ASSISTANT COMMISSIONER OF INCOME TAX, MADURAI vs. ASAIKANI NADAR KAMARAJ, RAJAPALAYAM

आयकर अपीलीय अिधकरण, ’सी’ �ायपीठ, चे�ई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘C’ BENCH, CHENNAI �ी वी दुगा� राव �ाियक सद� एवं �ी जी. मंजुनाथा, लेखा सद� के सम� Before Shri V. Durga Rao, Judicial Member & Shri Manjunatha, G., Accountant Member आयकर अपील सं./I.T.A. No.1197/Chny/2023 िनधा�रण वष�/Assessment Year: 2017-18 & C.O. No. 54/Chny/2023 [In I.T.A. No. 1197/Chny/2023] The Assistant Commissioner of Vs. Asaikani Nadar Kamaraj, Income Tax, 7/84, Pound Street, Chokkanathaputhur, Central Circle 2, Rajapalayam, Virudhunagar District, Madurai. Tamil Nadu 626 121. [PAN:AAXPK1318E] (अपीलाथ� /Appellant) (��थ�/Respondent/Cross Objector) Department by : Shri R. Clement Ramesh Kumar, CIT Assessee by : Shri R. Venkataraman, C.A. सुनवाई की तारीख/ Date of hearing : 07.03.2024 घोषणा की तारीख /Date of Pronouncement : 21.03.2024 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: This appeal filed by the Revenue and the Cross Objection by the assessee are directed against the order of the ld. Commissioner of Income Tax (Appeals) 19, Chennai, dated 31.08.2023 relevant to the assessment year 2017-18.

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income of ₹.2,09,39,180/- and the case was processed under section 143(1) of the Income Tax Act, 1961 [“Act” in short]. A survey under section 133A of the Act was conducted on 06.02.2018 in the group of case of the assessee and subsequently, the case was selected for complete scrutiny under CASS. Notice under section 143(2) of the Act dated 17.08.2018 was issued and served on the assessee. Subsequently, notice under section 142(1) of the Act was issued on 04.10.2019, 02.12.2019 & 05.12.2019 calling for details. During the course of assessment proceedings, the assessee was asked to explain the evidence in support of wages paid to the assessee and to furnish the labour attendance register, bills vouchers, pay register, etc. Since the assessee has not complied with all the terms of notices under section 142(1) of the Act dated 04.10.2019, 05.12.2019 and letter dated 23.10.2019, by rejecting the profit and loss account under section 145 of the Act, the Assessing Officer has concluded the assessment under section 144 of the Act dated 31.12.2019. During assessment proceedings, by considering the details in Form 26AS of the assessee for arriving at the total receipts from the civil contract business, the Assessing Officer has estimated net profits at 8% of the total receipt. Further, during the course of survey proceedings, the Assessing Officer

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has observed that the assessee was unable to produce the details of sundry creditors. Even during the course of assessment proceedings, the assessee was not able to submit the details of sundry creditors. Since no explanation was offered by the assessee, the Assessing Officer has treated the sundry credits of ₹.6,73,33,263/- as unexplained income of the assessee and brought to tax under section 68 r.w.s. 115BBE of the Act.

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amounting Rs.75,00,000/- and has undertaken to pay the balance tax before 31.03.2018. 6.2.4 For the A.Y. 2017-18, the Jurisdictional A.O. i.e. ACIT, Circle -1, Virudhunagar, completed the assessment u/s 144 of the Act and for the A.Y. 2018-19 the A.O., Central Circle - 2. Madurai, completed the assessment u/s 143(3) of the Act. Both the Assessing Officers without appreciating the background of the statement recorded and subsequent submission of the letter by the Appellant by clarifying the statement recorded have proceeded to complete the relevant assessments. 6.2.5 During the course of survey the Appellant was confronted with the Sundry Creditors claimed amounting Rs.7,46,45,937/- in the Return of Income relevant to the A.Y. 2017-18. In the statement recorded. the Appellant claimed that out of Rs.7,46,45,937/- a sum of Rs.41,33,644/- and Rs.31,79,030/- was received from his son and wife respectively and admitted the balance amount of Rs.6,73,33,263/- as unexplained income for the current F.Y. 2017-18 relevant to the A.Y. 2018-19. The undersigned has verified this issue from the statement recorded during the course of survey which was made available before me by the Appellant. 6.2.6 The Appellant immediately after the survey submitted a letter before the A.O. on 15.02.2018 by clarifying that while deposing the statement during the course of survey a sum of Rs.4.5I,82,574/- being the amount due to M/s. A.K.R. agencies being run by his wife Smt. K. Selvi as a proprietorship concern, M/s. A.K.R. agencies is an entity running a petrol bank and the Appellant for his business purchased fuels from M/s. A.K.R. agencies, and the amount of Rs.4,5l,82,574/- which is reflected as Sundry Creditor is nothing but amount payable to M/s. A.K.R. agencies for purchase of fuels. 6.2.7 The Appellant during the course of Appellant Proceedings submitted copies of the Return of Income of Smt. K. Selvi wherein she has disclosed the amount of Rs.4,51,82,574/- as Sundry Debtors receivable from the Appellant, the same has been audited and filed along with the Return of Income. The undersigned verified this from the copy of the Return of income of Smt. K. Selvi relevant to the A.Y. 2017- 18, which was submitted as annexure to the submission made by the Appellant. 6.2.8 The Appellant has also submitted his copy of the Return of Income along with his enclosure as an annexure to the submission made. While going through the details it has been ascertained that the Appellant has claimed M/s. A.K.R. agencies as one of the Sundry Creditor and claimed Rs.4,51,82,574/- payable. 6.2.9 Thus, from the details submitted it can be very well noticed that, a sum of Rs.4.51,82,574/- being claimed as Sundry Creditors by the Appellant is genuine. No doubt, the Return of Income along with the enclosures relevant to the A.Y. 2017-18 for both the Appellant and his wife is very well available before the A.O. at the time of Assessment Proceedings. 6.2.10 In the letter dated 15.02.2018, the Appellant has clarified this issue and categorically submitted after reducing a sum of Rs.4,51,82,574/- (being the amount

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due to M/s. A.K.R. agencies) out of Rs.7,46,45,937/- the balance amount of Rs.2,94,63,363/- is the undisclosed income for the A. Y. 2018-19 and also submitted a sum of Rs.75,00,000/- was paid and agreed to pay the balance amount before 31.03.2018. 6.2.11 Both the Assessing Officers while passing the order for the AY, 2017-18 and 2018-19 have completely ignored the statement recorded during the course of survey as well as the subsequent letter submitted by the Appellant before the AO on 23.02.3018. In the Assessment Order, the Assessing Officers have failed to make any observation upon this letter and also filed to see the Audited books of accounts of the Appellant's wife Smt K, Selvi and her return of income filed with the Department. 6.2.12 In this background, the various grounds raised by the Appellant are taken up for adjudication. In Ground No.2,4, 5 and 7 of the AY. 2018, the main ground raised by the Appellant is that the unexplained Sundry Creditors cannot be brought to tax u/s 68 of the Act and the addition made by the A.O. amounts to double taxation. 6.2.13 In respect of the issue relating to double taxation, the claim of the Appellant is that the unexplained Sundry Creditors were offered to tax as unexplained in the A. Y. 2018-19 as agreed in the statement recorded during the course of survey. The Appellant admitted a sum of Rs.2,94,63,363/being the unexplained Sundry Creditors in the Return of Income filed for the A. Y. 2018-19 and paid taxes also. There can be no dispute about the admission made by the Appellant during the course of survey as well as the tax paid in the return of Income field for the A. Y. 2018-19. The A.O. while completing the assessment for the A. Y. 2018-19 has considered the disclosures made by the Appellant. This being the position without appreciating the disclosure made by the Appellant in the statement recorded, subsequent fling of letter clarifying the disclosed amount, payment of taxes and filing of Return of Income for the A. Y. 2018- 19 making addition upon the same issue amounts to double taxation. In view of this, the action of the A.O. in bringing the unexplained creditors during the A. Y. 201 7-18 is not correct. Accordingly, the grounds raised by the Appellant upon this issue are treated as allowed, and the A.O. is hereby directed to delete the addition of Rs.6,73,33,263/-, which was added to the total income u/s 68 of the Act, for the AY 2017-18. 6.2.14 Since, the main issue relating to the addition was allowed in favor of the Appellant making any discussion upon whether the un=explained creditor can be brought u/s 68 or not can only be academic. In view of this, the ground raised by the Appellant upon this issue is treated as dismissed. 6.2,15 For the A. Y. 2018-19, the Appellant has raised various grounds 1 to 12 which revolves around the issue relating to the addition of Rs.3.78.69.900/- which has been treated as undisclosed income. The A.O. while completing the assessment has relied upon the statement recorded during the course of survey. The Appellant in the statement recorded in the answer to Question No. 7 has submitted that the current liabilities claimed in the Return of Income for the A. Y. 2017-18 and 2018-19 as Sundry Creditors amounting Rs.7,46,45,9371-. While clarifying this amount, he admitted that he was able to substantiate the amount of Rs.41,33, WI/and Rs.31,79,030/- and admitted the balance amount of Rs.6,73,33,263/- as his undisclosed income for the A.Y.

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2018-19. The Appellant immediately after the survey filed a letter before the A.O. on 15.02.2018 and clarified that after reducing a sum of Rs.4,51 ,82,574/- (being the amount due to M/s. A,K.R. agencies) out of Rs.7,46,45,937/- the balance amount of Rs.2,94,63,363/- is the unexplained income for the A.Y. 2018-19 and also submitted a sum of Rs.75,00,000/- was paid and agreed to pay the balance amount before 31.03.2018. The Appellant during the course of Appellant Proceedings submitted copies of the Return of Income of Smt. K. Selvi wherein she has disclosed the amount of Rs.4,51,82,574/- as Sundry Debtors receivable from the Appellant. The undersigned verified this from the copy of the Return of Income of Smt. K. Selvi relevant to the A. Y. 2017-18, which was submitted as annexure to the submission made by the Appellant. 6.2.16 The Appellant has also submitted his copy of the Return of Income for the A. Y. 2017-18 along with his enclosure as an annexure to the submission made. While going through the details it has been ascertained that the Appellant has claimed M/s. A.K.R. agencies as one of the Sundry Creditor and claimed Rs.4,51,82,574/- payable. 6.2.17 Thus, from the details submitted it can be seen that a sum of Rs.4,51,82,574/- being claimed as Sundry Creditors by the Appellant is genuine. No doubt, the Return of Income along with the enclosures relevant to the A. Y. 2017-18 for both the Appellant and his wife is very well available before the A.O. for verification. 6.2.18 The A.O. in the Assessment Order has omitted to consider the letter filed by the Appellant before the A.O. on 15.02.2018. As per the Return of Income filed for the A. Y. 2017-18, Smt. K. Selvi W/o the Appellant has disclosed the amount of Rs.4,51,82,574/- as Sundry Debtors receivable from the Appellant. The undersigned verified this from the copy of the Return of Income of Smt. K. Selvi relevant to the A. Y. 2017-18, which was submitted as an annexure to the submission made by the Appellant. 6.2.19 In the Return of Income filed for the A.Y. 2017-18 by the Appellant it has been ascertained that the Appellant has claimed M/s. A.K.R. agencies as one of the Sundry Creditor and claimed Rs.4,51,82,574/- payable. 6.2.20 Thus, from the details submitted it can be very well stated a sum of Rs.4,51,82,574/- being claimed as Sundry Creditors by the Appellant is genuine. No doubt, the Return of Income along with the enclosures relevant to the A. Y. 2017-18 for both the Appellant and his wife is very well available before the A.O. at the time of Assessment Proceedings. 6.2.21 In the letter dated 15.02.2018, the Appellant has clarified this issue and categorically submitted after reducing a sum of Rs.4,51 ,82,574/- (being the amount due to M/s. A.K.R. agencies) out of Rs.7,46,45,937/- the balance amount of Rs.2,94,63,363/- is the undisclosed income for the A.Y. 2018-19 and also submitted a sum of Rs.75,00,000/- was paid and agreed to pay the balance amount before 31.03.2018. 6.2.22 The undersigned has duly considered the background of addition contemplated by the A.O. The A.O. has simply reduced the disclosed amount in the statement recorded during the course of survey and the amount disclosed in the Return of Income and proceeded to complete the assessment. He has not considered the letter dated

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15.02.2018 submitted by the Appellant and also verify the contents. While verifying the contents of the letter along with the Return of Income file by the Appellant and his wife, it is true that the Appellant is liable to pay a sum of Rs.4,51,82,574/- to M/s. A.K.R. Agencies a proprietrix concern of his wife. This is evidenced in her Return of Income which has been claimed as Sundry Debtor. The Appellant in his Return of Income has claimed this amount as Sundry Creditor. As there exist no contradictory evidence this claim has to be admitted. Obviously, comparing the undisclosed income admitted in the Return of Income and the statement recorded in making the addition by the A.O. is not correct. When the letter dated 15.02.2018 and corresponding claim made by the Appellant and his wife for the A. Y. 2017-18 in the Return of Income filed is verified, there may not be any occasion on the part of the A.O. to make such addition. Since, the Appellant himself has admitted undisclosed income of Rs.2,94,63,363/- in the Return of Income filed as per the letter dated 15.02.2018 by clarifying the statement recorded during the course of survey no further addition is warranted in this regard, in this background, the various grounds raised by the Appellant upon this issue are treated as allowed, and the A.O. is hereby directed to delete the addition of Rs.3,78,69,900/- as unexplained credit u/s 68 of the Act relevant to the A. Y. 2018-19. 4. Aggrieved, the Revenue is in appeal before the Tribunal raising following grounds of Appeal for the assessment year 2017-18: 1. The order of the learned Commissioner of Income Tax (Appeals) is erroneous on facts of the case and in law. 2. The Ld. CIT(A) erred in deleting the addition of Rs.6,73,33,263/- made towards unexplained sundry creditors u/s.68 r.w.s 115BBE. 2.1 The CIT(A) ought to have appreciated that the assessee had not furnished the details of sundry creditors and their credit worthiness either during the survey proceedings or during the assessment proceedings. 2.2 The Ld. CIT(A) failed to appreciate that notice u/s.143(2) was issued on 17/08/2018 and the assessment was completed on 31/12/2019. During the scrutiny assessment proceedings, the assessee had not claimed that the amount of Rs.4,51,82,574/- was due from M/s. A.K.R. Agencies. 2.3 The Id.CIT(A) observed that the assessee claimed before him that he has furnished a letter dated 15/02/2018 before the assessing officer clarifying the amount due from M/s. A.K.R. Agencies, Propx concern of Mrs. A. Selvi his wife. The Ld.CIT(A) failed to appreciate that in response to notice u/s.143(2) issued subsequently on 17/08/2018, the assessee did not intimate the submission of the above letter dated 15/02/2018 before the assessing officer.

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2.4 Being the letter dated 15/02/2018 and return of income of Smt.K. Selvi along with annexures produced by the assessee new evidence, the Ld.CIT(A) ought to have called for remand report from the AO by giving opportunity to examine the issue. 2.5 The Ld.CIT(A) failed to appreciate that the assessee offered Rs.2,94,63,363/- towards unexplained sundry creditors for the AY 2018- 19 in respect of the sundry creditors shown in the AY 2017-18 and the assessee ought to have offered the same in the AY 2017-18 itself. 3. For these grounds and any other ground including amendment of grounds that may be raised during the course of the appeal proceedings, the order of learned CIT(Appeals) may be set aside and that of the Assessing Officer be restored. 5. Referring to Para 6 of the assessment order, the ld. DR has submitted that the Assessing Officer treated the sundry creditors of ₹.6,73,33,263/- as unexplained under section 68 r.w.s 115BBE of the Act in the absence of details and reconciliation by the assessee during the course of assessment proceedings. The ld. DR further submitted that the ld. CIT(A) has deleted the addition of sundry creditors of ₹.4,51,82,574/- payable to M/s. A.K.R. Agencies, proprietrix of Smt. K. Selvi on the basis of the Return of Income filed by her being an additional evidence considered by the ld. CIT(A), which is in violation of Rule 46A of the Income Tax Rules, 1962 and also submitted that a remand report ought to have been called for from the Assessing Officer.

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reconciled and explained the balance of sundry creditors subsequent to survey though failed to do during the course of survey. It is the submission of the ld. Counsel that mere failure to reconcile during the course of survey should not go against the assessee when the assessee has duly explained with supporting documentary evidences subsequent to survey.

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creditors in A.Y. 2018-19 has been deleted in entirety by the ld. CIT(A) in respect of which there is no further appeal by the Revenue. According to the ld. Counsel that the Assessing Officer having assessed the sum of ₹.2,94,63,363/- in the A.Y. 2018-19 cannot tax the same again in the impugned assessment year. Thus, the ld. Counsel submitted that the ground of the Revenue relating to year of taxability of ₹.2,94,63,363/- is liable to be dismissed.

12.1 Before the ld. CIT(A), the assessee furnished the copy of letter dated 15.02.2018 stated to be filed before the Assessing Officer consequent to survey giving explanation for the unreconciled balance of sundry creditors as on 31.03.2017. The main submission of the assessee before the ld.

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CIT(A) was out of total sundry creditors as on 31.03.2017, sum of ₹.4,51,82,574/- was payable to M/s. A.K.R. Agencies, a proprietorship concern of Smt.K.Selvi, wife of the assessee. It was the submission of the assessee before the ld. CIT(A) that the amount payable to M/s. A.K.R. Agencies is a regular business transaction arising on account of purchase of diesel for the business purpose of the assessee. The assessee further submitted that the sum of ₹.2,94,63,363/- out of total sundry creditors as agreed to admit during the course of survey was offered to tax in the A.Y. 2018-19 and paid taxes accordingly. Thus, the assessee requested the ld. CIT(A) to delete the addition of ₹.6,73,33,263/- made under section 68 r.w.s. 115BBE of the Act.

12.2 The ld. CIT(A) observed that the assessee had purchased fuels from M/s, A.K.R. Agencies, a proprietorship concern of Smt.K.Selvi, wife of the assessee, during the assessment year under consideration. The Ld. CIT(A) further observed that the sundry creditors of ₹.7,46,45,937/- outstanding as on 31.03.2017 includes the amount of ₹.4,51,82,574/- payable to M/s. A.K.R. Agencies in respect of regular trade transaction. The ld. CIT(A) noticed that the assessee had duly disclosed the sum of ₹.4,51,82,574/- in his books of account and return of income as sundry creditors and correspondingly, Smt.K.Selvi, Proprietrix of M/s. A.K.R.

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Agencies had duly disclosed the same sum as sundry debtors in her books of account and return of income. Considering the above facts on the basis of audited financial statements and return of income filed by the assessee and his wife, the ld. CIT(A) has held that the sum of ₹.4,51,82,574/- payable to M/s. A.K.R. Agencies is genuine and explained and accordingly, held that addition in respect of the same is unwarranted.

12.3 The ld. CIT(A) noticed that the assessee had duly offered the sum of ₹.2,94,63,363/- in his return of income filed for the A.Y.2018-19 and accordingly paid taxes on it. The ld. CIT(A) held that since the same was already offered in A.Y. 2018-19 addition once again in the impugned assessment year amounts to double addition. Thus, the ld. CIT(A) held that no addition is warranted in respect of ₹.2,94,63,363/- in the assessment year under consideration.

12.4 Accordingly, the ld. CIT(A) directed the Assessing Officer to delete the addition of ₹.6,73,33,263/- made by the Assessing Officer on account of unexplained sundry creditors u/s.68 r.w.s. 115BBE of the Act.

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section 68 r.w.s 115BBE of the Act. From the perusal of ledger account of the assessee in the books of account of M/s. A.K.R. Agencies placed at Pages 65 to 67 of the Paper Book, it is noticed that the assessee had purchased diesel during the assessment year under consideration. Payments towards purchases were made by the assessee through banking channel. The Assessing Officer estimated the business income of the assessee on account of the deficiencies in wage payments. No such defects were noticed by the Assessing Officer in respect of fuel purchases made by the assessee during the assessment year under consideration. Further, in completing the assessment of Smt.K.Selvi, proprietrix of M/s. A.K.R. Agencies, the same Assessing Officer has accepted the sales made by her to the assessee. Thus, the business transactions between the assessee and M/s. A.K.R. Agencies prove to be genuine and cannot be doubted. When the transactions are not doubted, balance payable on account of such transactions should not have been doubted.

13.1 On perusal of the ledger account, we find that M/s. A.K.R. Agencies has disclosed total sundry debtors of ₹.5,22,51,718/- in the audited Balance Sheet as on 31.03.2017 which is matching with the return of income filed by Smt.K.Selvi for the assessment year under consideration. It is noticed that the sum of ₹.5,22,51,718/- includes the sum of

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₹.4,51,82,574/- receivable from the assessee. The assessee has also disclosed the sum of ₹.4,51,82,574/- in his books of account as on 31.03.2017 as sundry creditors payable to M/s. A.K.R. Agencies. Thus, the factual finding of the ld. CIT(A) proves to be correct. In fact, the Ld. DR during the course of appeal hearing could not controvert the said findings of the ld. CIT(A). Further, ld. DR could not bring on record on any material to prove that the sum of ₹.4,51,82,574/- payable by the assessee to M/s. A.K.R. Agencies was not correct. Thus, we are of the considered view that the sundry creditors’ balance of ₹.4.51.82,574/- payable to M/s. A.K.R. Agencies is genuine and cannot be treated as unexplained. Thus, the ld. CIT(A) has rightly held that no addition is warranted in respect sundry creditors balance of ₹.4,51,82,574/-.

13.1 The assessments of the assessee and his wife Smt.K.Selvi, proprietrix of M/s. A.K.R. Agencies for the assessment year under consideration were completed by the same Assessing Officer. It is noticed that the assessment of Smt. K. Selvi was completed prior to the assessment of the assessee. In the assessment order of Smt.K.Selvi the Assessing Officer made remarks that she had duly furnished the details of sundry debtors during the course of assessment proceedings. It is to be appreciated that Smt. K. Selvi in her Balance Sheet as on 31.03.2017 has

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given a break up of sundry debtors of ₹.5,22,51,718/-, which includes the amount of ₹.4,51,82,574/- receivable from the assessee. The Assessing Officer has also accordingly accepted the balance of sundry debtors of M/s. A.K.R. Agencies without disturbing it. Thus, the Assessing Officer very well had materials on record during the course of assessment proceedings which establishes that the sundry creditors of the assessee includes sum of ₹.4,51,82,574/- payable to M/s. A.K.R. Agencies. Thus, we are of the considered view that no additional evidences has been furnished by the assessee warranting calling of remand report from the Assessing Officer. In view of the above, we are of the opinion that the ld. CIT(A) has not violated the provisions of Rule 46A of the Income-tax Rules, 1962.

13.2 Coming to the sum of ₹.2,94,63,363/-, it is noticed that the assessee has duly offered the same to tax in the A.Y.2018-19 which was duly accepted by the Assessing Officer while completing the scrutiny assessment for the A.Y. 2018-19. Since the income admitted by the assessee was accepted by the Assessing Officer in the A.Y. 2018-19, the addition for the same once again in the impugned assessment year 2017- 18 is unwarranted. Thus, the ld. CIT(A) has rightly held that no addition for ₹.2,94,63,363/- is warranted during the assessment year 2017-18.

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become infructuous and accordingly, the Cross Objection filed by the assessee is dismissed.

Order pronounced on 21st March, 2024 at Chennai.

Sd/- Sd/- (MANJUNATHA, G.) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER Chennai, Dated, the 21.03.2024 Vm/- आदेश की �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant, 2.��थ�/ Respondent, 3. आयकर आयु�/CIT, 4. िवभागीय �ितिनिध/DR & 5. गाड� फाईल/GF.