IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "A" : DELHI
BEFORE SHRI BHAVNESH SAINI, J.M. AND SHRI L.P. SAHU, A.M.
ITA.No.7692/Del./2018
Assessment Year 2014-2015
Shri Ankit Kapoor, The Income Tax Officer,
B-102, RG City Centre, Plot
Ward-63(4), E-2 Block,
No.4, Motia Khan,
Paharganj, New Delhi. vs. Civic Centre, New Delhi.
PIN - 110 055.
PIN - 110 002.
PAN AUZPK1007E
(Appellant) (Respondent)
Shri P. Roychaudhuri,
For Assessee :
Advocate
For Revenue : Shri Amit Katoch, Sr. D.R.
Date of Hearing : 04.02.2019
Date of Pronouncement : 06.02.2019
ORDER
PER BHAVNESH SAINI, J.M.
This appeal by Assessee has been directed
against the Order of the Ld. CIT(A)-20, New Delhi, Dated
25.09.2018, for the A.Y. 2014-2015.
2. We have heard the Learned Representatives of
both the parties and perused the findings of the authorities
below.
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ITA.No.7692/Del./2018 Shri Ankit Kapoor,
New Delhi.
3. Learned Counsel for the Assessee did not press
Ground Nos. 2 and 3 of the appeal. The same are dismissed
as not pressed.
4. On Ground Nos. 1 and 4 of the appeal, the
assessee challenged the addition of Rs.1,27,93,835/- on
account of sundry creditors and addition of Rs.11,18,170/-
on account of expenses of the creditors.
5. Briefly the facts of the case are that the assessee
is engaged in the business of Trading and Export of
processed and non-processed Buffalo Meat. The A.O. noted
that assessee has shown the list of the creditors on
31.03.2014 which are 11 in number. The details of the same
are noted in the impugned order. Therefore, notice under
section 133(6) of the I.T. Act, 1961, were issued to the
creditors calling the information. None attended nor any
application was received for adjournment. Summons under
section 131 of the I.T. Act, 1961, were also issued to the 11
creditors, but, nobody attended the proceedings. A.O. noted
that out of 11 creditors, confirmations from 03 creditors
were received viz., M/s. True Logistics, M/s. Snowman
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Logistics and M/s. Sarah Foods. The A.O, therefore, noted
that for these 08 creditors who did not respond to the notice
under section 133(6) of the I.T. Act and summons under
section 131 of the I.T. Act, the amount of Rs.5,14,40,739/-
remain unexplained. The A.O. also noted that only one
creditor Mr. Jameel Ahmed attended on 26.12.2016 and
stated that he has not done any correspondence of sale and
purchase of Buffalo during financial year under reference
and refused to give further statement. The A.O, therefore,
noted that since the creditors have failed to respond to the
notice under section 133(6) of the I.T. Act and summons
under section 131 of the I.T. Act, therefore, addition shall
have to be made of the aforesaid amount. The A.O.
accordingly, made the addition of Rs.5,14,40,739/- as
income from other sources on account of unexplained
credits.
5.1. The A.O. also noted that during assessment
proceedings, the assessee was asked to produce the details
of expenses of remaining following creditors i.e., M/s.
Ashish Enterprises Rs.8,345/-, Freight Aids (India) Pvt.
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Ltd., Rs.1,24,369/-, Jigar Container Movers Rs.3,91,500/-
and Nanak Food Industries Pvt. Ltd., Rs.6,65,956/- totaling
to Rs.11,18,170/-. The A.O. noted that assessee could not
produce any details i.e., bills/vouchers, therefore, in the
absence of any evidence on record, A.O. disallowed the
above amount and added to the total income of assessee.
