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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI V. DURGA RAO, HON’BLE & SHRI D.S. SUNDER SINGH, HON’BLE
IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON’BLE ACCOUNTANT MEMBER ITA No. 36/VIZ/2016 (Asst. Year : 2011-12) Ch. Venkata Rami Reddy, vs. ITO, Ward-2(3), D.No. 54-19-22C, Vijayawada. Flat No. 501, Royal Enclave, Jayaprakashnagar, LIC Colony, Vijayawada. PAN No. AHGPC 7572 A (Appellant) (Respondent) ITA No. 47/VIZ/2016 (Asst. Year : 2011-12) ITO, Ward-2(3), vs. Ch. Venkata Rami Reddy, Vijayawada. D.No. 54-19-22C, Flat No. 501, Royal Enclave, Jayaprakashnagar, LIC Colony, Vijayawada. PAN No. AHGPC 7572 A (Appellant) (Respondent)
Assessee by : Shri G.V.N. Hari, Advocate. Department By : Shri D.V. Subba Rao, Sr.DR Date of hearing : 14/08/2018. Date of pronouncement : 05/09/2018. O R D E R PER V. DURGA RAO, JUDICIAL MEMBER
These are the cross appeals by the assessee and the Revenue are directed against the order of Commissioner of
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Income Tax (Appeals), Vijayawada, dated 30/11/2015 for the Assessment Year 2011-12. ITA No.36/VIZ/2016 2. Ground Nos. 1 & 5 are general in nature, no adjudication is required and therefore, same are dismissed. 3. Ground No. 2 relates to addition of Rs. 8,82,378/- towards capital introduction. 4. Facts of this issue in brief are that in the assessment order, the Assessing Officer has noted that assessee has introduced capital, amounting to Rs. 8,82,378/-. The Assessing Officer asked the assessee to produce the source of the above capital. The assessee has submitted before the Assessing Officer that he was working as Sales Manager in M/s. Fena Pvt. Ltd., New Delhi since 1987 and the salary savings accumulated was invested in liquor shop retail business, but no supportive evidence is filed. Therefore, the Assessing Officer has made the addition of Rs.8,82,378/- in the hands of the assessee. 5. On appeal before the ld. CIT(A), the assessee has filed certain details in respect of salary received from his employer and bank statement maintained with Indian Bank, Governorpet, Vijayawada. The ld. CIT(A) after considering the bank account of the assessee, he was of the opinion that there is no balance in his
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account except amount of Rs. 70,240/- and therefore confirmed the order of the Assessing Officer. Even before us, the assessee has not filed any details and any evidence to substantiate the source for introduction of the capital. Therefore, we find no infirmity in the order passed by the ld. CIT(A). Thus, this ground of appeal raised by the assessee is dismissed. 6. Ground No. 3 relates to addition of Rs. 6,73,100/- towards sundry creditors. 7. Facts of this issue in brief are that in the assessment order, the Assessing Officer has noted that the assessee has shown an amount of Rs. 6,73,100/- towards sundry creditors and asked the assessee to file confirmation letters. The assessee has not filed any confirmation letters before the Assessing Officer. Therefore, the Assessing Officer added the entire amount in the hands of the assessee. 8. On appeal before the ld. CIT(A), the assessee has not filed any evidence, therefore, he confirmed the order of the Assessing Officer. Even before us, no evidence with regard to sundry creditors has been filed. Therefore, we find no reason to interfere with the order of the ld. CIT(A). Thus, this ground of appeal raised by the assessee is dismissed.
