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Income Tax Appellate Tribunal, : ‘C’ BENCH, KOLKATA
Before: Shri P.M. Jagtapsh & Shri S.S.Viswanethra Ravi
The above appeal by the Assessee is against the order dt. 05-09- 2012 of the CIT-A, Jalpaiguri for the A.Y 2007-08.
Ground no. 1 is relating to restriction of disallowance of Rs.2,00,00/- made on account of labour charges, misc. expenses and site expenses by the CIT-A.
Brief facts of the case are that the assessee is an individual and engaged in timber business as well as contract business. The assessee filed his return declaring total income of Rs.1,59,580/- on 23-08-2007. The AO issued notice u/s. 143(2) of the Act to the assessee. In response to which, the AR representing the assessee appeared from time to time and produced books of account and relevant papers in support of the return as filed. According to AO, the assessee shown labour charges of Rs. 10,21, 695/- in trading account and claimed the same as Rs.1,18,577/- in the P & L account, no justification provided for misc. expenses and no explanation for site expenses. The AO opined that the assessee inflated his business expenses for altogether, the AO held that the assessee failed to offer satisfactory explanation regarding claim of such expenses and as such added an amount of Rs. 1,18,577/- + Rs.19,371/- + Rs. 1,15,582/- respectively on the above heads totaling to Rs. 2,53,530/- to the total income of assessee.
Before the CIT-A the assessee submitted as under:-
“The AR submitted that the assessee derived income from the business of timber, contract work and timber sawing and during the year, his turn over from sale of timber was Rs.1,60,95,557/ and contract work of Rs. 11,22,673/. The AR further submitted that the assessee maintained the audited Books of A/c and during the year he claimed Rs.10,21 ,695/ as labour expenses in his Trading A/c and Rs.1, 18,577/ on account of contract work in his P&L Alc. But the Ld AO did not visualize the labour charges claimed for the business of timber and contract works separately, thus, made such disallowance. Regarding the Misc. expenses, the AR mentioned that the assessee incurred total expenses of Rs.37,371/ under this head for the business of timer and contract works, which was 0.217% of the total turnover. The expenses were prudent and expected, considering the nature of business. But without pointing out any reason, the Ld AO estimated the same @1,500 p.m. and disallowed the balance amount of Rs.19,371/. So far as Site expenses is concerned, the Ld AR stated that the assessee has incurred expenses of Rs.1,65,117/ under this head which was 14.7% of the total contractual receipts. Such expenses was including the expenses incurred on fooding, transportation, medical, carrying and other misc. expenses which was reasonable and expedient considering the nature of business, But without pointing out any reason, the AO has considered the site expenses gross turnover of contract work and disallowed Rs.1,15,582/ which was not justified.”
Considering the above submissions, the CIT-A confirmed the impugned addition made by the AO on the ground that there was no substantial evidence in proving the said expenses.
Before us the ld. AR submits that the assessee has two business accounts i.e, one is timber and other is job work account and there was no double deduction on account of labour charges. In support of the contention, he filed a detailed paper book pages 1 to 40 and case laws relied on by the assessee. On perusal of impugned order we find that the assessee could not provide any satisfactory explanation regarding alleged the double claim of deduction on account of labour charges and also not provided any explanation in respect of other additions made on account of misc. expenses and site expenses. It is observed from the record that the assessee claimed the expenses on self made vouchers and failed to substantiate its claim with material evidences. The CIT-A was correct in restricting the disallowance to Rs.2,00,000/-. We uphold the same and it is justified. Therefore, ground no. 1 raised by the assessee is dismissed.
Ground no. 2 is relating to confirmation of additions of Rs. 27,000/- and Rs.1,920/- made on account of unexplained money.
During the course of assessment proceedings the AO found credit entries to an extent of Rs.27,000/-. The assessee explained that those receipts were on account of Vinayak Industries. But, however, on perusal of computation of total income the AO found that the assessee declared only 10,000/- separately to the account of Vinayak Industries. For non explanation for remaining entries the AO added the entire amount to the total income of assessee. Before the CIT-A, it was contended that the assessee derives his income from timber and contract work business and shown the said amount separately from job work. The CIT-A found not satisfied with the explanation of assessee and confirmed the said addition made by the AO.
Before us the ld.AR referred to computation of income to show that the assessee has shown the same separately to the account of Vinayak Industries, which was received from the said party by cheque.
On the other hand, the ld. DR relied on the orders of AO & CIT-A.
Heard rival submissions and perused the record including the detailed paper book filed by the assessee before us. The fact remains admitted that the assessee is engaged in the business of timber and contract work. The AO also admitted that the said amount was shown to the account of Vinayak Industries. The contention of assessee is that amount of Rs.10,000/- received through cheque. Before us the ld. AR pointed out to the computation of income to show that the amount to an extent of Rs.10,000/- received through cheque from M/s. Vinayak Industries. The AR is also unable to explain on other entries, therefore, we restrict the addition to Rs.17,000/-. This ground of assessee’s appeal is partly allowed.
Ground nos. 3 & 4 relating to confirmation of disallowances of Rs.8,00,000/- and Rs. 50,000/- on account of loan creditors and donors.
During the course of assessment proceedings, the AO found that the assessee has availed loans/gift of Rs. 8,50,000/- from the following creditors/donors:-
Sl.No. Name of the Amount of Amount of Gift Total Loan/Gift loan creditors/donors loan transaction transaction 1. Sri Arun Mantri Rs. 2,00,000/- - Rs.2,00,000/- 2. Sri Sukumar Mukherjee Rs.2,00,000/- - Rs.2,00,000/- 3. Smt. Banani Mukherjee Rs.2,00,000/- - Rs.2,00,000/- 4. Megha Mantri Rs.2,00,000/- Rs.50,000/- Rs.2,50,000/- Total Rs.8,50,000/-
The AO issued a questionnaire requesting the assessee to produce creditors and donor along with their proof of identity and capacity to make such loan/gift. According to AO, the assessee produced two loan creditors, namely Shri Arun Mantri & Shri Sukumar Mukherjee and the AO examined them and recorded their statements recorded before him. The assessee produced copies of returns, bank pass book. Examining such details, the AO held that creditworthiness and genuineness of loan creditors are not proved. Accordingly, he added an amount of Rs.8,50,000/- as unexplained cash credit to the total income of assessee on account loans and gift.
Before the CIT-A the assessee reiterated his same submissions as made before the AO with same documents as filed before the AO.
The CIT-A considering the submissions held that mere proving of identity is not sufficient and assessee had failed to discharge the legal obligation regarding genuineness of transaction. Relevant portion of CIT-A order is reproduced herein below:-
Order: I have carefully considered the submission of the Ld AR and also perused the assessment order going through the detailed order of the Ld AO, it is apparent that the creditors have no regular source of income. They have shown their income from misc, receipts and / or sale of agricultural products. There was no supporting evidence for their business. Thus, it appears that the source of their income were imaginary. They had shown very nominal income and most of the cases, the income was below taxable limit. Although all of them had SB Bank Ales, but without depositing their cash balance in the Bank A/c, they had shown huge cash in hand, whereas, they had very nominal balance in their Bank A/cs throughout the year. It is also found from the Bank Statements of the alleged creditors and/or donor that equal amount of cash was deposited to the Bank on the same date when the amounts were transferred to the Bank A/c of the assessee. Thus, If cannot be said that the creditors had creditworthiness. From all respect, it is held that the assessee had failed to discharge the legal obligation. The Courts held that if the assessee offers an explanation about the cash credit, the AO can ask the assessee to prove his explanation and if the assessee fails to tender evidence or burkes an enquiry, then the Assessing Officer is justified in rejecting the explanation and holding that the income is from undisclosed source. The AO is not required to specify or prove what that source is, which from the nature of the case must be known only to the assessee, as held in Seth Kalekhan Md Hanif vs CIT (1963) 50 ITR 1 (SC).
It is necessary for the assessee to prove primafacie the transactions genuine with identity of the creditor, his capacity and the transaction. Only after these three things proved primafacie, only then the burden shifts on the department. Merely establishing the identity of the creditor is not enough [ref. Shankar Industries vs CIT (1978) 114 ITR 689 (Cal); Prakash Textile Agency vs CIT (1980) 121 ITR 890 (Cal) Mere filing of particulars of the cashcreditor is not enough. In the case of CIT vs Baishnav Charan Mahanti (1995) 212 ITR 199 (Ori), it was held that only when all 3 conditions fulfilled, then the burden shifts to the department. But in this case, the assessee failed to prove the creditworthiness of the alleged creditor and/or donor. Therefore, the burden never shifted to the department. The identity and creditworthiness should be proved and there should be genuine transactions as held in CIT vs Korley Trading Co Ltd (1998) 232 ITR 820, 824 (Cal). In this connection, the order of the Hon’ble ITAT, Kolkata in the case of Smt. Kalpana Ghosh vs ITO, W1(4), Siliguri (ITA No. 1027/Kol/2007) can also be referred to where the identity of the donors were established and gift amount was given by Bank cheque but the source of the bank deposit remain unexplained, held that whether the donors were capable to make gift, is more important. In that case the assessee failed to produce any evidence regarding amount deposited in cash in their bank accounts to the effect that these were their business receipts despite opportunity was provided and the ITAT found that the creditworthiness the donors have rightly been disbelieved by the AO. In the case of Nanak Chand Laxman vs CIT 140 ITR 151 (All), it is held that production of the creditor is not enough it is also established that the third party is not a man of straw, but a person capable of possessing the amount represented in the Cash Credit. In view of the above discussion, the addition made by the Ld. AO is confirmed.”
Before us the ld. AR submits that the assessee availed loans from his brothers and friends. His sister in law, Megha Mantri donated Rs.50,000/- as gift. He also submits that in the course of assessment proceedings the assessee submitted the loan confirmations, IT returns acknowledgements, statement of income and expenses account, bank statement, bank pass book and PAN Cards of the said parties. The said loan were taken through account payee cheques. He submits that the assessee discharged his duty in proving the identity, creditworthiness and genuineness of transaction before the authorities below. The AO even examined the two loan creditors under oath. Having examined all the details filed by the assessee, the AO held that loan creditors have hypothetical income and undisclosed income is unwarranted. The ld. AR referred to pages 3-40 of the paper book and argued that all the details as produced by way of paper book also filed the same before the AO & CIT-A and prayed to allow ground nos. 3 & 4 of appeal.
On the other hand, the ld. DR relied on the orders of the AO & CIT-A.
Heard rival submissions and perused the record including the paper book details available on record. It is clear from the record that all the details as sought by the AO by way of questionnaire/letter were produced in respect of identity of loan creditors and donor regarding genuineness and creditworthiness of the transaction. The AO examined all the details, but nowhere made any adverse remark in respect of such details in his order. It is noticed that the AO only doubted the creditworthiness of the said loan creditors by observing that all the creditors and donors have only normal balances in their bank accounts and said amount were deposited prior to giving the amount to the assessee. It is also noticed from the assessment order that the AO held that the loan creditors and donors have shown hypothetical income like misc. receipts. We find from record that the loan creditors were appeared before the AO under 131 proceedings and they have stated that they have vegetable and foria business since last 7-8 years. In respect of gift of Rs.50,000/- we find that the AO did not make any adverse remark in respect of her capital account. In our opinion, the assessee has proved the identity, creditworthiness and genuineness of transaction of loan creditors and donor.
The assessee also filed relevant documents in support of the transaction regarding identity, creditworthiness and genuineness of transaction before the AO/CIT-A. Therefore, addition made by the AO and confirmed by the CIT-A on this issue stands deleted. Ground nos. 3 & 4 raised by the assessee are allowed.
Ground no. 5 is relating to confirmation of addition made on account of sundry creditor.
The AO found that the assessee shown sundry credit balances of Rs.9,48,074/- in respect of following three persons: Manik Majumder Rs.4,96,931/- M/s. Dey Traders Rs.2,51,528/-, and totaling to Rs.9,48,074/- Sintu Dutta Rs.2,00,215,
In an objection raised by the AO, the assessee has filed confirmations, copy of purchase bills, returns of two creditors, M/s. Dey Traders and Sintu Dutta respectively. But, the assessee failed to produce the confirmation of A/cs in respect of Manik Majumdar. The AO could not verify the genuineness of the said creditor, Manik Majumdar and as such added the said amount to the total income of assessee as unexplained cash credit. The CIT-A confirmed the same.
Before us the ld.AR could not bring anything on record in respect of said sundry creditor, Manik Majumdar. However, he agreed to file such details before the AO, if the Tribunal pleases to remand the matter to the file of AO for his further consideration. The ld.DR has not objected to this proposition of the ld.AR. Therefore, taking into consideration the submissions of the ld.AR and in the interest of justice, we deem it fit and proper to remand the issue to the file of AO for the same. The AO shall consider the issue afresh. The assessee is at liberty to file necessary details in respect of his claim and contention. The assessee is also directed to co-operate with the AO in the assessment proceedings for speedy disposal of the case as the A.Y involved in this appeal is very old i.e A.Y 2007-08. This ground no.5 of assessee’s appeal is allowed for statistical purpose.
In the result, the appeal filed by the assessee is partly allowed. Order pronounced in the open court on 04-07-2018
Sd/- Sd/- P. M. Jagtap S.S. Viswanethra Ravi Accountant Member Judicial Member Dated : 04-07-2018 **PP(Sr.P.S.) Copy of the order forwarded to:
1. 1. Appellant/Assessee: Mr.Mukund Kumar Mantri, Club Town, B-302, Sevoke Road, Siliguri-735221. 2 Respondent/Department: Income Tax Officer, Ward 1(3), Jalpaiguri.
3. The CIT(A), Kolkata 4. CIT , Kolkata 5. DR, Kolkata Benches, Kolkata