9911796707
TMI Blog2014 (1) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... period was Rs. 54,19,905/-. The A.O. observed as under: "1. Against this order the assessee filed an appeal before the Ld CIT(A). The Ld CIT(A) wide its order in appeal No. CIT(A)-XXVIII/158/01-02/Dated 08.03.2004 partly allowed the assessee's appeal by granting relief of merely Rs. 7,230/-. The assessee further went in appeal before the ITAT. Before the ITAT the assessee contended that the facts of this case are very much similar to the case of Eternal Motors Pvt Ltd Vs ACIT where the Hon'ble ITAT had also delivered its judgment in IT(SS)/A.N0.66/RJT/2004/dated 31.05.2005 and in that case the ITAT had remanded the case back to the A.O with certain directions. Agreeing with the contention of the assessee the Hon'ble ITAT being facts identical restore the matter back to the file of A.O to consider the issue in the light of' direction given in its judgment in the case of Eternal Motors Pvt Ltd to provide copies of the statement recorded and also provide opportunity of cross-examination and thereafter to finalize the matter. 2. Brief facts of the case are that a search u/s 132(1) was carried out in the group cases of late Shri Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hupuri Group had expired and which could not be cross examined. After considering the assessee's reply, the ld. A.O. held that there is sufficient evidence to form the satisfaction for issuing notice u/s. 158BD. The statement of Shri Mahendra H Shah categorically admitted that he has provided accommodation entry. In reality, cash was received from various parties against which loan entries were provided. The cash was not entered in the regular books of account, which was provided for accommodation of entry. The cross examination of Shri Mahendra H Shah of Madhupuri group could not be provided as expired and another person Shri Hemant Shah was also not known. The assessee had allowed photo copy of the incriminating documents and also inspection and claimed that directions given by the Hon'ble ITAT vide order dated 23.11.2007 had been complied with. He further analyzed the Section 68 and case law on it. After considering all submissions and case laws, the ld. A.O. held that assessee had failed to prove the capacity of the creditor to advance money to the assessee firm and the genuineness of the transaction even the identity of the creditor not known to the assessee. As such, it is he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o support the contention that the creditworthiness of the creditor has to be provided by the assessee. Neither during the assessment proceedings nor during the appellate proceedings did the AR of the appellant make any effort to substantiate the genuineness of the loans received from Madhupuri group. He has not produced any evidence to substantiate the fact that the concerns of Madhupuri group had the capacity to advance the said loans. 2.11 Thus, it is clear that the action of the AO in making the addition on account of unproved loans and interest and commission thereon is justified. The same is hence confirmed." 4. Now, the assessee is before us. Ld. Counsel for the assessee reiterated the argument put forth before the CIT(A) and argued that Hon'ble ITAT had restored back to the file to the A.O. with a clear direction to reframe the order in the light of the directions as contained in IT(SS)A No.66/Rjt/2004 of 31.05.2005 in case of Eternal Motors Pvt. Ltd. vs. ACIT i.e. after providing copies of the statement recorded and also providing opportunity of cross examination. During the course of assessment proceeding in the second innings, the appellant was suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons to the creditors and no specific material on record showed that the assessee had taken accommodation entry of loan from Shri Mahendra H Shah. He further relied upon Hon'ble Gujarat High Court decision in case of N.R. Paper & Board Ltd. & Others vs. DCIT [1998] 234 ITR 733, wherein it was held that addition under regular assessment as well as block assessment on similar evidence is again made in regular assessment is baseless. In case of Rajendra Ship Breakers Pvt. Ltd. vs. ACIT in IT(SS)A No. 79/Rjt/2004, wherein ld. A.O. made addition on the basis of statement of Shri Mahendra H Shah, no material was found during the course of search that the assessee had actually realized the sale consideration much more upon the statement recorded in the books of account. Even therefore, Mahendra H Shah also not specifically mentioned about the name of these assessees which may prove that these assessees were engaged in providing accommodation entry. Thus, it was argued that in block assessment no addition can be made without any incriminating documents found and seized during the course of search against the assessee from the premise of person searched u/s.132. At the outset, ld. CIT D. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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