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PRINCIPAL COMMISSIONER OF INCOME TAX vs.MATRUPRASAD C. PANDEY
HIGH COURT OF GUJARAT
M.R. SHAH & S.H.VORA, JJ
TAX APPEAL No. 192 & 193 of 2015
Mar 27, 2015
(2015) 92 CCH 0347 GujHC
(2015) 377 ITR 0363 (Guj)
Legislation Referred to
Section 41(1), 68, 143(2), 142(1), 143(1)
Case pertains to
Asst. Year 200910
Decision in favour of:
Assessee
Held
Sundry creditors mentioned in the balance sheet of the assessee were shown as sundry creditors
since past several years from the relevant assessment year and at no point of time earlier the
Assessing Officer doubted the creditworthiness and / or identity. Addition on the aforesaid ground
under Section 41(1) of the Act cannot be made unless and until it is found that there was remission
and / or cessation of the liability that too during the previous year, relevant to the assessment year
in question, there cannot be any addition invoking the provision of Section 41(1) of the Act. Division
Bench of this Court in the case of Nitin S. Garg (Supra)held that when the addition was made
invoking Section 41(1) of the Act by doubting the creditworthiness and / or identity of the sundry
creditors mentioned in the balance sheet and it was found that those sundry creditors were very old
and no interest had been paid on those loans, the Division Bench has deleted such addition made
under Section 41(1) of the Act.
(para 6.1)
There was no remission and / or cessation of the liability during the previous year relevant to the
assessment year under consideration. As such, there is no remission and / or cessation of the
liability during the year under consideration subject to the conditions contained in the statute being
fulfilled. In the present case, both the aforesaid elements are missing.
(para 6.2)
No error has been committed by the learned Tribunal in deleting the additions made under Section
41(1) of the Act.
(para 7.0)
Case Relied on
Case of Nitin S. Garg
Conclusion
When addition was made invoking S. 41(1) by doubting creditworthiness and/or identity of sundry
creditors mentioned in balance sheet and it was found that those sundry creditors were very old and
no interest had been paid on those loans, such addition made u/s. 41(1) must be deleted.
In favour of
Assessee
Cases Referred to
CIT vs. Nitin S. Garg rendered in 22 Taxman 59 (Guj)
Counsel appeared:
Varun K.Patel, Adv. for the. Appellant.
M.R. SHAH, J:
[1.0] As common question of law and facts arise in both these Tax Appeals they are disposed by
this common order.
[2.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the
learned Income Tax Appellate Tribunal, Ahmedabad “D” Bench (hereinafter referred to as “the
Tribunal”) dated 17/10/2014 in ITA No.190/Ahd/2011 for the Assessment Year 200708, the revenue
has preferred Tax Appeal No.192/2015 with the following substantial questions of law;
(A) Whether in the facts and circumstances of the case, the learned ITAT has erred in
law in deleting the addition of Rs.56,96,645/ made by the Assessing Officer as
confirmed by CIT(A) under Section 41(1) of the Income Tax Act?
(B) Whether in the facts and circumstances of the case, the learned ITAT has erred in
law and on facts in restoring the ground relating to giving the benefit of telescoping
effect to the addition of Rs.56,96,641/ made under Section 41(1) and Rs.11,01,381/
under Section 68 of the Act against the addition of unexplained labour charges of
Rs.25,65,634/?
(c) Whether in the facts and circumstances of the case, the learned ITAT has erred in
law and on facts by restoring the grounds raised by assessee to the file of CIT(A) for
deciding afresh on the issues of
(i) The addition of Rs.25,65,634/ being 15% of the labour charges legitimately incurred
and debited to the profit and loss account and confirmed by the CIT(A);
(ii) The CIT(A) giving the benefit of telescoping of the additions of Rs.56,96,645/ and
Rs.11,01,381/against the addition of Rs.25,65,634/?
[3.0] Feeling aggrieved and dissatisfied with the mpugned judgment and
order
dated
17/10/2014
passed by the learned Tribunal in ITA No.362/Ahd/2011 for the Assessment Year 200708, the
revenue has preferred Tax Appeal No.193/2015 with the following proposed substantial questions of
law;
(A) Whether in the facts and circumstances of the case, the learned ITAT has erred in
law in restoring the ground raised by the Revenue to file of CIT(A) for deciding afresh on
issue of deleting the addition of Rs.25,65,634/ made by the Assessing Officer under
Section 41(1) and under Section 68 of the Act?
