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Income Tax Appellate Tribunal - Ahmedabad

Pratapbhai Virjibhai Patel, Surat vs Department Of Income Tax on 18 February, 2013

       IN THE INCOME TAX APPELLATE TRIBUNAL,
                " C " BENCH, AHMEDABAD
     Before Shri MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER
          and Shri A. K. GARODIA, ACCOUNTANT MEMBER
                         I.T.A. No. 2866/ Ahd/2011
                         (Assessment year 2005-06)

ITO, Ward 9(3),                      Vs.      Shri Pratapbhai Virjibhai
 Surat                                        Patel,
                                              Prop M/s. Creative Fabrics,
                                              128-129, Shri Shilpshri
                                              Coop Society,
                                               Kapodra Char Rasta,
                                              Varachha Road, Surat

        PAN/GIR No. : ACFPP2913G

         (APPELLANT)                    ..          (RESPONDENT)

           Appellant by:                Shri D K Singh, Sr. DR
           Respondent by:               Shri S K Kabra, AR

             Date of hearing:       18.02.2013
             Date of pronouncement: 08.03.2013
                              ORDER

PER SHRI A. K. GARODIA, AM:-

This is revenue's appeal directed against the order of Ld. CIT(A) V, Surat dated 29.07.2011 for the assessment year 2005-06.

2. Ground No.1 is as under:

"On the facts and circumstances of the case and in law, the Id.CIT(A) has erred in deleting the addition of Rs. 13,69,7007- on account of/ unaccounted cash credits U/s.68 of the Act made by the A.O. without considering the facts brought-in, in its entirety."

2.1 Brief facts of the case as per the assessment order are that the A.O. has issued notice to 17 creditors and in case of two, they come back unserved and in other 10 cases, no reply was received till the date of the 2 I.T.A.No.2866 /Ahd/2011 tribunal order in 1st round in I.T.A.No. 3770/A/2008 dated 16.1.2009 as has been noted by the tribunal in para 6 of this order. The matter was restored back by the tribunal to the file of Ld. CIT(A) for fresh decision. In the impugned order, Ld. CIT(A) has deleted this addition by stating that the assessee has proved the identity of the creditors, capacity of the creditors as well as genuineness of the loan received by the assessee by furnishing various evidences as additional evidence. Now, the revenue is in appeal before us.

2.2 It was submitted by the Ld. D.R. that the direction of ITAT have not been complied with by Ld. CIT(A) and hence, his order cannot be sustained. Ld. A.R. supported the order of Ld. CIT(A). 2.3 We have considered the rival submissions, and first we reproduce the relevant para of the order of Ld. CIT(A) i.e. para 4.1 on pages 2-3 as under:

"4.1 Cash credit u/s. 68: During the year under consideration, the appellant has obtained total loans of Rs. 21,09,7007- from 16 parties, out of which Rs. 13,69,700/- from 14 parties, was treated as non genuine and added to the total income of the assessee by the Assessing Officer in the assessment order. During the first ground of appellate proceedings the appellant produced the copy of 7/12 extracts, loan confirmations, copy of D.D. purchased by the creditors, copy of voters id card and addresses to prove the genuineness of loans. As all of the creditors are agriculturist, it was also submitted that for the agriculturists it is difficult to maintain books of accounts for various activities related to agriculture. I have gone through the assessment order and submission of the appellant. From the remand report, it is quite obvious that Assessing Officer has failed to verify the identity, creditworthiness and genuineness of loan despite being given opportunity to do so. In my opinion, the appellant has reasonably proved the identity of the creditors, capacity of the creditors as well as genuineness of the loan received by the appellant by furnishing various documents as additional evidences; hence, the addition made on this account is hereby deleted and this ground of appeal is allowed."

