Shri Anilesh N.Shah(HUF), Anand v. The Income tax Officer,Ward-3(4),, Petlad

ITA 2746/AHD/2010 | 2007-2008
Pronouncement Date: 31-03-2011 | Result: Dismissed

Appeal Details

RSA Number 274620514 RSA 2010
Assessee PAN AAFHS8860R
Bench Ahmedabad
Appeal Number ITA 2746/AHD/2010
Duration Of Justice 6 month(s) 3 day(s)
Appellant Shri Anilesh N.Shah(HUF), Anand
Respondent The Income tax Officer,Ward-3(4),, Petlad
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 31-03-2011
Date Of Final Hearing 18-03-2011
Next Hearing Date 18-03-2011
Assessment Year 2007-2008
Appeal Filed On 27-09-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI D.C. AGRAWAL ACCOUNTANT MEMBER ITA NO.2746/AHD/2010 ASSESSMENT YEAR :2007-08 DATE OF HEARING: 18.3.11 DRAFTED: 22.3.1 1 SHRI ANILESH N SHAH (HUF) KRISHNA HOUSING SOCIETY STATION ROAD ANAND - 388001 PAN NO.AAFHS8860R V/S . INCOME TAX OFFICER WARD-3(4) PETLAD (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI P.B.DOSHI AR RESPONDENT BY:- SHRI MUDIT NAGPAL SR-DR O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER:- THIS IS AN APPEAL FILED BY ASSESSEE RAISING FOLLOW ING GROUNDS:- 1. THE INCOME TAX OFFICER AND COMMISSIONER OF INCO ME TAX (APPEALS)-I BARODA BOTH ERRED IN LAW FOR ADDITION OF INCOME OF RS.23 97 300/- TOWARDS UNEXPLAINED CASH CREDIT U/S. 68 OF ACT. 2. THE INCOME TAX OFFICER AND COMMISSIONER OF INCOM E TAX (APPEALS)- I BARODA BOTH ERRED IN LAW IN MAKING ADDITION OF R S.1 09 000/- TOWARDS CASH CREDIT FOR TWO TIMES FOR THE SAME PERSON ASHOK I. PATEL 3. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS) IS ILLEGAL AGAINST NATURAL JUSTICE AND GOOD CONSCIENCE. 2. THE FIRST ISSUE INVOLVED IS ABOUT THE ADDITION O F RS.23 97 300/- U/S 69 OF THE I.T. ACT. THE ASSESSEE A PROPRIETARY CONCERN AN D IS ENGAGED IN THE BUSINESS OF CHEQUES DISCOUNTING AND FINANCE WORK. D URING THE COURSE OF ITA NO.2746/AHD/2010 A.Y. 2007-08 SH. ANILESH N SHAH (HUF) V. ITO WD.3(4) PETLAD PAGE 2 ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER FOUND CASH CREDIT AMOUNTING TO RS.60 81 810/- IN RESPECT OF WHICH HE CARRIED OU T INQUIRIES. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE CONFIRMATI ON OF DEPOSITORS THEIR BANK STATEMENTS PAN AND OTHER DETAILS IN RESPONSE TO WHICH ASSESSEE PARTLY COMPLIED WITH AND PARTLY INFORMED IN RESPECT OF PAR T CREDITORS THAT THE DEPOSITORS HAVE CLOSED THEIR BUSINESS. THE DETAIL O F SUMMARY OF INQUIRIES CONDUCTED BY AO IS GIVEN BELOW:- SR. NO. NAME AMOUNT (RS) REMARKS 1. PRAMUKHBHAI PATEL 7 69 600 CASE WHERE SUMMONS WERE RECEIVED BACK UNSERVED 2. BHARATKUMAR SHAH 3 30 250 DEPOSITORS STAYING I N AMERICA 3. 1. BHAVIN ARVINDBHAI PATEL 368000 2. ZAVERBHAI I PATEL 109000 3 ASHOKBHAI I PATEL 109000 4 PRITIBEN P PATEL 204200 5 RITIKABEN S PATEL 254500 6 ASHOKBHAI I PATEL 109000 7 NILKUMAR S PATEL 203500 1357200 13 57 200 SUMMONS RECEIVED BACK WITH THE COMMENT NO SUCH PERSON EXISTS 4. 1 DAHYABHAI B PATEL 810000 2 SMT. VANITABEN A PATEL 21000 3 KASHIPURA P MANDAL 132900 4 THAKORBHAI I PATEL 591760 5 KIRITKUMAR J SHAH 200000 1755660 17 55 660 SUMMONS DULY SERVED. NOBODY ATTENDED. 5. 