(B) Whether in the facts and circumstances of the case, the learned ITAT has erred in
law in not allowing the appeal of the department against the order of CIT(A) directing to
give telescoping effect to additions made under Sections 41(1) and 68 of the Act against
the addition of unexplained labour charges of Rs.25,65,634/?
[4.0] The assessee filed the return of income for the Assessment Year 200708 showing the total
income of Rs.3,95,580/. The return was duly processed under Section 143(1) of the Income Tax Act
(hereinafter referred to as “the Act”). The case was selected for scrutiny and notice under Section
143(2) of the Act was issued. Thereafter, notice under Section 142(1) of the Act alongwith a
detailed questionnaire was issued and duly served upon the assessee. On verification of the balance
sheet, it was noticed that the assessee had shown sundry creditors amounting to Rs.1,97,72,289/.
The assessee was required to furnish copy of the ledger account of the last three years of the
persons against whom sundry creditors were appearing in the balance sheet alongwith complete
name, address, PAN and conformation thereof. The assessee failed to produce the breakup of the
amounts appearing in the balance sheet. The assessee did not furnish the details asked for and,
therefore, show cause notice came to be issued on 20/11/2009 as under;
“Vide point No.3 of this office show cause notice dated 03/11/2009, you were required to
furnish confirmation, name, address and PAN of the persons against whom sundry
creditors of Rs.1,97,72,289/ were reflected in your balance sheet as on 31/03/2007.
Thereafter, your A.R. Shri Omkar Mishra attended before the undersigned on
03/11/2009, 12/11/2009 and 17/11/2009 but failed to produce the details as called for.
Please note that if you failed to produce the details as called for on the next date of
hearing, the credit of Rs.1,97,72,289/ appearing in the balance sheet will be added to
your total income as unexplained credit.”
[4.1] It was found by the Assessing Officer that in the case of 10 sundry creditors the outstanding
liability of the sundry creditors was very old. The particulars of the same are under;
LIST OF SUNDRY CREDITORS 20062007
The assessee was asked to furnish complete identity, creditworthiness of the creditors. However,
the assessee failed to furnish any details regarding the above. The Assessing Officer found that
some of the balances were pending from F.Y. 20012002 and 20022003. As the assessee failed to
produce the address, PAN number and conformation of the aforesaid parties,
the Assessing
Officer
found that the aforesaid amount of Rs.56,51,645/ was no longer payable and the payment has
reached at cessation stage and, therefore, longstanding sundry creditors amounting to
Rs.56,51,645/was treated as no longer payable / cessation of liability under Section 41(1) of the
Act and the same was added to the total income. During the course of the assessment it was
noticed by the Assessing Officer that the assessee had debited the amount of Rs.1,71,04,226/,
being the labour charges. The assessee was called upon to produce the evidences in support of the
expenditure debited in the Profit & Loss Account, which the assessee failed to produce. The
Assessing Officer disallowed 15% of the labour charges of Rs.1,71,04,766/ by observing that it is
quite possible that the assessee had not executed the major portion of the alleged work but it was
only as accommodating contract entity for inflation of the expenses of one of the main contractor
and consequently added Rs.25,65,634/ to the total income of the assessee.
[4.2] Feeling aggrieved and dissatisfied with the order passed by the Assessing Officer in making
the addition of Rs.56,96,645/ under Section41(1) of the Income Tax Act and the addition of
Rs.25,65,634/, being 15% of the labour charges as unexplained expenditure, the assessee
preferred appeal before the learned CIT(A) and the learned CIT(A) partly allowed the appeal,
however confirming the action of the Assessing Officer in making the addition of Rs.56,96,645/ by
invoking Section 41(1) of the Act and also confirming the action of the Assessing Officer in making
the addition of Rs.11,01,381/ under Section 68 of the Income Tax Act in respect of capital account
from sale of mango orchard affected by an independent partnership firm in which the assessee was
one of the partner. The learned CIT(A) has also confirmed the action of the Assessing Officer in
making the addition of Rs.25,65,634/, being 15% of the labour charges, which comes to
Rs.1,71,04,226/, however, the learned CIT(A) deleted the addition of Rs.25,65,634/ made by the
Assessing Officer under Section 41(1) and 68 of the Act.
[4.3] Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A), both the
revenue as well as the assessee preferred appeals before the learned Tribunal. By the impugned
judgment and order, the learned Tribunal has partly allowed the appeal of the assessee by deleting
the addition of Rs.56,96,645/ in respect of outstanding credit balances of certain parties brought
forward from earlier years by invoking Section41(1) of the Act. So far as the order passed by the
learned CIT(A) confirming the action of the Assessing Officer in making the addition of
Rs.25,65,634/, being 15% of the labour charges is concerned, the learned Tribunal restored the
issue to the file of the learned CIT(A) with a direction to decide the same afresh in accordance with
law and after providing reasonable opportunity of hearing to the assessee. Consequently, the
learned Tribunal also disposed of the appeal preferred by the revenue / allowed the appeal
preferred by the revenue for statistical purpose.
[4.4] Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by
the learned Tribunal in ITA No.190/Ahd/2011 and ITA No.362/Ahd/2011 for the Assessment Year
200708, the revenue has preferred the present Tax Appeals with the aforesaid proposed substantial
questions of law.
[5.0] Shri Varun Patel, learned advocate appearing on behalf of the revenue has vehemently
submitted that the learned Tribunal has materially erred in deleting the addition of Rs.56,96,645/
made by the Assessing Officer confirmed by the learned CIT(A) under Section 41(1) of the Act.
[5.1] It is submitted that in the present case during the course of the assessment proceedings, the
Assessing Officer observed certain liabilities (sundry creditors) amounting to Rs.56,96,645/ in the
balance sheet of the assessee, which were very old. It is submitted that though the assessee was
given an opportunity to furnish complete identity, creditworthiness of the creditors etc. by the
Assessing Officer and the CIT(A), the assessee had failed to do so. It is submitted that even the
assessee also failed to produce the address, PAN number and conformation of the said sundry
creditors. It is submitted that under the circumstances when the Assessing Officer made the
addition of Rs.56,96,645/under Section 41(1) of the Act, the learned Tribunal is not justified in
deleting such addition.
[5.2] It is submitted that the learned Tribunal has materially erred in relying upon the decision of
this Court in the case of CIT Vs. Nitin S. Garg rendered in 22 Taxman 59 (Guj) as well as the
decision dated 04/02/2014 in the case of CIT Vs. Bhogilal Ramjibhai Atara in Tax Appeal
No.588/2013 since the facts and circumstances of the present case are completely different than
that of the aforesaid cases. It is submitted that as such there is no absolute proposition of law in
the aforesaid decision. The addition under Section 41(1) of the Act cannot be made if the assessee
had written off the credit balance of the party brought forward from the earlier years. It is
submitted that therefore the impugned judgment and order passed by the learned Tribunal is
erroneous and untenable in law.
[5.3] It is further submitted by Shri Patel, learned advocate appearing on behalf of the revenue that
in the facts and circumstances of the case, the learned Tribunal has erred in law and on facts in
restoring the ground relating to giving benefit of telescopic effect to the addition of Rs.56,96,645/
made under Section 41(1) of the Act and Rs.11,01,381/ under Section 68 of the Act against the
addition of unexplained labour charges of Rs.25,65,634/. It is submitted that as such the learned
Tribunal has failed to give independent reasons for restoring the same to the file of the CIT(A) with
a direction to decide the same afresh in accordance with law. Making the above submissions, it is
requested to admit / allow the present Tax Appeals.
[6.0] Heard Shri Varun Patel, learned advocate appearing on behalf of the revenue at length. We
have perused and considered the assessment order, the order passed by the learned CIT(A) as well
as the impugned judgment and order passed the learned Tribunal.
[6.1] At the outset, it is required to be noted that the Assessing Officer made the addition of
Rs.56,96,645/ invoking Section 41(1) of the Income Tax Act by doubting certain sundry creditors
amounting to Rs.56,96,645/ appearing in the balance sheet of the assessee since past several
years. However, it is required to be noted that as such those sundry creditors mentioned in the
balance sheet of the assessee were shown as sundry creditors since past several years from the
relevant assessment year and at no point of time earlier the Assessing Officer doubted the
creditworthiness and / or identity. In any case the addition on the aforesaid ground under Section
41(1) of the Act cannot be made unless and until it is found that there was remission and / or
cessation of the liability that too during the previous year, relevant to the assessment year in
question, there cannot be any addition invoking the provision of Section 41(1) of the Act. Identical
question came to be considered by the Division Bench of this Court in the case of Nitin S. Garg
(Supra) and in the similar set of facts and circumstances of the case when the addition was made
invoking Section 41(1) of the Act by doubting the creditworthiness and / or identity of the sundry
creditors mentioned in the balance sheet and it was found that those sundry creditors were very old
and no interest had been paid on those loans, the Division Bench has deleted such addition made
under Section 41(1) of the Act. In paragraph 15 the Division Bench has observed and held as under;
“15. In the case before us, it is not been established that the assessee has written off
the outstanding liabilities in the books of account. The Appellate Tribunal is justified in
taking the view that as assessee had continued to show the admitted amounts as
liabilities in its balance sheet the same cannot be treated as assessment of liabilities.
Merely because the liabilities are outstanding for last many years, it cannot be inferred
that the said liabilities have seized to exist. The Appellate Tribunal has rightly observed
that the Assessing Officer shall have to prove that the assessee has obtained the
benefits in respect of such trading liabilities by way of remission or cessation thereof
which is not the case before us. Merely because the assessee obtained benefit of
reduction in the earlier years and balance is carried forward in the subsequent year, it
would not prove that the trading liabilities the assessee have become non existent.
[6.2] The aforesaid decision of the Division Bench in the case of Nitin S. Garg (Supra) has been
considered and followed by the Division Bench of this Court in the case of Bhogilal Ramjibhai
Atara (Supra) and the addition made under Section 41(1) of the Act in the similar facts and
circumstances of the case is ordered to be deleted. In paragraph 8 the Division Bench has observed
and held as under;
“We are in agreement with the view of the Tribunal. Section 41(1) of the Act as
discussed in the above three decisions would apply in a case where there has been
remission or cessation of liability during the year under consideration subject to the
conditions contained in the statute being fulfilled. Additionally, such cessation or
remission has to be during the previous year relevant to the assessment year under
consideration. In the present case, both elements are missing. There was nothing on
record to suggest there was remission or cessation of liability that too during the
previous year relevant to the assessment year 200708 which was the year under
consideration. It is undoubtedly a curious case. Even the liability itself seems under
serious doubt. The Assessing Officer undertook the exercise to verify the records of the
so called creditors. Many of them were not found at all in the given address. Some of
them stated that they had no dealing with the assessee. In one or two cases, the
response was that they had no dealing with the assessee nor did they know him. Of
course, these inquiries were made ex parte and in that view of the matter, the assessee
would be allowed to contest such findings. Nevertheless, even if such facts were
established through biparte inquiries, the liability as it stands perhaps holds that there
was no cessation or remission of liability and that therefore, the amount in question
cannot be added back as a deemed income under section 41(c) f the Act. This is one of
the strange cases where even if the debt itself is found to be nongenuine from the very
inception, at least in terms of section 41(1) of the Act there is no cure for it. Be that as
it may, insofar as the orders of the Revenue authorities are concerned, the Tribunal not
having made any error, this Tax Appeal is dismissed.”
In the present case there was no remission and / or cessation of the liability during the previous
year relevant to the assessment year under consideration. As such, there is no remission and / or
cessation of the liability during the year under consideration subject to the conditions contained in
the statute being fulfilled. In the present case, both the aforesaid elements are missing.
[7.0] Under the circumstances, as such, no error has been committed by the learned Tribunal in
deleting the additions made under Section 41(1) of the Act. The proposed substantial questions of
law (A) and (B) with respect to deleting the addition made under Section 41(1) of the Act are
answered against the revenue.
[8.0] Now so far as the other two questions in restoring the grounds raised by the learned Tribunal
with respect to the additions made under Section 68 of the Act of unexplained labour charges of
Rs.25,65,634/ is concerned, it is required to be noted that as such the entire issue is remanded by
the learned Tribunal to the file of the learned CIT(A) and the matter is remanded to the learned
CIT(A). Under the circumstances, with respect to the above, no interference of this Court is called
for, as the entire issue with respect to the same would be at large before the learned CIT(A).
[9.0] In view of the above and for the reasons stated hereinabove, both the Appeals fail and they
deserve to be dismissed and are accordingly dismissed.
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