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Income Tax Appellate Tribunal, A BENCH, MUMBAI
order : 24.02.2023 O R D E R Per Rahul Chaudhary, Judicial Member: 1. By way of the present appeal the Revenue has challenged the order, dated 05.08.2022, passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as „the CIT(A)‟] for the Assessment Year 2012-13, whereby the Ld. CIT(A) had partly allowed against the Assessment Order, dated 25.12.2019, passed under Section 143(3) read with Section 147 of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟).
The Revenue has raised following grounds of appeal:
“1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by the AO, in respect of unexplained u/s 68 of the IT Act.
2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) not consider the contention of the AO that during the assessment proceedings, the AO issued notice u/s 133(6) of the Act to M/s Gehna Jewellers Pvt. Ltd. asking them to furnish relevant details so as to verify the genuineness of the transactions entered with the assessee firm. M/s Gehna Jewellers Pvt. Ltd. merely submitted that no purchases were made from the assessee firm during the year under consideration. In the notice u/s 133(6), it was specifically asked to provide the reason for non- payment/excessive delay in payment of the dues in respect to purchases made, however, no reply was given by M/s Gehna Jewellers Pvt. Ltd. regarding this issue.
3. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) not consider the contention of the AO that during the assessment proceedings, the AO issued notice u/s 133(6) of the Act to Mr. Sunil Datwani (Partner of Anmol Jewellers) asking him to furnish relevant details so as to verify the genuineness of the transactions entered with the assessee firm. However, nothing substantial was provide Mr. Sunil Datwani.
4. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) not consider the contention of the AO that capital account of Sunil Datwani credited with an amount of Rs. 70,386,620/- on account of sundry creditors. The same is clearly an entry to artificially enhance the capital balance standing in the name of Mr. Sunil Datwani. This is nothing but an attempt made to masquerade the actual facts by use of colorable device in the form of book entries in the accounts of the assessee.”
Brief facts of the case are as under.
4. The Assessee, a partnership firm engaged in the business of purchase/sale of gold & diamond jewellery, filed original return of income on 30.09.2011 declaring total income of INR 2,27,65,151/- .The return of income was processed under Section 143(1) of the Act. However, subsequently the case of the Assessee was Assessment Year: 2012-13 reopened and assessment under Section 143(3) read with Section 147 of the Act was framed on the Assessee vide Assessment Order dated 30.03.2015 at total income of INR 2,46,58,620/-. The appeal preferred by the Assessee against the aforesaid assessment order was disposed of by the CIT(A) vide order dated 30.03.2015. On 26.07.2016, appeal effect order was passed by the Assessing Officer.
5. Meanwhile, on 03.12.2015, the case of the Assessee was again reopened and notice under Section 148 of the Act was issued which culminated into Assessment Order, dated 21.11.2016 wherein total income of the Assessee was assessed at INR 2,33,45,189/.
Thereafter, the case of the Assessee was again reopened and notice under Section 148 of the Act was issued on 26.03.2018. Vide order, dated 24.12.2018, reassessment was framed on the Assessee at total income of INR 2,62,07,306/-.
Subsequently, the case of the Assessee was again reopened and notice under Section 148 of the Act, dated 29.03.2019, was served on the Assessee. The present appeal by the Revenue pertain to the aforesaid reassessment proceeding which was initiated on the basis of information received from the office of the DDIT (Inv.)-5(2) that Assessee had received huge funds of INR 5 Crores and INR 7 Crore from Gahna Jewellers Pvt. Ltd. (for short „GJPL‟) on 22.03.2012 and 26.03.2012, respectively, and on the same day the aforesaid funds were transferred to the account of Mr. Sunil Vasudev Datwani (hereinafter referred to as „Mr. Datwani‟), who was also a partner in the Assessee till 31.03.2011.
In response to notice issued under Section 148 of the Act, dated 3
Assessment Year: 2012-13 29.03.2019, the Assessee filed return of income vide letter, dated 19.04.2019. The notice, dated 10.05.2019, issued under Section 143(2) of the Act was issued to the Assessee. During the assessment proceedings, the Assessee explaining that Mr. Datwani, was partner of the Assessee. He resigned as partner of the Assessee-firm in the year ending 31.03.2011. At the time of his resignation, some amount was to be paid to him towards his capital on his resignation/retirement as per the amount partner‟s capital account. However, the Assessee did not have liquid funds to make payment to Mr. Datwani. GJPL was the new start-up by Mr. Datwani which needed credit for business and therefore, the Assessee permitted GJPL to purchase gold/jewellery from the Assessee on credit basis. Whenever GJPL made payments towards purchase made from the Assessee, the amount received was utilised for repayment of capital to Mr. Datwani. The Assessee also furnished a copy of financial statements of GJPL for the Assessment Year 2012–13 wherein Assessee was shown as a sundry debtor with opening balance of INR.19,77,35,501/- and closing balance of INR.7,05,76,141/- as INR.12,00,00,000/- were paid to GJPL during the relevant previous year through bank account.
