JAGDISH PRASAD DHAKA,JAIPUR vs. DCIT, CIRCLE-1, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR MkWa- ,l-lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 175/JP/2022 fu/kZkj.k o"kZ@Assessment Years : 2012-13 cuke DCIT, Sh. Jagdish Prasad Dhaka 50/89, Pratap Nagar, Vs. Circle-1, Sanganer, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AHHPD 4812 H vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri R.S. Poonia (C.A.) jktLo dh vksj ls@ Revenue by : Shri A.S. Nehara (Addl.CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 03/08/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 30/08/2022

vkns'k@ ORDER

PER: DR. S. SEETHALAKSHMI, J.M. This appeal by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals)-1, Jaipur [hereinafter referred to as ‘CIT(A)’] dated 24.10.2016 for the Assessment Year 2012-13.

“1. That under the facts and in the circumstances of the case the Ld. CIT (Appeals-1), Jaipur has erred in law and facts in

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confirming the addition amounting to Rs. 55,90,000/- under section 68 of the I.T. Act, 1961 on account of cash credit to the income of the appellant on this count is wrong, unwarranted and bad in law. Kindly delete the addition.

3 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

donation to the income of the appellant on this count is wrong, unwarranted and bad in law. Kindly delete the addition.

shop of liquor as license shop keeper, salary and interest. The assessee

declared total income of Rs. 16,52,720/- was e-filed on 30.09.2012. he has

proper books of accounts and duly audited by the chartered accountants. He

has filed return of his total income on the basis of the audited report and also

submitted the copy of accounts. As the case has been selected for scrutiny, and

fixed for assessment under section 143(2) of the IT Act. On the date of hearing

the required information has been furnished before the AO. But the AO, by

wrong finding, arbitrary, illegally added in the income from business by

making additions of Rs. 55,90,000/- on account of cash credit, Rs. 31,94,100/-

for cash credit in capital A/C, Rs. 44,00,000/- disallowing for license fee and

vending fee , Rs. 2,40,635/- for undisclosed commission, Rs. 23,86,897/-

unexplained investment an Rs. 10,000/- out of expenses debited as donation

total addition of Rs. 1,58,21,632/-. Hence, this appeal.

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the I.T. Act, 1961 and re-adjudicated the matter. The relevant part of the

assessment order is reproduced as under:-

“4. From the above, it is clear that the assessee was non cooperative in assessment proceedings and failed to produce books of accounts for examination. The assessee also failed to file complete details/ information sought by this office. The case is getting time barred on 31.03.2015, therefore, there is no other alternative left but to complete the assessment u/s 144 of the I.T. Act 1961 on the basis of information available on record. A show cause notice u/s 144 was issued to the assessee on 13,03.2015 fixing the date of hearing on 20.03.2015, It was communicated to the assessee that in case of failure to file requisite details/ information and to produce books of accounts, assessment will be completed u/s 144 of the income Tax Act, 1961. On the date fixed, neither anybody attended nor was any written reply filed. Looking to the facts discussed above, it is clear that the assessee has deliberately and willfully failed to produce books of accounts and to file requisite information, Therefore, assessment is being completed u/s 144 of the IT Act,1961. 5. Cash credits- During the year under consideration the assessee has shown receive unsecured loan of Rs. 55,90,000/- from 16 different lac persons. The assessee was asked vide questioner dated 19.12.2014 to file confirmation of the person concern with complete address and PAN. The assessee was also asked to file documentary proof in support of creditworthiness

5 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

of the persons advanced loan. Inspite of many opportunities provided, the assessee has filed confirmation of 11 persons only. The assessee has not filed any proof of creditworthiness of these cash creditors and failed to file any proof in support of genuineness of transaction. Therefore, the assessee was asked vide show cause notice u/s 144 dated 13.03.2015 as to why unexplained cash credit should not be added back in his total income. The relevant portion of the show cause notice is reproduced as under- “You have declared unsecured loans of Rs.61,96,201/- in your audited balance sheet. You have been asked vide questioner dated 19.12.2014 to file confirmations of the person concern complete address and PAN. You have been also asked to file documentary proof in support of creditworthiness of the persons advanced loan to you. After so many opportunities, you have filed confirmation of some persons but no proof of their creditworthiness has been filed. The details of loans obtained during the year and confirmation filed is as under:- Name Amount of Confirmation Proof of loan during filed creditworthiness filed. the year Man Singh 620000 No. No Bhanwar Singh 700000 Yes No Arjun Lal Jhandu 100000 Yes No Mahaveer ji 800000 Yes No Madan Singh 130000 Yes No Suman Kanwar 990000 Yes No Suresh Kanwar 450000 No No Pradeep Singh 360000 No No Tara Chand 180000 Yes No