1 MAHESHKUMAR B SHAH 107000 2 DEVENDRAKUMAR J GHIYA 150000 3 SMT. MAYABEN J GHIYA 100000 4 SMT. MUKTIBEN J GHIYA 90000 5 SMT. KALABEN P SONI 33900 480900 4 80 900 SUMMONS SERVED BUT IT WAS SUBMITTED IN WRITING THAT THE ACCOUNTS WERE SETTLED 6. 1 VIKRAMBHAI M SHAH 453800 2 NILESHKUMAR ATULBHAI 100000 3 JITESHKUMAR BABUBHAI 103500 4 PRAVINKUMAR P SONI 432000 5 SUNIL V SHAH 50000 6 SUKHADIA GNYATI SHRAYARS 138500 7 SHARAD MEHTA 110400 1388200 13 88 200 ADDRESSES NOT PROVIDED BY THE ASSESSEE NEITHER CONFIRMATION WERE FILED. TOTAL 60 81 810 ON THE BASIS OF REASONING GIVEN IN REMARKS COLUMN THE ASSESSING OFFICER PROPOSED THE ADDITION OF RSS.60 81 810/-. ITA NO.2746/AHD/2010 A.Y. 2007-08 SH. ANILESH N SHAH (HUF) V. ITO WD.3(4) PETLAD PAGE 3 3. WHEN THE MATTER CAME UP BEFORE LD. CIT(APPEALS) HE NOTED THAT OUT OF CREDITS OF RS.37 17 710/- APPEARING AS ON 31-03-200 7 ONLY A SUM OF RS.1 36 700/- WAS A FRESH DEPOSITS DURING ASSESSMEN T YEAR 2007-08 AND OTHER SUM WAS AMOUNT OUTSTANDING AS ON 31-03-2006. THUS ONLY A SUM OF RS.1 36 700/- WAS A FRESH CREDIT. HE ACCORDINGLY DE LETED THE ADDITION OF RS.35 81 001/- OUT OF RS.37 17 710/- AND CONFIRMED THE ADDITION OF RS.1 36 700/-. IN RESPECT OF BALANCE SUM OF RS.23 6 4 100/- LD CIT(A) NOTED THAT NEITHER THE CONFIRMATIONS WERE FILED NOR THE I DENTITY OF THE CREDITORS WERE ESTABLISHED. HOWEVER IN RESPECT OF ONE SHRI JITESH KUMAR BABU HE NOTICED THAT THERE WAS A LEGAL NOTICE ISSUED FOR RECOVERY O F DUES. IT SHOWED IDENTITY OF THE PERSON AND GENUINENESS OF THE LOAN. HE ACCORDIN GLY DIRECTED TO ACCEPT THE SUM OF RS.1 03 520/- AS GENUINE. THUS BALANCE SUM OF RS.22 60 600/- OUT OF RS.23 64 100/- WAS CONFIRMED BY LD. CIT(A). 4. BEFORE US LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT ASSESSEE IS A VILLAGER AND HE HAD TO COME OUT A LONG WAY TO CONTACT THE DEPOSITORS. HE WAS UNABLE TO PROCURE THE CONFIRMATI ONS FROM THEM AS SOME OF THE DEPOSITORS HAVE LEFT THE PLACE. HE SUBMITTED TH AT ASSESSEE IS DOING SHARE BUSINESS AT BORSAD FOR LONG. FOR LAST THREE YEARS HE WAS IN A FINANCIAL CRUNCH AND WAS NOT ABLE TO REPAY THE DEPOSITORS. HE ALSO C LOSED HIS BUSINESS AS HIS DEBTORS ARE ALSO NOT RETURNING HIS MONEY AND THEREF ORE HE IS UNABLE TO MAKE REPAYMENT TO HIS DEPOSITORS. SOME UNKNOWN PERSONS H AD TRIED TO KIDNAP THE ASSESSEE SINCE ASSESSEE WAS NOT ABLE TO REPAY DEPOS ITS BUT HE ANY HOW SURVIVED. THE DEPOSITORS HAD NOT EXTENDED THEIR COO PERATION TO THE ASSESSEE AS THEY HAD DISPUTE WITH THE ASSESSEE FOR REPAYMENT OF THEIR DEPOSITS. THEY ALSO DID NOT ACCEPT THE SUMMONS FOR AVOIDING INCOME -TAX PROCEEDINGS. LD. AUTHORIZED REPRESENTATIVE SUBMITTED ADDRESSES OF S OME FIVE DEPOSITORS BEFORE US. 5. AS AGAINST THIS LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSESSEE HAS FAILED TO DISCHARGE THE ONUS OF GIVING IDENTITY CREDITWORTHINESS ITA NO.2746/AHD/2010 A.Y. 2007-08 SH. ANILESH N SHAH (HUF) V. ITO WD.3(4) PETLAD PAGE 4 AND SHOWING THE GENUINENESS OF THE TRANSACTIONS. TH EREFORE THERE IS NO CASE FOR INTERFERENCE IN THE ORDER OF LD. CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. IN OUR CONSIDERED VIEW ASSESSEE HAS FAILED