Income Tax Appellate Tribunal - Ahmedabad
Yadunandan Cotton Pvt.Ltd.,, ... vs Acit.,Circle-1,, Bhavnagar on 31 January, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "SMC" BENCH
(BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER
& SHRI MAHAVIR PRASAD, JUDICIAL MEMBER)
ITA. No: 308/AHD/2016
(Assessment Year: 2005-06)
M/s. Yadunandan Cotton V/S Asst. CIT, Circle-1,
Pvt. Ltd., 119, Nutun Bhavnagar
Nagar, Op. Vyasm Mandir
Mahuva, Dist. Bhavnagar
(Appellant) (Respondent)
PAN: AJPPG8467K
Appellant by : Shri Tushar P. Hemani, AR
Respondent by : Shri Om Prakash Meena, Sr. D.R.
(आदे श)/ORDER
Date of hearing : 25 -01-2017
Date of Pronouncement : 31 -01-2017
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:
1. This appeal by the Assessee is directed against the order of Ld. CIT(A)-6, Ahmedabad dated 30.11.2015 pertaining to A.Y. 2005-06.
2 ITA No. 308/Ahd/2016. A.Y. 2005-06
2. The only grievance of the assessee relates to the addition of Rs. 15.70 lacs made u/s. 68 of the Act.
3. At the very outset, it would be pertinent to mention that this is the second round of litigation. In the first round of litigation, additions were made u/s. 68 of the Act in respect of deposits of Rs. 3.20 lacs and share application money /capital of Rs.12.50 lacs totaling to Rs. 15.70 lacs. The litigation travelled up to the Tribunal and the Tribunal vide order dated 07.12.2012 in ITA No. 1517/Ahd/2009 restored the matter to the files of the A.O. The relevant findings of the Tribunal read as under:-
"We have examined the evidences but the share holder/depositor have not proved the creditworthiness and genuineness in all the cases. Further, the assessee did not furnish whatever confirmation on 13.09.2007 but furnished on 26.12.2007 whereas the assessment was completed on 31.12.2007. The case law cited by the assessee are not squarely applicable on assessee's case as there no time remained with A.O. to issue the summons to the loanee or share holders. Therefore, we set aside the order to verify the creditworthiness and genuineness of transaction of the above share holders/cash creditors. The appellant is directed to co-operate with A.O. and produce the share holder/cash creditor for examination. Accordingly, this ground of appeal is set aside for limited purposes."
4. A perusal of the afore-stated findings of the Tribunal shows that the assessee was directed to establish the creditworthiness and genuineness of the transaction of the shareholders /cash creditors by subjecting them for examination.
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5. Pursuant to the directions of the Tribunal, the A.O. initiated fresh assessment proceedings in respect of the following transactions:
Sr. No. Name of the person Deposit (Rs.) Share Appl. (Rs.)
1) Deepaben Rupesh Kumar 75,000/- --
Kalsariya
2) Pethalji Jadhavbhai 50,000/- 3,50,000/-
Kalsariya
3) Manjulaben 15,000/- 1,50,000/-
Manoharkumar Kalsariya
4) Manojkumar Jadavbhai 90,000/- 2,50,000/-
Kalsariya
5) Radhaben Ravindrakumar 90,000/- --
Kalsariya
6) Raniben Jadavbhai -- 2,00,000/-
Kalsariya
7) Urmilaben Pethaljibhai -- 2,00,000/-
Kalsariya
8) Ravjibhai Balubhai Kalsariya -- 1,00,000/-
Total 3,20,000/- 12,50,000/-
6. In response to the notice, the assessee produced all the above referred persons except Raniben Jadavbhai Kalsariya mentioned at Serial no. 6 above. Statements were recorded.
4 ITA No. 308/Ahd/2016. A.Y. 2005-06
7. The A.O. rubbished the statement of the creditors. Each and every creditor examined by the A.O. has been discussed by him from pages 3 to 12 of the assessment order. The A.O. once again made the addition of Rs. 15.70 lacs u/s. 68 of the Act.
8. Assessee carried the matter before the ld. CIT(A) but failed to convince.
9. Before us, the ld. counsel for the assessee vehemently stated that the assessee has successfully discharged the onus cast upon it by the provisions of section 68 of the Act. It is the say of the ld. Counsel that the assessee had produced all the cash creditors except Raniben Jadavbhai Kalsariya. All the creditors were examined. Necessary documents have been filed to establish the creditworthiness of the creditors. The ld. counsel concluded by saying that the assessee has discharged not only the onus but has also fulfilled the directions of the Tribunal given in the first round of litigation.
