DCIT, New Delhi v. M/s Dholadhar Investments Pvt. Ltd., Kangra

ITA 2805/DEL/2010 | 2006-2007
Pronouncement Date: 09-12-2011 | Result: Dismissed

Appeal Details

RSA Number 280520114 RSA 2010
Assessee PAN AAACD3573A
Bench Delhi
Appeal Number ITA 2805/DEL/2010
Duration Of Justice 1 year(s) 6 month(s) 4 day(s)
Appellant DCIT, New Delhi
Respondent M/s Dholadhar Investments Pvt. Ltd., Kangra
Appeal Type Income Tax Appeal
Pronouncement Date 09-12-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 09-12-2011
Date Of Final Hearing 07-12-2011
Next Hearing Date 07-12-2011
Assessment Year 2006-2007
Appeal Filed On 04-06-2010
Judgment Text
ITA NO. 2805/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SMT. DIVA SINGH JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 2805/DEL/2010 A.Y. : 2006-07 DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-19 ROOM NO. 319 ARA CENTRE E-2 JHANDEWALAN EXTENSION NEW DELHI VS. M/S DHOLADHAR INVESTMENTS PVT. LTD. MANN FILING STATION KOTWALI BAZAR TEHSIL DHARAMSHALA KANGRA (H.P.) (PAN NO. : AAACD3573A) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. RAKESH K. SEHGAL CA DEPARTMENT BY : SH. ROHIT GARG SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 16.3.2 010 PERTAINING TO ASSESSMENT YEAR 2006-07. 2. THE ISSUE RAISED IS THAT LD. COMMISSIONER OF INCOM E TAX (APPEALS) ERRED IN DELETING THE ADDITION OF ` 40 00 000/- MADE BY THE ASSESSING OFFICER U/S 68 OF THE IT ACT. 3. IN THIS CASE WITH REGARD TO VERIFYING THE LOANS ASSESSEE WAS ASKED TO SUBMIT THE DETAILS AND CONFIRMATIONS AND ALS O TO PRODUCE ALL THE PARTIES FROM WHOM THE LOAN WAS RECEIVED DURING THE YEAR. ASSESSING OFFICER NOTED THAT NO COMPLIANCE WAS MADE IN THIS REGARD. HENCE HE HELD THAT THESE TRANSACTIONS I.E. LOAN RE CEIVED ARE NOT GENUINE AND HE ADDED THEM TO THE TOTAL INCOME OF THE ASSESSEE. ITA NO. 2805/DEL/2010 2 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) ELABORATELY CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSION MADE BY THE COUNSEL OF THE APPELLANT. IT IS NOTED FROM THE ASSESSMENT ORDER THAT THE ASSESSING O FFICER HAS INITIALLY MADE THE ADDITION OF ` 80 00 000/- U/S . 68 OF THE ACT. LATER ON THE ADDITION WAS RESTRICTED TO ` 40 00 000/- ON ACCOUNT OF CASH CREDIT IN THE CASE OF THE FOLLO WING:- 1. M/S CHANDUKA TRADING LTD. ` 20 00 000/- 2. M/S VOUGE LEASING & FINANCE P LTD ` 20 00 000/- IT IS NOTED THAT THE ASSESSING OFFICER HAS MADE TH E ADDITION TO THE INCOME OF THE APPELLANT FOR NON-PRO DUCTION OF THE CONCERNED PARTIES BY THE APPELLANT. THE COU NSEL OF THE APPELLANT DURING THE COURSE OF THE APPELLATE PROCEEDINGS SUBMITTED THE COPIES OF THE WRITTEN SUBMISSIONS FILED BEFORE THE ASSESSING OFFICER. IT IS OBSERVED THAT THE APPELLANT VIDE LETTER DATED 23.12 .2008 AND 26.12.2008 REQUESTED THE ASSESSING OFFICER TO SUMMON THE LOAN CREDITORS DIRECTLY. HOWEVER THE ASSESSING OFFICER HAS NOT ISSUED THE SUMMONS TO THE CREDITORS AND MADE THE ADDITION OF THE LOAN CREDITO RS U/S. 68 OF THE ACT. THE HONBLE SUPREME COURT IN THE FOLLO WING JUDGEMENTS HAS LAID DOWN THE PROPOSITION THAT THE ON US IS ON THE APPELLANT TO PROVE THE IDENTITY CREDITWORTHI NESS AND GENUINENESS OF THE TRANSACTION:- A. GOVINDA RAJALU 34 ITR 807 B. LAXMI CHAND BAIJNATH 35 ITR 416 ITA NO. 2805/DEL/2010 3 C. SHREE LEKHA BANERJEE 49 ITR 112 D. KALEKHAN HANIF MOHAMMAD 50 ITR 1 E. DEVIPRASAD VISHWANATH PRASAD 72 ITR 194 IT IS FURTHER HELD BY THE HONBLE SUPREME COURT IN T HE AFORESAID JUDGEMENTS THAT ONCE THE IDENTITY CREDITWORTHINESS AND GENUINENESS OF TRANSACTION I S ESTABLISHED BY THE APPELLANT THE BURDEN SHIFTS TO THE REVENUE TO PROCEED FURTHER AS DEEMED FIT. IN THE INSTANT CASE IT IS NOTED THAT THE APPELLANT HAD FILED THE CONFIRMATIONS FROM THE CREDITORS AND SUBMITTED THE OTH ER NECESSARY DETAILS TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE CREDITORS. IT IS NOTED FRO M THE LETTER DATED 26.12.2008 FILED BY THE APPELLANT BEFORE THE ASSESSING OFFICER THAT THE APPELLANT HAS SUBMITTED THE COPY OF THE ACCOUNT BANK STATEMENT AND INCOME TAX PARTIC ULARS OF THE PARTIES WHO HAD GIVEN THE LOANS TO THE APPEL LANT. HOWEVER THE ASSESSING OFFICER HAS NOT REBUTTED T HE SUBMISSIONS MADE BY THE APPELLANT. IN VIEW OF THE JU DICIAL PRECEDENTS AS DISCUSSED THE ADDITION OF ` 40 00 00 0/- MADE BY THE ASSESSING OFFICER IS DELETED. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENTS RELIED UPON. LD. DEPARTME NTAL REPRESENTATIVE SUBMITTED THAT ASSESSING OFFICER DID NOT HAVE TIME FOR ADEQUATE VERIFICATION HENCE HE SUBMITTED THAT THE M ATTER BE RESTORED TO THE FILE OF ASSESSING OFFICER. ITA NO. 2805/DEL/2010 4 6.1 LD. COUNSEL OF THE ASSESSEE ON THE OTHER HAND S UBMITTED THAT THE ASSESSEE HAS SUBMITTED ALL THE DETAILS AND DISCHARGE D ITS ONUS. HE PLACED RELIANCE UPON THE DECISION OF HONBLE APEX COURT IN THE CASE OF C.I.T. VS. ORISSA CORPORATIONP. LTD. OF 59 ITR 78 A ND HONBLE JURISDICTIONAL HIGH COURT DECISION IN ITA NO. 586/2 010 IN C.I.T. VS. VICTOR ELECTODES LTD. VIDE ORDER DATED 12.5.2010. 6.2 WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. W E FIND THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN A FI NDING THAT ASSESSEE HAS FILED THE CONFIRMATIONS OF THE CREDITO RS AND SUBMITTED THE NECESSARY DETAILS TO PROVE THE GENUINENESS AND CRED ITWORTHINESS OF THE CREDITORS. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER GIVEN A FINDING THAT ASSESSEE FILED BEFORE THE ASSE SSING OFFICER A COPY OF ACCOUNT BANK STATEMENT INCOME TAX PARTICULARS OF THE PARTIES WHO HAD GIVEN THE LOAN TO THE ASSESSEE. THE ASSES SING OFFICER HAS DRAWN ADVERSE INFERENCE SOLELY ON THE GROUND THAT T HE CREDITORS WERE NOT PRODUCED BEFORE HIM. IT IS ALSO NOT THE CASE THAT ASSESSING OFFICER HAS ISSUED SUMMON TO THE CREDITORS AND THEY DID NOT APPEAR. IN THESE CIRCUMSTANCES WE FIND THAT THE ASSESSEE HAS DISCHAR GED IT ONUS. IN THIS REGARD THE CASE LAWS REFERRED BY THE LD. COU NSEL OF THE ASSESSEE ARE GERMANE AND SUPPORT ASSESSEES CASE. UNDER THE CIRCUMSTANCES ITA NO. 2805/DEL/2010 5 WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). HENCE WE UPHOLD THE SAME. 7. IN THE RESULT THE APPEAL FILED BY THE REVENUE S TANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/12/2011. SD/- SD/- [ [[ [DIVA SINGH DIVA SINGH DIVA SINGH DIVA SINGH] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 09/12/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES