IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCHES "A": DELHI
BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER
AND
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
ITA.No.3159/Del./2016
Assessment Year 2011-2012
M/s. Mannat Motors
The Income Tax Officer, (India), 22, Dudial
Ward-40(3), Civic Centre, vs., Apartment, Pitampura,
New Delhi 110 002. Delhi 110 088.
PAN AAEFM1539Q
(Appellant) (Respondent)
C.O.No.81/Del./2019
Arising out of
ITA.No.3159/Del./2016 - Assessment Year 2011-2012
M/s. Mannat Motors
(India), 22, Dudial The Income Tax Officer,
Apartment, Pitampura, vs., Ward-40(3), Civic Centre,
Delhi 110 088. New Delhi 110 002.
PAN AAEFM1539Q
(Appellant) (Respondent)
For Revenue : Shri P.V. Gupta, Sr. D.R.
Shri Narender Chhillar And
For Assessee : Shri Ashok Khatter,
Advocates
Date of Hearing : 10.06.2019
Date of Pronouncement : 24.06.2019
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M/s. Mannat Motors (India), Delhi.
ORDER
PER BHAVNESH SAINI, J.M.
The Departmental Appeal and Cross Objection by
Assessee are directed against the Order of the Ld. CIT(A)-14,
New Delhi, Dated 29.03.2016, for the A.Y. 2011-2012.
2. We have heard the Learned Representatives of
both the parties and perused the findings of the authorities
below.
3. The Department has filed the appeal on the
following grounds :
"On the facts and circumstances of the case and in law
CIT(A) has erred in
1. Deleting the addition of Rs.82.30 lacs out of total
addition of Rs.97.39 lacs made by AO on account of
disallowance of Sundry Creditors as the assessee had
failed to prove the genuineness, creditworthiness and
identity of the creditors.
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2. Admitting the additional evidence ignoring the report
submitted by A.O., wherein he had stated that sufficient
cause, which prevented assessee to file documentary
evidences during assessment proceedings to prove
creditors, has not been shown by him during appellate
stage, which is incontravention of Rule 46A of IT Rules
1962."
4. The Assessee has filed the Cross Objections on
the following grounds :
"1.That the CIT (A) has erred, on facts and in law, in
confirming the addition amounting to Rs.15.09 lacs
without appreciating that :-
(i) the Assessing Officer has added Rs.97.39 lacs
under section 69A of the Income Tax Act, 1961
(`the Act"), being transactions out of the books
without appreciating the fact that the said
information has already been provided in the
books of accounts and financial statements of
the Assessee.
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M/s. Mannat Motors (India), Delhi.
(ii) the CIT (A) has erred, on facts and in law, in not
adjudicating the legal issue raised by the
Appellant regarding non applicability of section
69A of the Act".
5. Briefly the facts of the case are that assessee is a
firm and filed return of income declaring income of
Rs.4,280/-. The A.O. on perusal of the balance-sheet as on
31.03.2010 and 31.03.2011 noted the balance of sundry
creditors shown to be paid of Rs.1,59,01,405/- and
Rs.59,18,103/- respectively. Subsequently sundry debtors
as on 31.03.2010 and 31.03.2011 shown at Rs.97,39,780/-
and Rs. at NIL respectively. It seems the sundry debtors to
the tune of Rs.97,39,780/- were recovered during the period
01.04.2010 to 31.03.2011. The assessee was asked to
furnish list of sundry debtors recovered with name and
complete address. The assessee failed to furnish the details.
Hence, the genuineness and creditworthiness of sundry
debtors recovered to the tune of Rs.97,39,780/- remained
unverified and claim of the assessee firm was not
established for recovery from sundry debtors. Subsequently
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M/s. Mannat Motors (India), Delhi.
the assessee firm has also claimed that sundry creditors to
the tune of Rs.99.83,302/-. (Rs.1,59,01,405/- (-)
Rs.59,18,103/-) were paid off during the period 01.04.2010
to 31.03.2011. During the course of assessment
proceedings, the assessee was asked to furnished complete
name and address of these paid off creditors and source of
payment with documentary evidence. The assessee failed to
furnished these documents to substantiate the above claim.
