Geetaben V. Patel, Ahmedabad vs Department Of Income Tax

Geetaben V.Patel vs. Income Tax Officer, Wad-11(4) Ahmedabad Ahmedabad (Cross Objector) ... (Respondent) Revenue by : Shri M.K.Singh, Sr.DR Assessee by : Shri Nimish Vayawala, AR

ु वाई क) तार ख / सन Date of Hearing 14/05/2015 घोषणा क) तार ख /Date of Pronounce ment 05/06/2015

आदे श / O R D E R

PER SHRI KUL BHARAT, JUDICIAL MEMBER :

This appeal by the Revenue and the Cross Objection by the assessee are directed against the order of the Ld.Commissioner of Income ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -2-

Tax(Appeals)-XVI, Ahmedabad ('CIT(A)' in short) dated 14/10/2011 pertaining to Assessment Year (AY) 2008-09. The appeal and the cross objection are taken up together and are being disposed of by this consolidated order for the sake of convenience.

2. First, we take up the appeal filed by the Revenue, i.e. ITA No.5/Ahd/2012. The Revenue has raised the following grounds of appeal:-

1. The Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.8,00,000/- made u/s.68 of the Act and Rs.41,900/- being interest paid thereon.

2. The Ld CIT(A) has erred in law and on facts in deleting the disallowance of shop rent & godown rent of Rs.1,92,600/-.

3. On the facts & circumstances of the case, the Ld.CIT(A) ought to have upheld the order of the Assessing Officer.

4. It is, therefore, prayed that the order of the Ld.CIT(A) may be set-

aside and that the order of the Assessing Officer be restored to the above extent.

2.1. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Income Tax Act,1961 (hereinafter referred to as "the Act") was framed vide order dated 28/12/2010, thereby the Assessing Officer (AO in short) made addition on account of unsecured loan and interest paid thereon amounting to Rs.8 lacs and Rs.41,900/- respectively. The AO has also made disallowance of shop rent and godown rent of Rs.1,14,600/- and Rs.78,000/- respectively. Further, the AO made addition on account of ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -3-

unexplained investment u/s.69 of the Act of Rs.4,83,019/-. The AO also made disallowance of depreciation on shop of Rs.1,53,290/- and other disallowance in respect of travelling expenses of Rs.1,67,749/- and disallowance of Rs.29,924/- (being 1/5th of Rs.1,49,619/-) in respect of petrol expenses, telephone expenses & depreciation on car. Against the said assessment order, the assessee preferred an appeal before the ld.CIT(A). The ld.CIT(A) after considering the submissions of the assessee, partly allowed the appeal. While partly allowing the appeal, the ld.CIT(A) deleted the addition made on account of unexplained cash credit of Rs.8 lacs and interest thereon of Rs.41,900/-. The ld.CIT(A) also deleted the addition of Rs.1,14,600/- and Rs.78,000/- made on account of shop and godown rent. However, the ld.CIT(A) confirmed the disallowance of depreciation to the extent of Rs.95,219/- and deleted the rest of the disallowance of Rs.1,53,290/-. The ld.CIT(A) confirmed the addition of Rs.3,86,269/- (Rs.4,83,019 - Rs.96,750/-) in respect of the addition made u/s.69 of the Act for deposits in the bank account. In respect of the travelling expenses, the ld.CIT(A) restricted the addition to 10% of the total disallowance (amounting to Rs.16,775/-). The ld.CIT(A) in respect of other expenditure, being telephone, petrol and depreciation on car restricted to 1/10th of the total disallowance. Aggrieved by the order of the ld.CIT(A), both the Revenue and the Assessee have challenged by way of appeal and cross-objection respectively.

ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -4-

3. So far as ground No.1 of Revenue's appeal is concerned, the ld.Sr.DR vehemently argued that the ld.CIT(A) was not justified in deleting the additions. He submitted that the AO noted that the assessee has received loans from Shri Vijay Manibhai Patel a sum of Rs.5,00,000/- and from Shri Vithalbhai D.Patel a sum of Rs.3,00,000/- also paid interest of Rs.41,900/- to Shri Vithalbhai D.Patel. He submitted that the AO has observed that the assessee did not file requisite details to prove the creditworthiness of the depositors. He submitted that under these facts, the ld.CIT(A) ought to have confirmed the addition made by the AO.

3.1. On the contrary, the ld.counsel for the assessee submitted that there is no dispute with regard to the fact that the amount in question was received by way of cheques and routed through banking channel. He submitted that the loan amount was repaid by the assessee. The assessee has furnished details of sources of income of the persons who had given loans. He drew our attention towards evidences furnished in the paper- book containing page Nos.1 to 172. The ld.counsel for the assessee placed reliance on the decision of Tribunal (ITAT "A" Bench Ahmedabad)[Third Member] in the case of ITO vs. Badiani Enterprises reported at (1985) 11 ITD 132 (Ahd.)(TM) and the judgement of Hon'ble High Court of Gujarat in the case of CIT vs. Ayachi Chandrashekhar Narsangji reported at (2014) 42 taxman.com 251 (Guj.).

ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -5-

4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has deleted the addition by observing as under:-

"4.10 After considering the material on record and in view of the law laid down in the aforesaid judicial decisions, I am of the opinion that the action of the Assessing Officer in treating the cash credits of Rs. 8,00,000/- (Rs. 5,00,000/- and Rs. 3,00,000/-) accepted during the year under consideration as unexplained was not said to be legally correct on account of the following reasons:

(i) The appellant had established all the three ingredients necessary for explaining the genuineness of the cash credits. The appellant had thus discharged the primary onus casted upon him as per the provisions of section 68 of the Act as under:

(a) The identity of the depositors stands established by the affidavit, land records and the copies of bank accounts.

(b) The genuineness of the transactions was also established from the fact that the deposits were received through banking channels i.e. by account payee bank drafts and not in cash. The repayments of Rs.

5,00,000/- to one depositor Shri Vijay Patel within a month or so was also by account payee cheque.

(c) The creditworthiness of both the depositors is also established by furnishing confirmation of the fact of having given deposits to the assesses. The details of land holdings and the details of agricultural income were furnished in the affidavits. Copies of their bank accounts were also furnished.

ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -6-

(ii) The Assessing Officer had not collected any adverse material which necessiated for producing the creditors.

(iii) The cash credits cannot be considered as unexplained only on account of non-production of creditors. The Hon'ble Gujarat High-Court in the case of Dy.CIT vs. Rohini Builders [2003] 256 ITR 360 (Guj.) had even held that merely because summons issued to some of creditors could not be served or they failed to appear before Assessing Officer, could not be ground to treat those credits as non-genuine.

(iv) The Assessing Officer had not established that the appellant had paid the cash to the depositors. Even if, they had deposited cash in their bank accounts before issuing bank drafts to the appellant, action can be taken in their own hands for unexplained cash deposits in bank accounts unless it is establish that the cash was given by the appellant. Reliance is placed on the decision of the Hon'ble Ahmedabad Tribunal in the case of Dimco Silk Mills vs. ITO 107 Taxman 41 (Ahd.).

(v) The Hon'ble Gujarat High Court as well as the other High Courts had held that the assessee can be asked to prove the source of creditor. It is not the obligation of the assessee to prove the source of source in the explanation about such credit with the assessee."

4.1. We have given our thoughtful consideration to the finding of ld.CIT(A). There is no dispute with regard to the fact that the identity of the depositors is not doubted. The genuineness of the transaction also established as the same effected through banking channel. The assessee has furnished evidences of the creditworthiness of the persons from whom he has obtained loans. The Revenue has not rebutted the evidences placed by the assessee by placing any contrary material on record. Therefore, we do not see any reason to interfere with the order of ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -7-

the ld.CIT(A), same is hereby upheld. Thus, ground No.1 of Revenue's appeal is rejected.

5. So far as ground No.2 regarding shop rent & godown rent is concerned, the ld.Sr.DR placed heavy reliance on the assessment order and submitted that the ld.CIT(A) was not justified in deleting the disallowance.

5.1. On the contrary, ld.counsel for the assessee submitted that the relevant evidences were placed before the AO to prove that the assessee has paid rent for shop and godown and he also drew our attention towards paper-book submitted by the assessee.

6. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has given a finding on fact in para-6.3 of his order, as under:

"6.3. I have carefully considered the submission of the Ld. Counsel, the facts of the case. The remand report of the Assessing Officer and consequential comments of the Ld. Counsel were also considered. Nothing adverse was brought on record in the remand report. The shop rent and godown rent were disallowed on the ground that no PAN or confirmation of the parties were furnished to whom these payments of rent were made. The books of account of the appellant were audited. The shops and godown were not taken on rent during the year under consideration but the same were taken on rent in A.Y. 2003-04. No such disallowance were made in earlier year. The Ld. Counsel has furnished sufficient evidence for the tenancy of the shop and godown. Such ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -8-

evidences were also independently filed before the Assessing Officer during remand proceedings vide letter dated 11.08.2011. After considering the evidences so filed, there is no justification for disallowing the shop and godown rent of Rs. 1,14,600/- and Rs. 78,000/- respectively. The disallowance so made is hereby deleted. The fourth ground of appeal is accordingly allowed.

6.1. The above finding of the ld.CIT(A) is not controverted by the ld.Sr.DR by placing any contrary material on record or pointing out any error. Therefore, we do not see any infirmity in the order of the ld.CIT(A), same is hereby upheld. Thus, ground No.2 of Revenue's appeal is dismissed.

7. Ground Nos.3 & 4 of Revenue's appeal are general in nature which require no independent adjudication.

8. In the result, Revenue's appeal is dismissed.

9. Now, we take up the Assessee's Cross Objection No.37/Ahd/2012 for AY 2007-08 (in ITA No.05/Ahd/2012 - for AY 2008-09), wherein following grounds have been taken:-

The Learned Commissioner of Income tax (A) has erred in confirming the following Addition.

(1) The Learned Commissioner of Income tax (A) erred in confirming depreciation that of Rs.95219.

(2) The Learned Commissioner of Income tax (A) erred in not allowing further depreciation for Rs.39000/- as per statement of facts i.e. submission dated 19-9-2011 Para VI.

ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 -9- (3) The Learned Commissioner of Income tax (A) erred in confirming disallowance out of traveling expenses that of Rs.16755. (4) The Learned Commissioner of Income tax (A) erred in confirming credit in Bank account that of Rs.200000/-.

(5) The Learned Commissioner of Income tax (A) has erred in confirming disallowance out of Telephone and Petrol expenses and Depreciation on car, etc. that of Rs.14433.

(6) It is prayed that in view of the fact of the case amount confirmed should be deleted and or be reduced to fair and just amount looking to the facts on the records.

9.1. At the time of hearing, ld.counsel for the assessee submitted that he does not wish to press the cross-objection. The ld.Sr.DR has no objection. In view of the statement made by the ld.counsel for the assessee, the cross-objection filed by the assessee is dismissed as not pressed.

10. In the combined result, Revenue's appeal is dismissed and Assessee's cross-objection is dismissed as not pressed. Order pronounced in the Court on Friday, the 5th day of June, 2015 at Ahmedabad.

Sd/- Sd/- (अ नल चतव ु द ) (कुल भारत) लेखा सद य या यक सद य ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER

Ahmedabad; Dated 05/ 06 /2015 ट .सी.नायर, व. न.स./T.C. NAIR, Sr. PS ITA No.05 /Ahd/2012 (By Revenue) and CO No.37/Ahd/2012(By Assessee) ITO vs.Geetaben V.Patel Asst.Year - 2008-09 - 10 -

आदे श क" # त%ल&प अ'े&षत/Copy of the Order forwarded to :

1. अपीलाथ% / The Appellant

2. &'यथ% / The Respondent.

3. संबं3धत आयकर आयु5त / Concerned CIT

4. आयकर आयु5त(अपील) / The CIT(A)-XVI, Ahmedabad

5. 6वभागीय & त न3ध, आयकर अपील य अ3धकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड: फाईल / Guard file.

आदे शानुसार/ BY ORDER,

स'या6पत & त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad

1. Date of dictation .. 14.5.15 (dictation-pad 11+ pages attached at the end of this File)

2. Date on which the typed draft is placed before the Dictating Member ...27.5.15

3. Other Member...

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

5. Date on which the fair order is placed before the Dictating Member for pronouncement......

6. Date on which the fair order comes back to the Sr.P.S./P.S.......5.6.15

7. Date on which the file goes to the Bench Clerk.....................5.6.15

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

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

10. Date of Despatch of the Order..................