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TMI Blog2015 (9) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... ukla. The officer who has framed the assessment of the assessee is Assessing Officer as well as Investigating Officer. He has not given any comments as regards the genuineness of the I.T.R. filed by Shri Susheel Shukla. The learned CIT (Appeals) has also not offered his views on this document. Thus, it can be concluded that the Revenue has accepted this document as genuine. In this return Shri Susheel Shukla has declared annual income of 22,201 U.S. Dollars for the year 2004. The source of income is shown from wages, salary, tips, etc. As per the said return, Shri Susheel Shukla was employed with firm namely V Paul Associates INC 1010 Rockville Pike Suit 206, Rockville MD 20852. Employers' EIN No. is 52-178748 and Phone No. is 301- 315-9172. As per the said return the total tax to be paid was 1,784 U.S. Dollars. There is no dispute that Shri Susheel Shukla was residing in U.S.A. since long. Considering the above, financial capacity of the lender to pay 10,000 U.S. Dollars cannot be doubted. In view of the decision of Hon'ble Gauhati High Court in the case of Nemi Chand Kothari v. CIT [2003 (9) TMI 62 - GAUHATI High Court] a creditor's creditworthiness has to be judged vis-à-vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the Assessing Officer opined that the assessee failed to discharge the onus to prove the capacity of the lender to advance the loan. Further, the assessee could not produce any confirmation from the said lender. Consequently, the Assessing Officer made the addition of ₹ 4,25,000/- under section 68 of the Act. The addition was upheld by the learned CIT (Appeals). When the matter came up in appeal before the Tribunal in ITA No. 404/Chd/2009, the Tribunal vide its order dated 11.9.2009 set aside the order of the learned CIT (Appeals) and remanded the matter to the Assessing Officer for considering the issue afresh after obtaining necessary evidence from the assessee with regard to financial capacity of the lender to advance the impugned sum and the genuineness of the transaction. The relevant observations made by the Division Bench of this Tribunal are reproduced herein below: 6. We have considered the rival submissions carefully. Section 68 of the Act empowers an Assessing Officer to call upon the assessee to explain the nature and source of the credits appearing in the books of account and if he is not satisfied with the explanation furnished, the unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Copy of the bank accounts of the lender in the country of his residence. (iv) Evidence regarding remittances into the NRE account. (v) Complete books of account for the relevant year. 5. In response to questionnaire, the assessee has furnished only a copy of income tax return filed by the lender Shri Susheel Shukla for the year 2004, wherein the annual income of 22,201 US Dollar was declared. According to the Assessing Officer, the assessee failed to produce the copy of the bank account of the lender in the country of his residence wherefrom the funds were transferred to his NRE account maintained with Centurion Bank of Punjab in India. The assessee also failed to submit any evidence regarding the remittance into the NRE account. The Assessing Officer held that in the absence of the above documentary evidence, the creditworthiness of the lender is not established. The Assessing Officer concluded that in view of the above and also in view of the facts and circumstances explained in the original assessment order under section 143(3) of the Act dated 20.12.2007, the assessee failed to discharge the onus regarding the financial capacity of the lender Shri Susheel Shukla an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee has also produced confirmation letter in the form of affidavit of Shri Susheel Shukla s/o Shri Sudama Shukla duly attested by Mr. Thomas Breen, Notary Public State of Maryland, wherein Shri Susheel Shukla has stated that he is resident of 7056 Hanover pkwy city, Greenbelt State Maryland, Pin-#20770 U.S.A. He has also confirmed having given interest free loan for ₹ 4,25,000/- to the assessee by cheque No. 295291 on 18.5.2004 from his NRE Account No. 77SB1351960 maintained with Centurion Bank of Punjab, India. There is no dispute that Shri Susheel Shukla is maintaining NRE Saving Account No. 1351960 with Centurion Bank of Punjab since 2004. The account was opened with initial deposit of USD 10,000, the amount i.e. ₹ 4,48,829/- was credited to the account on 18.5.2004. The Centurion Bank of Punjab has issued a certificate to this effect on 12.12.2007 that the amount of ₹ 4,48,829/- came in NRE Account of Shri Susheel Shukla from USA where Shri Susheel Shukla was staying. The Assessing Officer raised the objection that the assessee failed to file copy of the bank account of the lender in the country of his residence from where the funds have been transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r admitted that the assessee had submitted a copy of I.T.R. filed in U.S.A. by Shri Susheel Shukla for the period 1.1.2004 to 31.12.2004 relevant to assessment year 2004, wherein annual income of 22,201 U.S. Dollar had been declared. A copy of return is available in assessment records of the assessee, which was produced during the course of proceedings before this Bench. It is relevant to observe here that both the authorities below have not questioned this document i.e. I.T.R. submitted by Shri Susheel Shukla. The officer who has framed the assessment of the assessee is Assessing Officer as well as Investigating Officer. He has not given any comments as regards the genuineness of the I.T.R. filed by Shri Susheel Shukla. The learned CIT (Appeals) has also not offered his views on this document. Thus, it can be concluded that the Revenue has accepted this document as genuine. In this return Shri Susheel Shukla has declared annual income of 22,201 U.S. Dollars for the year 2004. The source of income is shown from wages, salary, tips, etc. As per the said return, Shri Susheel Shukla was employed with firm namely V Paul Associates INC 1010 Rockville Pike Suit 206, Rockville MD 20852. E ..... 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