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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI RAJENDRA & SHRI SAKTIJIT DEY
आदेश / ORDER शक्तिजीि दे, न्याययक सदस्य के द्वारा / PER SAKTIJIT DEY, J.M.
The present appeal preferred by the assessee is directed against the order dated 30th March 2011, passed by the learned Commissioner (Appeals)–18, Mumbai, for the assessment year 2001–02. The assessee in total has raised ten grounds.
Bluesea Securities Broking Pvt. Ltd. 2
At the outset, the learned Counsel for the assessee submitted that grounds no.4 and 7, do not survive any more as the learned Commissioner (Appeals) has granted relief to the assessee in an order passed under section 154 of the Income Tax Act, 1961 (for short "the Act"). In view of such submissions of the learned Counsel for the assessee, grounds no.4 and 7, are dismissed as “not pressed”.
As far as grounds no.12 and 10 are concerned, these grounds being general in nature, do not required any specific adjudication.
In grounds no.3 and 6, the assessee has challenged the addition of ` 55,000, as unexplained cash credit under section 68 of the Act.
Briefly the facts are, the assessee, a company, engaged in the activity of sub–broker and dealing in shares. For the assessment year under consideration, the assessee filed its return of income on 18th October 2001, declaring total income at ` nil. The assessment in assessee’s case was completed under section 143(3) vide order dated 27th March 2004, determining the total income at ` 18,53,170, by making additions under section 68 of the Act. The assessment order so passed was confirmed in appeal by the first appellate authority. However, the assessee carried further appeal before the Tribunal. The 12th Tribunal vide order dated February 2008, in ITA no.7480/Mum./2004, restored the matter back to the Assessing Officer
Bluesea Securities Broking Pvt. Ltd. 3 with a direction to decide the issue afresh after examining the additional evidence filed by the assessee. In pursuance to the direction of the Tribunal, the Assessing Officer took up the assessment proceedings again by calling upon the assessee to produce the creditors personally along with the documentary evidence such as bank pass book, copy of I.T. return, Profit & Loss account, Balance Sheet, Permanent Account Number for verifying the genuineness of the transaction as well as claim of bad debt. The credits in respect of which the aforesaid information was called for by the Assessing Officer amounted to ` 18,31,997. As observed by the Assessing Officer though sufficient opportunity was given to the assessee to prove the genuineness of the aforesaid cash credits but the assessee having failed to establish the genuineness of the transaction, he added the amount of ` 18,31,997 under section 68 of the Act.
Being aggrieved of such addition, the assessee preferred appeal before the first appellate authority. Before the learned Commissioner (Appeals), the assessee took a specific plea that the Assessing Officer has completed the assessment without verifying the contents of the explanation filed in the form of affidavit before the Tribunal and also confirmations received from the parties. Upon considering the submissions of the assessee, the learned Commissioner (Appeals) remanded the matter to the Assessing Officer for fresh verification. After considering the report of the Assessing Officer, the learned
Bluesea Securities Broking Pvt. Ltd. 4 Commissioner (Appeals) accepted certain cash credits to be genuine as the assessee has not only submitted confirmation letters revealing the name, address, PAN of the parties but the creditworthiness were also proved. The learned Commissioner (Appeals) rejecting the suggestions of the Assessing Officer for confirming the additions in respect of these creditors held that only because summons were not complied with cannot be a ground to make the additions when there are material on record to prove the transactions. However, in respect of three parties namely Shri Hemnani, proprietor of H.P. Investments, Premji Maroo and Jaidev Patel, the learned Commissioner (Appeals) confirmed the additions by holding that not only there are no confirmations, but, in case of two of the parties, they have denied the transaction totally.
As far as cash credit relating to Shri Hemnani, is concerned, the learned Counsel for the assessee submitted before us that the assessee has been carrying on regular share transactions on behalf of Shri Hemnani. It was submitted that from the earlier years also, the assessee has received cheque payment and such transactions have been reflected in the assessee’s books of account. The learned Counsel for assessee submitted that only because Shri Hemnani, accepted cash transaction of ` 48,000, it cannot be presumed that he has not paid the balance amount of ` 55,000. He submitted, even though the assessee may not be having other documentary evidence to prove the transaction apart from the entries made in its own books of account
Bluesea Securities Broking Pvt. Ltd. 5 but the circumstantial evidence and other relevant factors would certainly give the benefit of doubt to the assessee.