TO DISCHARGE TH E PRIMARY ONUS OF PROVING THE IDENTITY OF THE CREDITORS AND THEIR CREDITWORTH INESS AND ALSO SHOWING GENUINENESS OF THE TRANSACTIONS. ONCE THE ASSESSEE HAS TAKEN LOAN FROM SOME PARTIES AS HE CLAIMS HE MUST HAVE ALL THE DET AILS ABOUT THEIR NAMES AND ADDRESS TELEPHONE NO. ETC. THEY ARE ALSO COMING TO HIM PRESSING FOR REPAYMENTS OF THEIR DEPOSITS. IT WILL NOT BE A CASE WHERE DEPOSITORS HAVE DISAPPEARED. WE ARE UNABLE TO AGREE WITH THE LD. AU THORIZED REPRESENTATIVE OF THE ASSESSEE THAT THE DEPOSITORS ARE NOT COOPERA TING AS ASSESSEE WAS UNABLE TO MAKE THE PAYMENT. IT IS IN FACT OTHER W AY ROUND. FOR FACILITATING RECOVERY OF THE DEPOSITS THEY ARE LIKELY TO CO-OPER ATE WITH THE ASSESSEE BY FURNISHING THE DETAILS SUCH AS COPY OF PAN CONFIRM ATIONS AND OTHER DETAILS REQUIRED FOR PROVING THE LOAN. ONCE CERTAIN AMOUNT IS FOUND CREDITED IN THE BOOKS OF ASSESSEE THEN IT IS A PRIMA FACIE EVIDENCE AGAINST HIM AND ONUS LIES ON HIM TO PROVE THAT THE SAID SUM IS NOT IN THE NAT URE OF INCOME BY SHOWING THE NATURE AND SOURCES THEREOF. THE ASSESSING OFFIC ER HAS BEEN REQUIRING THE ASSESSEE TO SUBMIT EVIDENCE ABOUT THIS CASH CREDIT SINCE AUG.08 WHEN HE HAD ISSUED NOTICE U/S.143(2) OF THE I.T. ACT. NO EV IDENCE WAS FURNISHED BY THE ASSESSEE BEFORE AO. SIMILARLY NO EVIDENCE WAS FURN ISHED BEFORE LD. CIT(A) THEREAFTER. EVEN BEFORE US NO EVIDENCE IS PRODUCED ALONG WITH APPLICATION FOR ADMISSION OF FRESH EVIDENCE SO AS TO SHOW THE BONA FIDE OF THE ASSESSEE THAT HE HAD IN FACT BORROWED THE MONEY FROM THE PARTIES AS CLAIMED BY HIM. THE ASSESSEE WAS NOT EVEN ABLE TO SHOW HOW THE MONEY HA D BEEN TRANSFERRED TO HIS ACCOUNT AND REQUEST THE AO TO CALL FOR THE DETA ILS OF THE BANK ACCOUNT OF THE DEPOSITORS IN CASE DEPOSITORS WERE NOT COOPERAT ING WITH HIM AND THEREBY ENABLE THE AO TO SATISFY HIMSELF THAT MONEY HAD IND EED COME FROM THIRD PARTY I.E. DEPOSITORS. ONCE SUMMON ARE ALSO RETURNED BACK ISSUED BY AO TO SOME OF THE DEPOSITORS AS MENTIONED ABOVE THE IDENTITY OF THE DEPOSITORS BECAME ITA NO.2746/AHD/2010 A.Y. 2007-08 SH. ANILESH N SHAH (HUF) V. ITO WD.3(4) PETLAD PAGE 5 DOUBTFUL. THE INITIAL BURDEN LYING ON THE ASSESSEE REMAINED CLEARLY UN- DISCHARGED. UNDER THESE CIRCUMSTANCES WE ARE OF TH E CONSIDERED VIEW THAT ASSESSEE HAS FAILED TO DISCHARGE THE ONUS LYING ON HIM U/S.68 OF THE I.T. ACT IN RESPECT OF THE CREDITORS FOR SUM OF RS.23 97 300/-. THIS GROUND OF ASSESSEES APPEAL IS ACCORDINGLY REJECTED. 7. GROUND NO. 2 RELATES TO CLAIM OF DOUBLE ADDITION OF RS.1.09 LAKH. HOWEVER ASSESSEE FAILED TO SHOW AS TO HOW THIS IS A DOUBLE ADDITION AS NO EVIDENCE IN SUPPORT FOR THIS CONTENTION HAVE BEEN F ILED. WE ARE UNABLE TO TAKE A DIFFERENT VIEW THEN WHAT IS TAKEN BY LD. CIT(A) A CCORDINGLY THIS GROUND OF ASSESSEES APPEAL IS ALSO REJECTED. 8. IN THE RESULT APPEAL FILED BY ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON 31/03/2011 SD/- SD/- (BHAVNESH SAINI) (D.C. AGRAWAL) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD DATED : 31/03/2011 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- I BARODA 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD