Income Tax Appellate Tribunal - Amritsar
M/S Ska Builders, Amritsar. vs The Dy. Commissioner Of Income Tax, ... on 15 September, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH; AMRITSAR.
BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER
AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER
I.T.A No. 352/(Asr)/2015
Assessment Year: 2010-11
PAN: ABCFS4466K
M/s. SKA Builders Vs. Dy. C. I. T.
57-Pink Plaza, Circle-1
Near Hall Gate, Amritsar.
Amritsar.
(Appellant) (Respondent)
I.T.A No. 334/(Asr)/2015
Assessment Year: 2010-11
PAN: ABCFS4466K
Dy. C. I. T. Vs. M/s. SKA Builders
Circle-1 57-Pink Plaza,
Amritsar. Near Hall Gate,
Amritsar.
(Appellant) (Respondent)
Appellant by : Sh. P. N. Arora (Adv.)
Respondent by: Sh. Rahul Dhawan (D. R.)
Date of Hearing: 08.08.2017
Date of Pronouncement: 15.09.2017
ORDER
PER T. S. KAPOOR (AM):
These are cross appeals filed by assessee as well as by revenue against the order of Ld. CIT(A), Amritsar dated 31.03.2015 for Asst. Year:
2010-11.
2. The assessee is aggrieved with the additions sustained by Ld. CIT(A) which the Assessing Officer had made on account of unexplained 2 ITA Nos. 352&334(Asr)/2015 Assessment Year: 2010-11 cash credits to the tune of Rs.14,50,000/- received from the following persons:
(i) Smt. Sukhjit Kaur Rs.5,00,000/-
(ii) Sh. Vishal Kumar Rs.2,00,000/-
(iii) Sh. Ajit Singh Rs.5,00,000/-
(iv) Sh. Vinod Kalia Rs.2,50,000/-
The grounds of appeal taken by assessee relates to only these four additions.
3. At the outset, the Ld. AR submitted that the appeal filed by revenue in ITA No. 334/Asr/2015 is not maintainable as the tax effect in this appeal is below Rs.10 lacs and as per Circular No. 21 of 2015, dated 10th Oct. 2015, the revenue's appeal is not maintainable.
4. The Ld. DR fairly agreed that the tax involved in this appeal is less than Rs. 10 lacs.
5. Therefore the appeal of the revenue in ITA No. 334 is dismissed as the tax involved in this appeal is less than Rs.10 lacs.
6. As regards the appeal filed by the assessee, the Ld. AR submitted that Ld. CIT(A) was not justified in sustaining the additions u/s 68 of the Act specifically in view of the fact that assessee had filed bank statement, copy of returns of income tax, confirmations and therefore the assessee had discharged its onus in proving the identity, creditworthiness and genuineness of cash credits.
3 ITA Nos. 352&334(Asr)/2015
Assessment Year: 2010-11
7. In respect of Smt. Sukhjit Kaur the Ld. AR submitted that she was having agricultural limit account with Axis Bank and further stated that the deposits of Rs.5,00,000/- in her account was made out of withdrawals which she had made on the earlier dates. The Ld. AR submitted that Ld. CIT(A) had held that the earlier withdrawals were for the purpose of meeting her immediate needs without pointing out any specific instance where she might have utilized the withdrawn money. The Ld. AR submitted that the onus was on the revenue to prove that the said withdrawals were utilized for any other purpose rather than for redeposit in the bank account. Our specific attention was invited to the withdrawals made by Smt. Sukhjit Kaur on 24.12.2009, 09.01.2010, 20.02.2010 and 13.03.2010. The Ld. AR submitted that the total amount available with Smt Sukhjit Kaur out of her bank withdrawals were to the tune of Rs.5,21,000/- out of which she had deposited on account of 5,00,000/- on 26.03.2010 in her saving account and from that bank account, she had given a cheque to the assessee. Therefore, the Ld. AR submitted that in this case even the source of source stood duly explained and therefore the Ld. CIT(A) has wrongly sustained this addition.