The learned Departmental Representative, on the other hand, relying upon the reasoning of the Assessing Officer and the learned Commissioner (Appeals), submitted that when the assessee has failed to prove the cash credit with sufficient evidence, his claim cannot be accepted.
We have considered the submissions of the parties, perused the orders of the authorities below and the material available on record. As is evident, during the relevant previous year, as per assessee’s books of account, there is a credit entry showing cash receipt of ` 1,03,000 from Shri Hemnani. However, concerned person when confronted by the Assessing Officer admitted of having paid amount of ` 48,000, and denied of having paid the balance amount of ` 55,000. In support of such claim, he also produced the account copy in the name of the assessee in his books of account as per which the amount paid to him was ` 48,000. Though the assessee has claimed that as per his books of account, the amount received in cash from Shri Hemnani, was ` 1,03,000, such entries in assessee’s books of account without any other corroborative evidence, cannot be considered to be genuine or authentic. It is to be noted in the course of remand proceedings, the Assessing Officer has specifically called upon the assessee to furnish
Bluesea Securities Broking Pvt. Ltd. 6 any documentary evidence in support of cash received of ` 1,03,000, however, the assessee admitted before the Assessing Officer that he will not be able to furnish any evidence by stating as under:–
“We have not been able to locate any further receipt of M/s. H.P. Investment.”
Thus, when Shri Hemnani, himself stated before the Assessing Officer that he has paid only ` 48,000 in cash to the assessee and which is also as per his books of account, the claim of the assessee that he has received ` 1,03,000 from the creditor cannot be accepted. In these circumstances, we agree with the learned Commissioner (Appeals) that the credit for the balance amount of ` 55,000, as appearing in the name of Shri Hemnani, has to be treated as unexplained cash credit under section 68 of the Act. Grounds no.3 and 6, are dismissed.
In grounds no.8 and 9, the assessee has challenged the addition of an amount of ` 2,60,000 and ` 2,50,000 claimed to have been received from Shri Premji Maroo and Shri Jaideep Patel, respectively.
As far as these two parties are concerned, during the remand proceedings, though, both of them were examined in pursuance to summons issued but they stated before the Assessing Officer that they have not paid the amounts in cash to the assessee as claimed by him.
Bluesea Securities Broking Pvt. Ltd. 7 In view of such statement given during remand proceedings, the learned Commissioner (Appeals) confirmed the addition.
The learned Counsel for the assessee submitted before us that in spite of the fact that the concerned parties have denied of advancing any cash to the assessee but fact remains they were doing share transactions through the assessee. The learned Counsel for the assessee referring to the written submissions filed before the first appellate authority submitted that the transactions have been carried out through assessee as sub–broker and all these transactions are recorded in assessee’s books of account. In this context, he referred to the account opening form of Shri Jaideep Patel Page–30 of the paper book. He also referred to the account copies of both these persons appearing in the books of the assessee and submitted that they are denying of having conducted any share transactions with the assessee only for the purpose of avoiding payment of outstanding liability to the assessee as they are debtors of assessee. The learned Counsel for the assessee submitted, when the assessee has established the identity of the persons and their existence has been proved with other details like PAN, etc., the assessee’s claim of having received amount in cash from them towards share transaction cannot be disbelieved and credits appearing cannot be treated as unexplained. He further submitted, only because the assessee was not in a position to submit further evidence to prove the credit entries and the concerned persons have Bluesea Securities Broking Pvt. Ltd. 8 denied of having advanced the amounts to the assessee, it will not automatically lead to the conclusion that they are unexplained credits of the assessee. The learned Counsel for the assessee submitted that if upon consideration of overall facts and circumstances, it appears that the assessee’s claim of having received the amount is correct then benefit of doubt is to be given. In this context, he relied upon the decision of the Hon'ble Supreme Court in CIT v/s P.K. Noorjahan, 237 ITR 597 (SC).
