9911796707
TMI Blog2015 (2) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... that the proprietor Smt. Kailashbank was alive. Therefore it is relevant to comment that although some doubts were raised by the Revenue Department about the said transaction but the direct evidence of the execution of transaction through bank cannot be altogether brushed aside. A suspicion or doubt howsoever strong cannot replace the evidence. There was also a doubt in respect of an affidavit of a third party, namely, Chandrakant Raghunath Patil, but that affidavit was in respect of criminal proceedings and therein he has mentioned the figures of advance as well as the date which have not tallied with the actual figure and the date as mentioned in the ledger account. But the purpose of that affidavit was not to establish the correctness of this transaction but the purpose of the said affidavit was in respect of some bail application pertaining to a criminal case where the bank was the complainant against some bank officer. It transpires form the said affidavit that the proceedings were carried out against the alleged fraud stated to be committed by a public servant, i.e., an officer of the bank. We, therefore, hold that such third party mistakes should not adversely affect the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003-04 amount of ₹ 17,44,913/- was transferred through Journal Entry by debiting Shri C.R. Pateil's account and crediting Bharat Jari Works on 1.4.2003 3.1 During the assessment proceedings for A.Y. 2004-05, the assessee had failed to establish the purpose as well as nature of transaction relating to cheques of ₹ 19,99,913/- received by it as above and also failed to establish the genuineness of the transaction i.e. closer of current bank account of Bharat Jari Works after the death of both the key persons of Bharat Jari Works. The assessee had also failed to establish the source of five cheques worth ₹ 6360/-, ₹ 4,80,000/-, ₹ 56,128/-, ₹ 13,39,425/-and ₹ 1,18,000/- totaling to ₹ 19,99,913/-. Out of which ₹ 17,74,913/- has been taxed in A.Y. 2004-05. 2.1 The AO has discussed the proceedings carried out in A.Ys.2004- 05. In that year according to AO the Assessee was not able to establish the source of deposit of few cheques therefore out of the said amount a sum of ₹ 17,74,913/- was taxed. In the light of the background of A.Y.2004-05, the AO has issued a show cause as to why the balance amount of ₹ 26,54, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that subject payment was made to Bharat Jari Works and same were receivable by us from Bharat Jari Works. Please further note that the cheques/payment received from M/s. Bharat Jari Works, represent the amounts received back from M/s. Bharat JariBharat Jari Works towards the (Trade) advance made to them. This will show the fact that the transaction has originated from the amount advanced to the M/s. Bharat Jari Works and we have not taken any loan from M/s. Bharat Jari Works. In fact M/s. Bharat Jari Works has subsequently refunded the (trade) advance taken by them. 2.3 Before the AO, it has also been informed that there were some proceedings before Hon ble Gujarat High Court and in that connection the Director of the Assessee-company, Mr. CR Patil has mentioned that the Assessee-Company had business relationship with M/s. Bharat Jari Works. Due to that reason, a cheque of ₹ 44,40,000/- in favour of M/s. Bharat Jari Works was issued. The AO was not convinced and following the view already taken in A.Y.2004-05. He has held that sum of ₹ 26,54,922/- (Rs.22 lacs received by cheque (+) ₹ 2,29,922/- shown as receivable) were treated as unexplained cash credit u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s closed after the death of his father. Hence, the question arises as to who issued cheques in favour of the assessee for repayment of so called Trade Advance of ₹ 44,29,835/-. Therefore, the credit balance is rightly added by the AO u/s 68 as per the settled position of law with regard to the cash credits because the appellant has failed to establish the identity of the creditor as well as genuineness of transactions and capacity of the creditor. In view of these reason the grounds of appeal are dismissed. 4. From the side of the Appellant, learned AR, Mr. J.P. Shah appeared. At the outset, he has informed that the question of condonation of delay in filing of this Appeal has already been decided in Assessee s favour by Hon ble Gujarat High Court vide Tax Appeal No.328 of 2012 order dated 18.12.2012. Since, the delay stood condoned, therefore, this appeal is to be decided on merits. At the outset, he has placed strong reliance on the order of ITAT D Bench Ahmedabad bearing ITA No.1585/Ahd/2007 for A.Y.2004-05 decided in Assessee s own case vide order dated 9th July, 2010 wherein it was held as under: 4. We have carefully considered arguments of both the sides and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvance was doubted and taxed in the hands of the assessee. It is worth to mention that the AO as well as learned CIT(A) have referred on number of occasion the action of taken against the assessee for A.Y.2004-05. Therefore, the vehement contention of learned AR before us is that in a situation when the impugned addition was based upon the action taken in A.Y. 2004-05, however, that now stood deleted by the Tribunal in order dated 9th of July, 2010 (supra) then this Appeal should also be decided on the same lines. We find force in this submission of learned AR; primarily because of the reason that one bench of the Tribunal should respectfully follow the decision of an another Co-ordinate Bench pronounced on identical facts. In addition to the view taken by ITAT Ahmedabad in assessee s own case we have also noted that the fact about the issuance of cheque by the assessee in favour of M/s. Bharat Jari Works has not been denied. The doubt was that the power of attorney holder Sri Rajesh Kapadia has expired on 16th of August, 2001 and proprietor of Bharat Jari Works Smt. Kailashben expired on 8th May, 2002 then how the bank transaction was carried out. The explanation of the assessee b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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