Vildirect: IncomeTax-caselaws-2006-VIL-352-ITAT-MUM

2006-VIL-352-ITAT-MUM

Equivalent Citation: TTJ 101, 337, [2006] 8 SOT 353 (MUM.)

Income Tax Appellate Tribunal MUMBAI

IT APPEAL NO. 6078 (MUM.) OF 2002

Date: 19.01.2006

INCOME-TAX OFFICER.

JANAK U. BHATT.

BENCH

Member(s) : SUNIL KUMAR YADAV., D. C. AGRAWAL.

JUDGMENT

This appeal by the Revenue is directed against the order of the CIT(A) on a solitary ground that CIT(A) has erred in deleting the addition of Rs. 5 lakhs made under s. 68 on account of unproved loan taken from M/s Equinox Assets & Capital Management (P) Ltd. and the interest of Rs. 75,000 paid on the said loan and holding that the lean amounting to Rs. 5 lakhs stood proved.

2. We have heard the rival submissions and carefully perused the orders of the authorities below and documents placed on record. It is noticed from the record that the assessee has introduced a loan of Rs. 5 lakhs through cheque in the name of M/s Equinox Assets & Capital Management (P) Ltd. During the course of assessment proceedings, AO was requested to summon the creditor to verify the creditworthiness and genuineness of transactions. Accordingly the creditor was summoned by the AO under s. 131 of the IT Act but the creditor did not appear and the AO asked the assessee to produce him. Since the assessee could not produce the creditor, the AO treated this loan of Rs. 5 lakhs as unexplained and made the addition of Rs. 5 lakhs as unexplained cash credit and Rs. 75,000 paid as interest thereon.

3. Assessee preferred an appeal before the CIT(A) and furnished the bank certificate proving the transaction of loan performed through banking channel. The assessee has also furnished the PAN of the creditor and these informations were given to the AO for verification and for submission of the remand report. The AO accordingly verified the nature of transaction and submitted report that the loan was obtained through banking channels and there was no deposit of cash in the bank account of the creditor before the issuance of cheque. Being convinced with the creditworthiness of the creditor and genuineness of the transaction, the CIT(A) deleted the additions.

4. Aggrieved, the Revenue has preferred an appeal before the Tribunal with the submission that the assessee was badly failed to produce the creditor and as such, the creditworthiness of creditor and genuineness of transactions was not proved and the CIT(A) having ignored these facts has deleted the additions. The learned counsel for the assessee, on the other hand, has, submitted that since the assessee did not have a cordial relation with the creditor, he made a request to the AO to summon the creditor and accordingly summons under s. 131 was issued but the creditor did not appear. By making the request to the AO to summon the creditors and by furnishing a bank certificate and the PAN of the creditor, the assessee has discharged its primary onus which lay upon it. Now the onus is upon the Revenue to find out something contrary to establish that the creditor was not man of means and the transaction was not genuine. Once the creditor has flouted the directions of the AO, the AO can enforce his presence before him by adopting a coercive measure available under the law. But he did not do so and fixed the responsibility upon the assessee to produce him.

