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Shri Ankit Kapoor, B-102, RG City Centre, Plot No.4, Motia Khan, Paharganj, New Delhi. vs. The Income Tax Officer, Ward-63(4), E-2 Block, Civic Centre, New Delhi.
February, 06th 2019
         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.
                              2
                              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
                              3
                              ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                           New Delhi.


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.
                             4
                              ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                           New Delhi.







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
                                5
                                 ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                              New Delhi.


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.
                              6
                               ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                            New Delhi.


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
                              7
                              ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                           New Delhi.


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
                                   8
                                   ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                                New Delhi.


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
                                      9
                                       ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                                    New Delhi.


        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).
                                      10
                                          ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                                       New Delhi.


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.
                             11
                              ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                           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.
                              12
                               ITA.No.7692/Del./2018 Shri Ankit Kapoor,
                                                            New Delhi.


           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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