6 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

Bhopal Singh 270000 Yes No Vinod Singh 180000 Yes No Anil Sharma 90000 Yes No Rakesh Gupta 90000 Yes No Supyar Singh 180000 No No Sumit Arora 90000 No No Sandeep Joshi 360000 Yes No 55,90,000

Further, it appears from the confirmation filed that Sh. Arjun Singh Jhandu has made cash payment. You have not filed any proof creditworthiness of these cash creditors. Further, genuineness of transaction is also not proved because no books of account are produced till date. You are therefore, requested to show cause as to why cash credit of Rs. 55,90,000/- should not be added back in your total income u/s 68 of the I.T. Act, 1961.” In response to this, the assessee has not filed any reply. Therefore, it is held that the assessee has failed to prove genuineness of cash credits of Rs. 55,90,000/-and same is added back in his total income. Penalty proceedings u/s 271(1)(c) are initiated separately for concealment of income. 6. Cash credits in capital account:- During the year under consideration the assessee has shown to introduce new capital of Rs. 31,94,100/ -. The assessee was asked vide questioner dated 19.12.2014 to file source of capital introduced by him. During the assessment proceedings, the assessee has filed confirmations in form of letter from five persons stating that they have advanced cash of Rs. 31,94,100/- to the assessee out of their agriculture income. No proof of their identity and creditworthiness was filed.

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The genuineness of the transaction was also not proved as all receipts were shown in cash. Looking to the facts discussed above, the assessee was asked vide show cause notice u/s 144 of the IT Act, 1961 as to why amount of Rs. 31,94,100/- should not be treated as unexplained cash credit. The relevant portion of the show cause notice is reproduced as under- "You have introduced new capital of Rs.31,94„100/- during the year under consideration. You have been asked to file source of capital introduce vide this office letter dated 19.12.2014. After many opportunities you have filed confirmation in form of letter of 5 persons stating that they have advan.cea cash of Rs.31,94,100/- to you out 104: of their agriculture income. Prom the details filed, the identity of loan provider, his / her creditworthiness and genuineness of transaction is not proved. You are therefore, requested to please show cause as to why the amount of Rs.31,94,100/ - should not be treated as unexplained cash credit and should not be added back in your total income u/s 68 of the IT Act, 1961." In response to this, the assessee has not filed any reply. Therefore, it is held that the assessee has failed to prove source of credit of Rs. 31,94,100/- in his capital account. The unexplained cash credit of Rs. 31,94,100/- is added back in his total income. Penalty proceedings 271(1)(c) are initiated separately for concealment of income. 7.Disallowance of expenses in license fees and vendor fees: The assessee has claimed expenses of license fees at Rs.18,00,000/- and vendor fees of Rs.26,00,000/-, The assessee was asked to file details of expenses incurred. In response to this, the assessee has

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filed a written reply on 27.01.2015 stating that license fees of Rs.18,00,000/- and vendor fees of Rs.26,00,000/- was paid for next financial year but expenses were debited in profit and loss account; of current. financial year, The expenses of any other year cannot be allowed from receipts of the current financial year. The assessee was therefore requested to show cause as to why expenses claimed should not be disallowed. The relevant portion of the show cause notice is reproduced as under- "You have been asked to file details of payment made to RSBCL. From the details filed on 27.01.2015 it is clear that license fees of Rs.1$,00,000/ - and special vendor fees of Rs.26,00,000/- was paid for next financial year and the expenses were debited in profit & loss account of the current financial year. The expenses of any other year cannot be allowed as expenditure for the current year. You are therefore; requested to please show cause as to why amount of Rs.44,00,000/- should not be disallowed and added back in your total income.” In response to this, the assessee has not filed any reply. Therefore, it is held that the assessee has wrongly claimed the expenses of license fees of Rs.18,00,000/- and vendor fees of Rs.26,00,,000/,- totaling to Rs.44,00,000/- from receipt of the year under consideration and same is disallowed. It results into an addition of Rs.44,00,000/- in the total income of the assessee. Penalty proceedings u/s 271(1)(c) arc initiated separately for filing inaccurate particulars of income thereby concealment of income. 8. Undisclosed Commission Income:- As per information available on ITS data, during the year under consideration, the