10.The ld. D.R. strongly supported the findings of the revenue authorities. It is say of the ld. D.R. that the assessee has grossly failed in discharging the initial burden and, therefore, the additions made u/s. 68 are justified.
11.We have given a thoughtful consideration to the orders of the authorities below qua the directions of the Tribunal (supra).
12.The undisputed fact is that the assessee had produced all the cash creditors except one. It is also not in dispute that all the related documentary 5 ITA No. 308/Ahd/2016 . A.Y. 2005-06 evidences were furnished to establish the genuineness of the transaction and the prima facie creditworthiness of the creditors. The documentary evidences can be summarized as under:-
Deepaben Rupesh Kumar Kalsariya Particulars Confirmation letter of depositor Confirmation letter of depositor's father Form 7/12 and Form 8-A of land owned by father Agricultural bill of father Relevant part of statement of depositor: Q. 1 0 Statement of depositor PAN Card Bank of Saurashtra Pay in slip Pethaljibhai Jadavbhai Kalsariya Particulars Affidavit of depositor Confirmation letter of depositor B/S of depositor Ledger of appellant in depositor's books Statement of depositor Amounts paid through Mahuva Nagrik Sahkari Bank Source of income in statement of depositor: Q.I 7 Manjulaben manoharkumar Kalsariya Particulars Affidavit of depositor Confirmation letter of depositor Extract of Bank Pass Book Ledger of appellant in depositor's books Statement of depositor Amounts paid through State Bank of Saurashtra Source of income in statement of depositor: Q.I 4 6 ITA No. 308/Ahd/2016 . A.Y. 2005-06 Manojkumar Jadavbhai Kalsariya Particulars Affidavit of depositor Confirmation letter of depositor B/S of depositor Ledger of appellant in depositor's books Ledger of creditor in appellant's books Statement of depositor Affidavit of father-in-law Confirmation letters of father-in-law Form 7/12 and Form 8-A of land owned by father- in-law Amounts paid through banker cheque Source of investment in statement of depositor: Q.8 Radhaben Ravindrakumar Kalsariya Particulars Affidavit of depositor Confirmation letter Ledger of depositor in appellant's books Statement of depositor Confirmation of father Form 7/12 and Form 8-A of land owned by father Amount paid through State Bank of Saurashtra cheque Source of investment in statement of depositor: Q.10 Raniben Jadavbhai Kalsariya Particulars Affidavit of shareholder Confirmation letter of shareholder Ledger of shareholder in appellant's books Amount paid through State Bank of Saurashtra cheque Shareholder' s Letter and Medical Certificate for not attending Voter' s card Bank of Saurashtra banker's cheque Pass Book Confirmation of father Agricultural bills of father Form 7/12 and Form 8-A of land owned by father 7 ITA No. 308/Ahd/2016 . A.Y. 2005-06 Urmilaben Pethalji Kalsariya Particulars Affidavit of shareholder Confirmation letter of shareholder Ledger of shareholder in appellant's books Pass Book Statement of shareholder Source of investment in statement of shareholder:
Q.14 Confirmation of father Form 7/12 of land owned by father Ravjibhai Balubhai Kalsariya Particulars Affidavit of depositor Confirmation letter of depositor Ledger of depositor in appellant's books Amount paid through Banker's cheque Statement of depositor Source of investment in statement of depositor: Q.12
13.A perusal of the aforementioned chart goes to prove that the assessee has discharged the initial burden. The Hon'ble High Court of Gujarat in the case of Rohini Builders in 256 ITR 360 had the occasion to consider a similar issue and the relevant findings of the Hon'ble High Court reads as under:-
"We have considered the rival submissions and have also gone through the order passed by the Assessing Officer, the relevant portion of which we have also extracted in para. 2 above. The Commissioner of Income-tax (Appeals)-more or less confirmed the addition on the reasoning given by the Assessing Officer in the assessment order. A perusal of the chart given by us in para 3 above indicates that out of 21 creditors the Assessing Officer has recorded the statements of only six creditors, viz., creditors at serial Nos. 1, 2, 3, 4, 6 and 7. However, in respect of all the 21 creditors the assessee has furnished their complete addresses along with GIR numbers/permanent account numb well as confirmations along with the copies of 8 ITA No. 308/Ahd/2016 . A.Y. 2005-06 assessment orders passed cases of creditors at serial Nos. 1, 2, 4, 5, 6, 7, 9, 10, 11, 12 and 16. In the remaining cases where the assessment orders passed were not readily available, the assessee has furnished the copies of returns filed by the creditors with the Department along with their statement of income. All the loans were received by the assessee by account payee cheques and the repayment of loans have also been made by account payee cheques along with the interest in relation to those loans. It is rather strange that although the Assessing Officer has treated the cash credits as non-genuine, he has not made any addition on account of interest claimed/paid by the assessee in relation to those cash credits, which has been claimed as business expenditure and has been allowed by the Assessing Officer. It is also pertinent to note that in respect of some of the creditors the interest was credited to their accounts/paid to them after deduction of tax at source and information to this effect was given in the loan confirmation statements by those creditors filed by the assessee before the Assessing Officer. Thus it is clear that the assessee had discharged the initial onus which lays on it in terms of section 68 by proving the identity of the creditors by giving their complete addresses, GIR numbers/permanent accounts numbers and the copies of assessment orders wherever readily available. It has also proved the capacity of the creditors by showing that the amounts were received by the assessee by account payee cheques drawn from bank accounts of the creditors and the assessee is not expected to prove the genuineness of the cash deposited in the bank accounts of those creditors because under law the assessee can be asked to prove the source of the credits in its books of account but not the source of the source as held by the Bombay High Court in the case of Orient Trading Co. Ltd. v. CIT [1963] 49 ITR 723. The genuineness of the transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques. Merely because summons issued to some of the creditors could not be served or they failed to attend before the Assessing Officer, cannot be a ground to treat the loans taken by the assessee from those creditors as non-genuine in view of the principles laid down by the Supreme Court in the case of Orissa Corporation [1986] 159 ITR 78. In the said decision the Supreme Court has observed that when the assessee furnishes names and addresses of the alleged creditors and the GIR numbers, the burden shifts to the Department to establish the Revenue's case and in order to sustain the 9 ITA No. 308/Ahd/2016 . A.Y. 2005-06 addition the Revenue has-to pursue the enquiry and to establish the lack of creditworthiness and mere non-compliance, of summons issued by the Assessing Officer under section 131, by the alleged creditors will not be sufficient to draw an adverse inference against the assessee. In the case of six creditors who appeared before the Assessing Officer and whose statements were recorded by the Assessing Officer, they have admitted having advanced loans to the assessee by account payee cheques and in case the Assessing Officer was not satisfied with the cash amount deposited by those creditors in their bank accounts, the proper course would have been to make assessments in the cases of those creditors by treating the cash deposits in their bank accounts as unexplained investments of those creditors under section 69. Further, we may point out that section 68 under which the addition has been made by the Assessing Officer reads as under :
"68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year."
The phraseology of section 68 is clear. The Legislature has laid down that in the absence of a satisfactory explanation, the unexplained cash credit may be charged to income-tax as the income of the assessee of that previous year. In this case the legislative mandate is not in terms of the words "shall be charged to income-tax as the income of the assessee of that previous year". The Supreme Court while interpreting similar phraseology used in section 69 has held that in creating the legal fiction the phraseology employs the word "may" and not "shall". Thus the unsatisfactoriness of the explanation does no: and need not automatically result in deeming the amount credited in the books as the income of the assessee as held by the Supreme Court in the case of CIT v. Smt. P. K. Noorjahan [1999] 237 ITR 570.
14. Considering the facts of the case in hand qua the decision of the Hon'ble Jurisdictional High Court (supra), we find that in the present case also, the assessee has fulfilled all the conditions to discharge its onus.
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15.Considering the facts of the case in totality in the light of the decision of the Hon'ble Jurisdictional High Court (supra), we do not find any merit in the addition of Rs. 15.70 lacs. We, accordingly, set aside the findings of the ld. CIT(A) and direct the A.O. to delete the addition of Rs. 15.70 lacs.
16.In the result, the appeal filed by the Assessee is allowed.
Order pronounced in Open Court on 31 - 01- 2017
Sd/- Sd/-
(MAHAVIR PRASAD) (N. K. BILLAIYA)
JUDICIAL MEMBER True Copy ACCOUNTANT MEMBER
Ahmedabad: Dated 31/01/2017
Rajesh
Copy of the Order forwarded to:-
1. The Appellant.
2. The Respondent.
3. The CIT (Appeals) -
4. The CIT concerned.
5. The DR., ITAT, Ahmedabad.
6. Guard File.
By ORDER
Deputy/Asstt.Registrar
ITAT,Ahmedabad