, `',
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "J", MUMBAI
Before Shri G S Pannu, AM & Shri Sanjay Garg, JM
ITA No.1429/Mum/2010
/ Assessment Year - 2006-07
The ITO Ward 1(3), Bipin Ramji Katira (HUF)
Thane Jay Yogeshwar Octroi Services,
Vs Shop No.4., Nayan CHS,
Eastern Express Highway,
Nr. Shreema Balniketan School
Thane (E)
PAN AACHK5422L
( /Appellant) ( /Respondent)
Appellant By : Shri Akhilendra P Yadav
Respondent By : Shri Subodh Ratanaparkhi
/ /
Date of Hearing :05.08.2015. Date of Pronouncement : 30.11.2015
ORDER
Per Sanjay Garg, Judicial Member:
The present appeal filed by the revenue is directed against the order of
the CIT(A)-II, Thane, dated 26.11.2009, for A.Y. 2006-07.
2. The revenue has raised the following grounds of appeal:
"1. The learned CIT(A) has erred in fact and in law in
deleting the additions made on account of unexplained
cash deposits.
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2. The learned CIT(A) has erred in fact and in law in
deleting the additions made on account of unproved cash
credits."
The revenue through the above grounds has agitated the action of the
CIT(A) in deleting the additions made on account of unexplained cash
deposits and on account of cash credit received by the assessee HUF. So far
as the first issue is concerned, the assessee HUF during the year received
cash deposits from its own members' viz. Shri Bipin Katira and Smt. Geeta
Bipin Katira. The AO had treated the said deposits as unexplained on the
ground that the assessee had not submitted the cash flow statement of the
creditors. The learned CIT(A) has deleted the disallowance made by the AO
observing that the assessee had filed copies of IT return, Profit & Loss
account and Balance sheet of the depositors, who were the members of the
HUF itself. The assessee HUF had purchased a house property. However, it
could not get the loan from the bank on time and because of time constraint,
temporary contributions were made by HUF members. Both the above
mentioned members have been regularly filing their returns and are being
assessed by the same Assessing Officer. They were having sufficient cash
balance over the period of time as per their balance sheet filed with the
department. All the details were filed before the Assessing Officer by the
assessee. The Assessing Officer could not prove that the said depositors viz.
Shri Bipin Katira and Smt. Geeta Bipin Katira were not having cash balance
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Bipin Ramji Katira (HUF)
for the purpose of depositing with the HUF. The CIT(A) after examining all
the facts and circumstances of the case deleted the disallowance made in
this respect. We do not find any infirmity in the order of the CIT(A) in this
respect.
3. The second issue relates to unexplained loan of Rs.15,50,000/- from
Manisha Katira. The AO has treated the said loan as explained on the
ground that the assessee could not prove the capacity of the creditor and the
genuineness of the loan transaction. The learned CIT(A) however, deleted
the disallowance observing as under:
"5.2.6 In the case of the appellant, the loan has been
received from Smt. Manisha Katira, who is a third party. Her
identity is not in doubt and even the genuineness of the
transaction is not questioned by the AO. It is the capacity of
the creditor to advance the money which is doubted by the
AO. Summons have been recorded whereby she has
accepted having advanced the money in question. She
explained the source of the same as she has been doing the
business of supplying the food items to persons and also
undertakes stitching work and has been doing this work for
the last 17 years on cash basis and this proves her capacity.
Smt. Manisha Katira is a regular assessee. Whatever has
been stated by the creditor even if not true, cannot be
questioned without placing on record anything contrary to
that effect. Statement of the creditor can only be rejected by
making further investigations in the matter and by placing on
record the evidence that whatever stated is not true. Till
such evidence is not placed on record, the capacity of the
creditor cannot be questioned and no action can be taken in
the case of the appellant HUF. If the capacity is still in
doubt, action may be initiated in the case of the creditor by
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Bipin Ramji Katira (HUF)
resorting to statutory remedies provided in the Income Tax
Act. The appellant HUF cannot be penalized for acts of
omission or commission, if any, of the third party creditor."
4. We have heard the learned representatives and have perused the
material available on record. We find that the learned CIT(A) after
appreciating the evidences produced by the assessee including the statement
of Smt. Manisha Katira has held that the assessee could not be expected to
do more than it has already done to prove the genuineness of transaction
and creditworthiness of the creditor. We, therefore, do not find any infirmity
in the well-reasoned order of the CIT(A) on this issue also and the same is
accordingly upheld.
5. In the result the appeal of the Revenue is dismissed.
Order was pronounced in the open court on 30.11.2015.
Sd/- Sd/-
(G S PANNU) (SANJAY GARG)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai; Dated : 30 November, 2015.
SA
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Bipin Ramji Katira (HUF)
/Copy of the Order forwarded to :
1. /The Appellant.
2. / The Respondent.
3. () / The CIT(A), Mumbai.
4. / CIT
5. , , / DR, `F' Bench, ITAT, Mumbai
/ BY ORDER,
//True Copy//
/ (Dy./Asstt. Registrar)
, / ITAT, Mumbai
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