Income Tax Appellate Tribunal - Mumbai
Jay Praakash B Singh , Mumbai vs Assessee
1
Jay Prakash B Singh
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI ' J ' BENCH
MUMBAI BENCHES, MUMBAI
BEFORE SHRI R K PANDA,
PANDA, AM & SHRI VIJAY PAL RAO, JM
ITA No. 6881 to 6884/Mum/2008
6884/Mum/2008
(Asst Year 1991-
1991-92,9
92,93-94 to 95-
95-96)
Jay Prakash B Singh Vs The Asst Commr of Income Tax
Chandra Villa 24(2), Mumbai
Chikuwadi
Near Malwani Church Marve Road
Malad (W) - Mumbai
(Appellant) (Respondent)
PAN No. AAHPS5099N
Assessee by Sh Bhupendra Shah
Revenue by Sh P S Sunder Singh
Dt.of hearing 8th Nov 2011
Dt of pronouncement 21st Dec 2011
ORDER
PER VIJAY PAL RAO, RAO, JM These appeals by the are directed against composite order of the CIT(A) dated 4th Sept 2008 for the Asst Years 1991-92, 1993-94 to 1995-96. 2 For the Asst Year 1991-92, the assessee has raised the following grounds:
I. In the facts and the circumstances of the case and also in law the CIT(A] erred in confirming the disallowance of ` 45,000/-(` 125,000 - 70,000 - 10,000) - u/s 40A(3) in respect of cash payments above ` 10,000/- by disregarding rule 6DD (j) and relevant case laws.
2. in the facts and the circumstances of the case and also in law the CIT (A) erred in rejecting the alternative Additional Ground of appeal that the Assessing Officer erred in treating income from sale of agricultural plot/land under the head of income from business as against the correct head income from capital gain.
3. In the facts and the circumstances of the case and also in law the CIT[A] erred in confirming the addition of ` 11,500/- being profit @ 10% of contract work on estimated basis.2
Jay Prakash B Singh 3 Ground no.1 is regarding disallowance u/s 40A(3) of the I T Act. This ground is common in all the appeals before us.
3.1 The assessee was engaged in the business of purchase and sale of plots of land. Search and seizure operation was conducted in the premises on 31/03/1995. The Assessing Officer found that the assessee had made payments in cash above Rs.10,000/- against purchase and brokerage in violation of the provision of section 40A(3) of the IT, the details of which are as under:
Asstg Year Purchase Brokerage Total
1991-92 1,25,000/- Nil 1,25,000/-
1993-94 14,00,000/- 2,40,000/- 16,40,000/-
1994-95 15,10,334/- 1,67,466/- 16,77,800/-
1995-96 70,76,00/- 10.96,271/- 81,72,271/-
3.2 The Assessing Officer asked the assessee as to why the aforesaid sum
should not be disallowed u/s 40A(3) of the I T Act. The assessee filed its explanation vide letter dated 9.3.1998 and mainly contended that the object of provisions of sec. 40A(3) is to check tax evasion and when the genuineness of the payment is not doubted then, in view of CBDT circular no. 220 dated 31.5.1977, the Assessing Officer should take a practical approach to the problem and the hardship of the assessee. The Assessing Officer was not impressed with the explanation given by the assessee and held that the payment for the purchase of stock-in-trade or raw material etc., also come within the sweep of section 40A(3). He has relied upon the decision of the Hon'ble Supreme Court in the case of Girdharlal Goenka vs CIT reported in 18 ITR 17. Accordingly, the Assessing Officer disallowed the above said payment u/s 40A(3) of the I T Act.
