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TMI Blog2015 (7) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... e in complete. In these situation we have two sets of evidences –one the alleged assertions of the AO on the basis of alleged report of the process server which has not been placed on record by the Revenue nor reproduced by the AO in the assessment order. He has not even made reference to any particular witness in whose presence process server had tried to locate the alleged investors. On the other hand, copies of the income-tax returns, bank statement, PAN coupled with the fact that the amounts have been returned through account payee cheques and ld. first appellate authority had accepted this explanation. If we weigh both these sets of evidences then the scale would tilt in favour of the ld. CIT(A) because the assertions of the AO is not supported with any concrete material on the record. The time gap of 2-3 days referred by the A.O. for service, gives a doubt to our mind also whether, practically the process server had actually made an attempt to effect the services on all the investors in different corners of the city in that short time. Therefore, on an overall analysis of the record we are satisfied that ld. first appellate authority has appreciated the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business of land development and construction. On scrutiny of the accounts if revealed that assessee has shown advances of ₹ 2,43,50,000/- from 84 persons towards investment in land. According to the AO the assessee had filed confirmations from the investors. However, vide order sheet dated 4.12.2009 the ld. AO has directed the assessee to produce following details name, address, PAN of all the persons who have made advances to the assessee and also produce all these persons before him. This exercise was to be carried out by the assessee before 11.12.2009. The ld. AO further observed that upto 18.12.2009 no one had attended on behalf of the assessee, therefore, he issued summons under section 131 of the Income-tax Act to the investors. The summons could not be served upon the investors by the process server and he reported that the addresses submitted by the assessee are incomplete. The AO vide notice dated 22.12.2009 confronted the assessee as to why these advances be not treated as unexplained credits of the assessee. In response to the notice it was contended by the assessee that section 68 is not applicable on these advances because these were received by the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress, PAN, copy of IT. returns, bank statement etc. during the assessment proceeding and thus had discharged it primary onus as has been held in the case of CIT V/s. Orissa Corporation (P) Ltd. (1986) 159 ITR78(SC). tn my opinion, as per law it was the duty of A.O. to verify the genuineness of these transactions by strictly enforcing the provisions of the sec. 131 of the Act if at all those customers were required to be produced before him. Although in my opinion, the physical presence of the customers was not required at all as all the relevant details related to the customers were available with the A.O. Just because the parties did not appear before the A.O., the transactions cannot be held to be non-genuine as has been held in the case of Rohini Builders V/s. Dy. CIT (2002) 76 TTJ (And. Trib.) 521 . At the most it can be said that the advances remained unproved but not disproved as has been held by the Honorable Jurisdictional High Court of Gujarat in the case of National Textiles Vs. CIT (2001) 249 ITR 125 in which it had been observed that if an assessee gives an explanation which is unproved but not disproved, i.e. it is not accepted but circumstances do not lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd assessee has returned all these advances starting from July, 2009 upto March, 2010. He placed on record copy of the bank statement of Rander Peoples Co-0p. Bank Ltd. He also placed on record copy of the ledger account of all these parties and submitted that during the assessment proceedings these facts were brought to the notice of AO. The ledger account of all the parties has also been placed on page nos.246 to 297 of the Paper Book. The bank statement is available on pages 298 to 390. The list of booking amount is available on page 316. On the strength of Hon ble Gujarat High Court in the case of CIT vs. Ayachi Chandrashekhar Narsangji reported in 221 taxman 146 (Gujarat) he contended that once the assessee has repaid the alleged loan and the department has accepted the repayment then, its genuineness would not be doubtful. The ld. counsel for the assessee submitted that repayment was made upto 31st March, 2010. The department has not made any adverse observation against the assessee in AY 2010-11 or AY 2001-12. He also relied on the order of the Tribunal, Ahmedabad in the case of M/s Jindal (India) Textiles vs. ITO in ITA No.125/Ahd/2012. 8. We have duly considered the riv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the process server which has not been placed on record by the Revenue nor reproduced by the AO in the assessment order. He has not even made reference to any particular witness in whose presence process server had tried to locate the alleged investors. On the other hand, copies of the income-tax returns, bank statement, PAN coupled with the fact that the amounts have been returned through account payee cheques and ld. first appellate authority had accepted this explanation. If we weigh both these sets of evidences then the scale would tilt in favour of the ld. CIT(A) because the assertions of the AO is not supported with any concrete material on the record. The time gap of 2-3 days referred by the A.O. for service, gives a doubt to our mind also whether, practically the process server had actually made an attempt to effect the services on all the investors in different corners of the city in that short time. Therefore, on an overall analysis of the record we are satisfied that ld. first appellate authority has appreciated the facts and circumstances in right perspective and no interference is called for. We do not find any merit in both the appeals. They are dismissed. 9. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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