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Ground No. 4 relating to addition of Rs. 24.00 lakhs towards loan creditors. 10. Facts of this issue in brief are that in the assessment order, the Assessing Officer has noted that during the course of assessment proceedings, assessee was asked for the source of cash deposits made in the savings bank account. The assessee has submitted a list of loan creditors for Rs. 63.00 lakhs and the same amounts are deposited in cash in the bank account. To examine the genuineness of the loan creditors, the Assessing Officer requested to produce all the loan creditors for examination of their source for giving such huge loans to the assessee. Before the Assessing Officer, some of the creditors were present and they were examined on oath and recorded their statements. From the statements given by the loan creditors, the Assessing Officer has observed that none of the loan creditors having sufficient source of income for giving such huge loans to the assessee and all the loan creditors are small farmers and they have given stereo type answers for the questions raised. The Assessing Officer further observed that no farmer has received any interest on the huge loans. Apart from, none of the loans are cleared by the assessee, therefore, the Assessing Officer came to a conclusion that the loans taken from the farmers are nothing, but unexplained money
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brought into the books of account of the assessee. Therefore, the loan creditors for Rs. 63.00 lakhs are added to the total income of the assessee. 11. On appeal, ld. CIT(A) has considered the details of all the loan creditors and confirmation letters, amounting to Rs. 39.00 lakhs and the remaining balance amount of Rs. 24.00 lakhs, for which no details and no confirmation letters filed, were confirmed. For the sake of convenience, the relevant portion of the order of the ld. CIT(A) is extracted as under:- “8. The next addition pertains to Rs.63,00,000I- towards loan creditors. During the course of assessment proceedings, the Assessing Officer noticed that there were cash deposits in the savings bank account of the appellant. When Assessing Officer questioned about the sources for the same, the appellant submitted a list of seventeen loan creditors for Rs.63,00,000/-. To examine the genuineness of the loan creditors, the Assessing Officer asked the appellant to produce the loan creditors for examination. The Assessing Officer stated that some of the creditors were present and they were examined on oath and statements were recorded from them. He further observed that all these loan creditors were small farmers and do agricultural activities. It was abnormal that no farmer had received any interest on the huge loans stated to have been given to the appellant. Hence, the Assessing Officer concluded that the cash deposits were nothing but unexplained money brought into the books of account of the appellant and added the same to the income of the appellant. 8.1 As regards, loan creditors, it could be noted from ITMR that appellant produced nine parties in response to summons issued by Assessing Officer. Sworn statements were recorded from them on 1001.2014. All of them submitted copies of photo identity cards like Ration cards I Aadhaar Cards, etc. to prove their identity. They submitted copies of land records confirming their extent of agricultural land holdings to support
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their contention of agricultural income and hence their capacity to lend. In their statements they admitted to have given loan to appellant as detailed below:-
Sl. Name of the creditor Age Loan Rate of Extent of No. amount interest land holding 1. Sri Chityala 36 Rs. 2 lac Rs.1/- Ac. 3.50 Ramachandra Reddy Interest 2 Sri Battu 60 Rs. 4 lac Rs.2/- Ac. 12 Venkateswarlu Interest 3 Sri Chityala Yogi - Rs. 4 lac Rs.1/- Ac.13 Reddy Interest in the name of his wife Rs. 4 lac Rs.1/- interest 4 Sri Tatireddy Vengala 38 Rs. 4 lac Rs.1.50 Ac.4 Reddy Interest 5 Sri Chityala Sandi 55 Rs. 4.06 Rs.1/- Ac.5 Reddy lac Interest in the name of his wife Rs. 4 lac Rs.1/- interest 6 Sri Kambalapalli 31 Rs. 4 lac Rs.1.25/- Ac.0.96 Chandra Sekhar Reddy Interest Ac.3 – Taken on lease 7 Sri Chityala 62 Rs. 2 lac Rs.1/- Ac. 3.24 Narasimhulu Interest 8 Sri Yerva Yogi Reddy 64 Rs. 3 lac Rs.2/- Ac. 4 Interest 9 Sri Annapureddy 28 Rs. 4 lac Rs.1/- Ac. 19 Venkateswara Reddy Interest (Jointly held with other)
All the amounts were said to have been given in cash. Agricultural income was said to be source for lending the amount to appellant for all the above persons. All of them claimed that neither the principal amount nor interest was paid to them by appellant till date (i.e.) 10.01 .2014. 8.2 Initial onus of appellant is, in my view, discharged in respect of above parties, when the existence of loan creditors is established and such advance I loan is owned up by such persons. If the capacity of the creditor and genuineness of transaction is doubted by Assessing Officer, it is for him to cause suitable enquiry and confront the appellant with the outcome of such enquiries. No such enquiry was carried out at Assessing officer's end as per the records. Hence, in my view, Assessing Officer cannot without causing any enquiry come to a conclusion that at least in respect of nine persons mentioned supra and for a sum of Rs.39 lakhs in respect of their transactions, it is unexplained money brought into the books of account of appellant. It is trite law that no addition
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could be made on account of suspicion, surmises and conjectures.
In the case of Aravali Trading Co. Vs ITO (2008) 220 CTR (Raj) 622, it was held that "neither under provisions of section 68 nor on general principle, it can be said that once existence of persons in whose name credits are found in books of assessee is proved, and such persons own such credits with assessee, still Assessee is to further prove source from which creditors could have acquired money to be deposited with him.
In respect of remaining 8 creditors, initial burden of proof is not discharged by the appellant. No confirmation letters were filed in respect of those creditors. None were produced for examination. All are cash transactions. The creditors are not income tax assesses. Copies of promissory notes in respect of 14 persons were produced. But much reliance cannot be placed on such copies of pronotes for the following reasons: 1. Original pronotes were not produced before the Assessing Officer even by those who appeared in person on 10.01.2014. Though they agreed to produce the same before Assessing Officer on 17.01.2014, none produced the same. 2. There are variations in some cases in the quantum of principal and interest payable mentioned in the pronotes vis- a-vis their corresponding recorded statements. In the case of S.Punjabi Vs AClT[(ITAT, Madras) 62 TTJ 749], the Hon'ble Madras ITAT held as follows:
"Confirmations letters filed in respect of some creditors - None were produced for examination - Did not ask Assessing Officer to issue notice u/s 131 - All are cash transaction Creditors are not Income Tax Payers - Confirmation letter says "out of past savings"— Addition upheld."
As no further evidence was produced by appellant either before the Assessing Officer or during appellate proceedings, I hold that loan creditor claim for balance amount of Rs.24,00,000/- (Rs.63,00,000 - Rs.39,00,000) was not proved by three essential elements of (i) identity of creditor (ii) capacity of the creditor and(iii) genuineness of transaction. Hence, I confirm addition of
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Rs.24,00,000/- as against Rs.63,00,000/- made by the Assessing Officer. Appellant gets relief of Rs.39,00,000/-.
On being aggrieved, assessee carried the matter in appeal before the Tribunal. 13. Ld. counsel for the assessee has raised an additional ground in respect of Rs. 24.00 lakhs, out of which confirmation letter given by the loan creditor one Mr. S. Venkateswara Reddy in respect of loan of Rs. 4.00 lakhs is filed. When we asked the Authorized Representative for the assessee why this confirmation letter was not filed before the lower authorities, it is submitted that he could not file because he was of the opinion that promissory note itself is sufficient. We find that the reason given by the assessee for admission of additional evidence is not acceptable. The assessee has not filed the confirmation letter neither before the Assessing Officer nor before the ld. CIT(A). The reason for non-filing of confirmation letter is that the promissory note itself is sufficient, however, the assessee has filed confirmation letters in respect of 09 loan creditors. Therefore, in our view, it is not correct to say that he is not aware about the value of the confirmation letter. Therefore, at this stage, this evidence cannot be admitted. Even confirmation letter filed by the loan creditor Mr. S. Venkateswara Reddy is having only Ac. 4.76 of
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land and he has given loan of Rs. 4.00 lakh, but he has not explained the source properly and genuineness of the transaction. Therefore, this cannot be considered at this point of time. Accordingly, the plea raised by the assessee is rejected. 14. So far as merits of the case is concerned, the ld. CIT(A) has rightly deleted the addition in respect of 09 loan creditors, where confirmation letters are filed. So far as Rs. 24.00 lakhs is concerned, the assessee is not able to substantiate the creditworthiness of the loan creditors and genuineness of the transaction and therefore, the ld. CIT(A) confirmed the order of the Assessing Officer. We find no reason to interfere with the order of the ld. CIT(A). Thus, this ground of appeal raised by the assessee is dismissed. ITA No. 47/VIZ/2016 15. When this appeal is taken up for hearing, at the outset ld.counsel for the assessee has submitted that tax effect involved in this appeal is below Rs. 20.00 lakhs. As per the recent CBDT Circular No.03/2018, dated 11.07.2015 being retrospective in nature, the appeal filed by the revenue is not maintainable. The Ld. D.R. has not raised any objection. In view of the above, the appeal filed by the revenue is not maintainable, therefore, the same is dismissed.
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In the result, appeals filed by the assessee as well as Revenue are dismissed. Order Pronounced in open Court on this 05th day of Sep., 2018.
Sd/- sd/- (D.S. SUNDER SINGH) (V. DURGA RAO) Accountant Member Judicial Member Dated : 05th Sep., 2018. vr/- Copy to: 1. The Assessee. 2. The Revenue. 3. The CIT 4. The CIT(A) 5. The D.R. 6. Guard file. By order
(VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Visakhapatnam.