3
Jay Prakash B Singh 4 On appeal, the CIT(A) deleted the addition of the sums paid upto to Rs. 10,000/- but confirmed the disallowance of the remaining amounts. 5 Before us, the ld AR of the assessee has submitted that the provisions of sec. 40A(3) is to check evasion of taxes so that the payment is made from the disclosed sources and to curb flow of black money. The Rule 6DD(J) has illustrated some of the circumstances in which the conditions laid down under the said law would be applicable but it does not cover all the circumstances. Therefore, when the assessee has explained and established that the payments exceeding Rs. 10,000/- are genuine and identity of the payee is not doubted then the deduction should not be disallowed simply on the ground that the payment was made in cash. He has referred the circular no.220 dated 31.5.1997 and submitted that this circular has clarified that the provisions of sec 40A(3) and rule 6DD (j) are not exhaustive but only illustrative and where the transaction is genuine, deduction should be allowed by considering the business expediency and the facts of the case. The ld AR has further contended that the business expenditure cannot be disallowed u/s 40A(3) on the basis of assessment of undisclosed investment. It was further contended that the Assessing Officer has not brought any material on record to show that the purchase and sale price of the land is not genuine; therefore, in view of the provisions of sec 40A(3) r.w.r 6DD(j), no disallowance is called for. He has railed upon the decisions of the Tribunal in the case of Sharma Associates vsACIT reported in 54 TTJ 207(Pune)TM) and the decision of the Hon'ble Orissa High Court in the case of CIT v. Aloo Supply Co. reported in 121 ITR 680.
5.1 On the other hand, the ld DR has submitted that the transactions of receipts and payments in cash were found in the search and seizure action u/s 132 in the case of the assessee on 31.3.1995. The Assessing Officer has made 4 Jay Prakash B Singh the addition on the basis of seized material and therefore, it cannot be said that the receipts and the payments were genuine. He has further submitted that the assessee has not brought any material on record to show the compelling circumstances under which the assessee had no option but to make and receive the payments in cash. The assessee has failed to show the existence of exceptional circumstances as per Rule 6DD(j). The assessee has shown these receipts and payments as business income in the P&L account filed with the return of income and not as an investment in agricultural land. He has relied upon the orders of the lower authorities.
6 We have considered the rival contention and carefully perused the relevant material on record. The assessee has mainly contended that when the payments and transactions are genuine and the identity of the payee is not doubted then the deduction should not be disallowed simply on the ground that the payment was made in cash. It is pertinent to note that all these transactions came into light during the course of search action and the Assessing Officer has made the additions and disallowances on the basis of seized material. 6.1 Even otherwise, the arguments advanced by the assessee are legal in nature, which can be applied on the facts of the case falls under the exceptional circumstances as provided under the Rule 6DD(j) of the I T Rules. When the assessee has not brought out a case falling under the exception as stipulated in Rule 6DD(j), then the legal proposition would not help the case of the assessee. In the absence of any material to establish that due to compelling circumstances the assessee paid the sum in cash, the contentions raised by the assessee cannot be accepted. Since the payments were made for purchase of plot of land; therefore, in the absence of primary documents of purchase and sale, the contention of the assessee is not supported by the relevant evidence or material. 5
Jay Prakash B Singh When the assessee has failed to establish or make out a case, falls under the exception, as provided under Rule 6DD(j), then we do not find any reason to interfere with the order of the CIT(A), qua, this issue. 7 Ground no.2 is regarding alternative claim of the assessee as income from sale of agricultural plots should be treated as capital gains and not business income.
8 We have heard the ld AR of the assessee as well as the ld DR and considered the relevant material on record. This issue was raised by the assessee as an additional ground before the CIT(A) and claimed that the amounts received in cash against the sale should be assessed as capital gain and not as business income; therefore, to the extent of sale proceeds, the provisions of sec. 40A(3) are not applicable. The assessee contended that when the purchase and sale of land was for investment purposes then no disallowance can be made u/s 40A(3) as the provisions of sec. 40A(3) are not applicable for capital gain/investment.
8.1 It is to be noted that right from the beginning the assessee took this stand that the cash payments for the purchase of plot of land was in the ordinary course of business of the assessee. Further, the assessee himself has shown the plots of land as stock-in-trade and the business of the assessee is purchase and sale of plots of land. Therefore, the assessee cannot take entirely opposite and contrary stand to defend the disallowance u/s 40A(3). When the assessee has shown the plots of land as stock-in-trade, and purchase consideration of stock in trade was business expenditure; then how on sale of same plots of land can be claimed as capital gain on investment.
8.2 Before the Assessing Officer, the assessee contended that the cash payment was made in the ordinary course of business. Even before the CIT(A), 6 Jay Prakash B Singh the assessee has stated in the statement of facts that the payments were made during the course of ordinary business; therefore, the assessee cannot allow to take a totally opposite and contrary plea as against the admitted facts of the case. The business activity involves transactions of purchase and sale and only on completion of both the transactions, the outcome is known as income. Whether a particular activity of trade/business or investment depends on the intention of the assessee at the time of announcement of the activity and subsequent conduct as well. Thus, at the time of purchase of plot the assessee treated the same as stock in trade, then at the time of sale it would not change the nature from stock in trade to investment. Accordingly, the alternate plea taken by the assessee is devoid of any merit and deserves to be dismissed. 9 Ground no.3 is regarding estimation of income on contract receipt. This ground is common for the AYs 1991-92, 1993-94 and 1995-96. 9.1 The Assessing Officer found from the seized material that the assessee was doing some contract work also; but no profit was shown from there. The Assessing Officer assessed the profit at 10% of the contract work. The assessee challenged the estimation of profit before the CIT(A) and submitted that the assessee used to construct boundary walls on the plots sold to the buyers on their request without profit. The CIT(A) did not find any merit in the contention of the assessee and observed that no business man does work for others without motive of profit.
10 Before us, the ld AR has submitted that the estimation of profit at 10% of the contract receipt is without any basis. The ld DR on the other hand relied upon the orders of the lower authorities and submitted that 10% profits is reasonable estimation in the line of business of the assessee. 7
Jay Prakash B Singh 11 We have considered the rival contentions as well as the relevant material on record. It is an undisputed fact that the assessee received contract amount; but has not admitted the income out of the receipts. The contract receipt claimed by the assessee against job work of boundary walls constructed on the plots sold to the buyers without any profit. It is pertinent to note that when the assessee is not maintaining proper and separate accounts for job work then, in the absence of any material, the contention of the assessee cannot be accepted. Since the assessee has failed to produce any tangible material in support of the contention; therefore, in our view, the estimation of net profit at 10% of the receipts is reasonable. Accordingly, we concur with the view of the lower authorities on this issue.
12 For the Assessment Year 1994-95, the assessee has raised another ground as under:
"In the facts and circumstances of the case and also in law the CIT(A) erred in confirmi9ng the addition of `. 11,10,000/( ` 3,35,000 + 7,75,000) being advance received against sale from two parties.
12.1 The Assessing Officer found various amounts as cash credit in the books of account of the assessee under the head 'advance/deposits against sales. The details of the amounts given in para 6 of the assessment order is as under:
6 On examination of the books of accounts the following amount in cash were found to be credited under the head of" advances/deposits against sales" against the following names:
i) Poojara Rs. 3,35,000
ii) Joseph Rs. 7,75,000 12.2 The assessee was asked by the Assessing Officer to produce any documentary evidence in respect of the receipt of these amounts in cash as outstanding at the end of the financial year. The assessee submitted before the 8 Jay Prakash B Singh Assessing Officer that he did not have confirmation from these parties. However, it was stated that these entries were reflected in the seized material and the documents inventorized during the course of search. The Assessing Officer was of the view that the assessee has not discharged his onus and since the assessee was unable to discharge its onus, the Assessing Officer made an addition of `. 11,10,000 to the total income of the assessee for the Assessment Year1994-95.
12.1 On appeal, the CIT(A) issued remand order for verification of the parties. Since the parties did not appear before the Assessing Officer even during the course of remand proceedings; therefore, in the absence of the parties as well as books of account, the CIT(A) confirmed the addition on this account. 13 Before us, the ld AR of the assessee has submitted that the assessee has discharged its onus by furnishing the correct addresses of the parties. As Shri Poojara was not available at that point of time; therefore, it was beyond the control of the assessee to produce him. He has further submitted that the assessee had filed the confirmation from Mr Joseph regarding the advance received; therefore, the assessee has discharged its onus by furnishing the correct addresses of the parties. The ld AR has further submitted that the amount has been repaid in the subsequent year on account of cancellation of deed. Further, since the assessee is having dispute with Mr Poojara; therefore, he has not cooperated with the assessee.
13.1 The ld AR of the assessee has further submitted that Mr Poojara filed a suit against the assessee and claimed the amount in question from the assessee, which shows that the transaction is genuine and because of the dispute between the parties, he did not cooperate with the assessee.
9
Jay Prakash B Singh 13.2 Alternatively, the ld AR has submitted that the assessee can produce the parties, if one more opportunity is given.
13.3 On the other hand, the ld DR has submitted that despite sufficient opportunities, the assessee has neither produced the parties nor any evidence to prove the claim. He has relied upon the orders of the lower authorities. 14 We have considered the rival contention as well as the relevant material on record. Undisputedly, the assessee could not produce the parties as well as relevant material/evidence in support of the claim of the assessee. However, when there is a dispute and litigation between the parties and other party namely Sh Poojara has filed a suit against the assessee claiming the said amount due against the assessee, then prima facie it is relevant material to be taken into consideration for deciding the issue. In the case of other party, though the assessee produced the confirmation but could not produce the party for examination as the party was not available at that point time. 14.1 Since the relevant material has not been examined by the lower authorities, as it was not produced due to non availability of the parties; therefore, we are of the considered opinion that the assessee should be given one more opportunity to prove its claim by producing the relevant material/evidence as well as parties before the Assessing Officer. Accordingly, we set aside this issue to the record of the Assessing Officer for re-examination and adjudication of the same as per law after considering the relevant evidences and examination of the parties.
14.2 We may, needless to say that, if the amount in question is part of subject matter of the dispute between the parties and the other party has made a claim of suit amount against the assessee in the pending litigation before the Court 10 Jay Prakash B Singh then it is material evidence in support of the claim of the assessee. The Assessing Officer is directed to examine the same while deciding the issue. 15 For the AY 1995-96, apart from the common issue already discussed, the assessee has also raised the following grounds:
1. In the facts and the circumstances of the case and also in law the Commissioner of Income Tax [A] erred in confirming addition of `. 50,000/- on account of Investment in Plot No. 24/1 under the head undisclosed investment.
2. In the facts and the circumstances of the case and also in law the Commissioner of Income Tax [A) erred in confirming addition of `. 25,000/- on account of Investment in Plot No. 208/24 under the head undisclosed investment.
3. In the facts and the circumstances of the case and also in law the Commissioner of Income Tax [A] erred in confirming addition of `. 26,000/- on account of investment in Co-operative Society.
4. In the facts and the circumstances of the case and also in law the Commissioner of Income Tax [A] erred in confirming addition of `. 1,16,524/- only on the basis of entries in loose papers.
5. In the facts and the circumstances of the case and also in law the Commissioner of Income Tax [A] erred in confirming addition of `. 42,000/- on account of cash deposits in bank account even though actually it is a cheque deposit and not cash.
6, In the facts and the circumstances of the case and also in law the Commissioner of Income Tax [A] erred in confirming addition of `. 5,47,000/- under the head unexplained cash deposits under the head advances/deposits.
7. In the facts and the circumstances of the case and also in law the Commissioner of Income Tax [A] erred in confirming addition of `. 2,00.000/- on account of' unexplained cash credit. 16 Ground nos 1 & 2 regarding undisclosed investment in plot of lands. 11
Jay Prakash B Singh 16.1 The Assessing Officer found that as per the Annexure 6 to the panchnama drawn during the course of search an inventory of stock of lands as on 31.3.1995 was made. The details of the items of the inventory are as under:
i) Survey No.24/1 Rs. 1,00,000
ii) Survey no. 207B Rs. 5,00,000
iii) Survey no.208/24 Rs. 25,000/-
16.2 The Assessing Officer found that the item at Sl no.1 reflected in the stock in trade at `. 7 lacs as `, 50,000/- paid and the balance amount of `. 6,50,000/- payable in the balance sheet. Since the balance amount paid of `. 50,000/- was not reflected; therefore, the Assessing Officer brought the same to tax in the AY 1995-96.
16.3 Similarly, item no.2 has also reflected as advance against the purchase at `.5,11,000/-. Thus, the Assessing Officer made an addition of `. 25,000/- with respect to item no.3 as the same was not reflected in the balance sheet. 16.4 On appeal, the CIT(A) confirmed the addition made by the Assessing Officer on this account on the ground that the assessee failed to produce any documentary evidence to prove the transaction despite the remand proceedings. 17 Before us, the ld AR of the assessee has submitted that the assessee produced one party but could not produce the other party. He has further submitted that Mr Nagendra Singh was produced before the Assessing Officer and in his statement; he has confirmed that he has given advance of `. 50,000/- to invest in plot being agricultural land. This party was not given the plot and the money is returned to him.
17.1 As regards `. 25,000/-, the ld AR of the assessee has submitted that Sh Vimal Singh has migrated from Mumbai; therefore, the summon could not be served and could not produced this party before the Assessing Officer. 12
Jay Prakash B Singh 17.2 On the other hand, the ld DR has submitted that when the assessee has failed to produce any material evidence in support of the claim, then the addition made by the Assessing Officer is justified. He has supported the orders of the lower authorities.
18 We have considered the rival contention as well as perused the relevant material on record. The assessee had invested `. 1 lacs in Plot no.24/1; however, he has shown investment of `. 50,000/- only in his account. Similarly, the investment made by the assessee in plot no.208/24 at ` 25,000/- was not reflected in the account which resulted an addition on this amount as unexplained investment. In support of the claim, the assessee did not produce any documentary evidence regarding the receipt of advance from the parties for sale of the plot. Therefore, in the absence of any documentary evidence, the explanation of the assessee does not inspire confidence and accordingly, we do not find any reason to interfere with the order of the CIT(A) on this issue. 19 Ground no. 6 is regarding deposit in cooperative society. 19.1 The Assessing Officer found from the seized documents that the assessee has paid `. 26,000/- to a Cooperative Society. As the payment was not reflected in the accounts, the Assessing Officer added the same to the total income of the assessee. The assessee submitted before the lower authorities that the said amount was collected from various persons for formation of cooperative society. This explanation did not find favour with the lower authorities in the absence of any evidence in support of the claim of the assessee.
20 Before us, the ld AR of the assessee has submitted that the assessee has collected the said sum of `. 26,000/- from various persons for formation of the cooperative society; therefore, the same was not recorded in the books of 13 Jay Prakash B Singh account. He has further submitted that due to lack of time the confirmation from the parties could not be obtained.
20.1 The ld DR, on the other hand has supported the orders of the lower authorities.
21 We have considered the rival contention as well as the relevant material on record. It is pertinent to note that if the amount was deposited for formation of the cooperative society and on behalf of the members of the society, then it cannot be added to the income of the assessee. Once this fact was found that the said deposit was made for formation of the society; then in the absence of conclusive finding that this amount was deposited by the assessee on his behalf and not on behalf of the members of the society, the addition is not justified. Accordingly, we delete the addition made by the lower authorities on this account.
22 Ground no.7 is regarding disallowance of expenditure of `. 1,91,524/-. 22.1 The Assessing Officer found from the seized documents that the assessee had made cash expenses of `. 1,91,524/- during the year. These payments were not accounted in the books. Accordingly, the Assessing Officer added the same as unexplained expenditure.
22.2 On appeal, the CIT(A) after considering the unaccounted payments of `.50,000/- and `. 25,000/- made in respect of plot no.24/1 and plot no.208/24 deleted the addition to the extent of `. 75,000/- and the balance of `. 1,16,524/- was confirmed.
23 Before us, the ld AR of the assessee has submitted that the said expenditure was incurred out of the drawings by the assessee; therefore, no addition is called for.
14
Jay Prakash B Singh 23.1 The ld DR, on the other hand, has relied upon the orders of the lower authorities.
24 After considering the rival contention as well as the relevant material on record, we find that the CIT(A) has already given the credit of the amount available with the assessee due to addition made on account of unaccounted receipts of `. 50,000/- and ` 25,000/- respectively in respect of plot of lands. Since the revenue has not challenged the said benefit given by the CIT(A); therefore, in the absence of any material brought on record by the assessee before us, in respect of its explanation , we do not find any reason to interfere with the order of the CIT(A). Accordingly, we upheld the order of the CIT(A), qua this issue.
25 Ground no.8 is regarding addition on account of deposits in bank. 26.1 The Assessing Officer found that there was a cash deposit of `. 42,000/- in the bank account no.6774 with Allahabad Bank. Since the said amount was not reflected in the books of account, the Assessing Officer therefore, added the same to the total income of the assessee. The CIT(A) confirmed the addition made by the Assessing Officer on the ground that the assessee could not explain the nature and source of the transaction properly. 27 Before us, the ld AR of the assessee has submitted that the said deposit was not made in cash but it was deposited by cheque; therefore, it was not accounted in the cash book as it was not a cash transaction. He has further submitted that the said amount was duly accounted in the parties ledger account in the books of account. Therefore, when the assessee has explained the source of the said deposit through cheque and the entries recorded in the parties ledger account, then, the lower authorities had committed an error in not considering and appreciating this fact. The ld AR has referred the details of the bank account 15 Jay Prakash B Singh at page 21 of the paper book and submitted that `. 42,000/- was deposited by cheaue by one shri Raju Satyal. He has further submitted that when this amount was credited in the parties ledger account in the books of account, then the addition is not justified.
27.1 The ld DR, on the other hand, has relied upon the orders of the lower authorities and submitted that the assessee has failed to produce the parties ledger account before the lower authorities; therefore, the addition is justified. 28 We have considered the rival contention as well as the relevant material on record. Though, the Assessing Officer made the addition on the ground that this cash amount was deposited in the bank account; however, the CIT(A) has specifically mentioned in the order that the assessee has not produced the copy of the said ledger account to show that the transaction of `. 42,000/- was accounted therein. Therefore, the issue is set aside to the record of the Assessing Officer to verify and consider this aspect as well as ledger account of the parties and then decide the issue afresh as per law. 29 Ground no.9 is regarding addition on account of cash deposit of `. 5,47,000/-.
29.1 The Assessing Officer found from the books of account that amount of `. 5,47,000/- was credited in the name of five persons as advances/deposits against sales. All these amounts were cash receipts. When the assessee failed to furnish any confirmation from the parties, the Assessing Officer added the same to the total income of the assessee.
29.2 On appeal, during the remand proceedings, summonses were issued to all the five persons on the addresses given by the assessee; but the summons were returned back un-served. Thereafter the Assessing Officer asked the assessee to 16 Jay Prakash B Singh produce the parties. Since the assessee did not produce the parties, the CIT(A) confirmed the addition made by the Assessing Officer . 30 Before us, the ld AR of the assessee has submitted that during the remand proceedings the assessee has explained to the satisfaction of the Assessing Officer and produced the confirmation letters of various parties. Even some of the parties have been produced personally. The ld AR of the assessee has further submitted that The summon issued to Sharawan Dada was returned back unserved as he was not available at the given address The assessee tried to trace the party but could not find him.
30.1 As regard Mr Anil Builder, the assessee personally approached this party to comply the summons issued by Assessing Officer and Mr. Anil Patel has personally attended and complied the summon. Therefore, the observations of the Assessing Officer and the CIT(A) is not incorrect that the this party has not attended.
30.2 Regarding the summons issued to Arora, the ld AR has submitted that the same was returned back unserved as he could not trace this party at the given address. Whereas Mr Dinesh Shah was personally produced before the Assessing Officer who has filed copy of agreement in support of its claim and hence, it is incorrect on the part of the Assessing Officer to mention that there was no compliance from this party till the date of remand report. 30.3 Regarding Mr Shivkumar Bajaj, the ld AR has submitted that this party is no more alive. Further, It is submitted that Mr. Rajesh Singh, the son of the assessee has personally approached his heirs and obtained his death certificate and relevant agreement to support the transaction. These documents have been submitted personally by Mr. Rajesh Singh along with Mr. Dinesh Shah was 17 Jay Prakash B Singh personally produced before Assessing Officer. Hence, it is incorrect on the part of the Assessing Officer to mention in the remand report that there was no compliance from this party.
30.4 On the other hand, the ld DR submitted that despite number of opportunities given, the assessee has neither produced the parties nor any evidence to prove the claim of the assessee. He has relied upon the orders of the lower authorities and submitted that the CIT(A) has categorically mentioned in the impugned order that the assessee has failed to prove its claim by producing the concerned parties or any material evidence.
35 We have considered the rival contention as well as the relevant material on record. There is no doubt that the assessee could not produce any evidence in support of the claim and in the majority of the cases, the concerned parties were not produced before the Assessing Officer and even during the remand proceedings. Those parties appeared before the Assessing Officer during the remand proceedings did not produce the relevant details and record in support or the claim of the assessee. When some of the parties appeared before the Assessing Officer, as claimed by the assessee, then completely ignoring the same by the CIT(A) is also not justified. We further note that though the assessee produced some of the parties before the Assessing Officer during the remand proceedings; however, the supporting evidence has not been produced. Therefore, in the interest of justice, we grant one more opportunity to the assessee to produce the parties with evidence before the Assessing Officer in support of the claim. Accordingly, we set aside the issue to the record of the Assessing Officer for deciding the same afresh after considering the evidences to be produced by the assessee.
36 Ground no.10 is regarding addition on account of cash credit of `. 2 lacs. 18
Jay Prakash B Singh 36.1 The assessee has shown a loan of `. 2lacs from Mr Pujara. The Assessing Officer asked the assessee to file the confirmation thereof. The assessee expressed its inability to do so. Consequently, the Assessing Officer added the same as unexplained loan.
36.2 On appeal, the CIT(A) issued remand order. During the remand proceedings, the Assessing Officer issued summons to Mr Pujara; but the same was returned back un-served. Therefore, the assessee was asked to produce the party in person. The assessee has shown its inability in producing the party. Accordingly, the CIT(A) confirmed the addition made by the Assessing Officer . 37 Before us, the ld AR of the assessee has submitted that Shri Ramesh Pujara was available at the address given by the assessee but because of the dispute between the assessee and the party, he did not cooperate with the assessee and therefore, the assessee could not produce him before the Assessing Officer. Hence, it was submitted that in these circumstances, it is beyond the control of the assessee to produce the party in person. 37.1 On the other hand, the ld DR has relied upon the orders of the lower authorities and submitted that when the assessee has filed to discharge its onus to prove the claim then, the Assessing Officer has rightly made the addition. 38 We have considered the rival contention as well as perused the relevant material on record. An identical issue has already been dealt by us for the AY 1994-95 wherein we set aside the issue to the record of the Assessing Officer. Accordingly, following the same ratio for the AY 1994-95, the issue for the year under consideration is also set aside to the record of the Assessing Officer for re- verification and adjudication in accordance with law. 19
Jay Prakash B Singh 39 In the result, the appeals filed by the assessee for the AY 1991-92 & 1993-94 are dismissed and those of AY 1994-95 & 1995-96 are party allowed for statistical purpose.
Order pronounced on the 21st day of Dec 2011.
Sd/ Sd/
( R K PANDA ) ( VIJAY PAL RAO )
Accountant Member Judicial Member
Place: Mumbai : Dated: 21st Dec 2011
Raj*
Copy forwarded to:
1 Appellant
2 Respondent
3 CIT
4 CIT(A)
5 DR
/TRUE COPY/
BY ORDER
Dy /AR, ITAT, Mumbai