Income Tax Appellate Tribunal - Jaipur
Ss Timber Plywood, Jaipur vs Department Of Income Tax on 7 September, 2015
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM
vk;dj vihy la-@ITA No. 592/JP/2012
fu/kZkj.k o"kZ@Assessment Year : 2003-04.
The Income Tax Officer, cuke M/s. S.S. Timber Plywood,
Ward 4(1), Vs. Nahargarh Road,
Jaipur. Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AAFFS 2914 N
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : SHRI Kailash Mangal (JCIT)
fu/kZkfjrh dh vksj ls@ Assessee by : Shri Anil Sharma, C.A.
& Shri Arpit Vijay, C.A.
lquokbZ dh rkjh[k@ Date of Hearing : 09.06.2015.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 07 /09/2015.
vkns'k@ ORDER
PER SHRI T.R. MEENA, A.M.
This is an appeal filed by the Revenue emanating from the order of ld. CIT (A)-II, Jaipur dated 21.03.2012 for the A.Y. 2003-04. The effective grounds raised in the appeal are as under :-
" On the facts and in the circumstances of the case and in law the ld. CIT (Appeals) has erred in -
1) Not confirming addition of Rs. 21,31,836/- out of total addition of Rs. 65,46,817/- made u/s 68 of the I T Act on account of unexplained cash credits despite the fact that neither during the 2 ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
course of assessment proceedings nor during the course of remand proceedings, these alleged cash creditors appeared before the AO in response to the summons issued by her for verification of these credits.
2) Deleting trading addition of Rs. 11,24,838/- made by the AO on the ground of declaring better g.p. rate in comparison to earlier years ignoring the fact that the assessee produced books of accounts neither before the AO during assessment proceedings nor before the CIT (A) during appellate proceedings."
2. First ground of Revenue's appeal is against deleting the addition of Rs. 65,46,817/- made under section 68 of the IT Act. On perusal of Balance Sheet of the assessee for the year under consideration, it is noticed that there are unsecured loans amounting to Rs. 1,97,53,075/-. During the preceding year, the unsecured loans were Rs. 1,32,06,258/-. This implies that creditors of Rs. 65,46,817/- had been included in the Balance Sheet during the year under consideration. The assessee was asked to prove the genuineness of the credit, creditworthiness of the creditor and identity of the person vide various questionnaire issued to the assessee, and also asked to produce the confirmation from these creditors of unsecured loans of Rs. 1,97,53,075/-. The assessee did not furnish any information regarding the cash creditors. The assessee also had taken bogus entries similar to one of Rs. 1,50,000/- received by it from Shri Raj Kumar. Therefore, he made addition of Rs. 65,46,817/- as undisclosed income. 3
ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
3. Being aggrieved by the order of AO, assessee carried the matter before ld. CIT (A) who had deleted the addition by observing that assessee had not filed any confirmation before the AO. However, it filed confirmation before the appellate proceedings and which were admitted by the ld. CIT (A) under Rule 46A as additional evidences. Same were forwarded to the AO. The AO issued summons under section 133(6) to all the cash creditors. Out of 63 cash creditors, 40 cash creditors had also appeared before the AO and confirmed having given the loan to appellant. All the cash creditors were also assessed to tax and also submitted copies of their bank statement. In the case of Smt. Suman Goyal, the bank statement could not be submitted. However, she was assessed to tax and her PAN was stated to be AAZPG 5755 F. Similarly in the cases of Smt. Rachana Bhagrai, Shri Tara Chand Goyal and Shree Ram Tent House, copies of bank statements could not be submitted though they were assessed to tax and their PANs were stated to be AFBPB 7205 E, AAZPG 5754E and AALFS 5766 N respectively. The AO further observed that after lapse of 7-8 years these creditors could not have got the bank statement even from the bank. Further in five cases, the summons were returned unserved by the Postal authorities and in 14 cases, reply from the alleged creditors were not received. In view of the above facts, the AO was of the opinion that unsecured loans of Rs. 21,31,836/- were not verifiable. The ld. Counsel of the appellant was provided copy of 4 ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
remand report. In response, the appellant vide its letter dated 21.3.2012 had argued that the AO vide his remand report dated 15.03.2012 held that the unsecured loans of Rs. 21,31,836/- received from 19 persons were not verifiable. The AO had simply concluded the above finding for the reason that about 19 creditors had not responded to the summons issued u/s 131 of the IT Act. However, the appellant had given complete details in respect of the relevant creditors containing their addresses, PAN, amount and date of loans, interest paid, their confirmation letters etc. and the summons issued by the AO had been duly served at the given addresses, except 5 creditors. Out of 5 creditors to whom summons could not be served, Shri Govind Sahai Agarwal and Shri Mohan Rai Bhandari had died and other creditors had shifted their residence. The appellant by producing the confirmation letters of the creditors, their PAN and addresses had proved the identity of the creditors, their capacity and genuineness of the transactions, and thus discharged the primary burden lying under section 68 of the IT Act. The relevant amount had been received through account payee cheques as detailed in respective confirmation letters and the summons issued by the AO had been duly served at the given addresses except 5 creditors. The AO had not contradicted any of the evidences submitted by the appellant nor given any finding in respect of the non-genuineness of the relevant loans. The appellant could not be blamed for non compliance of summons 5 ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
issued by the AO, on the part of the creditors, and the relevant loans could not be held as non genuine simply for the reason that the creditors had not complied with the summons issued by the AO. He relied upon the decision of Hon'ble Supreme Court in the case of CIT vs. Orissa Corporation Pvt. Ltd., 159 ITR 78), Hon'ble Gujarat High Court decision in the case of DCIT vs. Rohini Builers, 256 ITR 360 and held that the AO was not justified in holding that the unsecured loans of Rs. 21,31,836/- may be treated as non genuine. He further observed that he made enquiries from the computer center and verified the PANs in number of cases which has been narrated in his order on page 10. In case of non compliance of summons issued under section 131, after verification of PANs, he held that appellant had satisfactorily explained the identity, creditworthiness of the creditor and genuineness of the transaction. The loans had been received through account payee cheques and interest was paid after deduction of TDS. He further relied on the decision in case of Mod Creation Pvt. Ltd. vs. ITO, 62 DTR 25 (Delhi HC) and directed the AO to delete the addition of Rs. 65,46,817/-. He only confirmed the addition of Rs. 1.50 lacs out of total loans received during the year.
4. Being aggrieved, the revenue is before us. The ld. D/R vehemently supported the order of the AO and argued that assessee had not produced the books of account and no confirmation of cash creditors were submitted during 6 ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
the assessment proceedings. However, these were submitted at the appellate stage which had also remanded to the AO. But in case of 19 cash creditors, AO has categorically assigned the reasons that cash credits to the tune of Rs. 21,31,836/- were not genuine. In case of 5 cash creditors, summons were not served or returned unserved by the postal authorities and in case of 14 persons, replies from the alleged creditors were not received. Therefore, order of the AO may please be confirmed.
5. At the outset, the ld. A/R of the assessee submitted that during the course of appellate proceedings furnished a detailed chart of the loans accepted during the relevant previous year from 63 parties containing names, address, PAN and confirmation letters of the relevant parties along with application under Rule 46A of the IT Rules, 1962. The ld. CIT (A) had admitted the additional evidences and forwarded the same to the AO with specific direction to make detailed enquiry and to submit report in respect of the same. The AO vide her remand report dated 16.3.2012 had held that the unsecured loans of Rs. 21,31,836/- received from 19 persons had been remained not verifiable and the same may please be treated as non-genuine. The AO had concluded that the finding given simply for the reason that the relevant 19 creditors had not responded to the summons issued under section 131 of the IT Act. He further reiterated the arguments as made before ld. CIT (A). The appellant itself vide registered letter dated 7 ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
14.10.2011 and 17.11.2011 had requested all the creditors to submit the detailed information and documents as required by the AO and submitted copy of the said request along with registry receipts before the AO. The appellant had discharged the primary burden lying upon it and said burden had shifted on the revenue to prove otherwise. The appellant cannot be blamed for non compliance of the summons issued by the AO, on the part of the creditors, and the relevant loans cannot be held as non genuine simply for the reason that the creditors had not complied with the summons issued by the AO. He further relied on the decisions in cases of CIT vs. Orissa Corporation Pvt. Ltd. (supra), CIT vs. Shree Barkha Synthetics Ltd. 270 ITR 477, DCIT vs. Rohini Builders (supra), Sreelekha Banerjee vs. CIT, 49 ITR 112 (SC), S. Hastmal vs. CIT, 49 ITR 273 (Mad.). Therefore, he requested that the order of ld. CIT (A) may please be confirmed.
6. We have heard rival contentions and perused the material on record. It is undisputed fact that assessee had not produced the books of account during assessment proceedings before the AO. It is also appeared from the assessment order that assessee's books had been confiscated by the Excise Department. The assessee even had not produced certified copy of books of account from the Excise Authorities. The other theory of not producing the books of account that there was a fire in the shop and claimed that books had been destroyed in fire. 8
ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
Therefore, assessee made contradictory submissions before the AO. The ld. CIT (A) had not given any finding on the regular books of account. There was a search and seizure operation under section 132(1) of the IT Act on 12.04.2005 in case of M/s. B.C. Purohit & Co. and Shri Kripa Shankar Sharma, one of the associates of M/s. B.C. Puirohit & Co. in Jaipur. These persons were engaged in providing bogus entries in the form of gifts, loans, share application money, long-term capital gains etc. The assessee has taken entry of Rs. 1,50,000/- which has been accepted by the assessee. The fresh loan during the year was taken by the assessee at Rs. 1.06 crores. The assessee only filed confirmation in case of 19 persons but as per remand report in case of 5 persons the summons were not served. The assessee also has not produced these cash creditors for verification. Therefore, burden has not been shifted on revenue in case of 5 cash creditors. In case of 14 cash creditors, assessee also filed confirmation but there was no reply before the AO. The ld. CIT (A) only considered the confirmation along with the PAN numbers and held that the assessee's burden had been discharged by relying on various decisions. Recently various High Courts including Hon'ble Delhi High Court in case of CIT vs. Youth Construction Pvt. Ltd. (2013) 357 ITR 197 has held that the assessee has to establish the creditworthiness of the cash creditors. The Hon'ble Supreme Court has dismissed the SLP by considering its own decision in case of Lovely Exports in ITA No. 497 9 ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
of 2010 order dated 01.05.2015 and other number of decisions particularly of Hon'ble Bombay High Court in case of Union of India vs. Settlement Commission held that the creditworthiness in case of cash creditors is required to be established. Therefore, the ld. CIT (A) was not right in allowing the appeal on the basis of genuineness of the transaction and identity of the persons only. The third ingredient to prove the cash creditors under section 68 i.e. creditworthiness has to be established. Therefore, we set aside the order of ld. CIT (A) to the AO. The assessee is directed to cooperate with the AO and furnish the requisite details.
7. Second ground in revenue's appeal is against deleting the trading addition of Rs. 11,24,838/- by ld. CIT (A). As discussed above, the assessee did not produce the books of account. In absence of books of account, the AO applied the GP rate of 20% on the declared turnover of Rs. 2,25,09,871/- against GP declared @ 15% in the preceding year. The ld. CIT (A) in summary manner had accepted the assessee's book results and also accepted that the assessee did not produce the books of account before the AO. He further held that GP shown is better compared to preceding year and there is no need to make any addition in this case by relying on the decision of Hon'ble Rajasthan High Court in case of CIT vs. Gotton Lime Khaniz Udyog, 256 ITR 243 (Raj.).
10
ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
8. Before us, the revenue has challenged the order of ld. CIT (A) and argued that ld. CIT (A) without any basis had accepted the book results of the assessee when books of account had not even produced before the AO or at the appellate stage by the assessee. The assessee has also not filed any certified copy of the books of account before the lower authorities as there is a confiscation of books of account by the Excise Authorities as stated by the assessee. It may be possible that assessee has also concealed the sales as well as excise duty. The ld. CIT (A) has not ascertained, whether any adjudication has been made by the Excise Authorities or not. Therefore, matter may be set aside to the AO.
9. At the outset, the ld. A/R of the assessee submitted that the ld. CIT (A) has rightly deleted the addition on the ground that the GP rate shown during the year under consideration is better in comparison to preceding year and no addition is warranted.
10. We have gone through the submissions made by both the parties. Even the justification given by the assessee is not based on any evidence. Further, the ld. CIT (A) also had confirmed the disallowance of expenses on the basis of audit report under section 44AB of the IT Act which shows that assessee's books are not reliable. As such, the finding given on GP by the ld. CIT (A) is against its own finding. Therefore, in the interests of justice, this issue is also set aside to the AO and the assessee is directed to produce the books of account. If not possible, 11 ITA 592/JP/2012 A.Y. 2003-04 ITO vs. M/s. S.S. Timber Plywood, Jaipur.
produce the certified copy of the complete books of account from the Excise Authorities to verify the correctness and completeness of the books of account and take decision on this issue. Thus this issue is also set aside for denovo order.
11. In the result, Revenue's appeal is allowed for statistical purposes.
Order pronounced in the open court on 7.09.2015.
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(R.P.Tolani) (T.R. Meena)
U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 7/9/ 2015
Das/
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The ITO Ward 4(1), Jaipur.
2. izR;FkhZ@ The Respondent : M/s. S.S. Timber Plywood, Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 592/JP/2012) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar