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Income Tax Appellate Tribunal, HYDERABAD BENCHES “A”, HYDERABAD
Before: SHRI D. MANMOHAN & SHRI B. RAMAKOTAIAH
PER B. RAMAKOTAIAH, A.M. :
This is an appeal by Revenue against the order of the Commissioner of Income Tax (Appeals)-V, Hyderabad, dated 06-11-2013.
Briefly stated, assessee an individual, filed her return of income declaring total income of Rs. 43,58,580/-. In the scrutiny assessment completed, AO noticed that assessee has received some un-secured loans stated to be from six persons to an extent of Rs. 29,50,000/-. It was submitted that assessee has approached the said parties for finance and they
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have given cheques but unfortunately, those cheques have been bounced as such no loan has been taken from the above parties. The entries in the books of account are squared up entries which are nothing but entries made for cheque deposit and consequent bouncing of the same. AO, however, was of the view that bank has credited the amount in the bank account and accordingly, they were to be considered as cash credits and since assessee has not proved the identity of the creditors, the amount of Rs. 29,50,000/- was added to the income of u/s. 68 of the Act.
2.1. In addition to that, AO noticed that an amount of Rs. 2,35,09,456/- was claimed under the head ‘car hire charges’. When asked for the details, assessee furnished certain details such as name, address of the payee, PAN and amount paid. However, in respect of an amount of Rs. 38,26,873/-, assessee could give only names of 150 payees and since no other details are received, the amount was treated as ‘unexplained investment’ u/s. 69C of the Act.
2.2. Like-wise, an amount of Rs. 27,91,627/-, out of total amount of Rs. 2,35,09,456/- of hire charges were also disallowed out of the claim made in the P&L A/c again u/s. 69C of the Act, stating that assessee has failed to prove the genuineness of expenditure.
2.3. Another amount of Rs. 11,68,383/- was disallowed towards addition of car hire charges out of total amount of
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Rs. 2,35,09,456/- on the reason that assessee has not furnished full addresses and PAN numbers and not proved the genuineness of the expenditure and this was also disallowed invoking the provisions of Section 69C of the Act.
When the matter was contested before the Ld.CIT(A), Ld.CIT(A) deleted all the additions as under:
i. On the issue of Rs. 29,50,000/- treated as unexplained credits u/s. 68 of the Act:
“5.3 I have carefully considered the submissions of the appellant and find force in the contention of the appellant. As evidenced by the by the entries in the books of account of the appellant in the names of the respective parties who have advanced loans are nothing but cheque deposit and consequent bouncing of the same', which is amply proved by the necessary entries in the bank account statements and ledger copies of the parties in the appellant books of accounts. It is the procedure of the bank as and when a cheque is deposited gives a suspense credit in the statement and when the cheque which was deposited bounced, the bank debits the account. The above entries which the AO has added are reflected both in the debit and credit side as contra when deposited and bounced. As the cheques have bounced, the above amounts were not received by the appellant and hence, the same cannot be treated as unexplained credits and hence the further onus to prove the identity of the creditors, genuineness of the credits and creditworthiness of the creditors does not arise. Therefore, I hold that the AO was not justified in adding the amount of Rs.29,50,000/- as unexplained credits u/s 68 of the Act and hence, delete the addition of Rs.29,50,000/-”.
ii. On the issue of addition of Rs. 38,26,873/- being expenditure and car hire charges:
“6.3 I have carefully considered the submissions of the appellant along with details of payments made to persons on account of car hire charges amounting to Rs. 38,26,873. I find force in the
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contention of the appellant and agree with the explanation of the appellant. The appellant has given details of roughly about 120 to 150 vehicles car numbers and names of the persons and mode of payment in respect of Rs.38,26,873/- but the AO disbelieved the genuineness of the said payments. In the assessee's line of business, it is not unusual to arrange individual vehicles from various parties in order to cater to the needs of the customer when the own vehicles of the appellant were insufficient. The appellant made the payments through cheques / cash and as contended by the appellant, it is difficult and not practical to maintain the address of the said vehicle owners.
