Shri Ashwinbhai B.Pokiya, Surat v. The ACIT.,Range-9,, Surat

ITA 614/AHD/2008 | 2004-2005
Pronouncement Date: 12-03-2010 | Result: Dismissed

Appeal Details

RSA Number 61420514 RSA 2008
Assessee PAN ACKPP5049C
Bench Ahmedabad
Appeal Number ITA 614/AHD/2008
Duration Of Justice 2 year(s) 27 day(s)
Appellant Shri Ashwinbhai B.Pokiya, Surat
Respondent The ACIT.,Range-9,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 12-03-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 12-03-2010
Date Of Final Hearing 04-03-2010
Next Hearing Date 04-03-2010
Assessment Year 2004-2005
Appeal Filed On 15-02-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI JM AND N. S. SAINI AM) ITA NO.614/AHD/2008 A. Y.: 2004-05 SHRI ASHWINBHAI BHIKHABHAI POKIYA LAKHANI HOUSE B/H J.K. TOWERS RING ROAD SURAT 395 002 PA NO.. ACKPP 5049C VS THE A. C. I. T. RANGE-9 AAYAKAR BHAVAN NEAR MAJURA GATE SURAT (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SHRI C. K. MISHRA DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-V SURAT DATED 26-1 1-2007 FOR ASSESSMENT YEAR 2004-05 ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED C. I. T. (A)-V SURAT ERRED IN NOT TAKI NG INTO ADJUDICATING THAT INITIAL BURDEN IS DISCHARGED BY T HE ASSESSEE IN RESPECT OF THE DEPOSITORS WHOSE SUMMONS U/S 131 ARE RETURNED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED C. I. T. (A)-V SURAT ERRED IN NOT ADJU DICATING THAT ASSTTT. C. I. T. MADE ADDITION ONLY ON STATEME NT U/S 132(4) AND FAILED TO MAKE PROPER ENQUIRY ABOUT DEPOSITORS DESPITE REQUESTED BY THE ASSESSEE AND THEREFORE ADDITIONS MADE U/S 68 SHOULD BE DELETED. 2. THE ASSESSEE SOUGHT ADJOURNMENT ON THE GROUND TH AT COPY OF THE REMAND REPORT AND ENGLISH VERSION OF THE STATEMENT ARE YET TO BE COMPILED. NONE APPEARED ON BEHALF OF THE ASSESSEE A T THE TIME OF HEARING OF THE APPEAL. THE RECORD REVEALS THAT THE ASSESSEE ON SEVERAL OCCASIONS SOUGHT ADJOURNMENT ON ONE OR THE OTHER RE ASONS. IT THEREFORE ITA NO.614/AHD/2008 SHRI ASHWINIBHAI BHIKHABHAI POKIYA 2 APPEARS THAT THE ASSESSEE IS NO MORE INTERESTED IN APPEARANCE AND ARGUING THE APPEAL. ADJOURNMENT APPLICATION IS THE REFORE REJECTED. 3. WE HAVE HEARD THE LEARNED DR AND PERUSED THE FIN DINGS OF THE AUTHORITIES BELOW. 4. BRIEFLY THE FACTS OF THE CASE ARE THAT THE LEAR NED CIT(A) IN THE IMPUGNED ORDER DATED 26-11-2007 NOTED THAT THE ISSU E IN THE APPEAL PERTAINS TO THE ADDITION OF RS.15 51 029/- MADE U/S 68 OF THE IT ACT AND RS.3 52 112/- OUT OF OLD OUTSTANDING DEPOSITS. IT I S NOTED THAT DURING THE COURSE OF SURVEY CARRIED OUT AT THE PREMISES OF THE ASSESSEE IT WAS ADMITTED THAT CERTAIN CASH CREDITS WERE OBTAINED IN LIEU OF CASH AND THOSE REPRESENTED DIFFERENT ASSESSEES OWN INCOME. THIS WAS ON VOLUNTARY DISCLOSURE MADE AFTER VOLUNTARY QUANTIFICATION. THE TOTAL DISCLOSED AMOUNT WAS QUANTIFIED AT RS.2 65 76 175/- BY SHRI J AYANTIBHAI LAKHANI THE MAIN PERSON OF THE GROUP AND THIS AMOUNT WAS CL AIMED TO VARIOUS ENTITIES OF THE GROUP. IN THE ASSESSEES CASE RS.26 59 004/- WAS DISCLOSED. THE STATEMENT OF SHRI JAUANTIBHAI LAKHAN I WAS RECORDED IN THE PRESENCE OF SHRI DINESH RAMANI CHARTERED ACCOU NTANT WHO WAS AUTHORIZED REPRESENTATIVE OF THE GROUP CONCERN. SUB SEQUENTLY THE QUANTIFICATION WAS MODIFIED