5. Having carefully examined the orders of the lower authorities and the facts of the case in the light of rival submissions, we find that the assessee made a request to the AO to summon the creditor as he was not in a position to produce him. Acceding to the request of the assessee, the AO has summoned the creditor under s. 131 of the IT Act but the creditor did not appear before the AO on a stipulated date despite a valid service of the summons. The AO then asked the assessee to produce him, but the assessee did not establish before the AO that he had made its all efforts to produce, but, failed to do so. No doubt, the AO being a quasi-judicial authority is fully armed with the powers of the Civil Court to enforce the attendance of the creditor or witness, who did not respond to the ordinary summons under s. 131 of the IT Act, but, before taking a coercive action AO must be satisfied that the assessee has made its all efforts to produce the creditor. Sec. 131 gives the same power to an AO to enforce the attendance of any person including any officer of the banking company and examining him on oath as are vested in a Court under the CPC, 1908 when trying a suit. Order 16, r. 10 of the CPC deals with this type of situation, where a person does not appear despite service of valid notice of the authorities, enjoying the power ofCivil Court. Sub-r. (2) says where the Court sees reason to believe that such evidence or production is material and that such person has without lawful excuse, failed to attend or produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at the time and place to be named, therein; and a copy of the proclamation may be affixed on the outer door or conspicuous part of the house in which he ordinarily resides. Sub-r. (3) of r. 10 says that in lieu of or at the time of issuing such proclamation or at any time afterwards, the Court may in its discretion issue a warrant either with or without bail for the arrest of such person and may make an order for the attachment of the property to such amount as it thinks fit not exceeding the amount of cost of attachment and of any fine which may be imposed under r. 12. Once the AO has invoked the provisions of s. 131 of the IT Act, he will enjoy all powers of a Civil Court under the CPC for enforcing the attendance of a person for recording his statement and that powers include issuance of proclamations and bailable and nonbailable warrants when he is satisfied that the witness is avoiding the service or not complying the summons issued to him. In the case of Nathu Ram Premchand vs. CIT (1963) 49 ITR 561 (All), their Lordships of the Allahabad High Court have come across with a similar type of problem as to how the presence of the witness can be enforced by the AO if he defies the directions or the summons issued by the AO. Their Lordships have examined the relevant provisions of the CPC, which entail the power to the Civil Court to enforce the attendance of the person or witness and after having examined the relevant provisions of order 16, r. 10 of the CPC, their Lordships have categorically held that the presence of the witness can be enforced by issue of a proclamation or warrant bailable or non-bailable. The relevant observations of their Lordships are extracted hereunder:

"It appears that Banarasidas was examined not in the assessment proceedings giving rise to this reference but in those relating to the assessment of Banarasidas. Sec. 37(1) of the Act confers on the ITO, the AAC, the CIT and the Tribunal the powers vested in a Court under the CPC when trying a suit in respect of the following matters, viz. :

'(a) Enforcing the attendance of any person including any officer of a banking company and examining him on oath.'

The provisions of order 16 of the CPC deal with the examination and attendance of witnesses. Rule 1 of order 16 provides that by making an application any party to a suit may summon in Court a witness whose attendance is required either to give evidence or to produce documents. In the present case, the assessee was given Dasti summons for the production of Banarasidas but his case was that Banarasidas refused to accept the same. In a situation like this, the provisions of order 16, r. 10, are attracted, which read as follows:

'10. (1) Where a person to whom a summons has been issued either to attend, to give evidence or to produce a document fails to attend or to produce the document in compliance with such summons, the Court shall, if the certificate of the serving officer has not been verified by affidavit, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching the service or non-service of the summons.

(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.

(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under r. 12 :

Provided that no Court of Small Causes shall make an order for the attachment of immovable property.'

Admittedly, no such steps as are provided for by this statutory provision for the appearance of the witnesses were taken by the ITO for the appearance of Banarasidas. We are of the opinion that under these circumstances neither the ITO nor the IAC nor the Tribunal were justified in fastening the blame at the door of the assessee and disbelieving his version that the amount of Rs. 10,000 entered in his account books was the deposit made by Banarasidas on the ground that the former has failed to produce the latter. The assessee took all the steps that lay in his power to secure the presence of Banarasidas before the ITO. In these circumstances, it appears to us that the Tribunal wrongly took into consideration the circumstances that Banarasidas had not been produced. On the material on the record there is nothing to refute the allegation of the appellant that this sum of Rs. 10,000 is the deposit of Banarasidas with the assessee-firm. The Tribunal had before it no legal material on which it could come to a contrary conclusion."

6. The powers of the AO under s. 131 was also considered by the Hon'ble Calcutta High Court in Jhabarmull Agarwalla vs. Kashiram Agarwalla & Ors. (1969) 71 ITR 269 (Gal), wherein the Hon'ble Calcutta High Court held that order 11, r. 14 CPC confers power of Civil Court to call for documents from a party to the suit. The AO has also been conferred power of aCivil Courtin respect of enforcing the attendance of a person. The Hon'ble Calcutta High Court observed as under:

"Sec. 131(1) of the IT Act reads as follows:

131.(1) The ITO, AAC and CIT shall, for the purposes of this Act, have the same powers as are vested in a Court under the CPC, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:

(a) Discovery and inspection;

(b) enforcing the attendance of any person, including any officer of a banking company and examining him on oath;

(d) issuing commissions.'

Mr. Dutt submits that under cls. (a) and (c) read together, the ITO has the powers of aCivil Courtunder order 11, r. 14, of the Code, but he has no powers under order 13, r. 10, of the Code. This argument cannot be accepted. order 11, r. 14, confers powers on aCivil Courtto call for documents from a party to the suit. But theCivil Courthas also the power to call for documents from a third person. Under order 16, r. 1, theCivil Courthas the power to summon a witness to produce a document. Similarly, under order 13, r. 10, theCivil Courthas the power to call for a document from some other Court. The powers conferred on the ITO under s. 131(1) of the Act have not been specified with reference to particular provisions of the CPC but all the powers which the Civil Court has under the Code have been conferred on the ITO on some specified matters. One such matter is 'compelling the production of books of account and other documents'. Sec. 131(1) must, therefore, be construed to confer on the ITO all the relevant powers which the Civil Courts have under the CPC regarding the production of books of account and other documents. Since order 13, r. 10, confers such power on theCivil Courtto call for documents from other Courts, the ITO too has such powers unders. 131(1) of the Act."

7. In Jamnadas Madhavji & Anr. &Co.vs. J.B. Panchal, ITO & Anr. (1986) 58 CTR (Bom) 1 : (1986) 162 ITR 331 (Bom) , the Hon'ble Bombay High Court also supported the view that ITO/AAC/IAC/CIT/CIT(A) are conferred with the same powers as are vested in a Court under the CPC, 1908 when trying a suit. In the above case, the Hon'ble Bombay High Court observed as under:

"The officers mentioned in s. 131(1) of the IT Act, 1961, viz., the ITO, AAC, IAC, CIT(A) and CIT are conferred with the same powers as are vested in a Court under the CPC, 1908, when trying a suit. The CPC confers upon a Court powers, for the exercise whereof, existence of a suit or a proceeding is a sine qua non. In pari materia, therefore, powers in respect of matters mentioned in s. 131(1), viz., (a) discovery and inspection; (b) enforcing the attendance of any person and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions, can be exercised only if a proceeding is pending before the concerned officer and not otherwise."

8. Similar views were expressed by the Hon'ble Calcutta High Court in ITO vs. James Joseph O'Gorman (1993) 204 ITR 454 (Cal) , in Dwijendralal Brahmachari vs. New Central Jute Mills Co. Ltd. (1978) 112 ITR 568 (Cal) and by Hon'ble Rajasthan High Court in CIT vs. Globe Transport Co. (1991) 93 CTR (Raj) 121 : (1992) 195 ITR 311 (Raj).

9. CBDT had also an occasion to consider this issue. It issued a Circular No. 31D(XL-67) of 1966, dt.23rd Nov., 1966, which describes the procedure for enforcing the summons. The said circular reads as under:

"'For Departmental use only'

F. No. 58/46/66-IT (Inv.), Government of India,

Central Board of Direct Taxes.

New Delhi, the 23rd Nov., 1966.

Circular No. 31-D(XL-67) of 1966

Subject: Compelling attendance of witnesses-disobedience of summons under s. 131 of IT Act, 1961-Instructions-regarding.

The Board has noticed that in recent years the ITO has not fully or properly utilised the power for compelling attendance of witness, which are conferred on them under s. 131 of the IT Act, 1961. To enable the ITO to correctly appreciate and apply the legal provisions in this regard, the following instructions are being issued.

2. Under s. 131 of IT Act, 1961 for the purpose of compelling the attendance of any person, the ITO have the same powers as vested in a Civil Court under the case of Civil Procedure, 1898. The powers of theCivil Courtfor summoning attendance of witness are laid down in order 16 of the First Schedule to the CPC, 1898 rr. 18, 11, 12 of order 16 prescribe the powers and procedure for compelling the attendance of witness. These powers, which are exercisable also by the ITOs under s. 131 are as under:

(i) where a person to whom a summons to attend or produce a document has been issued has not obeyed, the ITO should examine the serving officer on oath or cause him to be as examined by another officer touching the service or non-service of the summons. Such examination is compulsory if the certificate of the serving officer has not been verified by an affidavit and is optional if it has been as verified.

(ii) If the ITO, has reason to believe that such evidence or productions material and that the person summoned has, without lawful excuse, failed to attend or procure the document in compliance with such summons or has intentionally avoided service, he may issue a proclamation requiring such person to the time and place named therein. A copy of the proclamation should be affixed on the outer door or other conspicuous part of the house in which the person ordinarily resides.

(iii) Under sub-r. (3) of the r. 19 in lieu of or at the time of issuing such proclamation or at any time afterwards the ITO has also discretion to issue a warrant with or without bail for the arrest of such person and for making an order for the attachment of his property for such amount as he thinks fit.

(iv) The property should be released from attachment if the witness appears and satisfies the ITO that he had not without lawful cause, failed to comply with the summons or intentionally avoided his services or that he has no notice of the proclamation in time to attend.

(v) Under r. 12 of order 16, the ITO has also the powers to impose upon the person, who does not appear or appears but fails. to satisfy him as above, to impose upon him such fine not exceeding Rs. 500 as he thinks fit having regard to such persons conditions in life and all the circumstances of the case.

(vi) It should be noted that, under sub-s. 2 of S. 131 of the IT Act, 1961, the ITO has a similar power to impose a fine not exceeding Rs. 500 in case where the person summoned intentionally omits to attend or produce the books of account and documents at the place and time named.

(vii) The warrant for arrest or the order for attachment may be made according to the procedure laid down for the Civil Courts. In matters of doubt the local Government pleader may be consulted.

(viii) Disobedience of the summons to attend renders the person summoned liable to prosecution under s. 174 of the IPC. In this connection, the ITO should bear in mind the provisions of s. 195(1)(a) of the Cr.PC case, 1898. Under which the complaint, in writing of the public servant concerned (ITO) or of some other public servant to whom he is subordinate (e.g. the IAC or the CIT) is necessary to enable the Court to take cognizance of the evidence.

3. The relevant rules of the CPC, 1898 and the provisions of S. 174 of the IPC and s. 195(1)(a) of the Cr.PC are given in the Annexure.

Sd/

G.R. Hedde,

Secretary, Central Board of Direct Taxes"

10. However, these powers are subject to the conditions laid down in various provisions of CPC. As per sub-r. (2) of order 16, where a party applies for summons to be issued to witnesses, he has to pay into the Court such sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend one day's attendance.

11. As per r. 3 to order 16, the sum so paid into the Court shall be tendered to the person summoned at the time of serving the summons if it is served personally. Sub-r. (4) thereof provides contingencies when insufficient fund is paid by the party applying for issuance of summons to the Court. In such a situation, the Court may direct such further sum to be paid to the persons as appears to be necessary and in case of default in payment, may order such sum to be levied by attachment by sale of movable property of the person obtaining summons. The Court may also discharge summons when required, in case, sufficient fund is not deposited by the party requesting for summons.

12. In our opinion, the procedure laid down in order 16 has to be followed by the party applying for issuance of summons to a witness, otherwise the witness cannot be compelled to be produced before the Court and subsequently, coercive powers provided in r. 10 of order 16 of CPC cannot be exercised.

13. Notwithstanding the power of AO as Civil Court, in enforcing attendance of a witness, the more relevant question is as to whether the onus cast on the assessee under s. 68 is deemed to have been discharged, the moment he makes a request to the AO for issuance of summons to the creditor or even where summons were issued and served on the creditor. In our opinion, it is not so. The decision of Hon'ble Allahabad High Court in the case of Nathu Ram Premchand vs. CIT was rendered for asst. yr. 1948-49 and the decision of Hon'ble Bombay High Court in Ramkumar Jalan was also rendered for the asst. yr. 1949-50. During those years, there was no provision equivalent to s. 68 of IT Act, 1961. Sec. 68 was introduced in the statute with new Act of 1961. It is a self-contained code so far as burden of proof is concerned. Before analysing s. 68 further with the reported decisions on the subject, certain facts relevant to the issue needed to be considered. A loan of Rs. 5,00,000 was introduced through cheque in the name M/s Equinox Assets & Capital Management (P) Ltd. The assessee was required to prove the loan. However, he requested the AO to summon the creditor to verify his creditworthiness and genuineness of the transaction. Summons under s. 131 was issued but the creditor did not appear, then the AO asked the assessee to produce the creditor. Since the assessee failed to produce the creditor, the AO treated the said loan of Rs. 5,00,000 as unexplained and added the same to the total income of the assessee along with interest of Rs. 75,000. Sec. 68 reads as under:

"68. Cash Credits Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the AO, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year."

14. Thus, any sum found credited in the books of account of the assessee maintained for the previous year may be charged to income-tax as the income of that previous year if (i) the assessee offers no explanation about the nature and source of such sum, or (ii) explanation offered by him in the opinion of the AO is not satisfactory.

15. In Kale Khan Mohammed Hanif vs. CIT (1963) 50 ITR 1 (SC), the Hon'ble Supreme Court considered the burden of proof in case of cash credits found recorded in the books of account of assessee. It held that "it is well established that onus of proving the source of a sum of money found to have been received by the assessee is on him. If he disputes the liability of tax, it is for him to show either that the receipt was not income or that if it was exempt from taxation under the provisions of IT Act. In the absence of such proof. the ITO is entitled to treat it as taxable income of the assessee."

16. In A. Govindarajulu Mudaliar vs. CIT (1958) 34 ITR 807 (SC), the Hon'ble Supreme Court considered this question and held that where assessee failed to prove satisfactorily the source and nature of certain amount of cash received during the accounting year, the ITO is entitled to draw the inference that the receipts are of assessable nature. Following the decision of Hon'ble Supreme Court in the case of A. Govindarajulu Mudaliar, the Hon'ble Punjab & Haryana High Court in Gumani Ram Siri Ram vs. CIT (1975) 98 ITR 337 (P&H) held that onus of proving the source of sum of money found to have been credited in the accounts of the assessee is on him. It is for the assessee to prove that the third party, who is said to have advanced the money was in a position to lend such money and that he did and in fact money was lent to assessee.

17. In Shanker Industries vs. CIT (1978) 114 ITR 689 (Cal), the Hon'ble Calcutta High Court held that the burden of proof is on the assessee to prove the credit by proving the identity and creditworthiness of the creditor and genuineness of the transaction. Mere proof of identity of creditor or payment by account payee cheque or filing of confirmation letter is not sufficient to discharge the onus, as has been repeatedly held by various High Courts in the case of M.A. Unneeri Kutty vs. CIT (1992) 198 ITR 147 (Ker); CIT vs. Precision Finance (P) Ltd. (1994) 121 CTR (Cal) 20 : (1994) 208 ITR 465 (Cal); Nizam Wool Agency vs. CIT (1992) 193 ITR 318 (All); Nanak Chandra Laxman Das vs. CIT (1982) 28 CTR (All) 280 : (1983) 140 ITR 151 (All); B. Tex Corp. vs. ITO (1993) 46 TTJ (Bom)(TM) 668 : (1993) 202 ITR 17 (Bom)(TM)(AT). Further, Hon'ble Bombay High Court in Velji Deoraj & Co. vs. CIT (1968) 68 ITR 708 (Bom) held that (under 1922 Act) the assessee's duty to prove that an unexplained credit entry in his account books does not represent undisclosed income, is not discharged by merely showing that the entry appears in the account of a third party and that the party in whose name the amount is credited is not a fictitious party but a real party. He has to prove further that the entry made in the account books is a genuine entry.

18. The onus will shift on to the Department only when identity and creditworthiness of the creditor are established and there is prima facie material to show that transaction is genuine. Merely by making a request for issuance of summons to the creditor, the onus is not discharged from the assessee. Irrespective of the fact whether creditor responds to the summons or not the burden remains on the assessee till he is able to prove the identity and creditworthiness of the creditor and genuineness of the transaction. Issuance of summons to the creditor at the instance of the assessee is only to facilitate the process and to assist the assessee in discharging his burden. It does not lead to the conclusion that burden has been shifted from the assessee. It remains on him till it is discharged as laid down in s. 68. So far issuance of summons at the instance of assessee is concerned, we are of the view that before such extraordinary power is invoked by AO to facilitate the assessee in discharging his burden, the assessee must demonstrate successfully that he has taken reasonable steps for ensuring attendance of the creditor; that he has complied with the rules laid down under order 16 of CPC; that the creditor has practically become hostile and non-co-operative. The AO may not invoke his power if he is convinced that the assessee and creditor are acting in a collusive manner to defraud the Revenue.

19. Turning to the case in hand, we find that the assessee has introduced a credit of Rs. 5 lakhs through cheque from M/s Equinox Assets & Capital Management (P) Ltd. and in response to the query raised by the AO, the assessee has stated that he did not have a cordial relation with the creditor as such he may be summoned under s. 131 of the IT Act and be examined in this regard. Though the assessee did not deposit any diet money for summoning the creditor, yet the AO issued summons under s. 131 which was duly served upon the creditor but he did not respond to it. Thereafter, the AO directed the assessee to produce the creditor for examination. But, the creditor was neither produced nor the assessee established that he has made all possible efforts to produce it before the AO for examinations. Mere saying that the assessee did not have cordial relations with the creditor would not discharge a primary onus which lay upon the assessee. Even before the CIT(A), assessee did not establish with the evidence that he had made all possible efforts to produce the creditor and the onus which lay upon it was shifted to the Revenue to enforce the attendance of the creditor by invoking his power enshrined in order 16 of the CPC, 1908 being a Civil Court by virtue of s. 131 of the IT Act. He has simply filed the bankers certificate to prove that the transaction was performed through banking channels, but, these documents are not suffice to hold that the primary onus which lay upon the assessee has been discharged. Even before us, it has not been established by the assessee through any evidence that the loan received by it has been duly refunded to the creditor or he has made all possible efforts to produce the creditor before the AO. Since the creditor was the witness of the assessee, it was for him to produce him before the AO in order to discharge his primary onus. But, the assessee did not do the same. Before making a request to the AO for summoning the creditors, assessee should establish with some evidence that he has done something more in order to produce the creditor before the AO. If it is done, the onus is certainly shifted upon the Revenue and it is for the AO to enforce the attendance by summoning the creditors under s. 131 of the IT Act and examine them with respect to cash credits. If the creditor did not respond the summons issued under s. 131 of the IT Act, the AO may invoke all powers postulated in order 16 of CPC in the same manner as theCivil Courtacts when its notices are not responded by the witnesses. From a careful perusal of the record, we are of the opinion that the assessee has not properly discharged the onus of proving the cash credit by placing some documentary evidence as to what efforts he has made in order to produce the creditor before the AO and also to what has happened to the credit, whether it was returned or not. We, therefore, set aside the order of the CIT(A) and restore the matter to the file of the AO with a direction to re-adjudicate the issue afresh after affording a proper opportunity of being heard to the assessee and if the assessee succeeds in discharging its onus by placing some evidence that he has made all possible efforts to produce the creditor, but, failed to do so, AO shall issue summons under s. 131 to the creditor, if it is not responded, he may exercise his powers enshrined under order 16 of CPC in the same manner as the Civil Court does.

20. Thus, in our view, the case requires to be set aside to the file of AO and the appeal of the Revenue may be allowed for statistical purpose. We, therefore, set aside the order of CIT(A) and restore it to the AO to adjudicate the issue afresh in the light of aforesaid guidelines, after affording a proper opportunity of being heard to the assessee.

21. In the result, appeal of the Revenue is allowed for statistical purposes.

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