETED THE ADDITION OF RS.1,14,000/- AND CONFIRMED THE ADDITION OF RS.17, 30,472/-. THE LD. CIT(A) UPHELD THE ACTION OF THE AO IN THE ABSENCE OF ANY WORTHWHILE EVIDENCES HAVING BEEN FILED BY THE APPELLANT IN SU PPORT OF THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIO N OF OTHER DEPOSITORS/LENDERS. THE ITAT HAS ERRED IN NOT APPR ECIATING THE FACT THAT IN RESPECT OF UNEXPLAINED DEPOSITORS/LENDERS, THE IDENTITY, CREDITWORTHINESS & GENUINENESS OF THE TRANSACTIONS REMAINED UNESTABLISHED AND THE DEPOSITS/LOANS WERE TAKEN IN CASH. AS PER THE SETTLED LAW ON THIS ISSUE, IT IS THE PRIMARY ONUS OF THE ASSESSEE TO ESTABLISH ALL THE CREDITWORTHINESS. IF THE ASSESSE E FAILS TO ESTABLISH ANY ONE OF THE THREE THE CASH CREDIT CANNOT BE ACCEPTE D AS EXPLAINED AND HAS TO BE ADDED BACK. IN VIEW OF THE ABOVE, THE TR IBUNAL HAS WRONGLY DELETED THE ADDITION ON ACCOUNT OF UNEXPLAINED CAS H CREDITS. IN RESPECT OF DELETION OF DISALLOWANCE OF INTEREST ON UNEXPLAINED CASH CREDITS, THE SAID ISSUE IS LINKED TO ISSUE OF UNEX PLAINED CASH CREDITS AS MENTIONED ABOVE. IN RESPECT OF DELETION OF ADDITION ON ACCOUNT OF P ROPORTIONATE DISALLOWANCE OF INTEREST ON LOANS GIVEN BY THE ASS ESSEE, THE ASSESSEE BEFORE THE HONBLE ITAT HAS TAKEN THE PLEA THAT IN TEREST @ 12% HAS BEEN CHARGED ON THE LOANS OF RS.10,77,846/- GIVEN TO M/S. HILL TRANSAPORT CO., M/S. GURU NANAK MEDICAL COLLEGE & OTHERS. THE SAID PLEA HAS BEEN RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE HONBLE ITAT AMRITSAR. THE HONBLE ITAT HAS ERRED IN ADMITTING THE PLEA OF THE ASSESSEE WHICH HAS NOT BEN RAISED BEFO RE A.O AND THE LD. CIT). FURTHER, INTEREST @ 12% ON RS.10,77,876/- C OME TO RS.1,29,345/- WHEREAS PERUSAL OF THE P&L ACCOUNT REVEALS THAT THE ASSESSEE HAD SHOWN/RECEIVED INTEREST OF RS.22,650/ - ONLY. ALSO, AS PER THE COPY OF ACCOUNT FILED BY THE ASSESSEE IN THE C ASE OF M/S. HILL TRANSPORT CO., M/S. GURU NANAK MEDICAL COLLEGE & H OSPITAL DURING ASSESSMENT PROCEEDINGS, NO INTEREST HAS BEEN CHARG ED AND THE SAME MA NO.59(ASR)/2013 3 BALANCE IS OUTSTANDING AS ON 01.04.2004 AND ON 31. 03.2005. ALSO, THE ASSESSEE IN THE GROUND OF APPEAL AT SR. NO.6 TAKEN BEFORE THE ITAT HAS MENTIONED THAT NO INTEREST HAS BEEN CREDITED O N THE LOAN ADVANCED TO M/S. HILL TRANSPORT CO., M/S. GURU NANAK MEDICA L COLLEGE & HOSPITAL. BOTH THE FACTS TAKEN BY THE ASSESSEE BE FORE HONBLE ITAT DELETED THE ADDITION ON ACCOUNT OF PROPORTIONATE D ISALLOWANCE OF INTEREST ON LOANS GIVEN. 2. THE LD. DR, READ THE MISC. APPLICATION AND PRAYE D TO RECALL THE ORDER OF ITAT, DATED 22.10.2012. 3. THE LD. COUNSEL FOR THE ASSESSEE, MR. S.K.BANSAL , ADVOCATE, ON THE OTHER HAND, ARGUED THAT THE ITAT IN ITS ORDER DATED 22.10.2012 HAS GIVEN THE DETAILED FINDINGS WITH RESPECT TO THE IDENTITY, CRE DITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS IN RESPECT OF THE D EPOSITS AND THE INTEREST THEREON AND ALSO WITH RESPECT TO THE INTEREST CHARG ED ON THE LOANS GIVEN TO M/S. HILL TRANSPORT CO., M/S. GURU NANAK MEDICAL CO LLEGE & OTHERS. THE REVENUE HAS NOT POINTED OUT ANY MISTAKE APPARENT FR OM RECORD IN THE MISC. APPLICATION, WHICH IN FACT, IS AN APPLICATION TO GE T THE ORDER OF THE ITAT, DATED 22.10.2012 REVIEWED UNDER THE GARB OF SECTIO N 254(2) OF THE ACT. ACCORDINGLY, THE LD. COUNSEL FOR THE ASSESSEE PRAYE D TO DISMISS THE MISC. APPLICATION FILED BY THE REVENUE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. ON PERUSAL OF THE MISC. APPLICATION, WE FIND NO MI STAKE APPARENT FROM RECORD AND DETAILED ORDER HAS BEEN PASSED VIDE OUR ORDER DATED 22.10.2012 MA NO.59(ASR)/2013 4 WITH RESPECT TO THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION AND INTEREST THEREON AND ALSO WITH RESP ECT TO THE INTEREST CHARGED ON THE LOANS GIVEN TO M/S. HILL TRANSPORT CO., M/S . GURU NANAK MEDICAL COLLEGE & OTHERS AND WE FIND NO MISTAKE APPARENT FR OM RECORD WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. THE MISC. APPLICAT ION HAS BEEN FILED BY THE REVENUE TO GET THE SAID ORDER OF THE ITAT REVIEWED WHICH IS OUTSIDE THE SCOPE OF SECTION 254(2). ACCORDINGLY, THE MISC. APP LICATION FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE M.A.NO.59(ASR)/2013 FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH NOVEMBER., 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27TH NOVEMBER, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. HARJINDER SINGH RAINA, JAMMU. 2. THE DCIT, CIR.1, JAMMU. 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.