9 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

assessee has received commission of Rs,2,00,990/ from M/s Sudsan Consultant Pvt. Ltd., commission of Rs.37,625/-from Arpan Sood and commission of Rs.2,020/- from M/s Redico Khaitan Ltd. Thus, the assessee has received total commission of Rs,2,40,635/-, No commission income is declared in return filed by the assessee. The assessee was therefore, asked vide show cause notice u/s 144 dated 13.03.2015 as to why undisclosed commission income of Rs. 2,40,635/- should not be added in his income. The relevant portion of the show cause notice is reproduced as under:-"As per information available in form no,26AS you have received cot7trnission of Rs.2,00,990/-front Sudsan Consultant Put Ltd., commission of Rs.37,625/ - from Arpan Sood owl commission of Rs,2,020/- from M/ s Redico Khaitan Ltd. Thus, you have received total commission of Rs.2,40,635/-. You have not declared this commission income. You are therefore., requested to show cause as to why commission income of Rs.2,,10.635/- should not be added back in your total income." In response to this, the assessee has not filed any reply. Therefore, it is held that the assessee has concealed commission income of Rs.2,40,635/- and same is added back in his total income. Penalty proceedings u/s 271(1)(e) are initiated separately for concealment of income. 9. Unexplained investment- As discussed supra, the assessee has derived income from sale of liquor. As per relevant rules of state excise, the assessee was required make purchases from RSBCL. The RSBCL collected TCS on sale of liquor to the assessee. As per details available in 26AS statement, the assessee has made purchases of

10 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

Rs.7,79,77,641./- from RSBCL whereas he has declared purchases of Rs.7,55,90,744/- in his return of income. Thus, there is a difference of Rs. 6,897/-. Therefore, the assessee was asked vide show cause notice u/s 144 dated 13.03.2015 as to why investment in undisclosed purchases should not be unexplained investment and addition should not be made. The relevant paragraph of show cause notice is reproduced as under- "You have been asked to file reconciliation statement with TDS detail appeared in 26AS statement. You have not filed reconciliation, statement inspite of specifically requested. As per 26AS statement you have made purchases of Rs."7,79,77,641/- from RSBCL but you have declared purchases of Rs,7,55,90,744/ Thus, there is a difference of Rs. 23,86,897/ -. You are requested to show cause as to why amount of Rs .23,86,897 should not be treated as unexplained investment and addition should not be made.” In response to this, the assessee has not filed any reply. Therefore, it is held that the assessee has made investment of Rs. 23,86,897/- in undisclosed purchases. The amount of undisclosed investment of Rs. 23,86,897/- is added back to the income by the assessee treating it as income from undisclosed sources. Penalty proceedings u/s 271(1)(c) are initiated separately for concealment of income. 10. Donation- The assessee has debited expenses of Rs.10,000/- in profit and loss account and not added back this amount in computation of income. The donation expenses are not allowable in absence of receipt of payment Of donation. During the assessment proceedings, the assessee has

11 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

not filed any receipt of payment of donation therefore, same is being added back in his total income.”

ld. CIT(A) and the findings are reproduced as under:-

“(ii) I have gone through the assessment order and the relevant assessment record and it is observed from the confirmations placed on record that in some of the confirmations, the amount was paid to the appellant through demand drafts, the appellant has not filed the copies of the relevant bank accounts of these cash creditors of unsecured loans. In the case of Sh. Arjun Singh Jhandu, a sum of Rs. 1 lac was claimed to be paid to the appellant in cash. In the confirmations, the PAN numbers have been mentioned but copies of income Tax return of these persons were not filed. Thus, the genuineness of the transactions as well as creditworthiness of these cash creditors of unsecured loans were not proved by the appellant.

(iii) IN view of the above discussion, as the appellant failed to prove the, genuineness of unsecured loans, I do not find any reason to interfere with findings of the AO in this regard. Hence, the addition of Rs. 55,90,000/- made by the AO on account of unexplained cash credit is hereby sustained.”

“(ii) I have gone through the assessment order and the relevant assessment record and it is observed from the confirmations placed on record that the these persons have claimed to have given the large amounts of money in cash to the appellant and that too without any interest. In the confirmations, nothing has been stated about the land holdings, crops grown by them etc. and obviously, these are not

12 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

assessed to income tax as their PAN numbers were not stated in those confirmation.

(iii) IN view of the above discussion, as the appellant failed to prove the identity, genuineness of the transactions and creditworthiness of these 5 agriculturists, I do not find any reason to interfere with findings of the AO in this regard. Hence, the addition of Rs. 31,94,100/- made by the AO on account of unexplained cash credit in the capital account of the appellant is hereby sustained.”

“3.4.1 Determination:

The appellant has claimed expenses on account of license fee at Rs. 18 Lac and vendor fee at Rs. 26 Lac in its profit and loss account for the year under consideration. During the assessment proceedings, it was observed by the AO that these amounts were paid for the next financial year and thus were disallowed by the AO. I do not find any infirmity in the finding of the AO as the income is computed for a particular year and all the receipts and expenditure relating to that year only are to be taken into account for computing the income of that year and the expenditure relating to another year cannot be allowed as a deduction for the year under consideration. Thus, the disallowance of

“ 3.5.1 Determination

(i) As per the ITS information, the appellant has received a total commission of Rs. 2,40,635/- from 3 concerns, however, the appellant has not declared any commission income in its return of income. In its show cause notice issued u/s 144 of the Act dated 13.03.2015, the appellant was required to explain why the commission income to the

13 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

tune of Rs. 2,40,635/- should not be added to its income as it has not disclosed the same in its return of income. Since, no compliance was made by the appellant, the AO has made addition of Rs. 2,40,635/- to the income of the appellant as commission income.

(ii) As nothing has been stated by the appellant during the appellate proceedings, I do not find any reasons to interfere with the findings of the AO in this regard. Hence, the addition of Rs. 2,40,635/- made by the AO on account of undisclosed commission income is hereby sustained.”

“3.6.1 Determination

(i) The appellant has declared purchase of liquor from RSBCL at Rs. 7,55,90,744/- whereas as per 26AS statement, the sales by RSBCL to the appellant was shown at Rs. 7,79,77,641/-, thus the appellant had shown less spurchases to the extent of Rs. 23,86,897/-. The AO issued shown cause notice for explaining the above difference but no compliance was made to the said show cause notice and consequently, the AO has made undisclosed investment of Rs. 23,86,897/- to the income of the appellant.

(ii) It may be mentioned that the onus is on the appellant to reconcile the above discrepancy and since the discrepancy has not been even reconciled during appellate proceedings, I do not find any reason to interfere with the findings of the AO. Hence, the addition of Rs. 23,86,897/- made by the AO as unexplained investment is hereby sustained.

“3.7.1 Determination

The appellant has debited a sum of Rs. 10,000/- in its profit and loss account on account of donation but had neither added back the same in

14 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

its computation of income nor submitted any evidence for its payment and consequently, the AO added the sum of Rs. 10,000/- to the income of the appellant. During the appellate proceedings, the appellant has not furnished any evidence for the payment of amount of Rs. 10,000/- claimed as donation. Therefore, I do not find any reason to interfere with the findings of the AO. Hence the addition of Rs. 10,000/- made by the AO on account of claim of donation is hereby sustained.”

We feel that substantial justice should be met to the party in accordance with

law. In this case, the Bench noted that the order passed by the ld. CIT(A) ex-

parte and written submission has also not filed before the AO. However, the

ld. AR during the course of argument submitted that the case may be remand

back to the ld. CIT(A) where the order of the lower authorities is ex-parte . He

has not produced any documentary evidence and written statement before the

ld. CIT(A). During the course of hearing, ld. AR for the assessee submitted

that paper book containing of 21 pages which are to be persuaded by the ld.

CIT(A). The ld. AR further prayed that ld. CIT(A) had not adjudicated upon

these grounds, therefore the same the same may be kindly restored to the file

of the CIT (A) for a decision afresh on these issues, after hearing the assesse.

Taking into consideration, the above facts and circumstances of the case,

15 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka

filed by the assessee ex-parte for non-prosecution as the assessee to justify

its case. No doubt, it is the obligation of the person who files appeal, go

before the authorities, when the appeal is called for hearing to justify its

case. In case, the assessee did not choose to appear before the authorities,

then the appellate authority left with no option but to dispose off the appeal

on the basis of materials available on record, but said appeal needs to be

disposed off on merits on the basis of materials available on record. In this

case, on perusal of the order of the learned CIT(A), we find that the learned

CIT(A) has disposed off the appeal for non-appearance without discussing

issues involved in the appeal on merits and on the basis of written submissions

filed by the assessee. Therefore, we are of the considered opinion that issue

needs to go back to the file of the learned CIT(A) to give one more

opportunity to the assessee to file necessary evidence in support of his case.

Hence, we set aside impugned order and remit the matter back to file of the

learned CIT(A) and direct him to reconsider the issues after providing

adequate opportunity of hearing to the assessee. Needless to say the assessee

shall go before the CIT(A) without seeking any adjournment unless or

otherwise warrants under extreme circumstances. We restore the issue to the

file of the ld. CIT(A) for afresh decision. Thus the appeal of the assessee is

allowed for statistical purposes.

16 ITA No. 175/JP/2022 Shri Jagdish Prasad Dhaka In the result, the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open Court on 30/08/2022. Sd/- Sd/- ¼ jkBksM deys'k t;UrHkkbZ ½ ¼,l-lhrky{eh½ (Dr. S. Seethalakshmi) (RATHOD KAMLESH JAYANTBHAI) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 30/08/2022. *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Sh. Jagdish Prasad Dhaka, Jaipur. 1. izR;FkhZ@ The Respondent- DCIT, Circle-1, Jaipur. 2. 3. vk;dj vk;qDr@ CIT vk;dj vk;qDr@ CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 5. 6. xkMZ QkbZy@ Guard File { ITA No. 175/JP/2022} vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत