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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 ..... essee has challenged the addition of Rs. 55,000, as unexplained cash credit under section 68 of the Act. 5. Briefly the facts are, the assessee, a company, engaged in the activity of sub-broker and dealing in shares. For the assessment year under consideration, the assessee filed its return of income on 18th October 2001, declaring total income at Rs. nil. The assessment in assessee's case was completed under section 143(3) vide order dated 27th March 2004, determining the total income at Rs. 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. r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Counsel for assessee submitted that only because Shri Hemnani, accepted cash transaction of Rs. 48,000, it cannot be presumed that he has not paid the balance amount of Rs. 55,000. He submitted, even though the assessee may not be having other documentary evidence to prove the transaction apart from the entries made in its own books of account but the circumstantial evidence and other relevant factors would certainly give the benefit of doubt to the assessee. 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 Rs. 1,03,000 from Shri Hemnani. However, concerned person when confronted by the Assessing Officer admitted of having paid amount of Rs. 48,000, and denied of having pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions filed before the first appellate authority submitted that the transactions have been carried out through assessee as sub-broker and all these transactions are recorded in assessee's books of account. In this context, he referred to the account opening form of Shri Jaideep Patel Page-30 of the paper book. He also referred to the account copies of both these persons appearing in the books of the assessee and submitted that they are denying of having conducted any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... false affidavit filed by the assessee." It is further evident from the remand report, the assessee has no other documentary evidence to prove the aforesaid credits. As far as the contention of the learned Counsel for the assessee that Shri Jaideep Patel, has filled up the client registration application form with the assessee, it is to be noted that during the remand proceedings when this fact was confronted to Shri Jaideep Patel, he stated before the Assessing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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