Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI AMARJIT SINGH & SHRI O.P.MEENA
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 1 of 13
आयकरअपील�यअ�धकरण,सुरत�यायपीठ,सुरत IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI AMARJIT SINGH, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER आ.अ.सं./I.T.A No.1144/AHD/2015 �नधा�रण वष�/Assessment Year: 2009-10 Shri Dinesh Laduramji Vs The Income Tax Officer, Choudhary, 1051-52, Adarsh . Ward-5(1), Surat. Market-2, Ring Road, (New Ward -2(2)(1), Surat) Surat – 395 002. [PAN: AFEPC 9017 Q] अपीलाथ� / Appellant ��यथ�/Respondent
�नधा�रतीक�ओरसे /Assessee by Shri Ramesh Malpani – CA राज�वक�ओरसे /Revenue by Shri B.P.K.Panda –Sr.DR
सुनवाईकीतारीख/ Date of hearing: 24.10.2019 उ�घोषणाक�तार�ख/Pronouncement on: 25.10.2019 आदेश /O R D E R PER O.P.MEENA, AM: 1. This appeal by the Assesse is directed against the order of Ld.Commissioner of Income Tax(Appeals)-1, Surat dated 11303.2015 for the assessment year 2009-10.
Ground No.1 and 2 relates to upholding disallowance of Rs.64,411/- being 50% of the expenses incurred on Transport, Brokerage, Sample and Postage. Rs.1,05,196/- being 25% of expenses
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 2 of 13
incurred on Hamali, Electricity, Shop Expenses, Shop Maintenance, Packing and Cutting.
Brief facts of the case are that the assessee has claimed expenses on Postage, Sample, Brokerage and Transport of Rs.1,28,821/- for which no details were filed, accordingly the Assessing Officer (AO) disallowed 50% of the same. Similarly, the assessee has also claimed expenses on account of Hamali, Electricity, Shop Maintenance, Packing and Cutting amounting to Rs.4,20,783/- of which details were not furnished. Therefore, the AO disallowed 25% of the same. The assessee carried the matter before the ld.CIT(A), but without any success.
Being aggrieved, the assessee filed appeal before this Tribunal. The ld.Counsel submitted that the assessee has maintained all vouchers of expenses and books of accounts are audited of which ledger copy with comparative charge was submitted. Therefore, the Assessing Officer was not justified in making disallowance of the same.
Per contra, the ld.Senior Departmental Representative relied on the orders of the Lower Authorities.
We have heard the rival submissions and perused the material available on record. We find that the books of accounts are audited on which no adverse comments have been given by the auditor. The assessee has claimed to have been maintaining vouchers for the same.
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 3 of 13
However, the assessee did not produce the details for verification before the Assessing Officer, therefore the action of the Assessing Officer is justified. However, considering the facts, we are of the opinion that it would be appropriate to restrict the disallowance to 15% of the expenses in respect of both disallowances, accordingly ground no.1 and 2 are partly allowed.
Ground No.3 relating to addition of Rs.71,970/- on account of cash deposit is not pressed before us, therefore, the same is treated as dismissed as not pressed.
Ground No.4 relates to sustaining the addition of Rs.10.14.000/- u/s.68 of the Act by treating loans received as unexplained cash credits.
Brief facts of the ground is that the Assessing Officer noticed that assessee has shown unsecured loan from Nine (9) persons amounting to Rs.10,14,000/-. The assessee was asked to produce all the Nine persons with their Photo ID, their source of income, their bank statement, their residence address, their loan confirmation to prove their credit worthiness. However, the assessee has failed to produce the same, in person, therefore, the Assessing Officer treated the same as unexplained cash credit u/s.68 of the Act and made addition accordingly.