6. The assessee preferred an appeal before the Ld.
CIT(A) who have dismissed the appeal of assessee for default
vide Order Dated 24.11.2017. The assessee filed an appeal
before ITAT in ITA.No.7306/Del./2017 and the Tribunal
vide Order Dated 25.01.2018, restored the matter to the file
of Ld. CIT(A) for passing the Order afresh. The Ld. CIT(A),
accordingly, taken-up the matter afresh. The Ld. CIT(A)
noted that during the set-aside appellate proceedings, the
assessee has filed the written submissions but without any
supporting evidence and paper book. The Counsel for
Assessee submitted before the Ld. CIT(A) that no document
is required to be submitted except written submissions. The
written submissions of the assessee is reproduced in the
appellate order. The assessee in the written submissions
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submitted that in respect of 11 creditors above the amount
comes to Rs.2,58,45,298/- only and the A.O. did not verify
the remaining amount. The A.O. did not issue any notice
nor any confirmation was asked for. The A.O. made the
addition in a mechanical manner, therefore, addition is not
sustainable. Three creditors have complied with the notice
as above in a sum of Rs.1,30,51,443/- under section 133(6)
of the I.T. Act, 1961. The A.O. has not pointed-out any
shortcomings in the confirmation/reply of these creditors. It
was further submitted that besides these three creditors,
one more creditor Mr. Jameel Ahmed responded to the
notice under section 133(6) of the I.T. Act against whom
there was an outstanding amount of Rs.12,39,055/-
appeared before A.O. who has not stated anything against
the assessee. Therefore, this addition is also unjustified.
Since no right of cross-examination have been given to his
statement, therefore, no addition should be made. As
regards disallowance of purchases to the tune of
Rs.11,18,170/-, it was submitted that it is an adhoc
addition.
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7. The Ld. CIT(A) considering the issue in detail and
after giving an opportunity of being heard to the assessee
and considering the material on record, deleted the addition
of Rs.3,86,46,884/- (Rs.2,55,95,441/- + Rs.1,30,51,443/-).
However, as regards the balance amount of unexplained
credit for the amount of Rs.1,27,93,855/- challenged under
appeal in respect of 08 creditors in which the A.O. has
issued notice under section 133(6) of the I.T. Act, 1961 as
well as summons under section 131 of the I.T. Act, 1961, it
is noted that they did not comply either before A.O. nor filed
any confirmation. The details of the 08 creditors are noted
in para 9.6 of the appellate order. The Ld. CIT(A) noted that
even during the course of first appellate proceedings as well
as before ITAT during set-aside appellate proceedings, the
assessee could not produce any documentary evidence in
the form of confirmation or any other documentary
evidences in respect of the claim that they are genuine
creditors, and only written submissions have been filed. The
Ld. CIT(A) also noted that Counsel for Assessee also
conceded that no documentary evidences has to be
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produced in respect of this claim and this fact has also been
recorded in the Order sheet Dated 11.09.2018. The Ld.
CIT(A), therefore, noted that onus was upon the assessee to
prove genuineness of these credit amounts. A.O. has made
efforts to get information by issuing notice under section
133(6) of the I.T. Act and summons under section 131 of the
I.T. Act, but, assessee did not file any documentary
evidences and also failed to substantiate its claim of the
remaining credit amount of Rs.1,27,93,855/-. The Ld.
CIT(A) also noted that Mr. Jameel Ahmed did not confirmed
the transaction with the assessee and the assessee failed to
produce any documentary evidence or confirmation from
Mr. Jameel Ahmed regarding the credit balance shown
against his name. The Ld. CIT(A) in the absence of any
evidence on record, confirmed the addition of
Rs.1,27,93,855/-. The appeal of Assessee on this ground
was dismissed. The Ld. CIT(A) relied upon several decisions
in support of his findings and also noted that despite
sufficient opportunities given to the assessee, the assessee
did not produce any evidence at any stage. Therefore, in the
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absence of even confirmation on record, the addition shall
have to be maintained. This ground of the assessee was
accordingly dismissed by the Ld. CIT(A).
8. The Ld. CIT(A) as regards the addition of
Rs.11,18,170/- also noted that assessee did not file any
supporting evidence. The assessee was given sufficient
opportunities to produce the bills/vouchers and evidence for
the same. Therefore, in the absence of any evidence on
record, this addition was confirmed. This ground of appeal
of assessee was dismissed by the Ld. CIT(A). The appeal of
assessee was accordingly dismissed on both the grounds.
9. We have heard the Learned Representatives of
both the parties. Learned Counsel for the Assessee
submitted that the matter may be remanded back to the Ld.
CIT(A) for issuing fresh notice under section 133(6) of the
I.T. Act and summons under section 131 of the I.T. Act to
all the parties to verify the transactions.
10. On the other hand, Ld. D.R. submitted that no
basis have been shown as to why further opportunity be
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given to the assessee for issuing notice/summons to the
remaining creditors because assessee has already been
given adequate opportunity to produce the evidence in this
regard, but, assessee failed to comply with the same.
Therefore, appeal of assessee may be dismissed.
11. We have considered the rival submissions. The
Hon'ble Calcutta High Court in the case of Bharati Pvt. Ltd.,
111 ITR 951 and United Commercial Industrial Co. Pvt.
Ltd., 187 ITR 596 held that "mere filing of confirmations not
enough to prove genuineness of the credit." In the present
case, the A.O. issued notice under section 133(6) of the I.T.
Act, 1961 as well as summons under section 131 of the I.T.
Act, 1961 to the below mentioned creditors for verifying the
genuineness of the transaction.
S.No. Name of Creditors Amount in Address
Rs.
1. AL Azlan Frozen Foods 46,42,400 Vill. Chimyawali, Moradabad Rd.,
Sanbhal Moradabad (UP) 244 302.
2. Aabid & Others 14,61,330 Mohalla Bajrai, Ward No.25,
Hasanpur, Amroha (UP).
3. Aashaqin & Others 12,59,190 Vill. Sathla, Thsil Mawana Distt.
Meerut
4. Izrail & Others 11,17,085 Mohll. Qureshi, Wasu Dev Road, Near
Minar Masjih, Amroha (UP).
5. Jameel & Others 12,39,055 Janta Biri Wale, Mohll. Samilliyan
Moli Wala Hasanpura, Amroha (UP).
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6. Kafeel & Others 9,83,100 113, Mohalla Bakkar Khaswan,
Tehsil, Sikandarabad, Distt.
Bullandsaha (UP)
7. Shuaib & Others 10,63,745 Mohhalla Sahib Chabutr, Near
Ghuthe Dakhana, JP Nagar, Amroha
(UP).
8. Suleman & Others 10,27,950 Mohlla Ratiya, Lai Bagh, Hassanpur,
Amroha (UP).
Total 1,27,93,855
11.1. None of the above creditors have complied
with the notice and summons of the A.O. The assessee did
not file any confirmation or any other document from these
creditors to verify the genuineness of the transactions. The
assessee has been given sufficient opportunity to prove his
case that he has received genuine credits in the matter.
However, the assessee despite giving sufficient opportunity
did not produce any confirmation or the documentary
evidence to prove the genuineness of the credits. One
creditor Mr. Jameel Ahmad appeared before A.O. but he has
not confirmed the transaction with the assessee. These facts
clearly show that assessee failed to adduce any sufficient
evidences on record to prove genuineness of the credits in
the matter. The Tribunal has also remanded back the
matter to the Ld. CIT(A) but despite giving fresh
opportunity, the assessee did not do anything in the matter.
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New Delhi.
Even before the Tribunal, the assessee did not make any
attempt to adduce any additional evidence with prayer,
which would, therefore, show that assessee has no evidence
to prove genuineness of these credits. It is well settled Law
that burden is upon the assessee to prove the identity of the
creditors, their creditworthiness and genuineness of the
transaction in the matter. However, assessee failed to
produce any documentary evidence and confirmations from
the creditors. Therefore, there is no reason to restore the
matter back to the file of Ld. CIT(A) for issuing of fresh
summons. No interference is called for in the matter. This
ground of appeal of assessee is accordingly dismissed.
12. As regards the disallowance of expenses on
creditors, the assessee did not produce any evidence before
the authorities below. Therefore, in the absence of any
evidence, no interference is called for in the matter. This
ground of appeal of assessee is also dismissed.
13. In the result, appeal of assessee is dismissed.
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Order pronounced in the open Court.
Sd/- Sd/-
(L.P. SAHU) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Delhi, Dated 06th February, 2019
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT `A' Bench, Delhi
6. Guard File.
// BY Order //
Assistant Registrar : ITAT Delhi Benches :
Delhi
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