The A.O. noted that as per order sheet, assessee was asked
to furnish books of account i.e. Cash Book, Ledger, Bills etc.
for test check. But the same have not been produced.
Therefore, genuineness of sources of sundry creditors to
the tune of Rs.97,39,780/- which were paid off are
remained unverified. In the absence of the sources of
payment, the claim of assessee of payment of
Rs.99,83,302/- were paid off during the period seems out of
unexplained money/undisclosed income having with the
assessee during the period. The A.O, therefore, noted that it
is established that assessee firm having undisclosed income
out of which sundry creditors to the tune of Rs.99,83,302/-
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M/s. Mannat Motors (India), Delhi.
were paid off. Hence, the addition of Rs.99,83.302/- was
made in respect of unexplained/undisclosed money under
section 69A of the I.T. Act to the income of the assessee
firm. The A.O. however, made addition of Rs.97,39,780/- on
account of unexplained sundry creditors.
6. The addition was challenged before the Ld.
CIT(A). The assessee filed the written submissions along
with documentary evidence to explain the source of
payment to the sundry creditors. The written submissions is
reproduced in the appellate order along with documents
which reads as under :
"Addition on account of sundry creditors
The Ld. AO has erred in facts and in law by making an
addition of Rs.97,39,780/- in respect of unexplained/
undisclosed money u/s 69A of the Income Tax Act,
1961 used for making payment to creditors.
The Ld. AO has been provided with the complete
reconciliation of opening and closing balances of sundry
creditors and sundry debtors along with copy of
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account of sundry debtors, sundry creditors and their
addresses. AO has failed to issue letters/summons u/s
133(6) of the I.T.Act, 1961 for independent
confirmations of these balances. During the assessment
proceedings, bank account along with complete
narrations has been filed with Ld. AO. The AO had
been provided with confirmations from sundry creditors
which have been accepted by him and not in dispute.
Payment to sundry creditors even is not in dispute.
Addition is in respect of unexplained/undisclosed
money u/s 69A of the IT Act, 1961 which is used for
making payment to creditors.
During the assessment proceedings, appellant has
filed complete detail of foreign debtors recovered
amounting Rs.60,30,839/- in bank along with bank
realisation certificates vide letter dated 19th February
2014. Despite that Ld. AO failed to appreciate the
genuineness of the source to the extent of
Rs.39,67,850/- withdrawn from Bank out of foreign
debtors recovered and treated the whole amount of
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recoveries from debtors as unexplained/un-disclosed
payment to creditors for the reasons best known to him.
Your Lordship will definitely sense that recovery of
foreign debtors in bank and subsequent withdrawals
from bank for payment to creditors cannot be treated as
unexplained/un-disclosed source by any stretch of
imagination. In the remand report, Ld. AO has accepted
that payments to Chauhan Gasket Industries have
been made through cheques, despite that Ld. AO has
not stated in remand report to give relief to appellant for
the same for the reasons best known to him.
Your Lordship will appreciate the following facts:
1. Payment made to sundry creditors through
account payee cheques :
Chauhan Gasket Industries Rs. 8,55,000/-
Sundermaya Sintered Products
Pvt. Ltd., Rs. 5,35,000/-.
Date wise Detail is enclosed herewith for your kind
perusal (Annexure II).
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M/s. Mannat Motors (India), Delhi.
2. M/s. P.S. Sethi & Sons having credit balance of
Rs.7,77,143/- as on 31.03.2010 has been paid off by
return of goods amounting Rs.11,76,637/-. Hence no
cash has 'been paid to them. So addition on account of
payment through unexplained / undisclosed sources is
not justified.
3. Foreign Debtors are recovered/received in Bank
during Financial Year 2010-2011 to the extent of
Rs.60,30,839/-. Date wise detail along with copy of
Bank Realisation Certificates is enclosed herewith for
your kind perusal (Annexure III).
