Shri Bernard Hereford, Bangalore V. ITO, Bangalore

MA 81/BANG/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5138 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-10-2010
• Assessment Year: misc
• Appeal Filed On: 05-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Assessee Lawyers: NITYA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT AND SHRI GEORGE GEORGE K., JUDICIAL MEMBER M.P. NO.81/BANG/2009 (ARISING OUT OF ITA NO.976/B/08) ASSESSMENT YEAR : 2005-06 SHRI BERENARD HEREFORD, NO.52/7, HAINES ROAD, BANGALORE. : APPELLANT VS. THE INCOME TAX OFFICER, WARD 1(2), BANGALORE. : RESPONDENT APPELLANT BY : SMT. NITYA, ADVOCATE RESPONDENT BY : SMT. JACINTA ZIMIK VASHAI, ADDL. C IT(DR) O R D E R PER GEORGE GEORGE K., JUDICIAL MEMBER THIS MISCELLANEOUS PETITION FILED BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE TRIBUNAL DATED 31.07.2009. 2. THE BRIEF FACTS GIVING RISE TO THIS MISCELLANEOU S PETITION ARE AS FOLLOWS. THE ASSESSEE IN THE APPEAL BEFORE THE TRI BUNAL HAD RAISED THE FOLLOWING GROUND : THE COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE DELETED THE ADDITION OF RS.87,451/- MADE BY THE ASS ESSING OFFICER BEING PAYMENT TO SUNDRY CREDITORS. M.P. NO.81/BANG/09 PAGE 2 OF 3 THE ABOVE SAID GROUND WAS DISPOSED OF BY THE TRIBUN AL ORDER DATED 31.07.2009 VIDE PARA 7.2 AND THE SAME READS AS FOLL OWS: 7.2 WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MA TERIAL ON RECORD. THE AO, IN THE COURSE OF ASSESSMENT, HAD D IRECTED THE ASSESSEE TO FURNISH CONFIRMATION FROM CREDITORS, TH E DETAILS OF PAYMENTS, IF ANY, MADE TO CREDITORS IN THE SUBSEQUE NT YEAR AND DETAILED ADDRESSES OF THESE CREDITORS FOR MAKING VE RIFICATION. NONE OF THE ABOVE DETAILS CALLED FOR BY THE AO WERE FURNISHED BY THE ASSESSEE. THESE FACTS ARE EVIDENT FROM THE REM AND REPORT OF THE AO DATED 4-12-2007 SUBMITTED TO THE LD. CIT(A). IT IS NOT IN DISPUTE, THESE AMOUNTS WERE OUTSTANDING FOR MORE TH AN 2 TO 3 YEARS. THE ASSESSEE, BY NOT PRODUCING CONFIRMATION FROM THE CREDITORS NOR ADDRESSES, HAS NOT BEEN ABLE TO PROVE THAT THESE AMOUNTS ARE REALLY OUTSTANDING AS ON THE DATE. IN VIEW OF LACK OF DETAILS COMING FROM ASSESSEES SIDE, WE ARE OF THE VIEW THAT THERE IS NO GENUINE TRADING LIABILITY THAT IS EXISTING AS ON CLOSE OF ACCOUNTING YEAR. IN LIGHT OF THE ABOVE, THE ORDERS OF THE AUTHORITIES BELOW ON THIS ISSUE IS CORRECT AND IN A CCORDANCE WITH LAW AND NO INTERFERENCE IS CALLED FOR. GROUND NO.5 IS DISMISSED. 3. THE ASSESSEE, AGGRIEVED BY THE ABOVE SAID FINDIN G OF THE TRIBUNAL, HAS FILED THIS MISCELLANEOUS PETITION. IT WAS SUBM ITTED BY THE LD. AR THAT DURING THE COURSE OF APPEAL, A PAPER COMPILATION WA S FILED CONSISTING OF INVOICES, SALE BILLS, LEDGER ACCOUNTS OF SUNDRY CRE DITORS TO SUBSTANTIATE ITS CLAIM THAT THERE WERE TRANSACTIONS WITH THE SAID PA RTIES. IT WAS SUBMITTED THAT THE TRIBUNAL HAS OVERLOOKED THE MATERIAL PLACE D BEFORE IT AND HAS COME TO ERRONEOUS CONCLUSION THAT ASSESSEE HAS NOT BEEN ABLE TO PROVE THE GENUINENESS OF THE TRADING LIABILITY. THE LD. DR PRESENT WAS DULY HEARD. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE QUESTION TO BE CONSIDERED IS WHETHER THERE IS ANY AMOUNT THAT IS DUE TO THE SUNDRY CREDITORS AS ON THE CLOSE OF T HE ACCOUNTING YEAR. WHEN M.P. NO.81/BANG/09 PAGE 3 OF 3 THE ASSESSEE WAS QUESTIONED REGARDING THE TRADING L IABILITY BY THE AO, HE COULD NEITHER PRODUCE ANY CONFIRMATION LETTERS NOR FURNISH DETAILED ADDRESSES OF THESE CREDITORS FOR VERIFICATION. ME RE FILING OF INVOICES, SALE BILLS AND LEDGER ACCOUNT OF THE SUNDRY CREDITORS DO NOT SUBSTANTIATE THE CLAIM THAT THE TRADING LIABILITY WITH THE SAID CRED ITORS HAD EXISTED AT THE CLOSE OF THE ACCOUNTING YEAR. THE ONUS IS ON THE ASSESSE E TO PROVE WITH NECESSARY MATERIAL THAT TRADING LIABILITY HAD EXIST ED AT THE CLOSE OF THE ACCOUNTING YEAR. IN THE INSTANT CASE, NO MATERIAL HAS BEEN FURNISHED EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE US TO SUBSTA NTIATE HIS CLAIM. 5. IN VIEW OF THE ABOVE, WE FIND THERE IS NO MISTAK E IN THE ORDER OF THE TRIBUNAL DATED 31.7.2009 AND NO INTERFERENCE IS CAL LED FOR BY INVOKING RECTIFICATION PROCEEDINGS U/S. 254(2) OF THE ACT. 6. IN THE RESULT, THE MISCELLANEOUS PETITION IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 1 ST DAY OF NOVEMBER, 2010. SD/- SD/- ( DR. O.K. NARAYANAN ) ( GEORGE GEORGE K. ) VICE PRESIDENT JUDICIAL MEMBE R BANGALORE, DATED, THE 1 ST NOVEMBER, 2010. DS/- COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. C IT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.