6.4 Section 69C mainly deals with the unexplained expenditure incurred by an assessee against which no explanation with respect to the source is offered or such explanation offered is not satisfactory, then only the said expenditure can be added. In the instant case, the source of the expenditure was not doubted by the AO but only raised doubts about the genuineness of the expenditure and hence, the conditions of Section 69C are not applicable to the case of the appellant. Therefore, both by facts and in law, I am satisfied with the explanation of the appellant and hence, delete the addition of Rs. 38,26,873/-”.
iii. On the issue of addition of Rs. 27,91,627/-:
“7.3 I have carefully considered the submissions of the appellant and find force in the contention and agree with the explanation of the appellant, who has filed all details along with TDS Certificates. The appellant paid the amount of Rs.27,91,627 to the ten parties towards car hire charges vide account payee cheques and given their addresses. As rightly contended by the appellant, if the parties were not present in their addresses, it cannot be inferred that the amounts paid are unexplained. The AO also opined that the details of cheques were not furnished. When the books and bank statements were available with the AO during the entire period of the assessment proceedings and the AO has gone through the same in detail, his contention that the details of cheques were not furnished is not tenable. The appellant also submitted TDS Certificates issued to the parties along with PANs and deducted TDS on the payments and remitted the same to the Govt. Account.
7.4 Further Section 69C mainly deals with the unexplained expenditure incurred by an assessee against whom no explanation with respect to the source is offered or such explanation offered is not
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satisfactory, then only the said expenditure can be added. In the instant case, the source of the expenditure was not doubted by the AO but only raised doubts about the genuineness of the expenditure and hence, the conditions of Section 69C are not applicable to the case of the appellant. Therefore, both by facts and in law, I am satisfied with the explanation of the appellant and the evidences filed and hence, delete the addition of Rs.27,91,627/-”.
iv. On the addition of Rs.11,68,383/- being expenditure and car hire charges:
“8.3 I have carefully considered the submissions of the appellant and find force in the contention and agree with the explanation of the appellant along with TDS Certificates. The appellant paid the amount of Rs.11,68,383 to the six parties towards car hire charges vide account payee cheques. The AO opined that the details of cheques were not furnished. When the books and bank statements were available with the AO during the entire period of the assessment proceedings and the AO has gone through the same in detail, his contention that the details of cheques were not furnished is not tenable. The appellant also submitted TDS Certificates issued to the two parties viz Syed Kaleemuddin and Shaik Md Aqueel along with PANs and deducted TDS on the payments and remitted the same to the Govt. Account. However, the appellant had not submitted TDS Certificates in respect of the other four parties mentioned above.
8.4 Section 69C mainly deals with the unexplained expenditure incurred by an assessee against which no explanation with respect to the source is offered or such explanation offered is not satisfactory, then only the said expenditure can be added. In the instant case, the source of the expenditure was not doubted by the AO but only raised doubts about the genuineness of the expenditure and hence, the conditions of Section 69C are not applicable to the case of the appellant. Therefore, both by facts and in law, I am satisfied with the explanation of the appellant and the evidences filed and hence, delete the addition of Rs. 4,69,424 made in respect of Mr. Syed Kaleemuddin and Mr.Shaik Mohd Aqueel and sustain the balance addition of Rs.6,98,959 as the appellant did not furnish TDS Certificates in respect of payments made to the four parties as mentioned above”.
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Against the above order, Revenue is aggrieved and raised the following grounds:
“1. The CIT(A) erred both on facts and circumstance of the case in deleting the addition toward unexplained cash credit u/s. 68 of the I.T. Act, 1961.
The CIT(A) ought to have appreciated the action of the Assessing Officer in treating the unexplained credit as a genuine transaction, credit worthiness of the creditor and the identity of the creditor could not be established by the assessee, even though the onus of proving the credit vests with the assessee.
The CIT(A) erred both on facts and circumstances of the case in granting relief in respect of disallowance made towards unexplained expenditure under Sec.69C of the I.T. Act. 1961.
The CIT(A) ought to have considered the fact that the claim of assessee that he had hired the vehicles was failed to be established since none of the parties to whom letters addressed by the Assessing Officer resulted in non-compliance, apart from assessee's failure to prove the correctness of the claim. 5. Any other ground that may be urged at the time of hearing”.
In the course of present appellate proceedings, DR was directed to furnish the authorization given by the CIT with reference to the grounds raised before us. The grounds originally filed by the ACIT, Circle-4(1) were revised and revised grounds of appeal filed by the JCIT (OSD) in charge are more or less similar which are as under:
“1. That on the facts and in the circumstances of case, the learned CIT(A) erred in deleting the addition made of Rs.29,50,000/- u/s. 68 of the Income Tax Act, 1961.
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That on the facts and in the circumstances of the case, the learned CIT(A) erred in deleting the addition made of Rs.38,26,873/- u/s. 69C of Income Tax Act, 1961. 3. That on the facts and in the circumstances of the case, the learned CIT(A) erred in deleting the addition made of Rs.27,91,627/- u/s. 69C of Income Tax Act, 1961. 4. That on the facts and in the circumstances of the case, the learned CIT(A) erred in deleting the addition made of Rs.11,68,383/- u/s. 69C of Income Tax Act, 1961”.
After considering the rival contentions, we are of the opinion that there is no merit in the grounds raised by the Revenue. First of all it is not understandable how an AO can make addition on the bounced cheques. It is a general banking practice that once cheques are presented for clearance, bank credits out of its own funds, subject to clearance and when cheques are not cleared, the amounts are reversed. Thus in practice, once the cheque is presented, banks credit the amount of cheque value. Therefore, the credits in the bank account are the funds of the bank which cannot be treated as ‘unexplained’ in any manner. Since the cheques have been bounced, there are corresponding debits also and as assessee is maintaining books of account under Mercantile System of Accounting, both the deposit of cheques and bouncing of the cheques are bound to be recorded in the books of account. Under what circumstances, AO considered that these amounts as unexplained credits u/s. 68 of the Act is not explainable. Ld.CIT(A) examined the issue and very clearly stated that this cannot be considered as unexplained cash credits u/s. 68. Inspite of that, both in the original grounds of appeal and
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revised grounds of appeal, this issue is contested. We are not sure whether the Senior Officers like CIT are applying their mind to the facts of the issue before preferring appeals. It reflects sorry state of affairs. This forum has time and again cautioning that at least while preferring second appeal to the ITAT, the Senior Officers should exercise caution and prefer appeals only on meritorious issues. There is no merit both on law and on facts for the ground raised by the Revenue. Same is dismissed.
6.1. Coming to other three issues also, these are accounted expenditures in the books of account. If any amount is not verifiable, the correct provisions which are to be invoked are the disallowances u/s. 37(1). AO in his wisdom invoked the provisions of Section 69C to consider this as ‘unexplained expenditure’ outside the books of account, where as the amounts are spent and entries have been passed in the books of account. As can be seen from the order of Ld.CIT(A) at three places on each of the issue, Ld.CIT(A) categorically stated the provisions of Section 69C are not applicable, which deals with unexplained expenditure. A non-verifiable expenditure recorded in the books of account should have been considered u/s. 37(1). In spite of repeatedly stating in the order by the CIT(A), the grounds raised are again u/s. 69C. As already pointed out above, this clearly indicates that the Senior Officers or the AOs are not applying their mind to the issues involved and the statutory provisions which are to be invoked.
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6.2. It’s disturbing to know that an important issue of assessment is left to the hands of the officers who cannot distinguish between the expenditure incurred in the books and the expenditure incurred outside the books and invokes wrong provisions so as to raise unnecessary demands. They should be trained properly, instead the same mistake is committed by Senior Officer also, which reflects very badly on the Revenue. Without any further comments, we express our anguish and dismiss the grounds as there is no merit in the grounds at all.
6.3. We are not levying any cost on any officer even though it deserves. We only wish that the officers would realize the futility of making illogical additions and preferring second appeal on issues such as this.
In the result, the appeal of Revenue is dismissed.
Order pronounced in the open court on 6th June, 2018
Sd/- Sd/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMBER Hyderabad, Dated 6th June, 2018 TNMM
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Copy to : 1. Dy. Commissioner of Income Tax, Circle-4(1), Hyderabad.
Smt. Shashikala Ramkumar, 1-2-43, Gagan Mahal Road, Domalguda, Hyderabad.
CIT(Appeals)-V, Hyderabad.
CIT-IV, Hyderabad.
D.R. ITAT, Hyderabad.
Guard File.