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TMI Blog2013 (1) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made u/s 68 of the I.T. Act 1961 amounting to Rs. 1,03,00,000/- being bogus accommodation entry received from M/s. Prateek Securities (P) Ltd. who is found to be an entry operator. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in deleting the addition made u/s 68 of the I.T. Act 1961 amounting to Rs. 11,00,000/- being unexplained credit received from M/s. Shorya Realty (P) Ltd. on the basis of the confirmation letter filed before him which was not filed during the course of assessment proceedings." 2. The relevant facts are that the assessee company incorporated on 10.5.1995 has been filing its return of income regularly since its formation. During the year in its return of income it declared income o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. He accordingly added the amount u/s 68 of the Act in the income of the assessee. He also added Rs. 11,00,000/- claimed to have received as unsecured loan from Shorya Realty Pvt. Ltd. u/s 68 of the Act on the basis that no confirmation or balance sheet and other details have been filed. Thus total addition of Rs. 1,14,00,000/- was made under section 68 of the Act. Being satisfied with the submissions and evidence in support furnished by the assessee, the Ld. CIT(A) has deleted the addition. This action of the first appellate authority has been questioned by the revenue before the Tribunal. 3. In support of the grounds Ld. DR tried to justify the assessment order with the submission that making payment through banking channel is not sacr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /balance sheets of the creditors companies. He pointed out the transactions were made through banking channels without examining these evidence on record and without supplying the copy of statements or relevant evidence in possession of the department to the assessee reference of which has been made in the assessment order that on examination of Shri Gobind Ram Saini and others by investigation wing of the department it was found that they were involved in providing the accommodation entries, the AO has taken adverse conclusion against the assessee. He contended that the statements of person has been used against the assessee without providing opportunity to cross examine that person by the assessee. It is against the principle of natural j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court). 5. We have considered the above submissions and have gone through the orders of the authorities below, material available on record and the decision relied upon. In a case of cash credit the assessee has to establish the identity of creditors, its creditworthiness and genuineness of the claimed transactions. Onus lies on assessee to establish these ingredients of section 68 of the Act. When documents supporting the establishment of identity of the creditor, its creditworthiness and genuineness of transaction have been furnished by the assessee, his onus is discharged primarily. The onus then shifts upon the revenue to rebut the claimed genuineness of the transaction of the assessee by dislodging reliability on those documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the surrounding circumstances and human probabilities are to be kept in view in taxation and that it was opened to the income tax authorities to go behind a transaction and examine whether the transaction was genuine or not. The AO has also placed reliance on the decision of Hon'ble Supreme Court in the case of Mc Dowel & Co. reported in 154 ITR 148 (SC) holding that avoidance of tax through colourable device was not permissible. There is no dispute on the ratio settled in the cited decisions of the Hon'ble Supreme Court as the same is the law of the land. But the only question is whether these decisions are applicable in the facts and circumstances of the present case or not. It is a well established proposition of law that when sufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in this case is based on the peculiar facts which attracts the ratio of Lovely Exports (supra). Where the assessee adduces evidence in support of the share application monies, it is open to the assessing officer to examine it and reject it on tenable grounds. In case he wishes to rely on the report of the investigation authorities, some meaningful enquiry ought to be conducted by him to establish a link between the assesee and the alleged hawala operators ; such a link was shown tobe present in the case of Nova Promoters & Finlease (P) Ltd. (supra) relied upon by the revenue. We are therefore not to be understood to convey that in all cases of share capital added u/s 68, the ratio of Lovely Exports (supra) is attracted, irrespective ..... X X X X Extracts X X X X X X X X Extracts X X X X
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