However, the Assessing Officer was not satisfied with the explanation furnished by the Assessee and therefore, proceeded to make an addition of INR 12,00,00,000/- in the hands of the Assessee as unexplained cash credit under Section 68 of the Act vide Assessment Order, dated 25.12.2019.
10. Being aggrieved, the Assessee preferred an appeal before CIT(A) against the Assessment Order, dated 25.12.2019.
Assessment Year: 2012-13 11. Before the CIT(A) it was contended by the Assessee that document/evidence in support of the transactions filed by the Assessee during the assessment proceedings were not considered and appreciated by the Assessing Officer. It was submitted that the Assessee had produced sale invoices before the Assessing Officer which were uploaded on the income tax portal on 19.12.2019. It was explained to the Assessing Officer that the delivery of the goods was given by hand GJPL had premises next to Premises of the Assessee. The acknowledgement of delivery of goods was taken on the invoices instead of preparing a separate delivery challan which proves the delivery of goods by the Assessee to GJPL. A confirmation to this effect in the form of a letter, dated 11.03.2021, addressed by Mr. Datwani, Director of GJPL to the CIT(A) was also filed by the Assessee. From the Financial Statements of the Assessee for the Assessment Year 2011–12, which are already on record, the stock position of the Assessee on opening and closing day of the relevant previous year were clear. Further, a copy of the ledger account of GJPL maintained by the Assessee reflecting the aforesaid transactions was placed on record by the Assessee. Sales were made by the Assessee to GJPL on credit and therefore, GJPL stood as debtor in the books of account of the Assessee for the Financial Year 2011–12 to Financial Year 2019–20 - for a period of eight years. It was submitted that non-charging of interest on delayed payments on sales cannot be regarded as the reason for not accepting the genuineness of the transaction of sale. It was contended on behalf of the Assessee that these transactions were genuine as the debt burden was gradually reduced each year till it was finally squared off during the Financial Year 2019–2020. It was contended that the finding
Assessment Year: 2012-13 returned by the Assessing Officer that no evidence was provided by the Assessee to support its claim of genuineness of the transaction and the transfer of funds to Mr. Datwani was factually incorrect. The Assessing Officer had in paragraph 9 of the Assessment Order reproduced the capital account of Mr. Datwani as on 31.03.2010 and 31.03.2011 which clearly shows that the details were furnished to the Assessing Officer. A copy of the financial statements for the Assessment Years 2011–12 and 2012–13 were also furnished by the Assessee. It was explained before CIT(A) that on retirement Mr. Datwani had taken over his share of liabilities in the Assessee-firm amounting to INR 7,03,86,620/- which were in the nature of sundry creditors, and the balance amount of INR 12,29,14,637/- was transferred to the loan account. The notice dated 07.12.2019, issued under Section 133(6) of the Act to GJPL asking it to furnish relevant details and to verify genuineness of the transaction was duly replied to by GJPL vide letter dated 20.06.2019.
After considering the above contentions/submissions advanced on behalf of the Assessee in the appellate proceedings before the CIT(A), the CIT(A) granted relief to the Assessee by deleting the addition of INR 12 Crores made by the Assessing Officer vide order dated 05.08.2022.
Being aggrieved, the order passed by the CIT(A), the Revenue has preferred the present appeal.
The Ld. Departmental Representative appearing before us submitted that the Assessee had failed to prove genuineness of the transaction undertaken by the Assessee with GJPL. The Assessee did not provide any documentary evidence in the form
Assessment Year: 2012-13 of delivery challan to show that goods were actually delivered to GJPL. The stock position was also not furnished to substantiate purchase and sale of the goods by the Assessee to GJPL. The Assessee did not provide the date on which sales took place and failed to furnish sales register. Further, GJPL essentially stood as debtor of the Assessee for a period of eight years although a significantly higher amount of debt amounting to INR 19,77,35,501/- was due and payable in these years to the Assessee. The fact that no interest was charged by the Assessee for the delayed payments shows that the transactions was not genuine. Further perusal of bank statement of the Assessee shows that the amount of INR 5,00,00,000/- and INR 7,00,00,000/- were received from my GJPL on 22.03.2012 and 26.03.2012. The receipt of the aforesaid amount was followed by immediate transfer of funds to the account of Mr. Datwani. According to the Assessing Officer, no evidence was provided by the Assessee to support the claim regarding transfer of funds to Mr. Datwani. Assessing Officer also noted that notice under Section 133(6) of the Act was issued to GJPL asking it to furnish details in order to verify genuineness of the transaction entered with the Assessee. In response, the GJPL filed submissions but no concrete evidence was furnished by GJPL to support the claim of the Assessee that sales were actually made by the Assessee to GJPL. GJPL merely submitted that no purchases were made from the Assessee during the Financial Year 2011–12. In notice issued under section 133(6) of the Act, it was specifically asked to provide reasons for non-payment said/excessive delay in payment of dues in respect of purchases made, however, no reply was given by GJPL regarding this issue. Similarly, notice dated 07.12.2019 under Section 133(6) of the Act was issued to Assessment Year: 2012-13 Mr. Datwani asking him to furnish relevant details in response to the same Mr. Datwani filed the reply which was also not sufficient. Mr. Datwani explained that the payments received from the Assessee pertain to the amount outstanding/payable on retirement as partner. However, no documentary evidence was furnished in support of the same.
The Ld. Departmental Representative further submitted that the CIT(A) has committed a grave error by deleting the addition made by the Assessing Officer by relying upon incorrect judicial precedents which were not applicable to the facts of the present case. She reiterated that evasive replies were filed by the parties in response to notice issued under section 133(6) of the Act. The Assessing Officer had clearly returned a finding that response given by the parties were not sufficient, however, completely ignoring the same the CIT(A) proceeded to grant relief to the Assessee. She submitted that the nature of documents filed by the Assessee was not convincing. Mounting attack on the basis of value stated in the invoice raised by the Assessee she submitted that the invoices reflect sale of diamonds made by the Assessee to GJPL however, no description of the diamonds has been given about cut, color clarity and carat and therefore, the genuineness of the invoices raised by the Assessee was in doubt. Doubting the genuineness of the transaction she submitted that amount recoverable from GJPL stood outstanding for eight years and Assessee did not charge any interest in respect of the same. Further, the amount received by the Assessee from GJPL was transferred to the bank account of Mr. Datwani on the same day. The Assessee had failed to provide details or the rationality of making such payments to Mr. Datwanti. The CIT(A) has taken into account in incorrect factors such as identity and creditworthiness 8
Assessment Year: 2012-13 of the parties, and has failed to appreciate that the Assessee has failed to satisfy the Assessing Officer about the genuineness of the transaction.
The Ld. Authorised Representative for the Assessee appearing before us submitted that this is the third round of re-assessment in the case of the Assessee. He took us through the chronology of events at page 62 of the paper-book. He reiterated the submissions made before the CIT(A) and relied upon the submissions, dated 12.03.2021, filed before the CIT(A) [placed at page 1 to 21 of the paper-book]. The Ld. Authorised Representative for the Assessee supported the order passed by the CIT(A) by relying upon the judicial pronouncements placed before us as part of the legal paper book.
We have considered the rival contention and perused the material on record including the judicial precedents cited during the course of hearing. On perusal of record, we find that the Assessee had uploaded copy of sales invoices and sale register as attachment on 19.12.2019 as per copy of e-proceeding response acknowledgement (bearing Acknowledgment No. 18121912789612) placed at page 150 of the paper-book. The CIT(A) has, paragraph 5.7 of the order impugned, listed the following details/documents furnished by the Assessee before the Assessing Officer:
- Copy of Sales Invoices for sale of goods to GJPL Copy of Sales register for the period from 18th October, 2010 - to 15th February, 2011
- Copy of Ledger account of GJPL from 1st April 2010 till 31st May 2019 wherein all the due amounts has been received.
Assessment Year: 2012-13 - Copy of ledger of Confirmation from GJPL for the Assessment year 2012-13 - Copy of Bank statements which reflects receipts from GJPL for the assessment year 2012-13
- Audited Financial statements for the Assessment year 2011- 12 (Previous year 2010- 11)
A perusal of sale invoices placed at page 32 to 37 of the paper- book show that jewellery, gold, gemstone, diamond etc. were sold by the Assessee to GJPL between 18.10.2010 and 15.02.2011. No sales were made during the Financial Year 2011- 12 relevant to the Assessment Year 2012-13. In the notice dated 15.05.2019, issued by the Assessing Officer under Section 133(6) of the Act GJPL was asked to furnish information/details pertaining to the period falling in the Financial Year 2011-12. In response, GJPL filed reply vide letter, dated 20.06.2019, wherein it was stated that no purchase/sale transactions were undertaken by GJPL with the Assessee during the Financial Year 2011-12 which is factually correct. It was further stated that the payments made during the Financial year 2011-12 were towards outstanding dues and in support of the same copy of ledger account of the Assessee in the books of accounts of GJPL was furnished by GJPL which showed opening balance of INR 19,77,35,501/- and closing balance of INR 7,05,76,141/-. The GJLP also furnished copy of its financial statements for the Financial Year ending 31.03.2012 along with acknowledgment of income tax return for the Assessment Year 2012-13 along with copy of PAN Card. Thereafter, another notice dated 07.12.2019, issued under Section 133(6) of the Act was sent by the Assessing Officer to GJPL asking about the details of transaction with the Assessee
Assessment Year: 2012-13 whether the Assessee was a creditor of GJPL and the reasons for not making them timely payments. In reply, GJPL reiterated the reply given vide letter dated 20.06.2019 and further stated that “Anmol Jewellers were not our creditors”. It is on the basis of the statement that the Revenue contends that sufficient reply was not provided by GJPL in response to the notice issued under Section 133(6) of the Act. However, we are not inclined to accept the aforesaid contention of the Revenue in view of the fact that all relevant details including the ledger account, ITR Acknowledgement and copy of PAN Card were already furnished by GJPL. In our view, the query was raised by the Assessing Officer in the context of the Financial Year 2011-12 and therefore, replied in the same context by GJPL since the notice dated 15.05.2019 specifically called for the information/documents pertaining to the Assessee for the Financial Year 2011-12. We find that Mr. Sunil Datwani had also replied to notice dated 15.05.2019, issued by the Assessing Officer under Section 133(6) of the Act and furnished a copy of ledger account pertaining to the period commencing on 01.04.2010 and ending on 31.03.2012. In his reply dated 16.12.2019, he clearly stated that he was a partner in the Assessee-firm, the payments received by him were against the amount of outstanding post-retirement. He also confirmed that amount of INR 12 Crores from the Assessee. Thus, we hold that the Assessee had discharged the onus and it was for the Assessing Officer to bring on record the relevant information/material to show that transactions undertaken by the Assessee were not genuine. However, we find that no enquiry was conducted by the Assessing Officer in this regard. It was contended by the Assessee that premises of the Assessee and GJPL were located nearby and therefore, the delivery of goods
Assessment Year: 2012-13 was made by hand and acknowledgment was taken on invoice itself. Nothing was brought on record to controvert the aforesaid contention even after the transaction was confirmed by GJPL. We note that the separate confirmation letter dated 11.03.2021 acknowledging receipt of goods described in invoices was also furnished by the Assessee before CIT(A). The documents placed on record support the contention of the Assessee that on retirement of Mr. Datwani as a partner of the Assessee-firm an amount of INR 12,29,14,637/- was to be paid to Mr. Datwani towards his capital in the Assessee-firm. Mr. Datwani had set up a new company GJPL. Since the Assessee did not have liquid funds it sold goods, being gold, diamond, gemstone and jewellery, on credit to GJPL. As and when payments were received by the Assessee from GJPL, payments were made to Mr. Datwani to discharge the amount due and payable by the Assessee. Both GJPL and Mr. Datwani confirmed the aforesaid possession in response to notice issued by the Assessing Officer under Section 133(6) of the Act and furnished the relevant details/documents.
The CIT(A) examined the evidence furnished by the Assessee and concluded in paragraph 5.7 and 5.8 of the order that the transaction was genuine. The relevant extract of the decision of CIT(A) read as under:
“5.7 I have perused and examined all the documents on record. The appellant filed a paper book in 153 pages which have been examined. The appellant has submitted before me that the following were produced before the Assessing Officer:- 1. “Copy of Sales Invoices for sale of goods to M/s. Gehna Jewellers Private Limited (attached and marked as Annexure-2) 2. Copy of Sales register for the period from 18thoctober, 2010 to 15th February, 2011 where in sales of M/s. Gehna Jewellers Private Limited is reflected (attached and marked as Annexure- 12
Assessment Year: 2012-13 3). 3. Copy of Ledger account of M/s. Gehna Jewellers Private Limited from 1st April 2010 till 31st May 2019 wherein all the due amounts has been received. (attached and marked as Annexure-4)
Copy of ledger of Confirmation from M/s. Gehna Jewellers Private Limited for the Assessment year 2012-13(attached and marked as Annexure-5).
Copy of Bank statements which reflects receipts from M/s. Gehna Jewellers Private Limited for the assessment year 2012- 13(attached and marked as Annexure-6). 6. Audited Financial statements for the Assessment year 2011-12 (Previous year 2010- 11) (attached and marked as Annexure-8) Page 65 of the audited financials represent the amount of Rs. 19,77,35,501 due from M/s. Gehna Jewellers Private Limited. 7. Audited Financial statements for the Assessment year 2012-13 (Previous year 2011-12) (attached and marked as Annexure-7) Page 19 of the audited financials represents the amount of 7,05,76,142 due from M/s Gehna Jewellers Private Limited. The issue revolves around receipt of Rs 12 Crores from M/s. Gehna Jewellers Private Limited. The books of accounts of assessee shows the original amount receivable as on 1't April 2011 of Rs 19,77,35,501/- While going through the assessment records for the current and previous assessment year, I observe that the case was scrutinized under Section 148 of the Act twice for previous assessment year and once for current Assessment year 2012-13. In all these assessments, assessee has duly provided financial statements which are under tax audit u/s. 44AB of the Act. I have gone through the financial statements, which records the amount receivable from M/s. Gehna Jewellers Private Limited. The assessee in his submission stated that payment of Rs. 12 crores was received against the opening balances of Rs. 19.77 crores as provided in the financials statements throughout the assessments. The AO has received reply to the notice given to the counter party under section 133(6) of the Act. This itself proves the genuineness of the party and the transaction. Assessing officer's claim that reason of excessive delay in payment called for in notice under section 133(6) of the act was not provided does not means that 13
Assessment Year: 2012-13 the transaction is not genuine.
5.8 It is well-settled that under section 68 of the Act, the assessee has to prove three conditions, viz., (1) the identity of the creditor, (2) the "capacity" of such creditor to advance the amount, and (3) the genuineness of the transaction. The appellant had submitted documents such as Copy of Sales Invoices for sale of goods to M/s. Gehna Jewellers Private Limited, Copy of Sales register, Copy of Ledger account of M/s. Gehna Jewellers Private Ltd. Copy of ledger of Confirmation from M/s. Gehna Jewellers Private Limited, Copy of Bank statements which reflects receipts from M/s. Gehna Jewellers Private Limited, Audited Financial statements for the Assessment year 2011-12 representing the due amount of Rs.19,77,35,501/-, Audited Financial statements for the Assessment year 20L2-13 representing the amount of 7,05,76,142 due from M/s. Gehna Jewellers Private Limited. The appellant had discharged its onus of proving the identity of the person, credit worthiness of the party and the genuineness of the transaction. On the other hand the AO has made no inquiry to show that the evidence submitted by the appellant was not correct. Nowhere has the AO stated that the documents produced by the appellant were not genuine. The issues agitated are routine business transactions of credits and debits emanating from the regular audited books of accounts. The sales and other entries are part of the regularly maintained audited books of accounts. The veracity of the books of accounts has not at all been challenged by the AO.” (Emphasis Supplied)
8. We are in agreement with the order passed by the CIT(A) and hold that the CIT(A) was justified in holding that the transaction undertaken by the Assessee were genuine.
9. Further, we note that the Assessing Officer had not even disputed the identity of the creditors or creditworthiness of the creditors. Even according to Ld. Departmental Representative the Assessing Officer had only doubted the genuineness of the transaction undertaken by the Assessee. We note that after concluding that the transactions were genuine, the CIT(A)
Assessment Year: 2012-13 proceeded to return findings in relation identity and creditworthiness by placing reliance on judicial precedents. Therefore, we reject the contention of the Revenue that the CIT(A) committed error in relying upon incorrect judgments.
In view of the above, we do not find any infirmity in the order passed by the CIT(A). Ground No. 1 to 4 raised by the Revenue are, therefore, dismissed.
In the result, the present appeal by the Revenue is dismissed.
Order pronounced on 24.02.2023.