4. Cash withdrawn from bank out of funds received
from foreign debtors to pay off the sundry creditors on
various dates amounting Rs.39,67,850/-. Date wise
detail is enclosed herewith for your kind perusal
(Annexure IV).
5. Cash received from M/s. P.S. Sethi & Sons
amounting Rs.4,10,474/- on various dates. Date wise
detail/Copy of Account/Confirmation quoting PAN
enclosed herewith for your kind perusal (Annexure I).
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Apart from above complete list of debtors/advances
recovered during the year along with complete addresses
had already been filed during assessment proceedings/
remand proceedings. Hence Ld. AO is not justified while
making the addition on account of un-explained/un-
disclosed source of payment. However few of the
confirmations are enclosed herewith for your kind
perusal as below:
Cash received from M/s. S. M. Auto Agencies 817,
Chhota Bazaar, Vidya Market, Kashmiri Gate, New Delhi
- 110006 amounting Rs.5,75,000/- on various dates.
Date wise detail/Copy of Account/Confirmation quoting
PAN enclosed herewith for your kind perusal (Annexure
V).
Cash received from M/s. Amber Auto Traders C/o
Mr. Mukesh Dua B-1/276, Paschim Vihar, New Delhi -
110064 amounting Rs.5,65,000/- on various dates. Date
wise detail/Copy of Account/Confirmation quoting PAN
enclosed herewith for your kind perusal (Annexure VI).
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Cash received from M/s. Gemini Auto Traders C/o
Ashok Kawatra A-4/425, Paschim Vihar, New Delhi -
110064 amounting Rs.5,55,000/- on various dates. Date
wise detail/Copy of Account/Confirmation quoting PAN
enclosed herewith for your kind perusal (Annexure VII).
Cash received from M/s. Oriental Auto Traders C/o
765/108, Amit motor Market, Kashmiri Gate, Delhi -
110006 amounting Rs.3,74,000/- on various dates. Date
wise detail/Copy of Account/Confirmation quoting PAN
enclosed herewith for your kind perusal (Annexure VIII).
Your Lordship is requested to kindly issue
letters/summons u/s 133 (6) to above parties for the
independent confirmations or send back it to Ld. AO for
further verification of these documents.
Despite making all the efforts, appellant has not been
able to arrange few of the confirmations as business of
appellant has been closed down. During the captioned
year due to worldwide slow down, appellant was facing
acute problem of cancellation of its sale orders which
consequently forced the appellant to cancel the purchase
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orders and requested the suppliers to refund back the
advance. Appellant had to make lot of efforts to get the
refund from the suppliers thus appellant was not in
cordial relations with suppliers and hence all
confirmations could not be arranged. During the
captioned year turnover of appellant has gone down
substantially as tabulated down :
AY 2010-2011 AY 2011-2012
(Amount in Rs.) (Amount in Rs.)
Sales 1,29,67,553/- 15,43,192/-
Sundry Debtors 97,39,780/- -NIL-
Sundry Creditors 1,59,01,405/- 59,88,104/-
From above table it is clear that the business of
appellant has gone down substantially during the
captioned year and as of now business of appellant has
closed down completely with no turnover in FY 2014-
2015 & 2015-16.
Your Lordship is requested to take kind note of
the fact that the debtors/advances have been accepted
by Department in earlier years hence addition on
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M/s. Mannat Motors (India), Delhi.
account of its recovery in current year cannot be
justified. The receipt of cash from various parties was
the receipt against the opening debit balance appearing
in the name of the said parties. The encashment of an
asset being the opening balance of sundry debtors /
advances during the year under reference has wrongly
been interpreted by the Ld. AO so as to hold that the
undisclosed income is introduced by the appellant in the
books of account through that source. The appellant has
duly explained the debit balance in the name of various
parties during assessment proceedings vide copy of
accounts filed before Ld. AO, which is not in dispute. In
any case the encashment of already declared asset
cannot be treated as the introduction of undisclosed
income in the books of account as no unexplained credit
is made in the books of the appellant and therefore the
addition of Rs.97,39,780/- may kindly be deleted.