2.4 From the above para of the order of Ld. CIT(A), we fid that Ld. CIT(A) has mentioned about the evidences produced by the assessee in the first round of appeal being copy of 7/12 extract, loan confirmation, copy of DD purchase by the creditor, copy of voter ID card and addresses to prove the genuineness of the loan. In para 3 of his order, Ld. CIT(A) stated that additional evidences admitted by the Tribunal were forwarded to the A.O. and remand report was called for and the same were received and in the remand report, the A.O. has not brought on record anything other than what he has mentioned in the original assessment order. Thereafter, Ld. CIT has decided the issue in favour of the assessee without pointing out as to which additional evidence admitted by the tribunal and considered by him had clinched the issue in favour of the assessee. We also find that it was also stated by the tribunal in para 6 of the order in first round and Ld. CIT(A) has also stated that he was unable to understand why the parties should have given odd amounts. It is commented by the Tribunal that this may be a starting point for further inquiry but on this basis alone, loan cannot be treated as non genuine. This goes to show that as per the tribunal decision, Ld. CIT(A) should have made inquiries on this aspect as to why the parties have given odd amount but there is no mention in this order of Ld. CIT(A) regarding any inquiry made by him on this aspect. From the copy of the remand report available on record, we find that it is stated by the A.O. in the remand report that most of the depositors are farmers and they produced 7/12 copies but not produced total agricultural income out of them. In the absence of any detail about the agricultural earning by the loan creditors, mere filing of copies of 7/12, it cannot be said that the loan creditor has established the creditworthiness of such loan credited and since it is reported by the A.O. in the remand report that the loan creditors have not produced total agricultural income earned by them, Ld. CIT(A) was not 4 I.T.A.No.2866 /Ahd/2011 justified in saying that nothing extra has been brought on record by the A.O. in the remand report and we do not understand the basis of his decision that the creditworthiness of the loan creditors was established when the details of agricultural income is not furnished in respect of loan creditors. Before us also, no such detail is furnished by the Ld. A.R. establishing the creditworthiness of loan creditors, which is one of the essential ingredient for compliance of the requirement of Section 68 and in the absence of any material on record regarding creditworthiness of loan creditors except 7/12 copies, which were not found sufficient by the authorities below in the first round and the Tribunal also in the first round has found no basis of the order of Ld CIT(A) to hold that the assessee has fulfilled the requirement of creditworthiness of loan creditors and, therefore, we reverse the order of Ld. CIT(A) on this issue and restore that of the A.O. 2.5 One more alternative contention was raised by the Ld. A.R. that all these loan creditors were refunded afterwards and therefore, for this reason also, the addition is not justified. In support of this contention, reliance was placed by him on the Tribunal decision rendered in the case of ITO Vs Counter Force in I.T.A.No. 1636/A/2009 and he submitted first page and pages 16-18 of this tribunal decision, which does not contain date of this tribunal order. The same is also not certified as true copy and therefore, we do not find it appropriate to consider this tribunal decision. Reliance was placed on another tribunal decision rendered in the case of Surender M John Vs ITO in I.T.A.No. 853/A/09 dated 31.8.2012. In that case, the tribunal has restored back the mater to the file of the A.O. with a direction that the assessee should furnish the requisite details about the repayment of the impugned loan before the A.O. and if found to be satisfactory then the impugned addition deserves to be deleted. This goes to show that in that case also, the Tribunal has 5 I.T.A.No.2866 /Ahd/2011 restored back the matter to the file of the A.O. for afresh decision and no ratio has been laid down in that tribunal order that if repayment has been made subsequently, addition cannot be made u/s 68. Moreover, even if the repayment is made subsequently, it cannot satisfy the requirement of three ingredients of Section 68 as per which, the assessee is duty bound to establish the identity and creditworthiness of loan creditors and genuineness of loan transaction and these ingredients are not satisfied by subsequent repayment. Hence, we do not find any merit in this contention also and the same is rejected. We also find that in that case, the objection was only this that the assessee has not proved the genuineness of loan transaction and this was not the objection in that case that the assessee has not established the creditworthiness of the creditors. Whereas in the present case, the objection of the A.O. is this also that the assessee has not established the creditworthiness of the loan creditors and, therefore, this tribunal decision is not applicable in the present case for this reason also. This argument is also rejected. 2.6 In the result, this ground of the revenue is allowed.

3. Ground No.2 is as under:

"On the facts and circumstances of the case and in law, the Id. CIT(A) has erred in deleting the addition of Rs.67,2557- on account of agriculture income treated as undisclosed source."

3.1 The brief facts of the case are that on this issue also, the matter was restored back by the Tribunal to the file of Ld. CIT(A) for a fresh decision after considering copies of 7/12 extract furnished before the A.O. after the completion of the assessment. In the impugned order, Ld. CIT(A) has deleted this addition by stating that since the additional evidence has already been admitted regarding agricultural land holding by the assessee himself, this agricultural income shown by the assessee stands explained.

3.2 It was submitted by the Ld. D.R. that copies of 7/12 extract are available on pages 20-21 of the paper book in which there is no mention about any transaction. Regarding pages 1-6 of the paper book, which are the submissions before the A.O., it was submitted that the details regarding agricultural income has not been furnished in these submissions. Ld. A.R. supported the order of Ld. CIT(A). 3.3 We have considered the rival submissions, perused the material on record and have gone through the orders of authorities below. We find that in the first round, direction of the tribunal is that since 7/12 extract was furnished before the A.O. after the completion of the assessment, it was open to Ld. CIT(A) to examine and find out whether the assessee's claim that cotton was grown on the land is proved and if so, what was the income shown by him. We find that Ld. CIT(A) has not carried out the direction of the tribunal and he has decided the issue assuming on this basis that since 7/12 extract is admitted as additional evidence, the agricultural income shown by the assessee stands explained. The assessee has also not brought on record anything before us in this regard as to how much was the agricultural income actually earned by the assessee in this year and how much was the crop and how much was the sale price and how much was the expenditure etc. and hence, on this issue also, we are of the considered opinion that he order of Ld. is not sustainable and in the absence of any detail or evidence having brought on record by the assessee even before us in the 2nd round, we reverse the order of Ld. CIT(A) on this issue also and restore that of the A.O. This ground of the revenue is also allowed.

4. Ground No.3 is as under:

"On the facts and circumstances of the case and in law, the Id.CIT(A) has erred in deleting the addition of Rs.7,78,4287- on account unaccounted purchases."

4.1 On this issue also, this was the direction of the Tribunal while restoring the matter back to the file of Ld. CIT(A) that the matter should receive fresh consideration in the hands of Ld. CIT(A) and he was not justified in refusing to admit additional evidence and, therefore, additional evidence was admitted by the tribunal and the matter was restored to the file of Ld. CIT(A) with the direction to consider the issue afresh in accordance with law. In the impugned order, Ld. CIT(A) has reproduced the submission of the assessee and thereafter, he has decided the issue in one line that the submissions of the assessee itself is self explanatory and does not require more elaboration. Now, the revenue is in appeal before us.

