Yusuf S.Sarvaiya, U T Of D & Nh vs Assessee

BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER आयकर अपील सं./ ITA No. 1519/Ahd/2011 नधा रण वष /Assessment Year: 1999-2000 Yusuf S. Sarvaiya ACIT, Vapi Circle Bavis Falia, Umerkui Road Vs Vapi. Silvassa, U.T. of D.&N.H. PAN : ADZPS 8342 P

अपीलाथ!/ (Appellant) "#यथ!/ (Respondent)

Assessee by : Shri M.K. Patel Revenue by : Shri Nikesh Yadav, Sr.DR

सन ु वाई क तार ख/ Dateof Hearing : 12/06/2015 घोषणा क तार ख / Date of Pronouncement: 25/06/2015

आदे श/O R D E R

PER N.S. SAINI, ACCOUNTANT MEMBER: This appeal of assessee

is against the order of the CIT(A), Valsad dated 7.2.2011 for the Asstt.Year 1999-2000.

2. The ground no.1, 2 and 3 of the appeal read as under:

"1. The order of assessment is contrary to the facts of the case and prejudicial to the assessee.

2. On appreciation of the facts and circumstances of the case and law, the additions made are based on presumptions and surmises and is contrary to the facts and circumstances of the case and deserves to be deleted.

3. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned Assistant Commissioner of Income Tax in making addition of Rs. 91,000/- out of loans and advances, treating the same as unexplained cash ITA No.1519/Ahd/2011 2

credit U/s. 68 of the Income Tax Act. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and circumstances of the case and deserves to be deleted."

3. At the time of hearing, the AR of the assessee submitted that he is not pressing these grounds for adjudication, and hence, they are dismissed for want of prosecution.

4. The ground no.4 of the appeal of the assessee reads as under:

"4. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned Assistant Commissioner of Income Tax in making addition of Rs. 20,98,714/- out of sundry creditors treating the same as unexplained expenditure U/s. 69C of the Income Tax Act. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and circumstances of the case and deserves to be deleted."

5. The brief facts of the case are that during the year under consideration, the assessee has shown sundry creditors of Rs.20,98,714/-. The AO required the assessee to furnish confirmation for the same. The assessee furnished some confirmations. On verification, the AO found that they did not have any PAN or rubber stamp of the creditors, and all the confirmations were mechanically typed and most of them were signed by authorized signatory only which were apparently fabricated. Therefore, the AO made addition for Rs.20,98,714/- by treating the sundry creditors as not genuine under section 69C of the Act.

6. On appeal, the CIT(A) confirmed the action of the AO on the ground that the issue was examined earlier by the CIT(A) and confirmed the addition made by the AO. The Tribunal set aside the matter back to the file of the AO to decide the same afresh. The assessee was also directed to produce the details of sundry creditors and the AO will examine them. The assessee did not file any details ITA No.1519/Ahd/2011 3

either before the AO or during the appellate proceedings. In the absence of any evidence, the CIT(A) observed that it was difficult to take a view other than already existed on record. The dispute between the father and son cannot be the reasonable cause to give findings in favour of the assessee. The assessee has admitted that in the absence of proper documents, the assessee was unable to contact the creditors and filed further details.

7. Before us, the AR of the assessee filed at page nos.20 to 209 copies of ledger account of the sundry creditors, evidencing subsequent repayment as well as copy of annual accounts for the year ended 31.3.2000, as additional evidences and prayed that the same may be admitted as per Rule 29 of the Income-Tax (Appellate Tribunal) Rules, 1963 in the interest of justice, and thereafter the matter may be restored to the file of AO for adjudication of the issue afresh after verifying the evidence.

8. On the other hand, the DR vehemently opposed the submissions of the assessee and argued that on earlier occasions also the Tribunal restored the matter back to the file of the AO at the request of the AR of the assessee, for verification of the creditors with the details to be produced by the assessee before him. The assessee failed to comply with the directions of the Tribunal, and therefore, the AO has rightly made addition and the CIT(A) was fully justified in confirming the same.

9. In the above facts and circumstances of the case, after considering the rival submissions, we are of the considered opinion that the Tribunal vide its order dated 31.11.2007 in ITA No.3105, 3106/Ahd/2007 in the case of the assessee has restored the matter back to the file of AO with directions to the AO to decide the same afresh by examining all aspects of law, after giving adequate opportunity of hearing to the assessee. We find from the orders of the AO as well as the CIT(A) filed before us along with the appeal memo ITA No.1519/Ahd/2011 4

that the assessee failed to file PAN of the creditors and that the confirmations filed were not signed by the creditors, but by the authorized signatories. Therefore, the AO was not satisfied with the explanation of the assessee, and made addition. The assessee has now filed additional evidence to the effect that creditors have been paid by the assessee in the subsequent year which shows that the creditors were genuine, and has prayed that the mater may be once again restored to the file of the AO for adjudication of the issue after examining the same. In our considered view, the matter was restored back to the file of the AO by the Tribunal in the year 2007, and opportunity was granted to the assessee to produce all evidences in support, to show that the creditors were genuine. The assessee failed to produce the same on the ground that there was dispute between the father and son, and the evidences could not be filed. We find that the assessment year involved is 1999-2000, and we are in the year 2015 and more than 16 years have been lapsed since then, and therefore, no purpose will be served by restoring the matter back to the file of the AO for verification of the same, as despite the opportunity provided by the Tribunal vide its order dated 30.11.2007 (supra), the assessee failed to avail of. We, therefore, confirm the order of the CIT(A) and dismiss the ground of appeal of the assessee.

10. In the result, the appeal of the assessee is dismissed.

Order pronounced in the Court on Thursday the 25th day of June, 2015 at Ahmedabad.

Sd/- Sd/- (RAJPAL YADAV) ( N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Ahmedabad; Dated 25/06/2015