TMI Blog2018 (9) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... him under rule 46A on baseless and frivolous reasons which goes against the principles of natural justice. We find that complete names, addresses, amounts were provided by the assessee including entire confirmation from these creditors filed before us. CIT(A) has also not given a clear cut finding on the issue and has simply accepted the version of the Assessing Officer and the Assessing Officer, without taking procedure initiated by him under section 133(6) to a logical conclusion, has held the assessee liable for non-production of creditors, which is not warranted within the purview of tax legislation - Decided in favour of assessee - ITA No.749/LKW/2017 - - - Dated:- 7-9-2018 - SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY,JUDICIAL MEMBER For The Appellant : Shri Rakesh Garg, Advocate For The Respondent : Shri J.S. Minhas, CIT (DR) ORDER PER PARTHA SARATHI CHAUDHURY, J.M: This appeal preferred by the assessee emanates from the order of the ld. CIT(A)-1, Lucknow dated 22/9/2017 on the following grounds of appeal:- 1. The Learned Commissioner of Income Tax (Appeals)-I, Lucknow [here-in-after referred to as the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details of share application money and other relevant details in response to statutory notices issued under section 143(2) and 142(1). Assessee is engaged in the business of construction and builder services. Assessment was completed under section 143(3) with an assessed income of ₹ 80,08,090/-. 4. Assessing Officer asked the assessee to give complete details of sundry creditors along with complete address and complete details of mode of payment vide notice dated 7/4/2016. Assessee thereafter responded vide reply dated 22/4/2016 and stated that in the next hearing required details shall be provided to the Assessing Officer. Thereafter assessee was required to explain the increase in creditors during the relevant assessment year to which the assessee responded vide its reply dated 27/04/2016 wherein it was stated that the assessee had started its construction activity in full swing during the relevant assessment year and this has attributed to an increase in the creditors. As per notice dated 10/05/2016, assessee further submitted a list of Sundry Creditors with names, addresses and amount as on 31/03/2014 relevant to assessment year 2014-15. 5. Assessee was issued anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences on the ground that, according to the ld. CIT(A), assessee was not able to explain satisfactorily reasons for non-production of these evidences during the assessment proceedings before the Assessing Officer and further more according to the ld. CIT(A) sufficient opportunity was provided to the assessee to produce sundry creditors and their confirmation and because of these reasons ld. CIT(A) rejected the request for admission of additional evidences filed before him. Ld. CIT(A) thereafter has agreed with the findings of the Assessing Officer and upheld the addition of ₹ 1,06,88,435/- on account of unexplained credit. 7. Ld. A.R. of the assessee vehemently argued before us that scope and legal obligation enshrined under section 133(6) and as upheld by various judicial pronouncements that once assessee has filed list of sundry creditors with complete names and addresses and amount as on the financial year ending on 31/3/2014 and thereafter notice is issued by the Assessing Officer and if it is verified that the addresses are genuine, then burden of obligation so far as assessee is concerned is considered to be discharged and thereafter burden shifts on the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transportation and it is with regard to these items there was also increase in sundry creditors. In order to ascertain the genuineness of these creditors, notices under section 133(6) were issued in the given addresses by the assessee and it is not disputed by the Revenue that these notices were properly served on the given addresses of the creditors. Grievance of the Assessing Officer was that none of the creditors had appeared before him and no written submission/confirmation was filed before him. Assessee has provided complete list of names, addresses and total amount so far as sundry creditors are concerned to the Assessing Officer and after that it is the responsibility of the Assessing Officer to use Revenue Machinery available to him to enquire, find out, investigate and accordingly take the matter to its logical conclusion. This has also been discussed by various judicial pronouncements. The Co-ordinate ITAT Lucknow Bench in ITA No.659/LKW/2016 on the similar issue referred to the judgment of the Hon'ble Apex Court in the case of CIT vs. Orissa Corporation Pvt. Ltd., 159 ITR 78 and observed and held as follows:- we also find that the Apex Court has held in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee cannot be held liable. 13. Secondly, we find that assessee has always complied with the requirements of law before the Revenue authorities, meaning thereby they have filed additional evidences before the ld. CIT(A) on an application under rule 46A which provides that ld. CIT(A) may admit those additional evidences after confronting the same before the Assessing Officer to ascertain the veracity of those evidences. Instead of doing this exercise, ld. CIT(A) has summarily rejected the additional evidences placed before him under rule 46A on baseless and frivolous reasons which goes against the principles of natural justice. 14. Taking totality of facts and records into consideration, we find that complete names, addresses, amounts were provided by the assessee including entire confirmation from these creditors as appearing from pages 7 to 99 of the paper book filed before us. Ld. CIT(A) has also not given a clear cut finding on the issue and has simply accepted the version of the Assessing Officer and the Assessing Officer, without taking procedure initiated by him under section 133(6) to a logical conclusion, has held the assessee liable for non-production of creditors, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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