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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’ : NEW DELHI
Before: SHRI H.S. SIDHU
This appeal has been filed by the Assessee against the Order dated 29.01.2015 of the Ld. Commissioner of Income Tax (Appeals), Dehradun relevant to assessment year 2010-11.
The grounds raised in the appeal read as under:-
That the Ld. CIT(A) has erred on facts and law in making an addition of Rs. 1,70,000/-
towards loans repayment as suppressed liability while the same was merely mistake in posting by assessee.
2. That the Ld. CIT(A) has erred on facts and law in making an addition of Rs. 3,70,000/-
treating unsecured loans as unexplained investment without considering the facts of the case.
3. That the Ld. CIT(A) has erred on facts and law in making an addition of Rs. 5,48,000/-
treating unsecured loans as unexplained investment without considering the facts of the case.
4. That the Ld. CIT(A) has erred on facts and law in making an addition o Rs. 5,00,000
treating unsecured loan as unexplained investment without considering facts of the case.
5. That the Ld. CIT(A) has erred on facts and law in making an addition of Rs. 3,00,000/-
treating unsecured loan as unexplained investment without considering facts of the case.
6. That the Ld. CIT(A) has erred on facts and law in making an addition of Rs. 18,81,000/-
against Rs. 17,18,000/- while the difference amount of Rs. 1,63,177 was allowed in first appellate order.
It is therefore prayed that an appeal be accepted and suitable relief be allowed.
Facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not repeated here for the sake of brevity.
During the hearing, Ld. A.R. of the assessee has stated that AO while making the additions, without considering the facts of the case.
He also stated that after the receipt of the show cause notice issued by the AO, a detailed rely was furnished wherein original copy of affidavit of all the lender alongwith bank statement were submitted.
The assessee had justified the identity, capacity and genuineness of loan taken by submitting copy of confirmation, address proof documents, bank statements, copy of income tax return and affidavits wherein the whole responsibilities for any proceedings initiated against them was taken by them. The AO has overlooked these documents and has neither cross examined those lender nor had asked for their cash flow statement and add back all such loans to income of assessee. The AO has not considered the facts that these lenders were income tax assessee without considering the facts of the case. He further stated that there was difference in balance of one unsecured loan which was duly explained by the assessee due to mistake in posting in account of lender instead of sundry creditors, which has not been considered by the AO and difference has been added back to income of the assessee. He further stated that Ld. CIT(A) also passed the non-speaking order dated 29.01.2015 without providing sufficient opportunity to the assessee for substantiating his claim before the authorities below and without considering evidences/ facts of the case. He has requested that assessee has all the necessary evidences and can produce before the AO, if this Bench give an opportunity to the assessee for producing all the necessary documents before the AO. In this behalf he filed the paper Book containing pages 1 to 91.
On the contrary, Ld. DR relied upon the orders of the authorities below and opposed the request of the assessee’s counsel request.
I have heard both the parties and perused the records. I have also gone through the order passed by the revenue authorities as well as the contention raised by the assessee in the grounds of appeal. I find force in the arguments of the Ld. Counsel of the assessee that after the receipt of the show cause notice issued by the AO, a detailed reply was furnished wherein original copy of affidavit of all the lender alongwith bank statement were submitted. The assessee had justified the identity, capacity and genuineness of loan taken by submitting copy of confirmation, address proof documents, bank statements, copy of income tax return and affidavits wherein the whole responsibilities for any proceedings initiated against them was taken by them. The AO has overlooked these documents and has neither cross examined those lender nor had asked for their cash flow statement and add back all such loans to income of assessee.
The AO has not considered the facts that these lenders were income tax assessee without considering the facts of the case. It was also noted that there was difference in balance of one unsecured loan which was duly explained by the assessee due to mistake in posting in account of lender instead of sundry creditors, which has not been considered by the AO and difference has been added back to income of the assessee and similarly, Ld. CIT(A) also passed the non- speaking impugned order dated 29.01.2015 and both the lower authorities have not provided sufficient opportunity to the assessee for substantiating his claim. I further find that before the Tribunal the assessee has filed a Paper Book containing pages 1 to 91 in which he has attached the copy of submission of assessee; copy of balance sheet of assessee; copy of ledger of Modern Saree and other creditors; copy of documents of Raj Kumar Sharma; copy of show cause notice of AO; copy of reply of AR against show cause notice; copy of affidavit of receipt bank of loan by Raj Kumar Sharma alongwith cheque copy and bank account copy; copy of ITR, computation, balance sheet; affidavit before AO bank account of Smt. Divya Garg; copy of certificate of service of Smt. Divya Garg; copy of affidavit of receipt bank of loan by Smt. Divya Garg alongwith cheque copy and bank account copy; copy of voter card, ITR, computation, balance sheet, affidavit before AO, Bank account of Sh. Deepak Goyal; copy of affidavit of receipt bank of loan by Sh.
Deepak Goyal alongwith cheque copy and bank account copy; copy of voter card, ITR, computation, balance sheet, affidavit before AO, bank account of Smt. Geeta Devi; copy of affidavit of receipt bank of loan by Smt. Geeta Devi alongwith cheque copy and bank account copy; copy of citation of CIT vs. Ranchod Jivabhai Nakhava 208 Taxman 35 (Gujarat); Sagalchand P. Ananda vs. ACIT (ITA No. 80/Rjt/2013) ITAT- Rajkot); Nemi Chand Kothari vs. CIT 264 ITR 254 (Guwahat); CIT vs. Metachem Industries 245 ITR 160 (MP); Gurukul Trust vs. ADIT vs (ITA No. 723/Del/2012) ITAT- Delhi; DCIT vs. Rohini Builders 256 ITR 360 (Gujarat) and power of attorney (in original), which were not properly considered by the authorities below. I further find that Ld. CIT(A) has also passed the non- speaking impugned order which is not sustainable in the eyes of law.
Therefore, in the interest of justice, the issues in dispute are set aside to the file of the AO to decide the afresh under the law, after giving adequate opportunity of being heard to the assessee. The assessee is also directed to file all the necessary documents to substantiate his case and fully cooperate with the AO in the proceedings and did not take any unnecessary adjournment.
In the result, the Assessee’s appeal is allowed for statistical purposes.
Order pronounced on 04-05-2018.