Shri. Arun Gupta, Ghaziabad v. ITO, Ghaziabad

ITA 5069/DEL/2010 | 2005-2006
Pronouncement Date: 19-01-2011 | Result: Dismissed

Appeal Details

RSA Number 506920114 RSA 2010
Assessee PAN AGKPG5776H
Bench Delhi
Appeal Number ITA 5069/DEL/2010
Duration Of Justice 2 month(s)
Appellant Shri. Arun Gupta, Ghaziabad
Respondent ITO, Ghaziabad
Appeal Type Income Tax Appeal
Pronouncement Date 19-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 19-01-2011
Date Of Final Hearing 19-01-2011
Next Hearing Date 19-01-2011
Assessment Year 2005-2006
Appeal Filed On 18-11-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI AND SHRI SHAMIM YAHYA ITA NO. 5069/DEL/10 ASSTT. YR. 2005-06 SH. ARUN GUPTA VS. INCOME-TAX OFFICER III H 76 NEHRU NAGGER WARD 1(1) GHAZI BAD. GHAZI BAD. PAN NO. AGKPG5776H ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI L.M. AGGARWAL CA RESPONDENT BY : MS. ANITA HUMANA SR. DR O R D E R PER R.P. TOLANI J.M : THIS IS ASSESSORS APPEAL AGAINST THE ORDER OF CIT( A) DATED 19-11- 2009 RELATING TO A.Y. 2005-06. FOLLOWING EFFECTIVE GROUNDS ARE RAISED: 1. THAT THE LEARNED CIT(A) ERRED IN LAW IN UPHOLDI NG THE ADDITION OF REST. 3 40 000/- AS UNEXPLAINED CASH CR EDIT U/S 68 OF THE INCOME TAX ACT 1961. 2. THAT THE IDENTITY CREDITWORTHINESS AND GENUINEN ESS OF THE TRANSACTION HAS BEEN ESTABLISHED BY THE ASSESSEE OF THE LENDER MR. SHRIFT KHAN WHO HAD ADVANCED THE LOAN OF RS. 3 40 000/- TO THE ASSESSEE. 2. BRIEF FACTS ARE: ASSESSEE FILED HIS RETURN OF IN COME IN WHICH AN AMOUNT OF RS. 3 40 000/- WAS SHOWN TO HAVE BEEN REC EIVED FROM ONE SHARAFAT KHAN. AO ASKED THE ASSESSEE TO EXPLAIN THE CASH CREDITS. ASSESSEE ITA 5069/DEL/10 ARUN GUPTA VS. ITO 2 FILED CERTAIN DOCUMENTS IN SUPPORT THEREOF. AO ASKE D THE ASSESSEE TO PRODUCE THE SAID SHARAFAT KHAN FOR EXAMINATION WHO WAS PRO DUCED ON 10-8-2007. AO RECORDED HIS STATEMENT WHICH IS REPRODUCED IN HI S ORDER. SHRI SHARAFAT KHAN DENIED HAVING ADVANCED ANY SUM TO THE ASSESSEE . AO MADE THE ADDITION. AGGRIEVED ASSESSEE PREFERRED FIRST APPEA L BEFORE THE CIT(A) WHO CONFIRMED THE ACTION OF AO BY FOLLOWING OBSERVATION : 5. FROM THE ABOVE IT SHOWS THAT THE LEARNED AR HAS REITERATED THE SUBMISSION TAKEN BEFORE THE AO DURIN G ASSESSMENT PROCEEDINGS AND THAT NO NEW EVIDENCE OR EXPLANATION AHS BEEN GIVEN DURING APPELLATE PROCEED INGS. THE LEARNED AR HAS STATED THAT SHRI SHARAFAT KHAN IN H IS STATEMENT ON OATH HAS DENIED OF HAVING GIVEN ANY LOAN TO THE ASSESSEE DUE TO TERROR AND STRESS WHILE RECORDING THE STATEMENT . THIS SUBMISSION OF THE LEARNED AR HAS NO MERIT. IT WAS T HE ASSESSEE WHO PRODUCED SHRI SHARAFAT KHAN FOR EXAMINATION BEF ORE THE AO AND THE AO RECORDED HIS STATEMENT. THEREFORE TH ERE CANNOT BE ANY REASON THAT THE STATEMENT GIVEN BY SHRI SHAR AFAT KHAN THAT HE HAS NOT GIVEN ANY LOAN TO THE ASSESSEE DUE TO TERROR AND STRESS. THE ADDRESS GIVEN IN THE BANK ACCOUNT OPENE D IN THE NAME OF SHRI SHARAFAT KHAN WITH UTI BANK IS OF THE RESIDENTIAL ADDRESS OF THE ASSESSEE HIMSELF . THIS BANK A/C WAS OPENED BY DEPOSITING A