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TMI Blog2015 (12) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 1,03,000, however, the assessee admitted before the Assessing Officer that he will not be able to furnish any evidence. Thus, when Shri Hemnani, himself stated before the Assessing Officer that he has paid only ₹ 48,000 in cash to the assessee and which is also as per his books of account, the claim of the assessee that he has received ₹ 1,03,000 from the creditor cannot be accepted. In these circumstances, we agree with the learned Commissioner (Appeals) that the credit for the balance amount of ₹ 55,000, as appearing in the name of Shri Hemnani, has to be treated as unexplained cash credit under section 68 of the Act. - Decided against assessee Addition of an amount claimed to have been received from Shri Premji Maroo and Shri Jaideep Patel, respectively - Held that:- Assessee failed to produce any substantive evidence to show that there is in fact any outstanding liability due to the assessee admitted by these two persons or show any correspondence by the assessee with the concerned persons demanding payment of outstanding liability. Thus, in absence of any corroborative evidence to prove the fact that the credits appearing in books of account in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 18,53,170, by making additions under section 68 of the Act. The assessment order so passed was confirmed in appeal by the first appellate authority. However, the assessee carried further appeal before the Tribunal. The Tribunal vide order dated 12th February 2008, in ITA no.7480/Mum./2004, restored the matter back to the Assessing Officer with a direction to decide the issue afresh after examining the additional evidence filed by the assessee. In pursuance to the direction of the Tribunal, the Assessing Officer took up the assessment proceedings again by calling upon the assessee to produce the creditors personally along with the documentary evidence such as bank pass book, copy of I.T. return, Profit Loss account, Balance Sheet, Permanent Account Number for verifying the genuineness of the transaction as well as claim of bad debt. The credits in respect of which the aforesaid information was called for by the Assessing Officer amounted to ₹ 18,31,997. As observed by the Assessing Officer though sufficient opportunity was given to the assessee to prove the genuineness of the aforesaid cash credits but the assessee having failed to establish the genuineness of the tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The learned Departmental Representative, on the other hand, relying upon the reasoning of the Assessing Officer and the learned Commissioner (Appeals), submitted that when the assessee has failed to prove the cash credit with sufficient evidence, his claim cannot be accepted. 9. We have considered the submissions of the parties, perused the orders of the authorities below and the material available on record. As is evident, during the relevant previous year, as per assessee's books of account, there is a credit entry showing cash receipt of ₹ 1,03,000 from Shri Hemnani. However, concerned person when confronted by the Assessing Officer admitted of having paid amount of ₹ 48,000, and denied of having paid the balance amount of ₹ 55,000. In support of such claim, he also produced the account copy in the name of the assessee in his books of account as per which the amount paid to him was ₹ 48,000. Though the assessee has claimed that as per his books of account, the amount received in cash from Shri Hemnani, was ₹ 1,03,000, such entries in assessee's books of account without any other corroborative evidence, cannot be considered to be genui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny share transactions with the assessee only for the purpose of avoiding payment of outstanding liability to the assessee as they are debtors of assessee. The learned Counsel for the assessee submitted, when the assessee has established the identity of the persons and their existence has been proved with other details like PAN, etc., the assessee's claim of having received amount in cash from them towards share transaction cannot be disbelieved and credits appearing cannot be treated as unexplained. He further submitted, only because the assessee was not in a position to submit further evidence to prove the credit entries and the concerned persons have denied of having advanced the amounts to the assessee, it will not automatically lead to the conclusion that they are unexplained credits of the assessee. The learned Counsel for the assessee submitted that if upon consideration of overall facts and circumstances, it appears that the assessee's claim of having received the amount is correct then benefit of doubt is to be given. In this context, he relied upon the decision of the Hon'ble Supreme Court in CIT v/s P.K. Noorjahan, 237 ITR 597 (SC). 13. The learned Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessing Officer that on request of Shri Mahindra Gosar, he signed the form and column no.8 onwards were not filled up by him. It will be pertinent to mention here, though, during the remand proceedings assessee was given full opportunity to cross examine these two persons, but, he failed to elicit any favourable response from them. In fact, during cross examination it was admitted on behalf of assessee that there are no documentary evidence to prove receipt of cash. Thus, as can be seen from the material on record, the assessee has failed to prove the genuineness of the transaction. In fact, the concerned parties have denied of having paid any amount appearing as credit in their name in assessee's books of account. It will be pertinent to mention here, in the course of hearing when the learned Counsel for the assessee was asked by the Bench to explain the reason why the person concerned denied of having paid any money, he submitted that to avoid payment of outstanding liability due to the assessee, they have adopted such an approach. However, on further query, the learned Counsel for the assessee failed to produce any substantive evidence to show that there is in fact any outst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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