Shri Venkatesh K I , Bangalore V. The Assistant Commissioner of Income Tax Circle-6(3)(1), Bangalore

MA 97/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4921 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 05-08-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R CHANDRASHEKAR
• Keywords: Unexplained cash credit; Source of fund
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B R BASKARAN , ACCOUNTANT MEMBER MP NO.97/BANG/2020 [IN ITA NO .1168/BANG/ 20 18 ] ASSESSMENT YEAR : 2001 - 02 SHRI VENKATESH, K.I. NO.323, 14TH CROSS, 2ND BLOCK, R.T. NAGAR, BANGALORE-560 032 PAN: AACPI3934R VS. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE 6(3)(1), BANGALORE. APP LIC ANT RESPONDENT APPL IC ANT BY : SHRI R. CHANDRASHEKAR, ADVOCATE RESPONDENT BY : NONE DATE OF HEARIN G : 09 . 1 0.2020 DATE OF PRONOUNCEMENT : 16 . 1 0.2020 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THIS IS A MISCELLANEOUS PETITION FILED BY THE ASS ESSEE U/S. 254(2) OF THE INCOME-TAX ACT, 1961 [THE ACT] PRAYING FOR RECT IFICATION OF CERTAIN ERRORS IN THE ORDER OF TRIBUNAL DATED 10.07.2020 IN APPEAL ITA NO.1168/BANG/2018. 2. ONE OF THE ISSUE INVOLVED IN THE APPEAL DECIDED BY THE TRIBUNAL WAS WITH REGARD TO ADDITION OF RS.5 LAKHS SHOWN AS CASH CREDIT IN THE NAME OF ONE NAGARAJ AND ANOTHER SUM OF RS.2 LAKHS SHOWN AS CASH CREDIT IN THE NAME ONE U.G. ROHIT (U.G. RAJPUT). THE FACTS AND C IRCUMSTANCES UNDER WHICH THE AFORESAID ADDITIONS WERE MADE ARE THAT TH E ASSESSEE IS AN MP NO.97/BANG/2020 PAGE 2 OF 4 EXCISE CONTRACTOR. IN AUCTION OF ARRACK SHOPS, THE ASSESSEE WAS A BIDDER AND HAD PAID A SUM OF RS.1,42,62,676/- THROUGH DEMA ND DRAFTS TOWARDS BID AMOUNT TO EXCISE COMMISSIONER FOR BIDDING IN ARRACK AUCTION. THE AO ADDED THE SUMS SO PAID BY THE ASSESSEE FOR BIDDING IN AUCTION AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. THE ASS ESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY AND THE LD.CIT (A) HAS DELETED THE ADDITIONS TO THE EXTENT OF RS.98,12,700/- AND C ONFIRMED THE ADDITIONS TO THE EXTENT OF RS.44,50,000/-. THE ASSESSSEE AS WELL AS THE REVENUE HAD FILED FURTHER APPEAL BEFORE THE TRIBUNAL AGAINST TH E ORDER OF THE LD. CIT (A). THE TRIBUNAL VIDE ITS ORDER DATED 06-02-2015 IN ITA NO.1080 (B)/2012 HAS GRANTED PARTIAL RELIEF TO THE ASSESSEE AND HAS UPHE LD THE FINDINGS OF THE LD. CIT (A) ON THE ADDITIONS TO THE EXTENT OF RS.28,99, 996/- AND REMITTED THE ISSUE BACK TO THE FILE OF THE AO FOR EXAMINING THE CASE AFRESH IN RESPECT OF BALANCE ADDITION OF RS.68.00 LAKHS. 3. DURING THE SECOND ROUND OF LITIGATION, THE AO CO NFIRMED THE ADDITION OF RS.68.00 LAKHS IN RESPECT OF DD TAKEN FROM CERTA IN PARTIES ON THE GROUND THAT THE ASSESSEE HAD FAILED TO SUBMIT THE CONFIRMA TIONS AND HAS ALSO FAILED TO PROVE THE SOURCE OF INCOME IN THE HANDS OF THE P ERSONS WHO GAVE DD IN FAVOUR OF THE EXCISE COMMISSIONER ON BEHALF OF THE ASSESSEE. AGAINST THIS ORDER, THE ASSESSEE HAS FILED AN APPEAL BEFORE THE LD. CIT (A). THE LD. CIT (A) FOR THE DETAILED REASONS RECORDED IN THE APPELL ATE ORDER DATED 30-11- 2017 HAD ALLOWED RELIEF TO THE EXTENT OF RS.46.00 L AKHS OUT OF TOTAL ADDITION OF RS.68.00 LAKHS AND THE BALANCE ADDITION OF RS.22 .00 LAKHS IN RESPECT OF 5 PERSONS WAS CONFIRMED ON THE GROUND THAT ALTHOUGH , ASSESSEE HAS FILED CONFIRMATION LETTERS BUT HAS FAILED TO MENTION PAN NUMBERS IN RESPECT OF THOSE PARTIES, THEREBY FAILED TO PROVE THE SOURCE. 