The learned Departmental Representative, on the other hand, strongly relied upon the observations of the Assessing Officer in the remand report as well as the findings of the learned Commissioner (Appeals).
We have considered the rival submissions, perused the order of the authorities below and the material available on record. As is evident, assessee has shown the aforesaid credit amount in respect of Shri Premji Maroo and Shri Jaideep Patel, but during the remand proceedings both the parties appearing before the Assessing Officer in response to the summons issued flatly denied of not only having paid any amount to the assessee in cash but further denied of having entered into share transactions with the assessee. In this context, a reference can be made to the observations of the Assessing Officer in the remand report, which is reproduced hereunder:–
Bluesea Securities Broking Pvt. Ltd. 9 “Shri Jaydeep Patel: He appeared on 17.03.2011. and did not accept any cash payment to the assessee, even denied any share transaction with the assessee. He confirmed that he had only opened account with the assessee but he stated that some of the columns in account opening form were not filled by him. And he further stated that as per SEBI's rule the broker needs to take confirmation of account from client, in his case the broker note shown by the assessee are its own and he has not confirmed countersigned the same, and also that the affidavit of Shri Mahendra Gosar is false. Shri Premji Maru: He appeared on 23.03.2011 and stated that he never made any share transaction through the assessee. And the broker's note and other account llegedly maintained by the assessee for him are manipulated and without consulting him. He also stated that he did not know Shri Ashwin Gangar and never came across him as stated in the said affidavit of Shri. Gangar. And he further said that the affidavit is absolutely false and recommended strong legal action against the false affidavit filed by the assessee.”
It is further evident from the remand report, the assessee has no other documentary evidence to prove the aforesaid credits. As far as the contention of the learned Counsel for the assessee that Shri Jaideep Patel, has filled up the client registration application form with the assessee, it is to be noted that during the remand proceedings when this fact was confronted to Shri Jaideep Patel, he stated before the Assessing Officer that on request of Shri Mahindra Gosar, he signed the form and column no.8 onwards were not filled up by him. It will be pertinent to mention here, though, during the remand proceedings assessee was given full opportunity to cross examine these two persons, but, he failed to elicit any favourable response from them. In fact, during cross examination it was admitted on behalf
Bluesea Securities Broking Pvt. Ltd. 10 of assessee that there are no documentary evidence to prove receipt of cash. Thus, as can be seen from the material on record, the assessee has failed to prove the genuineness of the transaction. In fact, the concerned parties have denied of having paid any amount appearing as credit in their name in assessee’s books of account. It will be pertinent to mention here, in the course of hearing when the learned Counsel for the assessee was asked by the Bench to explain the reason why the person concerned denied of having paid any money, he submitted that to avoid payment of outstanding liability due to the assessee, they have adopted such an approach. However, on further query, the learned Counsel for the assessee failed to produce any substantive evidence to show that there is in fact any outstanding liability due to the assessee admitted by these two persons or show any correspondence by the assessee with the concerned persons demanding payment of outstanding liability. Thus, in absence of any corroborative evidence to prove the fact that the credits appearing in books of account in relation to the concerned persons are genuine, assessee’s claim of having received cash payment cannot be believed on mere face value. Therefore, the assessee having failed to establish the genuineness of the credits, the amounts in question have been rightly treated as unexplained credit of the assessee. As far as the principle laid down in the decision cited by the learned Counsel for the assessee, though we respectfully agree with the principle laid down
Bluesea Securities Broking Pvt. Ltd. 11 therein, but those principles cannot be applied to each and every case without examining the relevant facts. As far as the present assessee is concerned, the facts on record clearly demonstrate that the assessee has failed to establish the genuineness of the credits. That being the case, we do not find any reason to interfere with the order of the learned Commissioner (Appeals) on this issue. Accordingly, we uphold the order of the learned Commissioner (Appeals) by dismissing the grounds no.8 and 9 raised by the assessee.