Nallabantu Chandraabhushanam, Rajahmundry V. THE ITO, Rajahmundry

MA 75/VIZ/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6491 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 30-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C DAS
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER M.A.NO. 75/VIZ/2017 ( ITA NO. 366 / VIZ /201 5 ) (ASST. YEAR : 20 11 - 12 ) NALLABANTU CHANDRA B HUSANAM, PROP. SAI LAKSHMI ENTERPRISES, FORT GATE, RANGREEJPETA, RAJAHMUNDRY. VS. ITO, WARD - 1( 2 ) , RAJAHMUNDRY. PAN NO. ABGPN 3069 B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SHRI K.C. DAS SR. DR DATE OF HEARING : 13 / 0 4 /201 8 . DATE OF PRONOUNCEMENT : 18 / 04 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER B Y FILING THIS MISC. APPLICATION, ASSESSEE SEEKS RECALL OF THE ORDER PASSED BY TH IS TRIBUNAL IN ITA NO. 366/VIZ/2017, DATED 31/07/2017 . 2. LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE TRIBUNAL VIDE ORDER DATED 31/07/2017 DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT FILED ANY MATERIAL TO SHOW THAT THE CREDITS APPEARING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE 2 MA NO. 75/VIZ/2017 ( N. CHANDRA BHUSHANAM ) PERTAINS TO EARLIER YEARS AND CARRIED OVER TO SUBSEQUENT YEARS , HOWEVER, THE DECISION RELIED ON BY THE ASSESSEE IN THE CASE OF CIT VS. VARDHMAN O VERSEAS LTD. (34 ITR 408) IS CLEARLY SAYS THAT THE AMOUNTS DUE , TO THE TRADE CREDITORS THOUGH CARRIED FORWARD FOR NEARLY FOUR YEARS, CANNOT BE TREATED AS CESSA T ION OF LIABILITY UNDER SECTION 41(1) OF THE ACT, UNLESS THE CESSATION IS CONFIRMED BY THE CREDITOR. THEREFORE, THERE IS A MISTAKE APPARENT ON THE FACE OF THE ORDER OF THE TRIBUNAL AND , SUBMITTED THAT SAME MAY BE RECALLED . 3 . ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT BY CONSIDERING ALL THE MATERIAL S PLACED ON RE C ORD AND THE CASE LAW RELIED ON BY THE ASSESSEE, THE TR I BU N AL HAS RIGHTLY UPHELD THE ORDER OF THE LD.CIT(A) AND THERE IS NO ERROR APPARENT ON THE FACE OF THE ORDER OF THE TRIBUNAL . THUS, TH IS MISC. APPLICATION FILED BY THE ASSESSEE HAS NO LEGS TO STAND , A ND MAY BE DISMISSED. 4 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW 5. THE TRIBUNAL WHILE PASSING THE ORDER DATED 31/07/2017 HAS CONSIDERED THE ISSUE AND OBSERVED AS UNDER: - 10 . THE CASE OF THE ASSESSEE IS THAT HE HAS RECEIVED AN AMOUNT OF RS. 9,38,503/ - FROM 06 PARTIES FOR SUPPLY OF MATERIAL ADVANCE AND T HESE AMOUNTS WERE CARRIED OVER AS A OPENING BALANCE AS ON 01/04/2011 AND WERE CONTINUED TO 31/03/2012 WITHOUT ANY TRADE WITH THEM. THE ASSESSING 3 MA NO. 75/VIZ/2017 ( N. CHANDRA BHUSHANAM ) OFFICER ASKED THE ASSESSEE ABOUT GENUINENESS OF THE ADVANCES RECEIVED. THE ASSESSEE HAS SUBMITTED BEFORE THE A SSESSING OFFICER THAT THE TRANSACTION IS GENUINE AND NO EVIDENCE IS PRODUCED BEFORE THE ASSESSING OFFICER TO SUBSTANTIATE THE CLAIM. NOT ONLY THAT, THE ASSESSEE HAS NOT FILED ANY DETAILS TO SHOW THAT THE CREDITS PERTAINING TO EARLIER YEARS AND CARRIED OVE R TO SUBSEQUENT YEARS, EVEN BEFORE THE LD. CIT(A) THE ASSESSEE IS NOT FILED ANY EVIDENCE. EVEN BEFORE THE TRIBUNAL, THE ASSESSEE HAS NOT FILED ANY MATERIAL TO SHOW THAT THE CREDITS APPEARING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE PERTAINS TO EARLIER YEAR S AND CARRIED OVER TO SUBSEQUENT YEARS. THEREFORE, I FIND THAT ASSESSEE HAS FAILED TO DISCHARGE BURDEN CASTED UPON HIM TO SHOW THAT THE CREDITS ARE GENUINE CREDITS. THEREFORE, THE LD. CIT(A) RIGHTLY MADE THE ADDITION UNDER SECTION 41(1) OF THE ACT INSTEA D OF SECTION 68. SO FAR AS CASE LAW RELIED ON BY THE ASSESSEE IS CONCERNED, THE FACTS OF THE PRESENT CASE ARE ENTIRELY DIFFERENT FROM THE CASE LAW RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN THE PRESENT CASE, THE ASSESSEE IS NOT ABLE TO PROVE T HE GENUINENESS OF THE CREDITS APPEARING IN THE BOOKS OF ACCOUNT. THEREFORE, THE CASE LAW RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE. THEREFORE, I FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). THUS, THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 6 . FROM THE ABOVE ORDER, THE TRIBUNAL HAS FOUND THAT THE ASSESSEE HAS FAILED TO DISCHARGE THE BURDEN CASTED UPON HIM TO SHOW THE GENUINENESS AND VERACITY OF CREDITS APPEARING IN HIS BOOKS OF ACCOUNT AND UPHELD THE ORDER OF THE LD. CIT(A) IN SUSTENANCE OF ADDITION UNDER SECTION 41(1) INSTEAD OF SECTION 68 OF THE ACT. WE FIND THAT THE ASSESSEE IS NOT ABLE TO ESTABLISH ANY MISTAKE APPARENT ON THE FACE OF THE ORDER OF THE TRIBUNAL , THEREFORE, THIS MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. 4 MA NO. 75/VIZ/2017 ( N. CHANDRA BHUSHANAM ) 7 . IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 1 8 T H DAY OF APRIL , 201 8 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 8 T H APRIL , 201 8 . VR/ - COPY TO: 1. THE ASSESSEE - NALLABANTU CHANDRA BHUSANAM, PROP. SAI LAKSHMI ENTERPRISES, FORT GATE, RANGREEJPETA, RAJAHMUNDRY. 2. THE REVENUE ITO, WARD - 1(2), RAJAHMUNDRY. 3. THE CIT, RAJAHMUNDRY. 4. THE CIT(A), RAJAHMUNDRY. 5. THE D.R., VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.