Commissioner Of Income Tax Vi v. Devendrasingh Delsingh Bhagtana....opponent(S)======================================Appearance

O/TAXAP/122/2015 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 122 of 2015 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH andHONOURABLE MR.JUSTICE S.H.VORA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?law as to the interpretation of the Constitution of India or any order made thereunder ? ======================================COMMISSIONER OF INCOME TAX VI....Appellant(s) Versus DEVENDRASINGH DELSINGH BHAGTANA....Opponent(s)======================================Appearance: MRS MAUNA M BHATT, ADVOCATE for the Appellant(s) No. 1====================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAHandHONOURABLE MR.JUSTICE S.H.VORA Date : 11/03/2015 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) (1.0)Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal, Ahmedabad (hereinafter referred to as ‘the tribunal’) dated 20/06/2014 in ITA No.35/Ahd/2011 for the Assessment Year 2007-08 by which the learned tribunal has allowed the said Appeal preferred by the assessee and has deleted the addition of Rs.3,82,228/- made under Section 41(1) of the Income Tax Act (hereinafter referred to as “the Act”) on account of cessation or remission of the liability, the revenue has preferred the present Tax Appeal with the following proposed question of law; “Whether the Appellate Tribunal has substantially erred in deleting the addition of Rs.31,82,258/- made under Section 41(1) of the Act?” (2.0)The assessee filed the return of income for the Assessment Year 2007-08 declaring the total income of Rs.1,93,000/-. The said return was processed under Section 143(1) of the Act and the same was selected for scrutiny by issuance of notice under Section 143(2) of the Act. Thereafter, notice under Section 142(1) of the Act alongwith the questionnaire was issued to the assessee on 02/07/2009, which was also duly served upon the assessee. (2.1)During the course of the assessment proceedings, on verification of the books of accounts and the details submitted by the assessee it was noticed by the Assessing Officer that the assessee had shown sundry creditors in the balance sheet amounting to Rs.31,92,758/-. The assessee was then requested to furnish contra confirmation alongwith the I.D. Proof of such creditors. However, the assessee did not furnish contra confirmation and I.D. Proof and, therefore, the assesse vide show cause notice dated 01/12/2009 was requested to show-cause as to why the sundry creditors shown by him in the balance sheet should be added to the total income of the assessee treating the same as bogus liability and cessation of liabilities under Section 41(1) of the Act. (2.1)During the course of the assessment proceedings, on verification of the books of accounts and the details submitted by the assessee it was noticed by the Assessing Officer that the assessee had shown sundry creditors in the balance sheet amounting to Rs.31,92,758/-. The assessee was then requested to furnish contra confirmation alongwith the I.D. Proof of such creditors. However, the assessee did not furnish contra confirmation and I.D. Proof and, therefore, the assesse vide show cause notice dated 01/12/2009 was requested to show-cause as to why the sundry creditors shown by him in the balance sheet should be added to the total income of the assessee treating the same as bogus liability and cessation of liabilities under Section 41(1) of the Act. (2.2)It appears that to verify the genuineness of the sundry creditors, further information under Section 133(6) of the Act was called for from the creditors shown by the assessee for confirmation by sending letters by speed post and the same were received back unserved by postal authorities except Aman Road Lines and, therefore, the assessee was called upon to show cause as to why the sundry creditors shown by him in the balance sheet should not be added in the total income treating the same as bogus liability under Section 41(1) of the Act. Thereafter, the Assessing Officer finalized the return and made the addition of Rs.31,82,258/- under Section 41(1) of the Act; Rs.13,51,347/- was claimed towards unpaid salary, unpaid tyre and tube expenses, unpaid vehicle expenses and unpaid diesel expenses and also made the addition of Rs.4,64,592/- under Section 68 of the Act. Thus, the Assessing Officer made the total addition of Rs.49,98,197/- and assessed the total income at Rs.51,24,197/-. (2.3)Feeling aggrieved and dissatisfied with the aforesaid addition, the Assessing Officer preferred appeal before the learned CIT(A) and the learned CIT(A) dismissed the said appeal confirming the additions made by the Assessing Officer. (2.4)Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A) confirming the addition made by the Assessing Officer, the assessee preferred appeal before the learned tribunal, being ITA No.35/Ahd/2011 and by the impugned judgment and order the learned tribunal has partly allowed the said appeal by deleting the additions made by the Assessing Officer of Rs.31,82,258/- under Section 41(1) of the Act. (2.5)Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned tribunal in deleting the additions made under Section 41(1) of the Act, the revenue has preferred the present Tax Appeal with the aforesaid proposed question of law. (3.0)We have heard Ms. Mauna Bhatt, learned advocate appearing on behalf of the appellant and perused the impugned judgment and order passed by the learned tribunal, the order passed by the Assessing Officer and the judgment and order of the learned CIT(A). It is required to be noted that all the sundry creditors were shown in the return for the Assessment Year 2007-08 who were already shown as sundry creditors in the earlier Assessment Year 2006-07 and, therefore, as such, there was no remission or cessation of liability during the year under consideration and the Assessing Officer was justified in making the addition under Section 41(1) of the Act. (3.1.)Considering the above and relying upon the decision of this Court in the case of Commissioner of Income Tax Vs. Bhogilal Ramjibhai Atara reported in 2014 (43) Taxman 55 (Gujarat) when the learned tribunal has allowed the appeal and has deleted the addition of Rs.31,82,258/- under Section 41(1) of the Act, it cannot be said that the learned tribunal has committed an error, which calls for the interference of this Court. (3.1.)Considering the above and relying upon the decision of this Court in the case of Commissioner of Income Tax Vs. Bhogilal Ramjibhai Atara reported in 2014 (43) Taxman 55 (Gujarat) when the learned tribunal has allowed the appeal and has deleted the addition of Rs.31,82,258/- under Section 41(1) of the Act, it cannot be said that the learned tribunal has committed an error, which calls for the interference of this Court. (4.0)Under the circumstances, no question of law much less substantial question of law arises in the present Appeal. Hence, the present Tax Appeal deserves to be dismissed and is accordingly dismissed. (M.R. SHAH, J.) (S.H. VORA, J.) Siji