CASH OF RS. 2 000/- AND SUBSEQUENTLY T WO CASH DEPOSITS OF RS. 1 00 000/- AND RS. 2 45 000/- WERE MADE ON 16- 11-2004 AND 18-11-2004 RESPECTIVELY AND THEN A DRA FT OF RS. 3 42 500/- WAS ISSUED AND THEREAFTER THERE WAS NO T RANSACTION IN THIS BANK ACCOUNT. SHRI SHARAFAT KHAN HAS SPECIFICA LLY DENIED OF HAVING OPENED THIS BANK ACCOUNT HIM. HE ALSO DENIE D OF HAVING EVER RESIDED AT THE ADDRESS OF II-H-76 NEHRU NAGAR GHAZIABAD WHICH IS ACTUALLY THE RESIDENTIAL ADDRESS OF THE AS SESSEE HIMSELF. WHEN CONFRONTED THE ASSESSEE HAS GIVEN NO EXPLANAT ION AS TO WHY IN THIS BANK A/C THE ADDRESS OF THE ASSESSEES RESIDENTIAL ADDRESS WAS MENTIONED. ALL THE ABOVE FACTS CLEARLY SHOWS THAT THE AO HAS RIGHTLY TREATED THE SUM OF RS. 3 40 000/ - SHOWN IN THE BOOKS OF THE ASSESSEE AS LOAN REMAIN UNEXPLAINE D. HENCE ITA 5069/DEL/10 ARUN GUPTA VS. ITO 3 CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF T HE CASE THE ADDITION MADE BY THE AO AT RS. 3 40 000/- U/S 68 IS HEREBY CONFIRMED. AGGRIEVED ASSESSEE IS BEFORE US. 3. LEARNED COUNSEL FOR THE ASSESSEE CONTENDS THAT T HE ASSESSEE HAD GIVEN CONFIRMATION OF LOAN AMOUNT COPY OF HIS INCOME-TAX RETURN AND BANK ACCOUNT OF SMT. POOJA GUPTA AND SHARAFAT KHAN. HE HAD NOT FACED INCOME TAX PROCEEDINGS EARLIER AND OUT OF FEAR DENIED HAVI NG ADVANCED ANY AMOUNT TO ASSESSEE BEFORE AO. IT IS PLEADED THAT SHARAFAT KHAN HAS COMMENCED LEGAL ACTION AGAINST ASSESSEE BY ISSUING A LEGAL NOTICE O N 15-11-2010 FOR RECOVERY OF AMOUNT AND IS A FACT OF HAVING GIVEN A WRONG ST ATEMENT BEFORE AO. THEREFORE THE MATTER MAY BE SET ASIDE. 4. LEARNED DR ON THE OTHER HAND CONTENDS THAT THE SAID SHARAFAT KHAN WAS WITNESS OF THE ASSESSEE HIMSELF WHO REFUSED HA VING ADVANCED ANY AMOUNT. WITH HIS STATEMENT ON RECORD WHICH HAS NOT BEEN CONTROVERTED THE BURDEN CAST ON ASSESSEE FOR EXPLAINING THE CASH CREDIT IS PROVED AGAINST ASSESSEE. MERE FILING OF CONFIRMATION AND INCOME-TA X RETURN OF SHARAFAT KHAN WILL NOT SERVE ANY PURPOSE AS THE PERSON HIMSE LF DENIED HAVING ADVANCED ANY AMOUNT. THE SO CALLED LEGAL NOTICE IS NOTHING BUT AN AFTER THOUGHT BY WHICH THE PROTEST IS BEING TRIED TO BUI LT UP. ORDERS OF LOWER AUTHORITIES RELIED UPON. ITA 5069/DEL/10 ARUN GUPTA VS. ITO 4 5. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE GONE TH ROUGH THE ENTIRE MATERIAL AVAILABLE ON RECORD. THE WITNESS WHO WAS PRODUCED BY ASSESSEE HAS CLEARLY DEPOSED AGAINST HIM TO THE EFFECT THAT NO SUCH AMOUNT WAS ADVANCED TO THE ASSESSEE. ISSUANCE OF A REGISTERED NOTICE NOW I.E. 15-11-2010 WILL BE OF NO HELP TO THE ASSESSEE INASMUCH AS THE STATEMENT OF WITNESS PRODUCED BY THE ASSESSEE HIMSELF STANDS UNCONTROVER TED AGAINST ASSESSEE BEFORE AO AND CIT(A). IN VIE THEREOF WE SEE NO INF IRMITY IN THE ORDERS OF LOWER AUTHORITIES UPHOLDING THE ADDITION IN QUESTI ON WHICH IS CONFIRMED. 6. IN THE RESULT ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 19-01-2011. SD/- SD/- (SHAMIM YAHYA ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19-01-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR