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2020 (2) TMI 487 - AT - Income TaxAddition u/s 68 - unexplained cash credit - creditor did not appear before the authorities below inspite of notice under Section 133(6) - HELD THAT - Additions cannot be made in the hands of the assessee, particularly when the assessee has extended all co-operation to the Revenue by providing the required documents as asked for time to time even before the appellate authority by way of additional evidence in order to justify the genuineness of the transactions. Merely because the creditor namely Smt. Kalpanaben Thakkar did not appear before the authorities below inspite of notice under Section 133(6) being sent, raising doubts on the genuineness of the loan is not warranted. With these observations, respectfully relying upon the judgments as discussed above, we are of the considered view that the addition made by the Learned Assessing Officer, confirmed by the First Appellate Authority, is not permissible in the eye of law. Hence, we delete the addition. - Decided in favour of assessee
Issues Involved:
1. Validity of the addition of loan amounts extended by creditors to the assessee. 2. Burden of proof regarding the source and creditworthiness of the creditors. 3. Compliance with Section 68 of the Income-tax Act, 1961. Issue-wise Detailed Analysis: 1. Validity of the Addition of Loan Amounts Extended by Creditors to the Assessee: The appeals were filed against the common order dated 05.04.2016 by the CIT(A)-12, Ahmedabad, arising from the order dated 27.03.2014 by the Deputy Commissioner of Income-tax, Central Circle 2(2), Ahmedabad. The search action under Section 132 of the Income-tax Act, 1961, was carried out in the Ankur Dalal Group cases on 28.03.2012. Notices under Section 142(1) were issued, and the assessee provided the required documents, including books of accounts. The Assessing Officer found that certain loans extended to the assessee, including those by Smt. Kalpanaben P Thakkar, were not substantiated by sufficient income returns or bank balances. The AO added the loan amounts to the assessee's income, which was partially upheld by the CIT(A). 2. Burden of Proof Regarding the Source and Creditworthiness of the Creditors: The assessee contended that they provided all necessary documents to prove the genuineness of the transactions, including confirmations of accounts, bank statements, and sources of funds. The assessee argued that it is not their burden to prove the creditworthiness of the creditors' sources. The assessee relied on judgments from the Delhi High Court and the jurisdictional High Court, which held that the onus shifts to the Revenue once the assessee discloses the source of credit. The Revenue must verify the accounts of the lender and cannot deem transactions non-genuine solely because the lender did not appear before the authorities. 3. Compliance with Section 68 of the Income-tax Act, 1961: The Tribunal emphasized that under Section 68, the assessee is required to disclose the source of the credit received, but not the source of the creditors' funds. The Tribunal noted that the assessee had provided sufficient evidence, including confirmation from Shri Balkrishna Jewellers and the ITR of the creditors. The Tribunal found that the assessee had complied with the onus of proving the creditworthiness to the best possible extent. The Tribunal referred to the judgments in Shiv Dhooti Pearls & Investment Ltd. and D&H Enterprises, which supported the assessee's position that non-appearance of the creditor does not invalidate the transaction if bank statements and ITRs are provided. Conclusion: The Tribunal concluded that the additions made by the Assessing Officer and confirmed by the CIT(A) were not permissible. The Tribunal deleted the additions, stating that the assessee had sufficiently proved the genuineness of the transactions and the creditworthiness of the creditors. The Tribunal allowed the appeals for AY 2010-11, 2011-12, and 2012-13, following the same reasoning for all years involved. Result: All three appeals filed by the assessee were allowed. The judgment was pronounced on 27th December 2019.
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