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TMI Blog2017 (8) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... n be discharged. Therefore, the matter is remanded back to the file of the A.O. for examination of credit worthiness of lenders. - Appeal of the assessee allowed for statistical purposes. - ITA No. 2222/Del/2015 - - - Dated:- 17-8-2017 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Appellant : Shri Kanwal K Juneja, Adv. For The Respondent : Smt. Apoorva Karan, CIT(DR) ORDER PER L.P. SAHU, ACCOUNTANT MEMBER This appeal filed by the assessee is directed against the order dt. 12.5.2015 of the Ld. CIT(A), Dehradun on the following grounds. 1. That in facts and circumstance of the case, the Learned CIT has erred wrongly in sustaining the addition of ₹ 50,00,000/ - of Unsecured Loan as unexplained. 2. That in facts and circumstances of the case, CIT(A) has wrongly stated that the cash has been introduced in the bank account of the Depositors before parting with the deposit to the appellant. 3. That in facts and circumstances of the case, sustaining the addition of ₹ 50,00,000/- erroneously when the appellant has already refunded the amount through RTGS prior to initiation of notice u/ s 142 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Addition as per para 7 816348 Gross Total income: 8008520 Less: Deduction u/CIT(A) VI A 115000 Total income 7893520 Total income rounded off 7893520 2.1. The A.O. asked the assessee to substantiate the loan taken from the two parties, as the onus is cast on the assessee to prove the credit worthiness as per S.68 of the Act. The assessee failed to discharge his onus for proving the credit worthiness of loan taken from the two parties. Therefore, the A.O. treated it as unexplained income in the assessee s hands u/s 68 of the Act and he made several additions also. Being aggrieved by the additions made by the A.O., the assessee went in appeal before the First Appellate Authority. The Ld.First Appellate Authority, after considering the submissions of the assessee partly allowed the appeal of the assessee and sustained the addition of ₹ 50 lakhs loan taken from Shri Rakesh Kumar. 2.2. Being aggrieved the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additions has been made. Your Honour, it is admitted fact that the appellate has not maintained any cash book as he is not liable to maintain the same therefore the contract income and transport income has been declared in accordance to provisions of section 4-iAD and section 44AE. He has prepared the balance sheet which has been filled before the Assessing Officer, from the entries in the bank and respective copy of his capital accounts wherein he is a member of AOP. Although it is the last year of the search case, the AO has completed the assessment U /5 143(3) on 28.03.2013 and have also mentioned in para 2 of the order A search u/ s 132 of the Act was initiated and took place in the business and residential premises of the assessee on in the M.L Juyal Group of cases. The appellant business place and residential place was also searched therefore the appellant case is fully covered by the order of Honorable High Court Delhi in the case of CIT vs. KABUL CHAWLA reported in (2016) 380 ITR 0573 (Delhi) wherein it has been laid down:- Assessment u/s 153A can be carried out only on the basis of seized material. Where no incriminating material was unearthed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT(A) along with submission of the appellant forwarded the same to the A essing Officer for remand report. The copy of the remand report is enclosed herewith. Page 13 -14 The comments which was received from the AO are incorporated in CIT(A) order at page 15 para 6 with regard to Shri Rakesh Kumar and the comments of CIT(A) was at page 16 of the said order. The AO simply repeated that during the scrutiny proceedings assessee deliberately filed late information the transaction could not be verified from the party. In absence of such verification the credit worthiness and genuineness of the transaction is unexplained. When the complete submission was forwarded by the CIT (A) for the Remand report, Assessing Officer had a full opportunity to obtain any information from bank or from creditor. The AO neither issued any notice u/ s 131 or 133(6) calling any information from the creditor of the assessee. Since the addition was made in the assessment order, therefore, the AO submitted by her own whims and presumptions to repeat the fact which has been stated in the assessment order by AO herself. It is worth to mention that ITO has not taken any initiative to ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of the Income Tax assessment number and other relevant details showing genuineness of the transaction and creditworthiness and money in the books of the assessee has been entered through banking channel, then the onus of proof would shift to the revenue. The Hon'ble High Court in case of CIT Vv. Dwarkadhish Investment P Ltd reported in 330 ITR 298 (Del) at para 8 have also held; In any matter, the onus of proof is not a static one. Though in s. 68 proceedings, the initial burden of proof lies on the assessee yet once he proves the identity of the creditors/share applicants by either furnishing their PAN or income-tax assessment number and shows the genuineness of transaction by showing money in his books either by account payee cheque or by draft or by any other mode, then the onus of proof would shift to the Revenue. Just because the creditors/share applicants could not be found at the address given, it would not give the Revenue the right to invoke s. 68. One must not lose sight of the fact that it is the Revenue which has all the power and wherewithal to trace any person. Moreover, it is settled law that the assessee need not to prove the 'source of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B' Bench ( 2011) 136 TTJ (Ahd) 221 According to AO, the assessee had failed to furnish the confirmations, therefore, the total of the two, i.e., ₹ 5,14,790/- was taxed. When the matter was carried before the first appellate authority, the finding was as under: 10.1 I have perused the assessment order. It seems that the addition has been made by the AO in the absence of confirmations from the creditors. On the other hand the appellant submitted before me that the payment has been already made to the said creditors in the subsequent years and copy of ledger account has been submitted to the AO during the course of assessment proceedings and he had not considered the submission made by the appellant. The appellant also submitted before me that the parties are traceable and that is why the appellant was not able to submit confirmation as sought for by the AO during the course of assessment proceedings. 10.2 I have perused the facts of the case. Before me the appellant produced copy of ledger account of the creditors for the subsequent year and submitted that the payment has been already made to the said creditors. Since the appellant has already mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the credit worthiness has not been proved by the assessee. The turnover of the assessee also is very low and how he took loan of ₹ 54 lakhs, out of which ₹ 50 lakhs has been taken from a single party. He relied on the orders of the authorities below. Further he submitted that assessee has not filed any copy of income tax return, balance sheet of Shri Rakesh Kumar. 5. We have heard both sides, perused material available on record, orders of lower authorities. Admittedly the assessee has not filed the income tax return, copy of balance sheet for proving credit worthiness of the lender. The assessee has submitted bank account details of Shri Rakesh Kumar which is available at page no.29 of the paper book. After going through the bank statement of Shri Rakesh Kumar it was noticed that the assessee has submitted only bank statement from the month of 1st March, 2011. On that day there is a huge balance of ₹ 50,70,000/- is appearing as opening balance. On 22nd March, 2011 Shri Rakesh Kumar transferred ₹ 50 lakhs through RTGS into the account of the assessee. The A.O. as well as the CIT(A) had given opportunity to the assessee for proving the credit worthiness o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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