8. In respect of Sh. Vishal Kumar the Ld. AR submitted that Sh. Vishal Kumar was an existing income tax payee and was working as sales manager with Bajaj Allianz Life Insurance Company Ltd. and the copies of income tax return for A.Y. 2008-09, 2009-10 and 2010-11 were filed before the authorities below and therefore the identity and 4 ITA Nos. 352&334(Asr)/2015 Assessment Year: 2010-11 creditworthiness of the cash credits was fully proved and therefore the Ld. CIT(A) should have deleted the additions.
9. In respect of Sh. Ajitsingh, the Ld. AR submitted that assessee was having his bank account with PNB a copy of which was available at P.B. page no. 5. He submitted that Ajitsingh was an agriculturist and necessary copy of jamabandi was placed at P.B. page 6 to 9 and English version of the same was available at P.B. page 6A to 9A. The Ld. AR submitted that these copies of jamabandi proves that the assessee was having agricultural land and it is wrong on the part of Ld. CIT(A) to hold that assessee was not having agricultural land.
As regards Sh. Vinod Kalia, the Ld. AR submitted that Mr. Vinod Kalia was also an existing income tax payee and the return of income alongwith computation of income was filed that the authorities below. It was submitted that from the copies of income tax returns, it is apparent that Shri Vinod Kalia was having sufficient amount of income to advance unsecured loan to the assessee.
10. The Ld. AR in view of these facts argued that assessee had proved source of these deposits and it was not required to prove source of source. Reliance in this respect was placed on the following case laws:
"(i) Decision of Punjab & Haryana High Court in the case of CIT Vs. Ram Narain Goel, reported in 224 ITR 180.
(ii) Decision of ITAT, Kolkata Bench, in the case of JCIT Vs. Gramophone Company of India Ltd., reported in 265 ITR (Kol-Trib) 46 (AT).
(iii) Decision of Allahabad High Court in the case of Monga Metals Pvt. Ltd.
Vs. ACIT, reported in 67 TTJ (All) 247.
5 ITA Nos. 352&334(Asr)/2015
Assessment Year: 2010-11
(iv) Decision of Supreme Court of India in the case of CIT Vs. Daulat Ram Rawat Mull, reported in 87 ITR 349 (SC).
(v) Decision of Gujarat High Court in the case of DCIT Vs. Rohini Builders, reported in 256 ITR 360 (Guj.)
(vi) Decision of Rajasthan High Court in the case of Aaravali Trading Co. Vs. ITO, reported in 3 DTR (Raj.) 199.
(vii) 211 ITR 11 (SC.)"
11. The Ld. DR on the other hand submitted that Ld. CIT(A) has passed detailed and reasoned order and wherein he has held that the balance in the bank accounts before and after the issue of cheques to assessee was minimal and these persons had advanced loans to assessee after deposit of the similar amounts in thier bank accounts which suggests that the loans obtained by assessee were not genuine and also the creditworthiness of the depositors was also not proved and therefore the Ld. CIT(A) has rightly sustained the additions. It was submitted that merely because of the fact that the assessee had filed confirmations and the deposits were received through cheques does not absolve assessee from its onus of proving cash credits.
12. We have heard the rival parties and have gone though the material placed on record. We find that it is correct that assessee had filed a confirmations alongwith copy of bank accounts and copies of income tax returns wherever applicable. The Ld. CIT(A) has upheld the additions only because of the fact that these depositors had issued cheques to the assessee immediately after deposit of similar amounts in cash in the respective bank accounts.
6 ITA Nos. 352&334(Asr)/2015
Assessment Year: 2010-11 As regards Smt. Sukhjit Kaur we find that the Ld. CIT(A) though admitted that Smt. Sukhjit Kaur has withdrawn various amounts from her bank account in cash but he held that these withdrawals were made for her personal needs. The Ld. CIT(A) has not brought on record any material to suggest that for what purposes, these withdrawals were made. In the absence of any adverse findings regarding these withdrawals it cannot be concluded that these withdrawals were not utilized for redeposit in the bank account of Smt. Sukhjit Kaur. From her bank account with Axis bank she had withdrawn an amount of Rs.5,21,000/- on various dates which is detailed as under:
24.12.2009 Rs.101000/-
09.01.2010 Rs.90,000/-
20.01.2010 Rs.70,000/-
13.03.2010 Rs.2,60,000/-
Total Rs.5,21,000/-
Out of these withdrawals of Rs.5,21,000/- Smt. Sukhjit Kaur deposited an amount of Rs.5,00,000/- in the same bank account on 26.03.2010 and issued a cheque to the assessee on the same date and therefore the amount of unsecured loan from Smt. Sukhjit Kaur gets duly explained. We further find that these withdrawals were made by Smt. Sukhjit Kaur after the amounts in her saving account were transferred from agriculture limit account. In view of these facts and circumstances we do not agree with the decision of Ld. CIT(A) so far as Smt. Sukhjit Kaur is concerned as her deposits of cash in the bank 7 ITA Nos. 352&334(Asr)/2015 Assessment Year: 2010-11 account are duly explained and this was the only objection raised by Ld. CIT(A). In view of the above, we allow ground no. 4 of the appeal.
As regards deposits of Rs.5,00,000/- received from Sh. Ajit Singh, the Ld. CIT(A) has held that Sh. Ajit Singh was not having any agriculture land and he has held that the agricultural land belonged to brothers of Sh. Ajit Singh. However in the P.B. page 6A to 9A, we find an English version of jamabandi wherein Ajit Singh has been mentioned as owner of the land. The Ld. CIT(A) has not examined this fact about agricultural income of Sh. Ajit Singh as he has held that the land belonged to the brothers of Sh. Ajit Singh, therefore we deem it appropriate to remit this issue back to the office of the Assessing Officer who should examine the agriculture income of Sh. Ajit Singh to arrive at the conclusion as to whether Sh. Ajit Singh was able to advance an amount of Rs.5,00,000/- to the assessee or not. In view of the above ground no. 3 is allowed for statistical purposes.
As regards the deposits of Rs.2,50,000/- received from Sh. Vinod Kalia, we find that Mr. Vinod Kalia was having salary income from Bajaj Allianz Life Insurance Company Ltd. and his return of income for assessment year 2010-11 was filed at Rs.1,81,680/-. The Ld. CIT(A) has held that the bank statement of Shri Vinod Kalia was not filed and assessee had not explained the generation of savings of Sh. Vinod Kalia to the extent of Rs.2,50,000/- and therefore he has held that the deposits of Rs.2,50,000/- given by Sh. Vinod Kalia remained 8 ITA Nos. 352&334(Asr)/2015 Assessment Year: 2010-11 unexplained. We find that assessee had filed the copies of income returns for the assessment year 2010-11 to 2011-12 whereas the relevant copies of return for establishing the past savings of Sh. Vinod Kalia were returns belonging to years earlier than assessment year 2010-11. Before us also no proof of earlier savings of Sh. Vinod Kalia was submitted, therefore we concur with the findings of Ld. CIT(A) that the amount of Rs.2,50,000/- remained unexplained and in view of the above ground no. 5 is dismissed.
13. Now coming to the last addition of Rs.2,00,000/- which was received from Sh. Vishal Kumar, we find that the assessee had filed income tax returns of Sh. Vishal Kumar for assessment year 2008-09, 2009-10 and 2010-11 wherein the incomes of Rs.1,56,010, Rs.1,93,500/- and Rs.1,51,994/- were declared. The copy of bank account in ICICI bank is placed at P.B. page 29 to 33 and which was also filed before the authorities below. The balance in the bank account remained very low and it was only on 29.03.2010 that a cash of Rs.2,00,000/- was deposited out of which on 30.03.2010, a cheque of Rs.2,00,000/- was given to the assessee. Other than this cash deposit, the bank account do not reveal any other deposit. Therefore the genuineness of the transaction could not be explained and in view of the above, we are in agreement with the findings of Ld. CIT(A). In view of the above ground no. 6 is also dismissed.
9 ITA Nos. 352&334(Asr)/2015
Assessment Year: 2010-11
14. In nutshell, the appeal of the assessee is partly allowed, partly dismissed and partly allowed for statistical purposes whereas the appeal of the revenue is dismissed being below the tax effect of Rs.10 lacs.
Order pronounced in the open court on 15.09.2017 Sd/- Sd/-
(N. K. CHOUDHRY) (T. S. KAPOOR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 15.09.2017.
/GP/Sr. Ps.
Copy of the order forwarded to:
(1) The Assessee:
(2) The
(3) The CIT(A),
(4) The CIT,
(5) The SR DR, I.T.A.T.,
True copy
By Order