4.2 Ld. D.R. supported the assessment order. He also submitted that Ld. CIT(A) has not carried out the direction of the tribunal and no finding is given by him except this that the submissions of the assessee itself is self explanatory. The facts noted by the tribunal in the first round was that in respect of major purchase of Rs.5,12,534/- form M/s. Alok Industries, it was explained before the A.O. that the payment was made to one Raj Synthetics by cheque as per the instructions of M/s. Alok Industries and the Xerox copy of the bill issued by M/s. Alok Industries was produced before the A.O. This explanation was not accepted by the A.O. due to the reason that there was correction in the Xerox copy of the bill regarding the date and the name of M/s. Raj Synthetics was also not mentioned. This was also noted that the payment stamp did not contain details of cheque, date etc. Regarding remaining three parties, it was noted that the assessee could not adduce any evidence despite being directed by the A.O. Under these facts, it was held by the tribunal in the 1st round that the matter should receive fresh consideration in the hands of Ld. CIT(A). In the impugned order, Ld. CIT(A) has merely reproduced the submission of the assessee which contain accounts reconciliation but 8 I.T.A.No.2866 /Ahd/2011 no other evidence has been brought on record before Ld. CIT(A) in the 2nd round or before us in the present round in support of these purchases and hence, this cryptic order of Ld. CIT(A) by merely stating that the submission of the assessee is itself explanatory, is not sustainable. Therefore, we feel that since Ld. CIT(A) has failed in his duty to carry on the instructions of the Tribunal in the first round, the matter should go back to his file for a fresh decision and hence, we set aside the order of Ld. CIT(A) on this issue and restore the matter back to his file for afresh decision. It is the duty of the assessee to produce al the evidences before Ld. CIT(A) which were required by the A.O. and were not produced and, thereafter, if required, Ld. CIT(A) should obtain remand report form the A.O. and, thereafter, he should decide the issue and pass necessary order as per law and needless to mention, he should provide adequate opportunity of being heard to both the sides. This ground of the revenue is allowed for statistical purposes.

5. Ground No.4 is as under:

"On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs.75,600/- on account of depreciation newly purchase machinery."

5.1 Ld. D.R. supported the assessment order whereas the Ld. A.R. supported the order of Ld. CIT(A).

5.2 We have considered the rival submissions. We find that the objection of the A.O. was this that no documentary evidence has been furnished to prove that the power-looms are started at the factory site of the assessee during the year under consideration. In the Tribunal order also in para 12, it is noted by the Tribunal that before Ld. CIT(A), the assessee produced installation certificate as well as the certificates from Dynatex who have supplied the power-loom to the assessee. These papers were filed as additional evidence under Rule 46A but Ld. CIT(A) 9 I.T.A.No.2866 /Ahd/2011 had not admitted the additional evidence on the ground that it was not produced before the A.O. The tribunal directed Ld. CIT(A) to admit fresh evidence and then take fresh decision. In the impugned order of Ld. CIT(A), there is no reference to any fresh evidence admitted by him and there is no finding of Ld. CIT(A) regarding the additional evidence. He has also not obtained remand report from the A.O. with regard to these additional evidence and hence, the order of Ld. CIT(A) on this issue also is not sustainable. We, therefore, set aside the order of Ld. CIT(A) on this issue also and restore the mater back to the file of Ld. CIT(A) for a fresh decision by way of speaking order and after allowing opportunity to both sides. This ground of the revenue is also allowed for statistical purposes.

6. In the result, the appeal of the revenue is allowed for statistical purposes.

7. Order pronounced in the open court on the date mentioned hereinabove.

            Sd./-                                        Sd./-
(MUKUL KUMAR SHRAWAT)                           (A. K. GARODIA)
JUDICIAL MEMBER                             ACCOUNTANT MEMBER
Sp

Copy of the Order forwarded to:
  1.     The applicant
  2.     The Respondent
  3.     The CIT Concerned
  4.     The Ld. CIT (Appeals)
  5.     The DR, Ahmedabad                         By order
  6.     The Guard File
                                                   AR,ITAT,Ahmedabad
                                10                  I.T.A.No.2866 /Ahd/2011



1. Date of dictation......22/02/2013

2. Date on which the typed draft is placed before the Dictating Member...28/02/2013. Other Member ............

3. Date on which the approved draft comes to the Sr. P.S./P.S.

4. Date on which the fair order is placed before the Dictating Member for pronouncement ...08/03/2013

5. Date on which the fair order comes back to the Sr. P.S./P.S.8/3

6. Date on which the file goes to the Bench Clerk ...08/03/2013

7. Date on which the file goes to the Head Clerk .......................

8. The date on which the file goes to the Assistant Registrar for signature on the order .........................

9. Date of Despatch of the order. ......................