IN TERMS OF INCOME ACTU ALLY RETURNED WHICH MEANS PARTIAL RETRACTION. THE ASSESSEE OFFERED ONLY RS.11 17 975/- IN THE REVISED RETURN. THE AO WANTED TO EXAMINE THE PARTIE S TO ASCERTAIN THE TRUTH AND EXACT QUANTUM OF QUESTIONABLE CASH CREDIT . THERE WAS LARGE SCALE NON-COMPLIANCE COUPLED WITH INADEQUACY OF EVI DENCE FROM THE SIDE OF THE ASSESSEE AND THEREFORE THE AO MADE ADDITIO N OF CASH CREDIT U/S 68 OF THE IT ACT WHICH IN HIS OWN OPINION WAS NOT O FFERED TO TAX ALTHOUGH QUANTIFIED IN DISCLOSURE OF THE ADDITIONAL INCOME M ADE DURING THE SURVEY. HE HAS ALSO MADE ANOTHER ADDITION OF RS.3 52 112/- AS NON-GENUINE LOAN AS PER PARA 10 OF THE ASSESSMENT ORDER. ITA NO.614/AHD/2008 SHRI ASHWINIBHAI BHIKHABHAI POKIYA 3 5. BOTH THE ADDITIONS WERE CHALLENGED BEFORE THE LE ARNED CIT(A) AND IT WAS SUBMITTED THAT CERTAIN PARTIES COULD NOT BE PRO DUCED BEFORE THE AO WHOSE EXAMINATION IS IMPERATIVE FOR PROPER QUANTIFI CATION OF GENUINE INCOME. THE LEARNED CIT(A) REMANDED THE MATTER BACK TO THE AO TO RECORD THE STATEMENT OF VARIOUS PARTIES WHOM THE AS SESSEE WANTED TO PRODUCE TO SUBSTANTIATE HIS CLAIM OF GENUINE CASH C REDITS. THE AO IN THE REMAND REPORT MENTIONED THAT DESPITE NUMBERS OF OPP ORTUNITIES GRANTED TO THE ASSESSEE IT HAD NOT FURNISHED THE NAMES AND COMPLETE ADDRESSES OF SUCH CREDITORS. STATEMENT OF SHRI MULCHAND KHAND ELWAL WAS RECORDED BY THE AO. PERUSAL OF THE SAME SHOWS THAT THE SAME WAS GENUINE CASH CREDIT IN A SUM OF RS.4 41 602/-. THE LEARNED CIT(A ) IN THE SUBSEQUENT ORDER DATED 23-01-2008 U/S 154 OF THE IT ACT NOTED THAT THE AMOUNT IN RESPECT OF SHRI MULCHAND KHANDELWAL HAS BEEN RS.4 2 5 000/-. IT WAS ACCORDINGLY DIRECTED TO BE DELETED. 6. THE AO VIDE COMMON SUPPLEMENTARY REMAND REPORT H AS ALSO REPORTED DURING THE EXAMINATION OF LOANS AS WELL AS THEIR SOURCE FROM FIVE PARTIES HAVE BEEN FOUND VERIFIABLE IN THE NAME S OF S/SHRI CHAGANBHAI VRAJLAL PURSHOTTAMBHAI AMRUTBHAI AND POPATBHAI TOTALING TO A SUM OF RS.2 24 000/-. THE LEARNED CIT(A) ACCOR DINGLY DIRECTED TO DELETE THIS ADDITION. REST OF THE ADDITIONS WAS ACC ORDINGLY CONFIRMED. 7. THE LEARNED DR RELIED UPON THE ORDER OF THE LEAR NED CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS NOT COMPLIED WITH T HE ORDER OF THE LEARNED CIT(A). NO COMPLETE ADDRESSES AND NAMES WER E FURNISHED EVEN AT THE APPELLATE STAGE BEFORE THE AO. THEREFORE THERE WAS NO REASON TO INTERFERE WITH THE ORDER OF THE LEARNED CIT(A). 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR AND THE MATERIAL AVAILABLE ON RECORD. THE AO SPECIFICALLY R ECORDED IN THE ASSESSMENT ORDER THAT DURING THE COURSE OF SURVEY I T WAS GATHERED THAT THE ASSESSEE HAS OBTAINED UNSECURED LOANS FROM VARI OUS PARTIES AND SHRI ITA NO.614/AHD/2008 SHRI ASHWINIBHAI BHIKHABHAI POKIYA 4 JAYANTIBHAI LAKHANI HAS ADMITTED IN HIS VOLUNTARY S TATEMENT AND HIS GROUP MEMBERS HAD ACCEPTED UNSECURED LOANS BY GIVIN G CASH TO THE PERSONS FROM WHOM LOANS AND ADVANCES WERE RECEIVE. HE HAS AGREED THAT CASH GIVEN TO OBTAIN THESE LOANS ARE NOT RECORDED I N THE BOOKS OF ACCOUNT. THE ASSESSEE AGREED TO SURRENDER THE NON-G ENUINE CREDITS IN THE REVISED RETURN BUT ONLY PART OF THE AMOUNT WAS DISC LOSED AS UNDISCLOSED INCOME IN A SUM OF RS.11 17 975/-. THE ASSESSEE DID NOT