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TMI Blog2015 (1) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... rties set aside the order of CIT(A) and restore this issue to the file of the AO with the direction that the AO should re-examine this issue afresh. - Decided in favour of revenue for statistical purposes. Loan from elder son - CIT(A) deleted the addition - Held that:- In view of the provisions of Sec. 68 the onus is on the Assessee to prove the identity, credit-worthiness of the parties and the genuineness to the transaction. In this case, we noted that the loan has been advanced by the elder son of the Assessee whose identity and genuineness of the transaction is not under doubt. The Assessee has explained the source of his elder son who was doing part-time job in Finland and helping family business and he was staying in Finland since childhood. He explained in his statement about the source but we also noted that there are cash deposits in the account of Shri Amit Bhatia to the extent of ₹ 30,000/-, ₹ 49,000/-, ₹ 45,000/- and ₹ 49,500/- and out of this, loan has been advanced to the Assessee. The source of these cash deposits is not available and even there is no plausible evidence in this regard. To that extent we confirm the addition of ₹ 1,73, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was filed for the period relevant to the impugned assessment year. Although relates to 1,85,000 Euros but states that the residual tenure is transferred to the purchaser on 23.4.2007. The sale deed does not show that the Assessee has received any money during the impugned assessment year. It refers to sale brochure dt. 14.3.2007, 16.6.2006, 2.4.2007. If the money has arisen out of sale of the property, then, the sale deed should relate to the impugned period. As already set aside the order of CIT(A) and restored this issue to the file of CIT(A) with the direction that this ground be disposed off afresh after appreciating the evidence relating to the impugned assessment year not relating to A.Y 2007-08. Each assessment year is independent.- Decided in favour of revenue for statistical purposes. - ITA Nos. 357&358/PNJ/2013 - - - Dated:- 6-1-2015 - Shri P. K. Bansal And Shri D. T. Garasia,JJ. For the Petitioner : P.Y. Vaidya, Adv. For the Respondent : B. Barthakur, DR ORDER Per P. K. Bansal 1. Both these appeals have been filed by the Revenue against the respective orders of CIT(A) dt. 29.8.2013. In A.Y 2006-07 the Revenue has taken the following effectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 6,02,500/- may be sustained. 4) The Ld CIT(Appeals) failed to appreciate the fact that the credit-worthiness of loan creditor Shri Atul Kumar Bhatia (second Son of the assessee) could not be established beyond doubt. He was unable to explain what he earned, how much he saved how much currency he brought in, in which bank he encashed etc. The Ld CIT(Appeals) failed to appreciate that merely routing amounts through banking channels would not suffice unless the origin sources are explained satisfactorily. Hence the addition of ₹ 1,56,500/- may be sustained. 5) The Ld CIT(Appeals) failed to appreciate that the assessee could not furnish any evidence such as origin of the cheques, bank on which it was drawn, sources etc., regarding encashment of travellers cheques to the extent of ₹ 5,40,000/-. The Ld CIT(A) holding that the AO had no contradictory evidence to disprove assessee s explanation, deleted the addition, without considering the fact that the assessee has not discharged fully his onus of proving the encashment of traveller s cheques to the extent of ₹ 5,40,000/-. 2. In A.Y 2006-07 we noted that the CIT(A) has simply deleted the addition m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in Hotel business? Ans. : Total investment made in Hotel business is to the extent of ₹ 52 lakhs upto 31.03.2007. Q. No. 5 : What is the sources of funds for the above investments ? Ans. : The money has been brought by my family from Finland to the extent of ₹ 52 lakh from Finland, ₹ 32 lakhs from Finland, ₹ 20 lakhs from central Bank on 26.12.2006. Q.No.6 : Please let me Know the made of bringing this money to India? Ans. : These amounts were brought to India by transfers from banks. When I was not able to come to India my family has been bringing from time to time. We were allowed to bring cash upto US$10000 each time. Remaining amounts we were depositing the money to NRO A/c in ICICI Bank, Delhi (A/c No. 000701084655). Q.No.7 : When a traveler brings cash into India, he is required to give a declaration to the customs authorities i.e. in short called CDF (Currency Declaration Form). Whether any such declaration is furnished by you? Ans. : As per the information given by the Embassy of India at Helsinki, Finland that there is no need to furnish such declaration upto US$ 10000. Any amount above that is required to furnish with such form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.10.2006 45,000 This amount is cash deposited in NRO a/c 29.12.2006 40,000 This amount is cash deposited in NRO a/c 01.05.2006 49,000 This amount is cash deposited in NRO a/c 31.08.2006 49,500 This amount is cash deposited in NRO a/c 05.09.2006 49,500 This amount is cash deposited in NRO a/c 03.10.2006 45,000 This amount is cash deposited in NRO a/c 09.10.2006 48,725 Cheque credited after deducting Bank charges 29.12.2006 40,000 This amount is cash deposited in NRO account Total 11,03,225 The AO noted the Assessee s arrival date in India and departure date from India as under : ARRIVAL IN INDIA DEPARTURE FROM INDIA 08.02.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions and carefully considered the same. Before us the Assessee has filed fresh evidence in the form of bank statement showing that the Assessee has deposited sale proceeds of business of Euro 1,85,000 in the bank Nordea and the last instalment of 26,851 Euros was deposited on 11.4.2007. It was also submitted before us that the bank statement shows name of the Assessee s company As Oy Karhusuontie . The ld. AR was fair enough to say that this statement was not produced before the authorities below. It was also submitted that this statement consists of not only the deposits out of the sale but also the transfer of the money from the account of other family members. The ld. AR even though submitted this bank statement but has not given us any equivalent rupee so that the amount deposited be the Assessee could be co-related. We, therefore, in the interest of justice and fair play to both the parties set aside the order of CIT(A) and restore this issue to the file of the AO with the direction that the AO should re-examine this issue afresh after considering the evidence as has been filed by the Assessee by way of bank statement dt. 10.3.2010 for the period 1.4.2007 to 30.4.2007 relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neness to the transaction. In this case, we noted that the loan has been advanced by the elder son of the Assessee whose identity and genuineness of the transaction is not under doubt. The Assessee has explained the source of his elder son who was doing part-time job in Finland and helping family business and he was staying in Finland since childhood. He explained in his statement about the source but we also noted that there are cash deposits in the account of Shri Amit Bhatia to the extent of ₹ 30,000/-, ₹ 49,000/-, ₹ 45,000/- and ₹ 49,500/- and out of this, loan has been advanced to the Assessee. The source of these cash deposits is not available and even there is no plausible evidence in this regard. To that extent we confirm the addition of ₹ 1,73,500/-. Thus, this ground is partly allowed. 9. Ground no. 4 relates to deletion of the addition of ₹ 1,56,500/-. Facts relating to this ground are that the Assessee explained that ₹ 1,56,500/- out of amount deposited in his bank account is loan from Shri Atul Kumar Bhatia, son of the Assessee. The AO recorded the statement of the son of the Assessee and it was noticed by him that in the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferent from the dates when the cash has been deposited in the bank account of the loan creditor. We noted that the CIT(A) without verifying and disproving this finding of the AO merely deleted the addition. 11. We, therefore, in the interest of justice and fair play to both the parties set aside the order of CIT(A) on this issue and restore this issue to the file of the CIT(A) with a direction that the CIT(A) shall look into this issue afresh and verify whether the dates of arrival of Assessee s son in India are different from the dates when the cash has been deposited and whether the cash has been deposited in the account of Shri Atul Kumar Bhatia subsequent to the date of his arrival in India. In case CIT(A) finds that the amount has been deposited subsequent to the date of arrival of the deponent and amount of deposit can be linked with the arrival of deponent in India, the addition may be deleted and not otherwise. Thus, this ground is allowed for statistical purpose. 12. Ground no. 5 relates to the deletion of the addition of ₹ 5,40,000/- which Assessee claimed he has deposited in his bank account and out of which the following amounts have been realized and cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngwith the explanation. Income Tax proceedings are not criminal proceedings where oral statement or explanation without giving any evidence has an evidentiary value. In Income Tax the onus lies on the Assessee, in case he makes a claim, to adduce the evidence to support his explanation. We do not agree with CIT(A) that the onus lies on the AO to write to the bank and procure the evidence. In case the Assessee was not having the evidence, the Assessee could have very well asked the AO to verify the transactions with the bank; whether the credit given to him is out of encashment of travellers cheque or not. We, therefore, set aside the order of CIT(A) on this issue and restore this issue to the file of CIT(A) with the direction that CIT(A) shall re-decide this issue in accordance with law after giving proper and sufficient opportunity to the Assessee to adduce evidence on which the Assessee may rely. Thus, this ground stands allowed for statistical purpose. 14. In the result, the appeal filed by the Revenue for A.Y 2007-08 is partly allowed for statistical purpose. ITA NO. 357/PNJ/2013 (A.Y 2006-07) : 15. The only issue involved in the appeal for A.Y 2006-07 relates to del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance ₹ 50,000/- since the assessee did not give any explanation, the addition made by the A.O is confirmed. The Revenue has come in appeal before us in respect of deletion of the addition of ₹ 11,18,500/-. 16. We heard the rival submissions and carefully considered the same along with the order of the tax authorities below. We noted that the CIT(A) has simply deleted the addition on the basis of the A.Y 2007-08. In our opinion, each assessment year is different. Facts involved in this year relate to the cash deposited by the assessee in his bank account with ICICI Bank, Mapusa on different dates during financial year 2006-07. We noted that the addition which has been deleted by the CIT(A) in the appellate order for A.Y 2007-08 relates to A.Y 2007-08 though detail does not relate to A.Y 2006-07. During the course of proceedings for A.Y 2007-08 the Assessee has filed copy of bank statement dt. 10.3.2010 for the period 1.4.2007 to 30.4.2007 relating to Nordea bank but no copy of the bank statement was filed for the period relevant to the impugned assessment year. The Assessee in the impugned assessment year relied before us on pg. 28-32 of the paper book which consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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