Arvind Gotewala, Jaipur vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 446/JP/2011 fu/kZkj.k o"kZ@Assessment Year : 2006-07

Shri Arvind Gotewala cuke The ACIT B-7, Shiv Marg, Bani Park Vs. Circle- 3 Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABUPG 9494 K vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Dinesh Goyal, C.A. jktLo dh vksj ls@ Revenue by : Smt. Neena Jeph , JCIT -DR

lquokbZ dh rkjh[k@ Date of Hearing : 20/04/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 29/05/2015

vkns'k@ ORDER

PER R.P. TOLANI, JM

This is an appeal filed by the assessee against the order of the ld.

CIT(A)-I, Jaipur dated 15-02-2011 for the assessment year 2006-07

raising following ground.

''The ld. CIT(A) erred in confirming addition of Rs. 4.00 lacs u/s 68 of the I.T. Act, 1961.'' 2 ITA No. 446/JP/2011 Shri Arvind Gotewala vs. ACIT, Circle- 3, Jaipur

2.1 Brief facts of the case are that the assessee is engaged in the

business of property dealing and brokerage. During the course of

assessment proceedings, the AO called on the assessee to establish the

identity, genuineness and creditworthiness of the credit of Rs. 4.00 lacs in

the name of Shri Chetan Agarwal. The assessee filed his PAN and the AO

called for his income tax record from Ward 6(3), Jaipur and found as

under:-

''(i) No loan/ advance was given by Chetan Agarwal to the assessee.

(ii) Signature of PAN card and return of income were same but signature on confirmation filed by the assessee does not tally. When assessee's A.R. was asked to justify this anomaly, they do not have any answer for this.

(iii) No bank statements were filed.

(iv) Assessee took approximately three months time to furnish this incomplete information.''

The AO relying on various judgments in her assessment order, held that

the assessee had not discharged his primary onus in regard to this cash

credit of Rs. 4.00 lacs in the case of Shri Chetan Agarwal in terms of sec.

68, consequently the amount of Rs. 4.00 lacs was added to the income of

the assessee.

3 ITA No. 446/JP/2011

Shri Arvind Gotewala vs. ACIT, Circle- 3, Jaipur

2.2 In first appeal, the ground in this behalf raised by the assessee was

dismissed by the ld. CIT(A) by following observation.

''In the case of Shri Chetan Agarwal with confirmation and PAN, the identity of the creditors is established but for want of copy o bank account creditworthiness of the creditor remains to be established. The genuineness of transactions is also doubtful as the AO has enquired from the return filed by Shri Chetan Agarwal wherein no such loan given by him is reflected. As two of the ingredients remain to be satisfied in the case of the loan taken from Shri Chetan Agarwal, addition of Rs. 4 lacs made u/s 68 is hereby confirmed.''

2.3 Now the assessee is before us, ld. Counsel for the assessee Shri

Dinesh Goyal, C.A. referred to his written submissions, paper book and

contended that the said amount of Rs. 4.00 lacs was received by the

assessee from Shri Chetan Agarwal, who has been found to be an income

tax assessee, through account payee cheque and the same was repaid

through account payee cheque together with interest in subsequent year.

The bank statement supplied by the assessee clearly indicates the receipt

and repayment of loan to Shri Chetan Agarwal through account payee

cheque. Thus the primary onus in respect of identity, creditworthiness and

genuineness of the creditor in terms of sec. 68 is discharged by the

assessee. The assessee has made the transaction through banking channels 4 ITA No. 446/JP/2011 Shri Arvind Gotewala vs. ACIT, Circle- 3, Jaipur

with Shri Chetan Agarwal which is confirmed from the bank statement.

The ld. AR of the assessee placed reliance of the following case laws.

(i) CIT vs. Orissa Corporaton (P) Ltd. 159 ITR 78 (SC)

(ii) CIT vs. Daulat Ram Rawatmall , 87 ITR 349 (SC)

(iii) Labh Chand Bohra vs. ITO , 219 ITR 571 (Raj)

(iv) Late Mangilal Agarwal through Lrs vs. ACIT, 300 ITR 372 (Raj.)

(v) CIT vs. Shree Barkha Synthetics, 270 ITR 477 (Raj.)

2.4 The ld. DR is heard who supported the orders of the lower

authorities.

2.5 We have heard the rival contentions and perused the materials

available on record. In our considered opinion, the assessee has

discharged his primary onus in terms of Section 68 qua the cash credit of

Rs. 4.00 lacs received from Shri Chetan Agrawal. This transaction of

Rs. 4.00 lacs in the case of Shri Chetan Agarwal who is an income tax

assessee, is reflected in the bank statement issued by Standard Chartered

Bank of the assessee which is evident at pages 18 and 19 of the bank

statement. Thus in view thereof, we find no justification in the findings of

the lower authorities that the assessee has not discharged his primary onus

regarding cash credit of Rs. 4.00 lacs. Therefore, the addition sustained

by the ld. CIT(A) is deleted.

5 ITA No. 446/JP/2011

Shri Arvind Gotewala vs. ACIT, Circle- 3, Jaipur

3.0 In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 29/05/2015.

Sd/- Sd/- ¼Vh-vkj-ehuk½ ¼vkj-ih-rksykuh½ (T.R. Meena) (R.P.Tolani) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 29 /05/ 2015 *Mishra

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Shri Arvind Gotewala, Jaipur

2. izR;FkhZ@ The Respondent- The ACIT, Circle- 3, Jaipur

3. vk;dj vk;qDr¼vihy ) @ CIT(A)

4. vk;dj vk;qDr@ CIT

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No.446/JP/2011)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar