Vijay Mishra, Nani Daman vs Assessee

आयकर अपीलीय अिधकरण, अिधकरण, अहमदाबाद Ûयायपीठ ''D'', अहमदाबाद ।

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, "D" BENCH

सव[ौी ौी जी.

जी.सी.

सी.गुƯा, माननीय उपाÚय¢, उपाÚय¢, एवं एन.

एन.एस.

एस. सैनी, ी, लेखा सदःय के सम¢ ।

BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND N.S. SAINI, ACCOUNTANT MEMBER)

ITA No.2883/Ahd/2010 [Asstt.Year : 2007-2008]

M/s.Vijay Mishra बनाम/Vs. ACIT, Vapi, Circle Prop: Yash Engineering Works Vapi.

Rolex Polymers-32, Supreme Industrial Estate Bhimpore, Nani Daman 396 210.

(अपीलाथȸ / Appellant) (ू×यथȸ / Respondent)

िनधा[ǐरती कȧ ओर से/ : Assessee by None (Written Submissions) राजःव कȧ ओर से/ : Revenue by Smt.Sonia Kumar, Sr.DR सुनवाई कȧ तारȣख/ : Date of Hearing 1st December, 2014

घोषणा कȧ तारȣख/ : Date of Pronouncement 09-01-2015

आदे श / O R D E R

PER G.C. GUPTA, VICE-PRESIDENT: This appeal by the assessee for the Asstt.Year 2007-08 is directed against the order of the CIT(A).

2. At the time of hearing, none appeared on behalf of the assessee-appellant. However, the assessee has filed written submissions for consideration thereof, and has also filed compilation in support of his case. Accordingly, the appeal of the assessee is being decided ex parte qua the assessee-appellant on merits after ITA No.2883/Ahd/2010

hearing the learned DR, and also after considering the written submissions of the assessee.

3. The ground no.1 of the assessee's appeal is as under:

"1. The ld.CIT(A) has erred in law and facts in confirming addition of Rs.4,45,000/- u/s.68 of IT Act without considering the details & submissions of land records."

4. The learned DR has relied on the orders of the AO and the CIT(A). She referred to relevant portions of the assessment order in support of the case of the Revenue.

5. We have considered submissions of the learned DR and perused the orders of the AO and the CIT(A) and also written submissions filed by the assessee. We find that the assessee has introduced a sum of Rs.6,00,000/- on 20.3.2007 as capital in the proprietary firm, M/s.Rolex Polymers and claimed that it represented accumulated share of agriculture income reimbursed by the uncle of the assessee, Shri Ramnath Mishra and is duly reflected in the personal balance sheet of the assessee as asset as on 31.3.2006. The assessee has filed 7/12 extract showing the details of land owned by the assessee. The assessee has claimed that the AO has not required any other details or evidences and has straight away added the amount of Rs.4,45,000/- out of total amount of Rs.6,00,000/- introduced by the assessee and the balance amount was accepted by him as genuine. The claim of the assessee is that the amount was due from uncle of the assessee and shown as opening balance in the personal balance sheet, and therefore, there was no justification for allowing the credit of agricultural income only for two years i.e. A.Y.2006-07 and 2007-08 and denied for others. We find that there is no foolproof evidence led by the assessee or by the department in this regard, to show that whether accumulated share of the assessee for the past many years in the agriculture income was accumulated by the assessee and received from his uncle during the year or whether the some

-2- ITA No.2883/Ahd/2010

portion thereof was already spent by the assessee. We, considering totality of the facts and circumstances case, including the extent of land holding of the assessee, as shown in 7/12 extract of the Revenue record and that the assessee has claimed the amount, as reflected in his personal balance sheet as accumulated balance of his share in the agriculture income, accumulated for last several years, and also affidavit filed in this regard, are of the view that ends of justice shall be met, if the addition is restricted to Rs.1,50,000/- as against Rs.4,45,000/- sustained by the CIT(A), and the balance addition is deleted, and the ground no.1 of the assessee is partly allowed.

6. The ground no.2 of the assessee is as under:

"2. The ld.CIT(A) has erred in law and facts in confirming addition of Rs.4,73,883/- as unexplained cash credit u/s.68 of the IT Act and added to the income for the year."

7. The learned DR has relied on the orders of the AO and the CIT(A) and referred to relevant portions of the assessment order in support of the case of the Revenue.

8. We have considered submissions of the learned DR and also perused the written submissions of the assessee and the copies of the documents filed in the compilation by the assessee. We find that the assessee has introduced Rs.11 lakhs as capital in the proprietary firm, M/s.Rolex Polymers, out of which, a sum of Rs.4,73,883/- has been added as cash credit under section 68 of the act. The assessee has claimed that this amount was deposited by him represented the amount of his mother being the capital account balance of Vijay Engineering Works and her savings from agriculture income etc. The assessee has filed capital account with the firm right from A.Y.2003-04 to 2006-07 along with copy of the acknowledgement of return of income. The copy of the 7/12 extract of the Revenue record regarding agriculture land holding of the mother of the assessee were also filed. We find that the AO has allowed credit of Rs.6,26,117/- being the amount in capital account in the firm as on 31.3.2006 -3- ITA No.2883/Ahd/2010

and added Rs.4,73,883/- as cash credit on account that there is no documentary proof to substantiate the claim. We find that the assessee has filed capital account with the firm from A.Y.2003-04 to 2006-07 along with copy of acknowledgement of return of income, and therefore, it cannot be said that the assessee has not filed any documents and supporting evidences in support of his case. The assessee has also filed 7/12 extract of the revenue record to show the agriculture land holding of the mother of the assessee. In these facts, we are of the view that some part of credit of the withdrawals made from the firm, M/s.Vijay Engineering Works, Daman from A.Y.2003-04 to 2006-07 was allowable to the assessee, and also some credit for the agriculture income of the mother of the assessee. The assessee could not prove with documentary evidences that the entire withdrawals made from the firm, in past different years were kept intact by him. In these facts, considering totality of the facts and circumstances of the case, and considering the capital account from A.Y.2003- 04 to 2006-07 in M/s.Vijay Engineering, Daman along with acknowledge of filing of the return and the copy of 7/12 extracts of the revenue records showing the holding of agriculture land of the mother of the assessee, we are of the view that credit of Rs.3,00,000/- should be allowed to the assessee, apart from Rs.6,26,117/- allowed by the AO, and the balance addition of Rs.1,73,883/-is confirmed and the ground no.2 of the assessee is partly allowed.

9. In the result, the appeal of the assessee is partly allowed. Order pronounced in Open Court on the date mentioned hereinabove.

Sd/- Sd/- एन. एन.एस. (एन एस. सैनी /N.S.SAINI) (जी. जी.सी. सी.गुƯा/G.C. GUPTA) लेखा सदःय /ACCOUNTANT MEMBER उपाÚय¢ /VICE-PRESIDENT

Copy of the order forwarded to: 1) : Appellant 2) : Respondent 3) : CIT(A) 4) : CIT concerned 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD -4-