4. OUT OF RS.22 LAKHS WHICH WAS SUBJECT MATTER OF D ISALLOWANCE BEFORE THE TRIBUNAL, THE SUBJECT-MATTER IN THIS MISCELLANE OUS PETITION IS ONLY WITH MP NO.97/BANG/2020 PAGE 3 OF 4 REGARD TO CASH CREDIT OF RS.5 LAKHS IN THE NAME OF NAGARAJ AND RS.2 LAKHS IN THE NAME OF U.G. ROHIT (RAJPUT). WITH REGARD TO THE AFORESAID TWO PERSONS, THE TRIBUNAL GAVE THE DECISION IN PARA 6 O F ITS ORDER AS FOLLOWS:- 6. . AS REGARDS AMOUNT RECEIVED FROM SHRI. NAGARJ, ALTHOUGH THE ASSESSEE HAS FILED CONFIRMATION LETTER ALONG WITH AFFIDAVIT FROM THE PERSON WHO GAVE THE DD, BUT FACT REMAINS THAT THE DETAILS OF PAN NUMBERS AND INCOME TAX ASSESSMEN T OF SHRI NAGARAJ HAS NOT BEEN FURNISHED SO AS TO ASCERTAIN W HETHER SHRI NAGARAJ IS HAVING SUFFICIENT SOURCE OF INCOME TO EX PLAIN THE DD ISSUED ON BEHALF OF ASSESSEE. FROM THE ABOVE, IT IS CLEAR THAT ADDITION MADE TOWARDS DD TAKEN FROM SHRI. NAGARAJ T O THE EXTENT OF RS.5.00 LAKHS REMAINS UNEXPLAINED. . AS REGARDS THE DD TAKEN FROM SHRI U.G.ROHIT (U.G.RAJPUT), THE ASSESSEE HAS FILED CONFIRMATION L ETTER FROM THE PARTY BUT FAILED TO MENTION HIS PAN NUMBER TO PROVE THAT HE IS HAVING SUFFICIENT SOURCE OF INCOME TO ESTABLISH HIS CAPACITY TO ISSUE DD AMOUNTING TO RS.2.00 LAKHS IN FAVOUR OF TH E EXCISE COMMISSIONER. FURTHER, THE LD. AR FOR THE ASSESSEE ADMITTED THAT SHRI U.G.ROHIT IS NOT ASSESSED TO INCOME TAX. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE HAS FAILED TO PROVE THE DD TAKEN IN THE NAME OF SHRI U.G.ROHIT, AND HENCE, ADDITION MADE TO THAT EXTENT IS HEREBY CONFIRMED. 5. IN THIS PETITION, IT HAS BEEN MENTIONED THAT THE CASH CREDIT IN THE NAME OF NAGARAJ WAS EXPLAINED AS OUT OF LOAN TAKEN FROM KSFC AND THEREFORE THE SOURCE OF NAGARAJ HAS BEEN ESTABLISHE D AND THEREFORE TRIBUNAL WAS NOT RIGHT IN NOT ACCEPTING THE PLEA OF ASSESSEE. WE ARE OF THE VIEW THAT A MERE EXPLANATION THAT SOURCE OF FUNDS W AS FROM A LOAN TAKEN FROM KSFC WAS NOT SUFFICIENT AS NO SUPPORTING DOCUM ENT TO SHOW THAT LOAN WAS OBTAINED FROM KSFC WAS SHOWN BY THE ASSESSEE AN D THEREFORE THE TRIBUNAL WAS RIGHT IN UPHOLDING THE ADDITION MADE B Y THE REVENUE AUTHORITIES. IN ANY EVENT IN AN MA, THE ASSESSEE C ANNOT SEEK REVIEW OF THE ORDER OF THE TRIBUNAL AND THE SCOPE OF PROCEEDINGS U/S.254(2) OF THE ACT IS ONLY TO RECTIFY MISTAKES THAT ARE APPARENT ON THE F ACE OF THE RECORD. MP NO.97/BANG/2020 PAGE 4 OF 4 6. AS FAR AS THE CASH CREDIT IN THE NAME OF U.G. RO HIT (U.G. RAJPUT) IS CONCERNED, THE SUBMISSION WAS THAT CONFIRMATION OF U.G. ROHIT WAS FILED WHEREIN HE HAS MENTIONED THAT HE HAS PURCHASED A DD IN FAVOUR OF EXCISE COMMISSIONER. WE ARE OF THE VIEW THAT THE TRIBUNAL HAS NOT ACCEPTED THIS TO BE SUFFICIENT AND IN A MISCELLANEOUS PETITION U/ S. 254(2) OF THE ACT, THE ASSESSEE CANNOT SEEK TO REARGUE THE MATTER. THEREF ORE, THIS PLEA OF THE ASSESSEE IS ALSO REJECTED. 7. WE ARE THEREFORE OF THE VIEW THAT THERE IS NO MI STAKE, MUCH LESS A MISTAKE APPARENT ON THE FACE OF RECORD, WARRANTING INTERFERENCE U/S. 254(2) OF THE ACT. ACCORDINGLY, THE MISCELLANEOUS PETITIO N BY THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE MISCELLANEOUS PETITION IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF OCTOBER, 2020. SD/- SD/- ( B R BASKARAN ) ( N V VASUDEVAN ) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE, DATED, THE 16 TH OCTOBER, 2020. / DESAI S MURTHY / COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.