COMPLY WITH THE STATUTORY NOTICES BEFORE THE AO AND NO SPECIFIC DETAILS WERE FILED TO PROVE THE GENUINENESS OF THE VARIOUS CREDITS. NO DE TAILS WERE FURNISHED BEFORE THE AO. THE AO ISSUED SHOW CAUSE NOTICES TO THE ASSESSEE WHICH WAS ALSO NOT COMPLIED. THE ASSESSEE FAILED TO PRODU CE THE PARTIES BEFORE THE AO AND ALSO FAILED TO FURNISH THEIR WHEREABOUTS BEFORE THE AO. CONSIDERING THE NON-COOPERATIVE ATTITUDE OF THE ASS ESSEE THE AO TREATED RS.15 51 029/- WHICH WERE NOT DISCLOSED IN THE RETU RN OF INCOME AS AGREED EARLIER TO SURRENDER AS UNDISCLOSED INCOME U /S 68 OF THE IT ACT. SIMILARLY THE ASSESSEE DID NOT PROVIDE FULL DETAIL S ALONG WITH CONFIRMATION FROM THE DEPOSITORS. THEREFORE SUM OF RS.3 52 112/- WAS ALSO TREATED AS NON-GENUINE CASH CREDITS. THE LEARN ED CIT(A) CONSIDERING THE REQUEST OF THE ASSESSEE TO PRODUCE THE PARTIES TO SUBSTANTIATE HIS CLAIM OF GENUINE CASH CREDITS REMANDED THE MATTER T O THE FILE OF THE AO. AT THE APPELLATE STAGE SOME OF THE PARTIES WERE PR ODUCED AND THEIR STATEMENTS WERE RECORDED BY THE AO AND CREDITS WERE FOUND TO BE GENUINE FOR WHICH THE LEARNED CIT(A) HAS ALREADY GR ANTED RELIEF TO THE ASSESSEE. HOWEVER FOR THE REST OF THE PARTIES THE AO GAVE NUMBERS OF OPPORTUNITIES TO THE ASSESSEE TO PRODUCE THE PARTIE S AND THEIR EVIDENCES TO SUPPORT GENUINENESS OF THE CREDITS IN THE MATTER . BUT THE ASSESSEE HAD NOT FURNISHED EVEN THE NAMES AND COMPLETE ADDRESSES OF THE REST OF THE CREDITORS. THE ABOVE FACTS THEREFORE WOULD SHOW T HAT INITIALLY THE ASSESSEE ACCEPTED THE CREDITS TO BE BOGUS AND ALSO AGREED TO SURRENDER THE INCOME IN THE REVISED RETURN BUT ONLY PART OF T HE BOGUS CREDITS WERE DISCLOSED AS UNDISCLOSED INCOME IN THE REVISED RETU RN. IN SUCH A ITA NO.614/AHD/2008 SHRI ASHWINIBHAI BHIKHABHAI POKIYA 5 SITUATION BURDEN IS VERY HEAVY UPON THE ASSESSEE TO PROVE THE GENUINENESS OF THE CREDITS OF THE REST OF THE AMOUN T WHICH THE ASSESSEE HAS NOT DISCLOSED IN THE REVISED RETURN DESPITE ADM ITTED IN THE VOLUNTARY STATEMENT RECORDED ON THE DATE OF SURVEY. THE ASSES SEE HAS HOWEVER NOT COMPLIED WITH THE STATUTORY NOTICES BEFORE THE AO A T THE ASSESSMENT STAGE. EVEN AT THE APPELLATE PROCEEDINGS THE ASSESS EE DID NOT PRODUCE THE PARTIES AND THEIR COMPLETE ADDRESSES AND PARTICULAR S BEFORE THE AO IN THE REMAND PROCEEDINGS. THEREFORE IT STANDS PROVED THAT THE ASSESSEE HAS NO EXPLANATION TO OFFER TO EXPLAIN THE GENUINE CREDITS IN THE MATTER. IT WAS THE ASSESSEE WHO HAS MADE A CLAIM BEFORE THE LE ARNED CIT(A) TO PRODUCE THE PARTIES BEFORE THE AO TO SUBSTANTIATE H IS CLAIM OF GENUINE CREDIT. THEREFORE THE ASSESSEE SHOULD HAVE TAKEN S TEPS IN THE MATTER TO PROVE GENUINE CREDITS. THE ASSESSEE HAS HOWEVER FA ILED TO DO ANYTHING IN THE MATTER EVEN AT THE APPELLATE STAGE. AS NOTED AB OVE THIS APPEAL WAS ADJOURNED SEVERAL TIMES ON THE REQUEST OF THE ASSES SEE ON ONE OR THE OTHER REASONS BUT THE ASSESSEE DID NOT PRODUCE ANY MATERIAL OR EVIDENCE ON RECORD TO PROVE ITS CASE BEYOND DOUBT. WE ACCORD INGLY DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE SAME IS AC CORDINGLY DISMISSED. ORDER PRONOUNCED ON 12-03-2010. SD/- SD/- (N. S. SAINI) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 12-03-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD