M/S. KALPESH K. SHAH,MUMBAI vs. THE ITO 25(2)(1), MUMBAI

The only common issue in these appeals of the assessee is against the order of CIT(A) confirming the addition of unsecured loan received from Shri Y. J. Choksi

Brief facts to the above issue are that the Assessing Officer (A.O.) in the original assessment order dated 31.1.2003 made an addition of unsecured deposit of Rs.15 lacs from Shri Y. J. Choksi and also consequential interest of Rs.1,50,784/-. The CIT(A) deleted the addition vide order dated 11.7.2003 and on further appeal of Revenue, the ITAT remanded the matter back to the file of the A.O. for fresh adjudication after giving opportunity to the assessee of cross examination of Shri Y. J. Choksi vide the order dated 30.1.2006. In consequent to the tribunal’s order, the A.O. framed the assessment and made the addition of above deposit again. The CIT(A) also confirmed the action of the A.O. by observing in paras 10 and 11 as under:

Moreover, appellant did not seem to be serious in cross examination. AO informed appellant about enforcing the attendance of Shri Y. J. Choksi on 28.12.06 and 29.12.06 but appellant was not present and left Mumbai on 27.12.06. This shows that appellant was trying to make mockery of law by enforcing cross examination on one hand but not making himself present on the date fixed for cross examination. Had he been sincere for cross examination it could have been done even in hospital. Shri Y. J. Choski is now expired and thus there cannot be cross examination. His statement on 3 different occasions on oath and his affidavit on oath is sufficient to prove that credit of Rs.15,00,000/- shown deposit in its books of accounts is not genuine. Onus is casted on appellant to prove genuineness of transaction but appellant failed to do so. Department recorded statement of alleged depositor on 3 different occasions and he denied of giving loan. He confirmed it in his affidavit too. Even when he was asked to be present for cross examination he sent copies of his statements and affidavit in this regard. This 3 & 3889/Mum/2008 (A.Ys. 1996-97 & 1995-96) Kalpesh K. Shah vs. ITO shows his truthfullness and sincerity towards duty but his illness prevented him to appear before the department. Considering the above, it is clear that loan of Rs.15,00,000/- in the books of accounts is not genuine transaction but entry taken from Shri Y. J. Choksi.’ Aggrieved, now the assessee is in appeal before the Tribunal.

We find that this appeal was filed before the tribunal on 28.11.2008 but since then the appeal was fixed for hearing atleast for 20 times. None represented on behalf of the assessee. Accordingly, we are deciding these appeals ex parte qua assessee. From the order of CIT(A), we find that despite numerous opportunities, the assessee is not coming forward for cross examination of Shri Y. J. Choksi and, by now he is expired. We find that the CIT(A) has recorded the finding of fact that the alleged depositor on three different occasions have denied giving any loan/deposit to the assessee. Now before us, there is nobody to controvert this finding of fact recorded by the CIT(A). In term of the above, we are of the view that, from records, we cannot reach to a conclusion that this deposit is explained. In the absence of the same, we are of the view that this is unexplained deposit and, accordingly, we confirm the same.

Similar are the facts in other year, i.e., 1995-96, hence taking a consistent view, we confirm the addition in that year also.

In the result, both the assessee’s appeals are dismissed. प�रणामतः �नधा�रती क� अपील� खा�रज क� जाती है ।