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Income Tax Appellate Tribunal, JAIPUR BENCHES “B”, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 894/JP/2018
ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 28/05/2018 of ld. CIT(A)-3, Jaipur for the A.Y. 2013-14. The assessee has raised following grounds of appeal: “1. The impugned order u/s 143(3) dated 25.02.2016 is bad in law and on facts of the case, for want of jurisdiction, barred by limitation and various other reasons and hence the same may kindly be quashed.
2. Rs.77,192/- : The Id. CIT(A)has grossly erred in law as well as on the facts of the case in sustaining the disallowance of Rs.77,192/- on account of various expenses as wages, 2 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO vehicle, shop and shop repair maintenance @10% out of 20% made by the Id. AO. Hence the disallowance so made by the AO and partly confirmed by the Id. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence same may kindly be deleted in full.
3. Rs.3,00,000/: The Id. CIT(A) has grossly erred in law as well as on the facts of the case in sustaining the addition of Rs.3,00,000/- on account of cash credit u/s 68. Hence the disallowance so made by the AO and confirmed by the Id. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence same may kindly be deleted in full.
4. The Id. AO has grossly erred in law as well as on the facts of the case in charging interest u/s 234 B&C. The appellant totally denies it liability of charging of any such interest. The interest, so charged, being contrary to the provisions of law and facts, may kindly be deleted in full.
5. The appellant prays your honor indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing.”
2. At the time of hearing, the ld AR of the assessee has stated that the assessee does not press ground No. 1, the same may be dismissed being not pressed. The ld DR has not raised any objection if ground No. 1 of the assessee’s appeal is dismissed as not pressed, accordingly, ground No. 1 of the assessee’s appeal is dismissed being not pressed.
3. Ground. No. 2 of the appeal is regarding disallowances of expenses. The assessee is engaged in the business of wholesale trading and commission agent of food grains, oilseeds etc. in the name and style
3 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO of M/s Ramavtar Radhey Shyam. During the course of scrutiny assessment, the A.O. noted that the assessee has declared G.P. at 2.80% and net profit at 0.40% on the turnover of Rs. 22,79,12,614/-. The A.O. further noted that on examination of books of account, various expenses were not found properly vouched and not supported by proper evidences. Accordingly, the A.O. disallowed 20% of the expenses on account of wages, vehicle, shop and shop repaid expenses total amounting to Rs. 7,71,920/- and 20% of the same was worked out at Rs. 1,54,384/-. The assessee challenged the action of the A.O. before the ld. CIT(A). The ld CIT(A) has restricted the disallowance from 20% to 10% being Rs. 77,192/- as against Rs. 1,54,384/- made by the A.O.
Before us, the ld AR of the assessee has submitted that the A.O. has made ad hoc disallowance of various expenses which is not permissible and particularly when the trading result of the assessee for the year under consideration are better than the preceding year. He has referred to the G.P. rate of the preceding year at 1.11% whereas the G.P. rate of the year under consideration is 2.80%. Even the G.P. rate for the year before preceding year was also 1.46% and therefore, when the assessee has declared better result, no ad hoc disallowance is called for. In support of his contention he has relied upon the various decisions and 4 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO submitted that no disallowance can be made merely on suspicion when the expenditure was incurred wholly and exclusively for the business purposes. Thus, the ad hoc addition made by the A.O. and sustained by the ld. CIT(A) is liable to be deleted.
On the other hand, the ld DR has submitted that the A.O. has disallowed the expenses on the ground that the assessee has not produced supporting evidence and only self-made vouchers were produced by the assessee. Therefore, in absence of verifiable bills and vouchers, the expenditure debited to the P&L account are not proved by the assessee. He has relied on the orders of the authorities below.
Having considered the rival submissions as well as relevant material on record at the outset we note that the A.O. has not rejected the books of account of the assessee but the trading results of the assessee were verified by the A.O. only for the purpose of examining the claim of expenditure. The A.O. has made the disallowance on the ground that the assessee has not produced the supporting vouchers but the vouchers filed by the assessee are self-made vouchers. On appeal, the ld CIT(A) has considered this issue in para 5.3 as under:
“5.3 I have carefully considered the material before me. I find that the Assessing officer treated 20% of the wage, vehicle, shop and shop
5 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO repair expenses as unverifiable and unvouched. The AIR made the submission which is general in nature. The A/R of the appellant failed to file any evidence which prove that all the above expenses are fully vouched. Therefore I am the opinion that the observation of the Assessing officer is as per law that all the above expenses are not fully vouched. Therefore the cited decision of the A/R of the appellant not applicable in this case. The Assessing officer made the disallowance @ 20% which is unreasonable, excessive and without any basis. Therefore considering the facts of the case and nature of the expenses I restricted the disallowance @ 10% of the above expenses. Thus the disallowance comes to Rs.77192/-. Accordingly I confirm the addition of Rs.77192/- and balance amount of Rs.77192/- is deleted. This ground is partly allowed.”
The ld. CIT(A) has given the finding that the A.O. has disallowed 20% of the expenditure which is unreasonable, excessive and without any basis. Once this finding is given by the ld. CIT(A) then there is no justification for sustaining the disallowance at 10% of the expenses. Therefore, after holding the addition as unreasonable, excessive and without any basis, the restriction of the addition/disallowance at 10% is also without any basis. Hence, the addition/disallowance sustained by the ld. CIT(A) is not sustainable in law and the same is deleted.
Ground No. 3 of the appeal is regarding the addition of Rs. 3.00 lacs U/s 68 of the Act. The A.O. noted that the assessee has taken loan of Rs. 3.00 lacs from Shri Rajesh Kumar Gupta on 24/11/2012. The A.O.
6 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO verified bank account of Shri Rajesh Kumar Gupta and found that a sum of Rs. 2,95,000/- was deposited in his bank account just 7 days prior to the said loan of Rs. 3.00 lacs was given to the assessee. Accordingly the A.O. made addition of the said amount treating the same as unexplained cash credit. On appeal, the ld. CIT(A) has confirmed the addition made by the A.O. on the ground that the assessee has failed to explain the source of cash deposited by the loan creditor.
Before us, the ld AR of the assessee has submitted that the A.O. has examined Shri Rajesh Kumar Gupta and recorded his statement wherein he has admitted that he is having PAN and filing returns of income with ITO, Ward-Neem Ka Thana. He has also explained source of cash as salary, interest and casual income. He has been employed with the assessee since April, 2012. Thus, the assessee has discharged its onus to prove the identity, creditworthiness and genuineness of the transactions. In support of his contention, he has relied upon the various decisions including the decision of the Hon’ble Supreme Court in the case of CIT vs. P. Mohanakala 291 ITR 278 (SC) and the decision of the Hon’ble Punjab & Haryana High Court in the case of CIT Vs. Varinder Rawlley 366 ITR 232 (P&H). The ld AR has thus submitted that the addition made by the A.O. may be deleted.
7 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO 9. On the other hand, the ld DR has submitted that the A.O. has examined the loan creditor and found that he has no capacity to give loan of Rs. 3.00 lacs to the assessee. Further the A.O. noted that just prior to the loan, the loan creditor had deposited a sum of Rs. 2.95 lacs in his bank account and also given a prior loan to the assessee of Rs. 50,000/- and Rs. 10,000/-, therefore, in absence of any source of cash deposit, the capacity and the creditworthiness of the loan creditor was not proved by the assessee. He has relied upon the orders of the authorities below.
We have considered the rival submissions as well as relevant material on record. Though, the assessee has proved the identity of the loan creditor, however, a cash of Rs. 2.95 lacs was deposited in the bank account of the loan creditor prior to the said amount of Rs. 3.00 lacs given to the assessee. Further the source of deposit was explained by the assessee as salary income of the loan creditor who was employed with the assessee itself. Thus, the loan taken by the assessee from its own employee and prior deposit of cash clearly established that the creditworthiness of the loan creditor is not proved beyond doubt. Since the loan creditor was employee of the assessee, therefore, the preponderance of probability is against the assessee that the said cash deposited in the bank account of the employee is assessee’s own
8 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO unexplained cash. The ld. CIT(A) has considered this issue in para 6.3 as under:
“6.3 I have carefully considered the material before me. I find that the Assessing officer made the addition of Rs.3,00,000/- u/s 68 of the I.T. Act making the observation that genuineness of the transaction and credit worthiness of the appellant is not proved. The A/R of the appellant submitted that the so called cash creditor explained the sources. This argument is not correct because the so called cash creditor fail to explain the source the cash deposited in bank account just before the loan given. The A/R further argued that initial onus discharged by the appellant is also not correct because the onus on the appellant to prove the genuineness of the transaction and credit worthiness of the so called cash creditor but he failed to prove these conditions.
Therefore considering the above observation the cited case laws are not applicable in this case because in this case the so called cash credit Shri Rajesh Kumar Gupta showing his income of Rs.183240/- and in his family there was wife and two school going children. He fail to give the detail of house hold expenses. There are other factor are as under: a) Earlier, he had been doing account related work for various parties but could not name even a single party out of them. b) He did not remember the nature of income shown in the ITR for AY 2013-14 from other income and gift. c) He could not name even a single party and amount advanced to them as shown in the Balance Sheet as on 31.03.2012 from recoveries of which he stated to have deposited the cash in bank account and given loan to the assessee.
9 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO d) He could not give reason as to why the cash was deposited just prior to loan given to the assessee for Rs. 50,000/-, Rs. 10,000/- and Rs. 3,00,000/- and to some other party. There were no cash deposits barring these three instances which were immediately followed by transferring them through cheques as loan to these parties. e) As per balance sheet, the assessee was having cash balance of Rs. 1,20,000/- as on 31.03.2012 but he could give any reason as to why only Rs. 50,000/- were deposited out of that on 03.04.2012 though were available with him at his home.
From the above observation it is prove that appellant failed to prove the genuine of the transaction and creditworthiness of so called cash creditor which must for the cash creditor as held by the Hon'ble Supreme Court in various cases. Therefore I am the opinion the loan shown of Rs.3,00,000/- in the name of Shri Rajesh Kumar Gupta is the undisclosed income of the appellant which shown in this way. Hence I treat the addition made by the Assessing officer of Rs.3,00,000/- u/s 68 of the I.T. Act is as per law. So I confirm the addition made by the Assessing officer of Rs.3,00,000/- u/s 68 of the I.T. Act. This ground is not allowed.”
In view of the above facts and circumstances of the case that the assessee has claimed loan of Rs. 3.00 lacs from his own employee and a cash of almost equal amount was deposited in the bank account of the said loan creditor prior to the alleged loan given to the assessee clearly an evidence against the assessee against which the assessee has not produced any evidence and hence the assessee has not discharged his burden to prove the transaction as genuine as well as the 10 ITA 894/JP/2018_ Shankar Lal Gokulka Vs ITO creditworthiness of the loan creditor. Therefore, we uphold the order of the ld. CIT(A) on this ground.
In the result, appeal of the assessee is partly allowed. Order pronounced in the open court on 30th April, 2019.
Sd/- Sd/- ¼foØe flag ;kno½ ¼fot; iky jko½ (VIKRAM SINGH YADAV) (VIJAY PAL RAO) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 30th April, 2019 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Shankar Lal Gokulka, Sikar. 1. izR;FkhZ@ The Respondent- The I.T.O., Ward- Neem Ka Thana. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 894/JP/2018) 6. vkns'kkuqlkj@ By order,
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