Income Tax Officer-3(4),, Lucknow v. Shri Uttam Kumar Tiwari,, Lucknow

ITA 320/LKW/2012 | 2008-2009
Pronouncement Date: 11-04-2014 | Result: Allowed

Appeal Details

RSA Number 32023714 RSA 2012
Assessee PAN AECPT1218F
Bench Lucknow
Appeal Number ITA 320/LKW/2012
Duration Of Justice 1 year(s) 10 month(s) 6 day(s)
Appellant Income Tax Officer-3(4),, Lucknow
Respondent Shri Uttam Kumar Tiwari,, Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 11-04-2014
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 11-04-2014
Date Of Final Hearing 30-01-2014
Next Hearing Date 30-01-2014
Assessment Year 2008-2009
Appeal Filed On 05-06-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI. A. K. GARODIA ACCOUNTANT MEMBER ITA NO. 320/LKW/2012 ASSESSMENT YEAR: 2008 - 09 ITO 3(4) LUCKNOW V. SHRI. UTTAM KUMAR TIWARI B - 1/259 SECTOR G JANKIPURM LUCKNOW PAN: AECPT1218F (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: SHRI. ALOK MITRA D.R. RESPONDENT BY: NONE DATE OF HEARING: 30.01.2014 DATE OF PRONOUNCEMENT: 11.04.2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPE AL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) ON A SOLITARY ISSUE THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.20 LAKHS MADE ON ACCOUNT OF UNEXPLAINED UNSECURED LOAN IN THE NAME OF SHRI. KAMAL SINGH WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE COULD NOT FURNISH ANY EVIDENCE REGARDING THE CAPACITY OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION EVEN AFTER OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. 2 . THIS APPEAL WAS LISTED FOR HEARING ON 30.1.2014 BUT NONE APPEARED ON BEHALF OF THE ASSESSEE T HOUGH NOTICE OF HEARING WAS DULY PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 2 - : SERVED UPON HIM AS THE AD CARD IS PLACED ON RECORD. SINCE THE ASSESSEE DID NOT APPEAR DESPITE VALID SERVICE OF NOTICE WE HAVE NO OPTION BUT TO PROCEED EX - PARTE QUA THE ASSESSEE. ACCORDINGLY THE LD . D.R. WAS HEARD. 3 . THE LD. D.R. PLACED RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER WITH THE SUBMISSION THAT DESPITE OPPORTUNITY AFFORDED TO THE ASSESSEE THE ASSESSEE COULD NOT FURNISH THE ADDRESS AND PERMANENT ACCOUNT NUMBER OF THE CREDITOR. THE ASSE SSING OFFICER ACCORDINGLY MADE THE ADDITION. BEFORE THE LD. CIT(A) THE ASSESSEE FURNISHED THE PAN AND CONFIRMATION LETTER WHICH WERE FORWARDED TO THE ASSESSING OFFICER FOR EXAMINATION AND DURING THE COURSE OF REMAND PROCEEDINGS THE ASSESSEE HAS NOT FILED THE BANK STATEMENT THEREFORE THE CREDITWORTHINESS OF THE CREDITOR COULD NOT BE EXAMINED. THE ASSESSING OFFICER ACCORDINGLY REPORTED THE LD. CIT(A) BUT THE REPORT WAS NOT TAKEN INTO ACCOUNT BY THE LD. CIT(A) WH ILE DELET ING THE ADDITION. THE LD. D.R. FU RTHER CONTENDED THAT THE ONUS IS UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS & IDENTITY OF THE CREDITOR. IF THE ASSESSEE FAILS TO PROVE ANY OF THE ESSENTIAL INGREDIENTS ADDITION UNDER SECTION 68 OF THE INCOME - TAX AC T 1961 ON ACCOUNT OF UNEXPLAINED CASH CREDIT IS CALLED FOR. 4 . HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF RECORD WE FIND THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS NOT FILED ANY EVIDENCE TO PROVE T HE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS & IDENTITY OF THE CREDITOR. BUT BEFORE THE LD. CIT(A) HE HAS FILED PAN ADDRESS AND CONFIRMATION OF THE ALLEGED CREDITOR. BUT DURING THE REMAND PROCEEDINGS THE ASSESSEE HAS NOT FILED ANY BANK STATEM ENT IN ORDER TO VERIFY THE CREDITWORTHINESS OF THE CREDITOR. IT IS ALSO NOT CLEAR FROM THE ORDERS OF THE LOWER AUTHORITIES WHETHER THE ASSESSING OFFICER HAS SPECIFICALLY DEMANDED FOR SUPPLY OF THE BANK STATEMENT BUT IN ANY CASE THE ONUS IS UPON THE ASSES SEE TO ESTABLISH THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS & IDENTITY OF THE PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ ) : - 3 - : CREDITOR. FROM THE CONFIRMATION AND PAN THE CREDITWORTHINESS OF THE CREDITOR CANNOT BE ASCERTAINED. IT CAN ONLY BE ASCERTAINED BY LOOKING TO THE FINANCIAL POSITIO N OF THE CREDITOR EITHER FROM THE BANK STATEMENT OR FROM THE BALANCE SHEET. SINCE THE LD. CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE WITHOUT ASCERTAINING THE CREDITWORTHINESS OF THE CREDITOR WE FIND ERROR IN HIS ORDER. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE - ADJUDICATE THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. CIT(A) MAY MAKE NECESSARY ENQUIRY WITH REGARD TO THE CREDITWORTHINESS OF THE CR EDITOR . IF NEED BE THE CREDITOR MAY ALSO BE SUMMONED IN ORDER TO ASCERTAIN THE GENUINENESS OF THE TRANSACTION. 5 . IN THE RESULT APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.4.2014. SD/ - SD/ - [ A. K . GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11.4.2014 JJ: 3001 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR PRINT TO PDF WITHOUT THIS MESSAGE BY PURCHASING NOVAPDF ( HTTP://WWW.NOVAPDF.COM/ )