Moreover for making addition u/s 69 A of the Act,
grounds relied upon by Ld. AO are vague and absurd.
The Ld. AO has not observed the basic condition of
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addition u/s 69 A i.e. "Not Recorded in the Books of
Account."
Section 69 A of the Act reads as under :
"Where in any financial year the assessee is found to be
the owner of any money, bullion, jewellery or other valuable
article and such money, bullion, jewellery or valuable article
is not recorded in the books of account, if any, maintained
by him for any source of income, and the assessee offers no
explanation about the nature and source of acquisition of the
money, bullion, jewellery or other valuable article, or the
explanation offered by him is not, in the opinion of the
Assessing Officer, satisfactory, the money and the value of
the bullion, jewellery or other valuable article may be
deemed to be the income of the assessee for such financial
year."
Hence it is clear from the bare reading of section
69A of the Act that explanation can be sought by
Assessing Officer only in a case where such
money, bullion, jewellery and valuable article etc.
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M/s. Mannat Motors (India), Delhi.
has not been recorded in books of account. For
making addition under this section the money should
not have been recorded in the books of account as
contrary to the case of appellant where every single
penny is properly recorded in books of account. Hence
grounds of addition made by Ld. AO are vague and
absurd and addition made by Ld. AO is liable to be
deleted.
Moreover, the captioned addition does not find any
place in section 68 even as it is well established fact
that cash credits cannot be on account of trading
receipts source of which has been accepted in earlier
years. Receipt from Debtors/advances is a trading
receipt not the cash credits in the books of the
appellant. These can be treated as cash credits only in
the circumstances if purchases etc. have been made out
of such cash credits. Your Lordship will appreciate that
the recoveries from debtors/advance have not been
utilised to make purchases/expenses etc. Instead they
have been utilized to pay off old credit balances
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M/s. Mannat Motors (India), Delhi.
not claimed as expenditure anywhere in books of
accounts in the captioned year.
Hon'ble Hyderabad Bench of ITAT observed in SB
Steels Ltd. Versus ACIT as under :
"The AO and CIT(A) wrongly were of the opinion that cash
receipts can be treated as cash credits but, trade receipts in
cash are not prohibited under the law and only when
payments are made in cash towards purchase there are
provisions to disallow the amount. It is an established fact
that only cash credits can be considered u/s 68, but, not
trade receipts. In the present case, the amounts received by
assessee are not cash credits but the same were recovery
from the debtors/advances, which are available in the books
of account. Since assessee furnished details of debtors and
also the entries made in the books of account, we are of the
opinion that both the AO and the CIT(A) have erred in
considering recoveries from deposits as cash credits. The
corresponding sales in earlier years have been accepted, as
there is no dispute with reference to the entries in the books
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M/s. Mannat Motors (India), Delhi.
of account in any of the earlier years. Therefore, we are of
the view that the principles laid down for invoking
provisions of section 68 cannot be applied to the trade
recoveries made by assessee during the year.
(Copy of Judgment enclosed herewith for your kind
perusal)
Hon'ble Delhi Bench of ITAT observed in ITO versus Atul
Kumar Mittal as under :
"In our opinion when the debtor was considered genuine at
the end of the preceding year, the receipt from the said
debtor during the year under consideration cannot be
treated as bogus. We therefore, are of the view that the Ld.
CIT (A) has rightly deleted the addition."
6.1. The Ld. CIT(A) referred the above written
statement and documents to the A.O. for his comments and
for filing the remand report. The A.O. filed the remand
report and objected to the admission of additional
evidences. The remand report is reproduced in the appellate
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M/s. Mannat Motors (India), Delhi.
order in which the A.O. has submitted that assessee has not
filed any new evidence even in the appellate proceedings,
therefore, addition deserves to be upheld. The A.O. also
stated that assessee in support of contention that sundry
creditors were paid off out of funds realized from the debtors
during the year, has filed reconciliation statement along
with copy of print-out of ledger account of sundry creditors
and debtors with addresses of sundry debtors and creditors
which were also filed at assessment stage. It was stated that
mere filing of the unconfirmed ledger account would not
prove genuineness and creditworthiness of the sundry
creditors and debtors. The A.O. also commented upon the
export sales made by assessee firm and realization of the
amount and ultimately submitted that since assessee has
not filed any fresh evidence at appellate proceedings,
therefore, addition may be confirmed.
6.2. The remand report filed by the A.O. was provided
to the assessee for comments in which the assessee
reiterated that A.O. has not commented anything on the
facts and evidences submitted by the assessee vide letter
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dated 26.10.2015 which reflects that A.O. has nothing to
say on the issue.
6.3. The Ld. CIT(A) considering the material on record
in the light of submissions of the assessee, remand report
deleted addition of Rs.82,30,000/- and sustained the
addition of Rs.15,09,000/-. The findings of the Ld. CIT(A)
are reproduced as under :
"I have considered the findings & Remand Report
of the Ld. AO, the submissions & comments on the
Remand Report given by the Ld. AR of the appellant as
well as the judicial pronouncements of the higher
appellate authorities and the Hon'ble Courts. On
perusal of records and submissions it is observed that
the Ld. AR had filed documentary evidences in respect
of the recovery of Bad debts, withdrawals, payment
through cheques and return of goods and justified the
payment made to the creditors of Rs.82.30 lacs out of
the addition of Rs.97.39 lacs made by the Ld. AO. It is a
fact on record that the sundry creditors and debtors
were accepted by the department in earlier AYs & the
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payments to the creditors during the year under
consideration is from subsequent withdrawals from the
bank after the/debtors recovery. But the Ld. AR has not
substantiated the payment of Rs. 15.09 lacs to the
creditors.
In view of the above discussion the addition of
Rs.15.09 lacs is confirmed and the addition of Rs.82.30
lacs( 97.39-15.09) is deleted. Hence, the grounds of
appeal are partly allowed."
7. The Revenue is in appeal challenging the deletion
of substantial addition of Rs.82,30,000/- and Assessee is in
Cross Objection challenging the confirmation of addition of
Rs.15,09,000/-.
8. The Ld. D.R. relied upon the Order of the A.O.
and submitted that assessee has not filed any evidence
before A.O. to prove genuineness of the payment to the
creditors. The Ld. D.R. also submitted that the Ld. CIT(A)
has admitted the additional evidences in contravention of
Rule 46A of the I.T. Rules.
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9. On the other hand, Learned Counsel for the
Assessee reiterated the submissions made before the Ld.
CIT(A) and submitted that since the Ld. CIT(A) called for the
remand report from the A.O. and examined the issue in the
light of material on record, therefore, addition has been
correctly deleted by the Ld. CIT(A). He has further submitted
that Ld. CIT(A) should not have sustained even the part
addition because Section 69A would not apply to the case of
the assessee as all the transactions are recorded in the
books of account of the assessee.
10. We have considered the rival submissions. The
A.O. noted in the assessment order that there are balances
of sundry creditors in preceding assessment year as well as
in assessment year under appeal. It is also noted that
assessee has paid substantial amount to the sundry
creditors in assessment year under appeal. The A.O. also
noted that assessee has sundry debtors in earlier year. It is
also noted in the assessment order that assessee recovered
the amounts from the sundry debtors in assessment year
under appeal which was paid to the sundry creditors.
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M/s. Mannat Motors (India), Delhi.
Learned Counsel for the Assessee pointed-out that in earlier
years sundry debtors and creditors have not been disputed
by the Revenue Department, therefore, genuineness of the
transaction of earlier year cannot be disputed. There is no
explanation to that effect by the Ld. D.R. Whatever
transactions were conducted in earlier year could not be
subject matter of dispute in assessment year under appeal.
