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TMI Blog2017 (9) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... Directors Ms. Anjali Kanwar and Mr. Harish Kanwar from M/s OEC Diascans Ltd.The Department has not brought anything on record to dispute the aforesaid sequence of transactions. Moreover, the return of amount to the Directors and by the Directors to M/s OEC Diascans Ltd. is also evidenced by the bank statements and the certificate given by the bank to the Directors. This clearly shows that the transaction was genuine within the meaning of section 68 of the Act. Department had tried serving notice to M/s OEC Diascans Ltd. which remained un-served. However, the Department despite having the address of the changed company M/s Silver Sand Corporation did not make any enquiry with respect to the aforesaid transactions. The net worth of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed under the law. 3. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in making addition of an amount of ₹ 4.00 Crores in the hands of the appellant company. 4(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in treating the amount of ₹ 4.00 Crores received by Mr. Harish Kanwar and Mrs. Anjali Kanwar as advance against sale of property from M/s OEC Diascans Ltd. as representing the undisclosed income of the appellant company. (ii) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in ignoring the explanation and evidences submitted by the appellant company in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2(22)(e) of the Act. However, the income of the appellant company was enhanced by ₹ 4 crores by the CIT(A). 5. The assessment record would reveal that during the year under consideration, the assessee company made two fixed deposits of ₹ 4 crores each in Citibank, Gurgaon. The addition of ₹ 1,00,35,866/- pertains to the first FDR made by the assessee company and the enhancement made by the CIT(A) of ₹ 4 crores relates to the second FDR. In the present appeal, we are concerned with the facts relating to the second FDR of ₹ 4 crores. 6. The Ld. AR submits that the second FDR was made in cash received by the Directors of the appellant company, Sh. Harish Kanwar and Smt. Anjali Kanwar. The Directors receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions and perused the record and judgments relied upon. The second FDR of ₹ 4 crores was made in cash by the assessee company in CITI Bank, Gurgaon. The Ld. AR has referred to the ledger account in the books of M/s OEC Diascans Ltd. and the ledger account in the books of Mr. Harish Kanwar and Ms. Anjali Kanwar of M/s OEC Diascans Ltd. The ledger accounts support the submissions made by the Ld. AR that the amount of ₹ 4 crores were received by the Directors Ms. Anjali Kanwar and Mr. Harish Kanwar from M/s OEC Diascans Ltd. Thereafter, the receipt of cash by the assessee company from Ms. Anjali Kanwar and Mr. Harish Kanwar is also evident from the copy of ledger account of both the directors in the books of the assessee compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat so far as the appellant is concerned, he has established the identity of the creditors, namely, Nemichand Nahata and Sons (HUF) and Pawan Kumar Agarwalla. The appellant had also shown, in accordance with the burden, which rested on him under section 106 of the Evidence Act, that the said amounts had been received by him by way of cheques from the creditors aforementioned. In fact, the fact that the assessee had received the said amounts by way of cheques was not in dispute. Once the assessee had established that he had received the said amounts from the creditors aforementioned by way of cheques, the assessee must be taken to have proved that the creditor had the creditworthiness to advance the loans. Thereafter the burden had shi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not fictitious, the initial burden lying on the assessee can be said to have been duly discharged by him. It will not, therefore, be for the assessee to explain further as to how or in what circumstances the third party obtained the money or how or why he came to make advance of the money as a loan to the assessee. Once such identity is established and the creditors, as in the present case, have pledged their oath that they have advanced the amounts in question to the assessee, the burden immediately shifts on the department to show as to why the assessee s case could not be accepted and as to why it must be held that the entry, though purporting to be in the name of the third party, still represented the income of the assessee from a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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