Jay Kishore Chaturvedi, Baroda vs Assessee

This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-II, Baroda ('CIT(A)' in short) dated 18/05/2010 pertaining to Assessment Year (AY) 1996-97. The Assessee has raised the following grounds of appeal:-

ITA No.2705/Ahd/2010 Jay Kishor Chaturvedi vs. DCIT Asst.Year - 1996-97 -2-

1) The learned CIT (Appeals) erred in holding that sources of credit of Rs.3,00,000/- which was received from Shri V.H. Desai is unexplained and further erred in confirming the addition of Rs.3,00,000/- u/s.68 of the Act.

2) The learned CIT (Appeals erred in holding that gift received by your appellant of Rs.1,92,000/- from Shri Shashang Sapre was not genuine and further erred in holding it as unexplained credit in the account of your appellant and consequently erred in confirming the addition of Rs.1,92,000/- to the total income of your appellant.

3) Your appellant craves leave to add, alter or amend any of the grounds mentioned above, either at or before the time of hearing.

2. The appeal is time-barred by 4 days. An application for condonation of delay is filed. The reason for delay is not being in position to pay the appeal fees the assessee submitted that he barely managed to arrange for funds and have paid the appeal filing fees on 15/09/2010. The delay in filing the appeal is reported for four days. 2.1. The ld.Sr.DR opposed the condonation of delay. However, after considering the explanation for non-filing of the appeal, the delay is condoned and appeal is taken up for hearing.

2.2. This is second round of litigation. In the earlier round, the matter was restored to the AO by this Tribunal for decision afresh. Before the AO, the assessee could not produce the relevant evidences, therefore the additions made in original assessment were sustained. The assessee filed an appeal before the ld.CIT(A). Before the ld.CIT(A), the assessee could not place evidence in support of its claim of the amounts received from ITA No.2705/Ahd/2010 Jay Kishor Chaturvedi vs. DCIT Asst.Year - 1996-97 -3-

Shri V.H.Desai and Shri Shashang Sapare. The additions were confirmed by the ld.CIT(A). Against this, the assessee filed the present appeal.

3. During the pendency of the present appeal, the assessee has filed certain documents; namely, a copy of the assessee's letter dated 22/07/2010 to his Chartered Accountant along with death certificate of Shri V.H.Desai. The assessee has also filed a copy of confirmation letter of Shri Shashang Sapre alongwith copy of passport. The assessee has filed an application for admission of additional evidences in the form of assessee's letter to his C.A. and that certificate of Shri Shri V.H. Desai. The evidence sought to be admitted is related to the additions which the AO in original assessment made i.e.of Rs.3 lacs and Rs.1,92,000/- respectively as unexplained loans from Shri V.H. Desai and unexplained gift received from Shri Shashank Sapre. The assessee preferred an appeal before the ld.CIT(A) who has confirmed the addition on the basis that the assessee failed to establish the creditworthiness of the depositor and genuineness of the transactions. In the absence of the evidence that the loan taken by the assessee and the gift received by him were genuine transactions. The ld.counsel for the assessee submitted that the evidences could not be field before the ld.CIT(A). He submittd that the assessee may be given last opportunity in the interest of justice to prove the genuineness of the transactions.

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4. On the contrary, ld.Sr.DR Smt. Sonia Kumar vehemently opposed the admission of the additional evidences and submitted that the assessee ought to have furnished the evidences before the authorities below.

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

"2.3 I have considered the submissions of the Authorized Represent6ative and the order of the Assessing Officer. The Hon'ble ITAT set aside the addition made by the Assessing Officer, since the counsel for the assessee made a statement before the ITAT that the required documents can be submitted if opportunity is granted to the assessee. Opportunity was granted to the assessee by the Assessing Officer, as well as before me. However, the appellant failed to establish the creditworthiness of the depositor and the genuineness of the transactions. In the absence of evidence that the loan taken by the appellant and the gift received by him were genuine transactions, the addition made by the Assessing Officer u/s.68 of the Income-tax Act is confirmed."

5.1. It is not in dispute that onus is on the assessee to prove the genuineness of the transaction, identity of the creditors and creditworthiness of the creditors. In the present case, the assessee has filed the evidences to prove the identity of the persons. The evidences so filed requires verification at the end of the AO, therefore, in the interest of justice, the order of the ld.CIT(A) is hereby set aside and the issues are ITA No.2705/Ahd/2010 Jay Kishor Chaturvedi vs. DCIT Asst.Year - 1996-97 -5-

restored to the file of AO for deciding the issue of additions related to loan taken from Shri V.H.Desai and gift received from Shri Shashank Sapre amounting to Rs.3 lacs and Rs.1,92,000/- respectively. The AO is at liberty to make further enquiries, if needed. The assessee is hereby directed to co-operate in the assessment proceedings by furnishing requisite details as and when called for by the AO to prove the identity, creditworthiness and genuineness of the transactions.

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

Order pronounced in the Court on Friday, the 09th day of January, 2015 at Ahmedabad.

Sd/- Sd/- (अǓनल चतुवȶदȣ) (कुल भारत) लेखा सदèय ÛयाǓयक सदèय ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER

Ahmedabad; Dated 09/ 01 /2015

टȣ.सी.नायर, व.Ǔन.स./T.C. NAIR, Sr. PS ITA No.2705/Ahd/2010 Jay Kishor Chaturvedi vs. DCIT Asst.Year - 1996-97 -6-

आदे श कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the Order forwarded to :

1. अपीलाथȸ / The Appellant

2. Ĥ×यथȸ / The Respondent.

3. संबंͬधत आयकर आयुÈत / Concerned CIT

4. आयकर आयÈ ु त(अपील) / The CIT(A)-II, Baroda

5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड[ फाईल / Guard file.

आदे शानुसार/ BY ORDER,

स×याͪपत ĤǓत //True Copy//

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपीलȣय अͬधकरण, अहमदाबाद / ITAT, Ahmedabad

1. Date of dictation .. 8.1.15 (dictation-pad 9- pages attached at the end of this File)

2. Date on which the typed draft is placed before the Dictating Member ...8.1.15

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.......9.1.15

7. Date on which the file goes to the Bench Clerk.....................9.1.15

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..................