Since there were debtors in earlier years, who paid the
amount to assessee in assessment year under appeal, there
could not be any reason to disbelieve the explanation of
assessee. The A.O. instead of considering the addition on
account of payment to the sundry creditors, made the
addition on account of amount received from sundry
debtors. The Ld. CIT(A) in appellate proceedings forwarded
the written submissions of the assessee which is supported
by facts and evidences. The written submissions of the
assessee is reproduced above which clearly satisfy that part
of the payments have been made to the sundry creditors
through account payee cheques and in other cases also no
cash transactions have been conducted. The detailed
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M/s. Mannat Motors (India), Delhi.
explanation of assessee was referred to the A.O. for his
comments, on which, no adverse comments have been
offered by the A.O. in the remand report. The assessee filed
evidences to prove creditors are paid through banking
channel. Debts are recovered through banking channel and
cash which are recorded in books of account. Same entries
are supported by confirmation of parties. Since the assessee
filed complete details at assessment stage as per remand
report of the A.O. as well as filed details along with
evidences at appellate proceedings to explain that assessee
recovered the amounts from sundry debtors and paid off to
the sundry creditors, the Ld. CIT(A) in proper perspective
based on evidence on record, correctly came to the finding
that assessee explained payment to the creditors of
Rs.82,30,000/-. The Ld. CIT(A) also gave specific finding
that assessee has not been able to substantiate the payment
of Rs.15,09,000/- to the creditors. Therefore, we do not find
any infirmity in the Order of the Ld. CIT(A) in deleting the
substantial addition and confirming part addition against
the assessee. The Hon'ble Punjab & Haryana High Court in
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the case of Kuldeep Industrial Corporation 209 CTR 400
observed that "with reference to Rule-46A of the I.T. Rules,
when A.O. was present before Ld. CIT(A) and did not raise
any objection, Rule 46-A would not be violated." In the
present case, the A.O. filed remand report before Ld. CIT(A)
in which he has not raised any objection with regard to
admission of additional evidences because according to A.O.
assessee has not filed any new evidence even in appellate
proceedings. The A.O. merely contended that addition on
merit may be confirmed. The Ld. CIT(A), therefore, did not
violate Rule 46A of I.T. Rules. Even during the course of
arguments, the Ld. D.R. was not able to explain as to how
Rule 46A have been violated in the present case. The Ld.
CIT(A) on the basis of all the documentary evidences filed on
record found that assessee has recovered the amount from
the debtors and payments have been made through cheques
and further made payments to the creditors of
Rs.82,30,000/- have been substantiated by the assessee
through evidences on record. The finding of fact recorded by
the Ld. CIT(A) have not been rebutted through any evidence
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or material on record. The Ld. CIT(A) was, therefore,
justified in deleting the addition of Rs.82,30,000/- in the
matter. However, assessee failed to substantiate the
payment of Rs.15,09,000/- to the creditors, therefore,
addition to that extent is correctly made by the Ld. CIT(A).
Since no evidence of payment of Rs.15,09,000/- to the
creditors have been produced before us also, therefore,
there is no question of accepting the contention of assessee
that Section 69A of the I.T. Act, 1961 would not apply in the
case of the assessee. Considering the totality of the facts
and circumstances of the case in the light of finding of fact
recorded by the Ld. CIT(A), we do not find any infirmity in
the Order of the Ld. CIT(A) in deleting the part addition and
confirming the addition of Rs.15,09,000/-. We, confirm the
Order of the Ld. CIT(A). Resultantly, the Departmental
Appeal and Cross Objections of the Assessee are dismissed.
11. In the result, appeal of the Department and Cross
Objection of the Assessee are dismissed.
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Order pronounced in the open Court.
Sd/- Sd/-
(PRASHANT MAHARISHI) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Delhi, Dated 24th June, 2019
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT "A" Bench
6. Guard File
//By Order//
Asst. Registrar : ITAT : Delhi Benches :
Delhi.
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