THE ITO, WARD 3(3), SURAT vs. SHRI BIRNDRAKUMAR D. AGARWAL,, SURAT

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 1 of 14 आयकर अपीलीय अिधकरण,सुरत �यायपीठ, सुरत INCOM TAX APPELLATE TRIBUNAL-SURAT-BENCH-SURAT �ी सी.एम.गग�, �याियक सद�य तथा �ी ओ.पी.मीना, लेखा सद�य के सम� BEFORE C.M. GARG, JUDICIAL MEMBER AND O. P. MEENA, ACCOUNTANT MEMBER आ सं अ I.T.A No.1694 & 1660/Ahd/2013 /. . . िनधा�रण वष�/Assessment Year: 2009-10 1. Income Tax Officer, V. 1. Shri Birendrakumar D. Agarwal Ward-3(3) Surat Pp. Agarwal Trading Co., 51 Atop Nagar Bhattar Road Surat 2. Shri Birendrakumar D. Agarwal 395007 Pp. Agarwal Trading Co., 51 PAN:ADDPA 9540M Atop Nagar Bhattar Road Surat 395007 2. Income Tax Officer, PAN:ADDPA 9540M Ward-3(3) Surat अपीलाथ� Appellant ��यथ�/Respondent िनधा�रती क� ओर से Assessee by Shri Rasesh Shah, CA राज�व क� ओर से Revenue by Shri R. P. Rastogi, Sr. D.R.

सुनवाई क� तारीख Date of hearing 05.10.2018 उ�ोषणा क� तारीख Date of pronouncement 01.11.2018 आदेश /ORDER PER O. P. MEENA, AM 1. These are cross appeal by the Revenue and the Assessee which are directed against an order dated18.03.2013 passed by

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 2 of 14 learned Commissioner of Income tax (Appeals)-IV, Surat (in short “the CIT (A)”) for the Assessment Year 2009-10. I.T.A.No.1694/Ahd/2013/A.Y. 2009-10 (by Revenue) 2. Ground no.1 states that the CIT (A) has erred in deleting addition of Rs.22,10,000 made on account of unexplained cash credit under section 68 of the Act inspite of the fact that the assessee failed to prove the identity, credit-worthiness and genuineness of transaction. 3. The learned Departmental Representative (the ld. D.R.) submitted that Ld. CIT (A) deleted the addition of Rs.22,10,000 on the ground that the AO did not make any inquiry and brought on record any cogent evidence to establish that the loan taken by the Appellant were not genuine. The ld. CIT (A) has relied in the case of DCIT v. Rohini Builders [2002] 256 ITR 360 (Guj.)/[2003] 127 Taxman 523 (Guj) of Hon’ble Gujarat High Court which laid down that when the assessee has primarily discharged the initial onus laid on him in terms of section 68 by providing details to

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 3 of 14 establish genuineness of transaction, identity and creditworthiness of depositors then the assessee is not expected to prove genuineness of cash deposited in bank account of those creditors because under the law the assessee can be asked to prove the source of credits in his books of accounts but not the source of source. The ld. D.R. submitted that during the course of assessment proceedings, the AO asked the assessee to file confirmation of all the parties from whom loan taken, but the assessee has filed like copy of acknowledgement of return of income, computation of income, and bank statement from whom loan taken, from whom It was noticed that most of the loan creditors had deposited cash in their bank account before issuance of cheques to the assessee. Therefore, genuineness of transaction in respect of 11 parties could not be established. Hence, the addition made by the AO requires to be upheld. 4. Per contra, the learned counsel for the assessee supported the order of Ld. CIT (A). The learned counsel for the assessee

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 4 of 14 submitted that the assessee has filed details like copy of acknowledgement of return of income, computation of income and bank statement of parties and provided sufficient evidence to prove the identity, credit-worthiness and genuineness of transaction. However, the AO without making independent inquiries in this regard proceeded with predetermined notion to make addition. The assessee has taken loan by account payee cheques and it is reflected in respective depositor’s return of income who had sufficient capital of their own. The AO has wrongly presumed that cash deposits made in cash creditors bank account is out of unaccounted money of the assessee and could not led a single evidence to establish that the assessee has ever earned unaccounted income. The CIT (A) has rightly relied in the case of DCIT v. Rohini Builders [2002] 256 ITR 360 (Guj.)/[2003] 127 Taxman 523 (Guj) and CIT v. Dataware Pvt. Ltd. [I.T.A.No. 2856 of 2011 dtd. 21.09.2011 of Hon`ble Calcutta High Court].

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 5 of 14 5. We have heard the rival submissions and perused the relevant material on record. On careful consideration of facts, we find that the AO is not able to brought on record any cogent evidence to prove that the cash deposits made by the loan creditors in their bank account before issuance of cheques. The assessee has routed his unaccounted money through these parties. The assessee has filed details of copy of acknowledgement of return of income, bank statement showing that loan was received through account payee cheques and same is reflected in its return of creditors. Therefore, the CIT (A) had rightly relied on the judgement of Hon’ble Gujarat High Court in the case of DCIT v. Rohini Builders [2002] 256 ITR 360 (Guj.)/[2003] 127 Taxman 523 (Guj) of Hon’ble Gujarat High Court which laid down that when the assessee has primarily discharged the initial onus laid on him in terms of section 68 by providing details to establish genuineness of transaction, identity and creditworthiness of depositors then the assessee is not expected to prove genuineness

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 6 of 14 of cash deposited in bank account of those creditors because under the law the assessee can be asked to prove the source of credits in his books of accounts but not the source of source. In view of this matter, we do not find any infirmity in the order of CIT (A), accordingly, same is upheld. This ground of appeal is therefore dismissed. 6. Ground No. 2 states that CIT (A) has erred in restricting the disallowance of Rs. 17,62,213 to Rs. 53,298 without appreciating the facts the assessee has failed to establish that the expenditure claimed under section 37 of the Act was exclusively for the business purpose even though the onus on the assessee to prove it. 7. The ld. D.R. submitted that the CIT (A) has deleted the disallowance of various expenses on the ground that the carriage, freight, cartage outward expenses are direct expenses related to business of the assessee and not involve any personal nature. This decision of CIT (A) is not acceptable on the ground that the assessee has failed to produce bills/ vouchers for the expenses

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 7 of 14 incurred and onus is on the assessee to establish that expenditure was exclusively incurred for the purpose of business. 8. Au contraire, the learned counsel for the assessee supported the order of CIT (A) and submitted that the expenditure incurred in commensurate with business turnover of the assessee for which relevant evidence were submitted during the course of appellate proceedings, and exclusively incurred for the purpose of business in which no personal element is involved. 9. We have heard the rival submissions and perused the relevant material on record. We find that the expenditure incurred was related to business of the assessee, hence, we do not find any reason to interfere with the findings of the CIT (A). Therefore, this ground of appeal is dismissed. 10. Ground No.3 is against the restriction of addition of Rs.34,95,600 to Rs.3,67,306 without appreciating the fact that the assessee failed to produce any cogent evidence and confirmation regarding unconfirmed creditors.

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 8 of 14 11. Short facts are that the assessee has shown outstanding sundry creditors for goods amounting to Rs.1,63,52,925/- as on 31.03.2009. The assessee was asked to furnish contra confirmation. The AO also issued notice u/s.133(6). Out of which only five parties furnished details and no reply was received from 16 parties, therefore, the AO made an addition of Rs.34,95,600/- by treating the same as bogus creditors. 12. Being aggrieved, the assessee filed an appeal before the ld.CIT (A). Wherein it was contended that books of accounts of the appellant are audited u/s.44AB of the Act and from the copy of accounts submitted during the assessment proceedings clearly revealed that the appellant had carried out all the transaction by account payee cheques. It was also contended that quantitative records were submitted at the time of assessment. The assessee has also submitted further confirmation letter from the ten (10) parties during the appellate proceedings. These confirmation were sent to the AO and a remand report was obtained from the

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 9 of 14 AO. The remand report submitted by the AO is reproduced at para 4.3.2 of the appellate order. After considering the facts and remand report, the CIT(A) held that the AO had issued notices u/s.133(6) on 20/12/2011 which was while the assessment was completed on 29.12.2011, therefore, the creditors could not complied to the notices as they were located outside Surat City. During the remand proceedings, the confirmation in respect of ten(10) parties involving transaction of Rs.16,59,069/- were submitted before the CIT(A) on which remand report was also obtained, therefore, the addition of Rs.16,59,069/- was deleted as the trade creditors who are filing income tax return, hence genuineness of the parties could not be doubted. In respect of unconfirmed creditors to the tune of Rs.18,36,531/- the appellant could not submit any letters or cross confirmations from these parties even at the appellate stage. The AR submitted that some of these parties had closed down their business but they could not produce any evidence in this regard. However, considering the

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 10 of 14 fact that the appellant had produced the purchase bills of respective parties, the stock movement registers and the bank statements, wherein the transaction of payments with the said parties were reflected. The appellant had carried out all the transactions through bank and by account-payee cheques and there were no cash transactions with the creditors. It is also seen that the appellant had submitted complete details of purchases, sales and quantity records during the assessment proceedings and the AO has not disputed the sales and purchases of the appellant. Therefore, relying on the decision of ITAT Ahmedabad, in the case of Vijay Protiens Ltd., vs. ACIT 58 ITD 428 and Smiti P.Sheth vs. ITO, ITA No.3238, 3293/ Ahd/2009 wherein ITAT has restricted the addition to 20% and 12.50% of the total amount of the creditors respectively. Therefore, considering the same the CIT(A) has restricted to 20% of unconfirmed creditors of Rs.18,36,531/- to Rs.3,67,306/-, thus the addition of Rs.34,95,600/- was restricted to Rs.3,67,306/-.

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 11 of 14 13. Being aggrieved, the Revenue has filed this appeal against the restriction the addition to Rs.3,67,306/- and the assessee has also filed cross appeal against the confirmation of addition of Rs.3,67,306/- out of sundry creditors of Rs.18,36,531/-. 14. The ld.DR supporting the order of the AO submitted, that CIT(A) has not appreciated the fact that letter returned to creditors u/s.133(6) were received back unserved and the assessee did not furnish contra confirmation from the creditors. Therefore, CIT (A) is not justified in restricting the addition to 20% of the unconfirmed creditors. 15. On the other hand, the ld.Counsel for the assessee submitted that the assessee has produced purchase bills of respective parties, the stock movement registers and the bank statements wherein the transaction of the payments with the said parties were reflected. The appellant had carried out all the transactions through bank and by account-payee cheques and there were no cash transactions with the creditors. Confirmation letters from some

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 12 of 14 of the parties could not be produced as they have closed down their business, further CIT (A) has restricted the addition to 20% whereas in the case of Shri Smiti P.Sheth (supra) the Tribunal has restricted the addition to 12.50% of the unconfirmed creditors, therefore, the CIT (A) should have restricted the addition to 12.50% of Rs.18,36,531/-. 16. We have heard the rival submissions and perused the relevant material on record. We find that during the appellate proceedings the assessee has furnished confirmation from the ten parties amounting to Rs.16,59,096/-, hence genuineness of these parties was proved, therefore, CIT (A) has correctly deleted the addition of Rs.16,59,069/- as the transactions were through banks of which confirmations were also filed on which a remand report was also obtained from the AO. As regards, unconfirmed creditors to the tune of Rs.18,36,531/- we find that the AO has not doubted the sales and purchases of the appellant, therefore, the entire creditors on account of goods cannot be treated as unexplained,

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 13 of 14 merely because some of the confirmations could not be produced due to non-traceable of parties as the business were closed down. Further, the CIT (A) has restricted the addition to 20% by placing reliance on the tribunal decision in the case of Vijay Proteins 55 TTJ 76 (Ahd-Trib) (supra) . Therefore, we are of the considered opinion that CIT (A) was justified in restricted the addition to Rs. 3,67,306 from Rs. 34,95,600. Therefore, we do not find any infirmity in the order of CIT (A), accordingly, same is upheld. Accordingly, the appeal of Revenue on this issue is therefore, dismissed. Similarly, appeal of the assessee on this is also dismissed. 17. In the result, appeal of the Revenue is dismissed. I.T.A.No.1660/Ahd/2013 for A.Y.2009-10 (by Assessee) : 18. The sole ground of the assessee is against the restriction of unconfirmed creditors of Rs.18,36,531/- to 20% at Rs.3,67,306. 19. We have heard the rival submissions and find that this issue is covered by Revenue’s ground of appeal no.3 as discussed

ITO, Wd-3 (3), Surat v. Birendrakumar D. Agarwal/I.T.A. No. 1694 & 1660/Ahd/2013/A.Y.: 2009-10 Page 14 of 14 above in earlier part of this order. Wherein we have upheld the findings of the CIT (A) by dismissing the appeal of the Revenue as well appeal filed by the assessee. In view of this matter, this ground of appeal of the assessee is therefore for the reasons discussed in ground no.3 of Revenue appeal. 20. In the result, appeal of the assessee is dismissed. 21. In sum up, the appeal of the Revenue as well as the Assessee for the A.Y. 2009-10 is dismissed. 22. The order pronounced in open court on 01.11.2018.

Sd/- Sd/- (सी.एम.गग� /C.M. GARG) (ओ.पी.मीना/O.P.MEENA) �याियकसद�यतथा/JUDICIAL MEMBER लेखासद�यकेसम� /ACCOUNTANT MEMBER Surat Dated: 1st November 2018/ opm आदेश क� �ितिलिप अ�ेिषत/Copy of the Order is forwarded to : 1. अपीलाथ�/ The Appellant; 2. ��थ�/ The Respondent; 3. आयकरआयु�(अपील-The CIT(A), 4. Pr. CIT 5.िवभागीय�ितिनिध, आयकरअपीलीयअिधकरण, सूरत/ DR, ITAT, Surat; 6. गाड�फाईल / Guard file. By order / / TRUE COPY / / Assistant Registrar, Surat