Praveen Kumar, Muzaffarnagar v. ITO, Muzaffarnagar

ITA 2372/DEL/2012 | 2009-2010
Pronouncement Date: 28-11-2014 | Result: Allowed

Appeal Details

RSA Number 237220114 RSA 2012
Bench Delhi
Appeal Number ITA 2372/DEL/2012
Duration Of Justice 2 year(s) 6 month(s) 10 day(s)
Appellant Praveen Kumar, Muzaffarnagar
Respondent ITO, Muzaffarnagar
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted F
Tribunal Order Date 28-11-2014
Date Of Final Hearing 25-11-2014
Next Hearing Date 25-11-2014
Assessment Year 2009-2010
Appeal Filed On 18-05-2012
Judgment Text
ITA NO. 2372/ DEL/ 2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI H.S. SIDHU JUDICIAL MEMBER I.T.A. N O. 2372/DEL/2012 A.Y. : 2009 - 10 PRAVEEN KUMAR PROP. BRAHAM RISHI ENTERPRISES MANGLA MARKET ANSARI ROAD MUZAFFARNAGAR VS. INCME TAX OFFICER WARD 1(1) MUZAFFARNAGAR (UP) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SANJAY MALIK ADV. DEPARTMENT BY : SH. VIKRAM SAHAY SR. DR DATE OF HEARING : 25 - 11 - 2014 DATE OF ORDER : 28 - 11 - 2014 ORDER PER H.S. SIDHU : J M TH IS APPEAL BY THE ASSESSE IS DIRECTED AGAINST THE O RDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) MUZAFFARNAGAR DATED 10 . 4 .201 2 P ERTAINING TO ASSESSMENT YEAR 2009 - 10 ON THE FOLLOWING GROUNDS: - 1. THAT THE LD. AO HAS ERRED IN LAW AND FACTS TO ADD RS. 3 85 000/ - U/S. 68 OF THE I.T. ACT 1961. 2. THAT THE LD. CIT(A) MUZAFFARNAGAR IS WRONG AND UNJUSTIFIED NOT TO APPRECIATE THE EVIDENCES ITA NO. 2372/ DEL/ 2012 2 PRODUCED IN SUPPORT OF HIS CONTENTIONS WHICH WERE ALREADY PRODUCED BEFORE THE AO. 3. THAT THE APPELLANT MEET OUT ALL THE REQUIREMENTS OF SECTION 68 OF THE I.T. ACT HENCE THE ADDITION IS LIABLE TO BE DELETED. 2. BRIEFLY STATED THE FACTS ARE THAT THE A SESSEE IS AN INDIVIDUAL DERIVING INCOME FROM BUSINESS IN NAME AND STYLE M/S BRAHAM RISHI ENTERPRISES. RETURN DECLARING INCOME OF RS. 2 69 578/ - WAS FILED ON 30.9.2009. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS GATHERED BY THE AO THAT THE ASSESSEE HAD RAISED UNSECURED LOANS AMOUNTING TO RS. 3 85 000/ - FROM DR. RISHIPAL TYAGI (FATHER). THUS THE AO VIDE NOTICE ISSUED U/S. 142(1) DATED 1.10.2010 REQUIRED THE ASSESSEE TO FURNISH CONFIRMED COPY OF ACCOUNT FROM THE AFORESAID PERSON ALONGWITH PAN AN D POSTAL ADDRESS. IN RESPONSE TO IT WAS SUBMITTED BY THE ASSESSEE THAT THE CREDITOR WAS AN AGRICULTURIST. IT WAS CONTENDED THAT CONFIRMED COPY OF ACCOUNT OF THE CREDITOR HAD PREVIOUSLY FILED HOWEVER COPIES OF BANK ACCOUNTS WERE FURNISHED. IT WAS THE C ONTENTION OF THE ASSESSEE THAT THE AFORESAID CREDITOR WAS A RETIRED EMPLOYEE AND INCOME FROM PENSION WAS AT RS. 7 000/ - PER MONTH. THE ASSESSE FURTHER VIDE REPLY DATED 7.4.2011 FURNISHED CASH FLOW STATEMENT TO EXPLAIN THE SOURCE OF DEPOSIT OF RS. 3 85 000/ - AFTER PERUSING THE RECORDS ASSESSING OFFICER HELD THAT THE CASH CREDIT AT RS. 3 85 000/ - REMAINED UNEXPLAINED AND AS SUCH WAS TREATED AS DEEMED INCOME OF THE ASSESSEE AND THE SAME WAS ADDED U/S. 68 OF THE ACT VIDE ORDER DATED 18.4.2011 PASSED U /S. 143(3) OF THE I.T. ACT. 3. AGAINST THE ORDER OF THE AO DATED 18 / 4 /20 11 ASSESSEE FILED AN APPEAL BEFORE THE ID. FIRST APPELLATE AUTHORITY WHO VIDE IMPUGNED ITA NO. 2372/ DEL/ 2012 3 ORDER DATED 10 / 4 /20 12 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. NOW THE ASSESSEE IS AGGRIEVED AGAINST THE IMPUGNED ORDER AND FILED THE PRESENT APPEAL BEFORE US. 4. LD. COUNSEL OF THE ASSESSEE HAS STATED THAT ASSESSEE HAS FILED ALL THE EVIDENCES BEFORE THE AO AS WELL AS BEFORE THE LD. FIRST APPELLATE AUTHORITY TO SUBSTANTIATE HIS CLAIM IN DISPUTE BUT THE REVENUE AUTHORITIES HAVE NOT APPRECIATED THE SAME AND DECIDED THE ISSUE AGAINST THE ASSESSEE. 4.1 LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT ASSESSEE HAS TAKEN THE LOAN FROM HIS FATHER WHO IS A RETIRED EMPLOYEE AND IS A AGRICULTURIST AND ALSO PRACTICING IN THE MEDICAL PROFESSION AND HAVING SUFFICIENT SOURCE OF HIS INCOME. AS PER THE ASSESSEE THE CREDITOR RECEIVED THE RETIREMENT BENEFITS OF RS. 5 LACS WHICH WAS DEPOSITED IN THE BANK. THEREFORE ASESSEE S FATHER WHO IS A CREDITOR HAV ING SUFFICIENT FUND IN HIS ACCOUNT AND HAS ESTABLISHED THE IDENTITY OF THE CREDITOR CAPACITY AND GENUINENESS OF THE TRANSACTIONS. HE SUBMITTED THAT REVENUE AUTHORITIES HAVE NOT APPRECIATED THE SAME AND MADE THE ADDITIONS IN DISPUTE. IN SUPPORT OF HIS C ONTENTION HE HAS FILED A SMALL PAPER BOOK CONTAINING PAGES 1 TO 37 HAVING THE PHOTOCOPY OF PAN CARD VOTER CARD; COPIES OF KHASRA KHATUANI OF CREDITOR; DETAILS OF RECEIPT; COPY OF BANK STATEMENT OF CREDITOR; SUMMARY OF DEPOSITS AND WITHDRAWALS IN BANK; CA SH FLOW STATEMENT OF CREDITOR; AFFIDAVIT OF CREDITOR AND PHOTOCOPIES OF CASE LAWS. IN SUPPORT OF HIS CONTENTION HE HAS ALSO CITED SOME CASE LAWS ITA NO. 2372/ DEL/ 2012 4 MENTIONED AT PAGE NO. 24 - 37 OF THE PAPER BOOK VIZ. IN THE CASE OF DCIT VS. ROHINI BUILDERS 256 ITR 360 (GUJ) (HC); MURLIDHAR LAHORIMAL VS. CIT (280 ITR 512 (GUJ); ITO VS. ARIHANT XRAY AND SONOGRAPHY CLINIC PVT. LTD. ITAT AHEMDABAD A BENCH AND REQUESTED THAT THE ADDITION IN DISPUTE MAY BE DELETED BY ACCEPTING THE APPEAL FILED BY THE ASSESSEE. 4.2 ON THE C ONTRARY LD. DR RELIED UPON THE ORDER OF THE LD. CIT(A) AND STATED THAT ASSESSEE HAS FAILED TO ESTABLISH THE IDENTITY OF THE CREDITOR CREDITWORTHINESS CAPACITY GENUINENESS OF THE TRANSACTION MADE BY THE CREDITOR BY NOT FILING ANY DOCUMENTARY EVIDENCE B EFORE THE AUTHORITIES BELOW. 5. WE HAVE HEARD BOTH THE PARTIES PERUSED THE MATERIAL AVAILABLE ON RECORD WITH US ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES ALONGWITH THE DOCUMENTARY EVIDENCE S FILED BY THE ASSESSEE IN THE SHAPE OF SMALL PAPER BOOK CONTAINING PAGES 1 TO 37 HAVING THE PHOTOCOPY OF PAN CARD VOTER CARD; COPIES OF KHASRA KHATUANI OF CREDITOR; DETAILS OF RECEIPT; COPY OF BANK STATEMENT OF CREDITOR; SUMMARY OF DEPOSITS AND WITHDRAWALS IN BANK; CASH FLOW STATEMENT OF CREDITOR; AFFIDAVIT OF CREDITOR AND PHOTOCOPIES OF CASE LAWS. WE ARE OF THE CONSIDERED VIEW THAT THE REVENUE AUTHORITIES HAVE NOT APPRECIATED THE EVIDENCES FILED BY THE ASSESSEE. WE ARE NOT APPRECIATING THE EVIDENCES FILED BY THE ASSESSEE AT THIS STAGE BUT WE THINK IT P ROPER TO SEND BACK THE ISSUE IN DI SPU TE TO THE FILE OF THE AO WITH THE DIRECTION TO RE - EXAMINE THE DOCUMENTARY EVIDENCES IN ITA NO. 2372/ DEL/ 2012 5 DETAIL FILED BY THE ASSESSEE TO ESTABLISH THE IDENTITY OF THE CREDITOR CREDITWORTHINESS CAPACITY AND GENUINENESS OF THE TRANSACT ION AND ALSO GIVE PROPER OPPORTUNITY TO THE ASSESSE E TO SUBSTANTIATE HIS CLAIM AND DECIDE THE ISSUE AFRESH UNDER THE LAW. WE HOLD AND DIRECT ACCORDINGLY. 6. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORD ER PRONOUNCED IN THE O PEN C OURT ON 28 / 11 /20 1 4 . SD/ - SD/ - [ G.D. AGRAWAL ] [ H.S. SIDHU ] VICE PRESIDENT JUDICIAL MEMBER DATE 28 / 11 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO. 2372/ DEL/ 2012 6