Shri Vimal Chand Jain, SUMERPUR v. ITO, SUMERPUR

ITA 540/JODH/2009 | 2005-2006
Pronouncement Date: 30-11-2011 | Result: Partly Allowed

Appeal Details

RSA Number 54023314 RSA 2009
Bench Jodhpur
Appeal Number ITA 540/JODH/2009
Duration Of Justice 2 year(s) 1 month(s) 24 day(s)
Appellant Shri Vimal Chand Jain, SUMERPUR
Respondent ITO, SUMERPUR
Appeal Type Income Tax Appeal
Pronouncement Date 30-11-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted DB
Tribunal Order Date 30-11-2011
Date Of Final Hearing 29-11-2011
Next Hearing Date 29-11-2011
Assessment Year 2005-2006
Appeal Filed On 06-10-2009
Judgment Text
1 ITA 540-09 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 540/JODH/2009 ASSTT. YEAR : 2005-06. SHRI VIMAL CHAND JAIN VS. THE INCOME-TAX OFFICE R PROP. M/S. V.K. TRANSPORT SUMERPUR. SUMERPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.S. MEHTA RESPONDENT BY : SHRI G.R. KOKANI DATE OF HEARING : 29.11.2011 DATE OF PRONOUNCEMENT : 30.11.2011. ORDER DATED : 30.11.2011 PER R.K. GUPTA J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2005-06. 2. THERE ARE 13 GROUNDS OF APPEAL. HOWEVER ONLY G ROUND NO. 2 WAS PRESSED. ACCORDINGLY GROUND NO. 2 IS TAKEN UP FOR DISPOSAL A ND THE REMAINING GROUNDS ARE TREATED AS DISMISSED AS NOT PRESSED. 3. BY GROUND NO. 2 THE ASSESSEE IS OBJECTING IN CO NFIRMING ADDITION OF RS. 7 29 630/- ON ACCOUNT OF CASH CREDITS AND SQUARED UP CASH CRED ITS. 4. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAD CREATED CERTAIN AMOUNT IN THE NAME OF TRUCK DRI VERS. THE ASSESSEE WAS REQUIRED TO FILE THE NAMES AND DETAILS OF TRUCK OWNERS. IT WAS STATED THAT THESE TRUCK DRIVERS RECEIVED 2 THE MONEY FROM BENANI CEMENT WHOSE MATERIAL IS SUPP LIED AND THEREAFTER THEY DEPOSITED THE MONEY WITH THE ASSESSEE PART PAYMENT AS THEY OP ERATE THEIR TRUCKS IN REMOTE AREAS. IT WAS SUBMITTED THAT THE ASSESSEE DOES NOT KNOW THE N AMES AND ADDRESSES OF THE TRUCK OWNERS BUT THE LIST OF DRIVERS WHO DEPOSITED THE CA SH WAS FILED. HOWEVER THE ASSESSING OFFICER WAS NOT SATISFIED. ACCORDINGLY HE MADE TH E IMPUGNED ADDITION UNDER SECTION 68. THE LD. CIT (A) HAS CONFIRMED THE ADDITION BY DISCU SSING THE ISSUE IN DETAIL AT PAGES 10 TO 17 OF HIS ORDER. 5. ASSESSEE HAS FILED WRITTEN SUBMISSION. 6. ON THE OTHER HAND LD. D/R PLACED RELIANCE ON TH E ORDER OF LD. CIT (A). 7. AFTER CONSIDERING THE ORDERS OF THE AUTHORITIES BELOW WRITTEN SUBMISSIONS FILED ON BEHALF OF THE ASSESSEE WE FIND THAT ASSESSEE DESER VES TO SUCCEED IN THIS GROUND. WE NOTED THAT LD. CIT (A) HIMSELF HAS MENTIONED SOMEWH ERE IN HIS ORDER THAT TRANSACTIONS ARE GENUINE AS THEY ARE VERIFIABLE. IT IS SEEN THAT DU RING THE PERIOD OF BUSINESS THE ASSESSEE USED TO KEEP SUCH DEPOSIT WITH HIM AS A SAFETY MEAS URE AND THEREAFTER THE SAME IS RETURNED TO THE RESPECTIVE TRUCK DRIVERS. IT IS FU RTHER SEEN THAT THIS IS NOT THE CASE OF THE DEPARTMENT THAT THERE IS SHORT CASH IN HAND ON THE RESPECTIVE DATE WHEN THE AMOUNT WAS CREDITED ON BEHALF OF CERTAIN DRIVERS. THEREFORE I T CANNOT BE SAID THAT ASSESSEE HAS INTRODUCED HIS OWN MONEY. IT IS FURTHER SEEN THAT LD. CIT (A) HIMSELF OBSERVED IN HIS ORDER AT PAGE 17 THAT CERTAIN TRUCKS WERE ENGAGED B Y BENANI CEMENT ON BEHALF OF THE ASSESSEE AND CERTAIN AMOUNT WAS RECEIVED FROM BENAN I CEMENT AND OUT OF THOSE AMOUNTS THEY HAVE DEPOSITED WITH THE ASSESSEE. HOWEVER LD. CIT (A) REJECTED THE CONTENTION OF THE ASSESSEE THAT ASSESSEE COULD NOT ESTABLISH THE GENUINENESS OF THE TRANSACTION. WE ARE OF THE VIEW THAT ONCE IT IS FOUND THAT THIS IS THE PRACTICE IN THE TRADE OF THE ASSESSEE AND 3 TRUCK DRIVERS WHO SUPPLIED THE GOODS ON BEHALF OF T HE ASSESSEE AND THE AMOUNT IS TAKEN FROM M/S. BENANI CEMENT AND OUT OF THE SAME AMOUNT CERTAIN AMOUNT HAS BEEN DEPOSITED WITH THE ASSESSEE FOR SAFE CUSTODY GENUINENESS OF THE TRANSACTION SHOULD NOT BE DOUBTED. AFFIDAVITS OF THE DRIVERS HAVE BEEN FILED WHICH WER E NOT ACCEPTED BY LD. CIT (A) BY OBSERVING THAT THEY WERE NOT FILED BEFORE THE ASSES SING OFFICER. WHETHER AFFIDAVITS WERE FILED BEFORE THE ASSESSING OFFICER OR FILED BEFORE LD. CIT (A) DOES NOT CHANGE THE CHARACTER OF TRANSACTION. AFFIDAVITS ARE IN SUPPOR T OF THE CONTENTION OF THE ASSESSEE THAT THE DRIVERS MADE CASH DEPOSIT WITH THE ASSESSEE FOR SAFE CUSTODY AND ON WHILE RETURNING BACK FROM THE DESTINATION THEY HAVE TAKEN BACK THE MONEY FROM THE ASSESSEE. THEREFORE IN OUR CONSIDERED VIEW THE ASSESSING OFFICER AND L D. CIT (A) WERE NOT JUSTIFIED IN MAKING AND SUSTAINING THE IMPUGNED ADDITION. THERE FORE THE SAME IS DELETED. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED IN PART. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30. 11.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR COPY FORWARDED TO :- SHRI VIMAL CHAND JAIN SUMERPUR. THE ITO SUMERPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 540/JODH/2009) BY ORDER AR ITAT JODHPUR.