Being aggrieved, the assessee filed an appeal before the ld.CIT(A), wherein the assessee has filed additional evidences under Rule 46A(1)
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 4 of 13
of the Income Tax Rules in response to which the Assessing Officer submitted three (3) remand reports which have been reproduced by the ld.CIT(A) at page 2, 14 to 17 and 19 to 21 in the appellate order. The ld.CIT(A) has also obtained replies from the assessee, which is also been incorporated in the appellate order. As per second remand report dated 18.07.2013, the Assessing Officer vide para 4 submitted as “with a view to verify the above loan transactions, the above depositors were called for and there is statements were recorded u/s.131 of the Income Tax Act”. “The details like bank statement, cash book, copy of Return of Income, capital account and balance sheet submitted are verified”. The documents revealed that the depositors had given the loan to the assessee was tabularized in the remand report and the same is reproduced at page 14 of the appellate order. It was submitted that the depositors have admitted in their statement that they had given loan to the assessee on various dates as and when required as mentioned above. They have also submitted corroborating evidences supporting that the depositors given to the assessee. However, after verification of all the documents, it is seen that the assessee had borrowed from above depositors of various dates, but the Assessing Officer observed that the amount of loan obtained by the assessee from the Nine depositors is nothing but the assessee’s own fund. Further, in third remand report dated 18.11.2013, the Assessing Officer reported that as per the copy of the bank statements of depositors for the period from 01.04.2009 to
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 5 of 13
31.03.2011, the alleged loan received by the depositors were repaid by the assessee and shown in the table reproduced at page 20 of the appellate order. However, the ld.CIT(A) observed that the assessee has proved the identity by producing the concern parties before the Assessing Officer and filing their identity proves which copy of PAN, Ration Card etc., The Assessing Officer has also not raised any doubts about the identity of the depositors. However, the credit worthiness evidences submitted by the assessee are not sufficient to discharge this onus. As all the alleged depositors were having their bank account in City Union Bank, Sahara Darwaja Branch, Surat. Further, an equal amount of cash is deposited on the same day or two days before. Therefore, the ld.CIT(A) concluded that nothing has been brought on record that the depositors were having sufficient bank balance on hand, accordingly applying the surrounding circumstances and relying on decision of Sumata Dayal vs. CIT 214 ITR 801 (SC), the addition made by the Assessing Officer was confirmed.
Being aggrieved, the assessee filed this appeal before this Tribunal. The ld.Counsel for the assessee referred para 9.3 of these appellate order and submitted that the Assessing Officer in his second remand report dated 18.07.2013 has clearly stated that vide para 4 that “with a view to verify the above loan transactions, the above depositors were called-for and there statements were recorded u/s.131 of the Income Tax Act. The
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 6 of 13
details like bank statement, cash book, copy of Return of Income, capital account and balance sheet submitted are verified. These cash books were duly submitted before the Assessing Officer have been duly examined by the Assessing Officer. Therefore, the contention of the ld.CIT(A) that there is nothing on record brought by the assessee or depositors that at that time of deposits they were having sufficient cash balance is not correct. Since the Assessing Officer has duly verified the cash books of the depositors which has been duly mentioned in second remand report and Assessing Officer has not pointed out any defects in the maintenance of the books. Therefore, it cannot be said that the depositors were not having sufficient cash balance in their hands. The ld.Counsel further referred the table of the second remand report dated 18.07.2013 wherein the details of amount received on various date is mentioned in respect of Nine depositors and all the amount is received by the cheque which is mentioned on cheque principles thereon. Further, the Assessing Officer has duly mentioned in para 5 of his remand report dated 18.07.2013 that depositors have admitted in their statements that they had given loans to the assessee on various dates as and when the assessee required as mentioned the dates in the table of the remand report. The Assessing Officer further mentioned that after verification of all the documents it is seen that the assessee had borrowed funds from the above depositors on various dates. But the Assessing Officer on the surmises observed that loan obtained from the
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 7 of 13
assessee by Nine depositors was assessee's own fund without bringing any evidence to the contrary. The ld.Counsel further submitted that this comment of the AO is not supported by any documentary evidence on record. Therefore, the personal assumption without any evidence proving the same is mere a guess work whereas the records available on the file shows that the assessee has furnished confirmation of loan, bank passbook details of repayment of loan statement recorded by the Assessing Officer by the Income Tax Department providing the identity, capacity and genuineness of the transaction. Therefore, the assessee has duly discharged his responsibility of establishing identity of parties by producing in person and recording statement u/s.131 of the Act which established genuineness of the transactions by producing bank statements showing transaction of accepting and repayment of loan by account payee cheque as well as credit worthiness. Therefore, the action of the ld.CIT(A) in sustaining the addition on the premises that nothing has been brought by the assessee or depositors that they have no sufficient cash balance on hand is factually incorrect. The ld.Counsel in support of his contention submitted that where the assessee has established that he has taken money by way of account payee cheques from the lenders who were all income tax assessees. Their PAN have been disclosed, the initial burden u/s.68 of the Act were discharged. The of Hon'ble Gujarat High court in the case of CIT Vs. Ranchhod Jeevabhai Nakhava [2012] 208 taxmann 35 (Guj) held that once the
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 8 of 13
Assessing Officer gets hold of the PAN of the lenders, it was his duty to ascertain from the Assessing Officer of those lenders, whether in their respective return they had shown existence of such account money and further shows that those account of money had been lent to the assessee. After verifying to such fact from the Assessing Officer of the assessee, the AO decides to examine lenders and asked the assessee to further prove the genuineness and creditworthiness of the transaction. In our opinion, the AO did not follow the principle laid down u/s.68 of the Income Tax Act. The ld.Counsel further supported his contention by placing reliance in the case of DCIT vs. Rohini Builders [2002] 256 ITR 360 (Guj) wherein the Head Note reads as under : “Assessee had also proved capacity of creditors by showing that amounts were received by account payee cheques drawn from bank accounts of creditors – Repayment of loans and interest thereon was also made by account payee cheque by assessee and tax also had been deducted at source on interest payments and remitted – Whether assessee was not expected to prove genuineness of cash deposited n bank accounts of creditors, because under law, assessee can be asked to prove source of credits in its books of account but not source of source – Held, yes.” 12. The ld.Counsel further cited that the decision of Rohini Builders Vs. DCIT 76 TTJ 521 [Ahd. Tribunal]. The ld.Counsel further submitted that the AO has examined that lenders and also submitted in their third remand report dated 18.11.2013 after verification of ledger and copy of bank statements of the depositors for the period from 01.04.2009 to 31.03.2011 wherein he is given a table stating the date of repayment of loan to all the above aforesaid parties. Thus, the assessee has repaid the loan amount to all Nine parties by the cheque which has been
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 9 of 13
verified by the AO and thus repayment has been accepted by the AO, therefore relying on the decision of Hon'ble Gujarat High Court in the case of CIT vs. Ayachi Chandrashekhar Narsangji [2014] 42 taxmann.com 251 (Guj) contended that where the Department has accepted repayment of loans in subsequent year, no addition was to be made in the current year on account of cash credit.
Per contra, the ld.Senior Departmental Representative submitted that where adverse amount deposited in cash, then addition made is justified. In support of his contention the Authorised Representative has placed reliance in the case of Umesh Krishnani vs. ITO [2013] 35 taxmann.com 598 (Guj); Blessing Construction Vs. ITO [2013] 32 taxmann.com 366 (Guj) and Vajubhai N. Kanani vs. ITO [2014] 42 taxmann.com 280 (Guj).
In rejoinder to the above, the ld.Counsel submitted that the ratio of the aforesaid decision is not applicable in the case of the assessee. It was submitted that the assessee that in the case of Umesh Krishnani (supra) the creditors did not maintained any books of accounts nor their capacity to raise the sizeable amount was established and the assessee being a commission agent has without any reason taken loan @25 per annum on higher side which is not the case of the assessee. Similarly, in the case of Blessing Construction(supra) where sizeable amount was deposited in the cash in account of the depositors only before their
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 10 of 13
withdrawals through cheque and in the case of Vajubhai N. Kanani the creditors were not even tax payers and on sufficient enquiry made by the Assessing Officer the loan transactions were not found genuine, whereas in the case of the assessee all the lenders have maintained books of accounts, assessed to tax their cash books and books and ledgers accounts have been duly verified by the Assessing Officer during the remand proceedings. Therefore, the ratio of aforesaid decision is not applicable.
We have heard the rival submissions and perused the material available on record. We find that all the creditors have filed loan conformation, xerox, copy of bank statement, copy of Income Tax Return and along with its computation and balance sheet as on 31.03.2008 and 31.03.2009 on loan creditors to prove capacity of loan to creditors. During the course of remand proceedings, all the loan creditors to whom summons are issued by the AO, u/s.131 of the Act, all the loan creditors have appeared before the AO and their statement was recorded on oath u/s.131 of the Act which are placed at paper book, page 42 and 66. All the Nine creditors have admitted that they are assessed to tax, they have given loan to the assessee by account payee cheque and same has been received back by them by account payee cheque. During the remand proceedings, it is seen from the report of the remand report of the AO itself observed that the creditors have furnished details like bank statement, cash book, copy of return of income, capital account and
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 11 of 13
balance sheet which has been duly verified by the AO and no defects have been pointed out. The said remand report is appearing at paper book, at page 14 to 17 of the appellate order. We further found that all the depositors have received back their money by account payee cheque which has been duly verified by the AO which is evidenced by the third remand report dated 18.11.2013 submitted by the AO which has been reproduced by the ld.CIT(A) at page 19 to 21 of the appellate order. Thus, the identity, genuineness of transaction and credit worthiness of the lenders has been duly established by the assessee, therefore ld.CIT(A) was not justified in sustaining the addition on mere surmises that surrounding circumstances suggest that the money of the assessee was routed through the cash creditors. The Hon'ble Gujarat High Court in the case of CIT vs. Ranchhod JeevabhaiNakhava held that where lenders of the assessee or income tax assessee’s whose PAN have been disclosed, AO cannot ask assessee to further prove genuineness of the transaction without first verifying such facts from the income tax returns of the lenders. We find that the lenders have submitted their copies of return of acknowledgment which placed in the paper book, with the copy of the ledger account bank statement. Therefore, the addition made by the AO is not sustainable in law. Further, reliance is placed on the decision in the case of DCIT Vs. Rohini Builders (supra) of the Hon'ble Gujarat High Court wherein it was held that once the assessee proves the capacity of creditors by showing that amounts were received by the account payee cheques drawn from bank accounts of the
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 12 of 13
creditors and repayment of loans and interest thereon was also made on account payee cheque by the assessee and tax also had been deducted at source on interest payment remitted the genuineness of the cash deposited was justified and the assessee can be asked to prove source of credit in the books of accounts but not source of source can be asked to prove. With regards, to reliance by the Sr.DR on the decision of Umesh Krishnanai, Blessing Construction and Vajubhai N. Kanani (supra), we find that these decision are distinguishable on facts as in the case of the assessee the loan was obtained by account payee cheque and same was repaid by account payee cheque, the lenders have maintained books of accounts and furnished copy of confirmation PAN, copy of acknowledgement of return, and are assessed to tax and having sufficient cash balance in their cash book on which no defects has been pointed out by the AO. Further, where the loan repayment has been accepted in subsequent year by the Department, no addition can be made as held in the case of CIT vs. Ayachi Chandrashekhar Narsangji by Hon'ble Gujarat High Curt (supra) wherein the Hon'ble High Court in para 6 observed as under: “It has also come on record that the said loan amount s been repaid by the assessee to Shri Ishwar Adwani in the immediate next financial year and the Department has accepted the repayment of loan without probing into it. In the aforesaid facts and circumstances of the case, when the ITAT has held that the matter is not required to be remanded as no other view would be possible, we see no reason to interfere with the impugned order passed by the ITAT. No question of law, much less substantial question of law arises in the present Tax Appeal. Hence, the present Tax Appeal deserves to be dismissed and is accordingly dismissed.”
Shri Dinesh Laduramji Choudhary Vs. ITO, Ward-5(1), Surat/ITA No.1144/AHD/2015 for A.Y. 2009-10 Page 13 of 13
In the light of aforesaid discussion and ratio of factual position and judicial pronouncements as discussed above, we are of the considered opinion that the assessee has discharged his onus cast upon u/s.68 of the Act by producing the lenders and furnishing their bank accounts copy of return, PAN, confirmation, who are assessed to tax and loan stands to repaid by account payee cheque, hence, the addition made by the AO is not sustainable in law, accordingly the addition of R.s10,14,000/- is deleted, this ground of appeal is accordingly allowed.
In the result, appeal of the assessee is partly allowed.
Order pronounced in the open court on 25-10-2019.
Sd/- Sd/- (AMARJIT SINGH) (O.P.MEENA) (�याियक सद�यतथा/JUDICIAL MEMBER) (लेखा सद�यकेसम� /ACCOUNTANT MEMBER) सुरत/ Surat, �दनांक Dated: 25th October, 2019/S.Gangadhara Rao, Sr.PS Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat