9911796707
TMI Blog2017 (11) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee are directed against the orders passed by the learned CIT(A)-2, Thane and they relate to A.Ys. 2010-11 & 2011-12. Since common issue is urged in both these appeals, they were heard together and are being disposed of by this common order, for the sake of convenience. 2. First we take up appeal numbered ITA No. 3767/Mum/2015 relating to assessment year 2010-11. The Grounds raised by the assessee read as under:- 1) On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in sustaining the inclusion of a sum of Rs. 573.00 lakhs in total income by the Assessing Officer as unexplained cash credit in respect of loans from parties though all the necessary evidences and explanations and supporting were filed and if required any further supporting he should have specifically called for the same. 2) On the facts and circumstances of the case and in law, the learned CIT(A) erred in confirming disallowance of interest expenses of Rs. 38,37,603/- an alleged cash credit included in total income u/s. 68 of the I.T. Act which was done by the Assessing Officer without giving proper opportunity to explain. 3. Brief facts of the case are that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see-firm, copy of bank statement of the assessee-firm, in which the assessee received loan from 12 parties and repaid the same, copy of return of income filed by these parties for A.Ys. 2010-11 & 2011-12, copy of audited financial statements of the aforesaid 12 parties for the year end on 31.3.2010 to 31.3.2011, Copy of intimation/order u/s. 143(1)/143(3) for A.Y. 2010-11 & 2011-12 of the 10 parties, out of the aforesaid 12 parties, copy of acknowledgment of filing of return of income filed for A.Ys. 2010-11 to 2015- 16, copy of bank statement of 5 parties out of 12 parties from which they issued cheques in favour of the assessee and received repayment of loan etc. Therefore, it was contended that, under these circumstances, the order passed by the learned CIT(A) is not justifiable and is liable to be set aside. It is also argued that in view of the availability of PAN, copy of acknowledgment of returns, the identity of the parties is established. Since the assessee has received amounts through cheques and also repaid the amounts through cheques, the genuineness of the transactions also established. Further the assessee has also filed confirmation letters in this regard. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies at the given address and no books of accounts are maintained over there of these companies Further from the earlier search and survey action conducted by Invest/gat/on Wing, Kolkata it is gathered that the addresses mentioned are mostly established janakharchi/paper companies addresses of Kolkata which are used for providing accommodation entry in the form of share capital and loan in 11ev of cash. So it can be concluded from above facts that prima facie it appears that the companies who have given loan to your assessee company are jamakharchi/paper/sham companies of Kolkata and none of them are existing at their physical address as submitted in the report of ITI. The transactions are non-verifiable in this case and appear to be accommodation entry. This is for your kind perusal and necessary action." 9. On perusal of the above mentioned report, we noticed that the summons were sent to these companies and no companies were found on the given address and information gathered by the official leads to a conclusion that these companies were jamakharchi/paper/sham companies. Based on this report, the claim of unsecured loan of the assessee company was rejected and the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditworthiness of the creditors have been proved by the assessee, i.e., the assessee has discharged the initial burden of proof placed upon it u/s 68 of the Act. We also find support in law settled in the case of Rohini Builders (supra), wherein Hon'ble Gujarat High Court held as under :- 7. We have considered the rival submissions and have also gone through the order passed by the Assessing Officer, the relevant portion of which we have also extracted in para 2 above. The Commissioner of Income-tax (Appeals) more or less confirmed the addition on the reasoning given by the Assessing Officer in the assessment order. A perusal of the chart given by us in para 3 above indicates that out of 21 creditors the Assessing Officer has recorded the statements of only six creditors, viz., creditors at serial Nos. 1, 2, 3, 4, 6, and 7. However, in respect of all the 21 creditors the assessee has furnished their complete addresses along with GIR numbers/permanent account numbers as well as confirmations along with the copies of assessment orders passed in the cases of creditors at serial Nos. 1, 2, 4, 5, 6, 7, 9, 10, 11, 12 and 16. In the remaining cases where the assessment orders passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the said decision the Supreme Court has observed that when the assessee furnishes names and addresses of the alleged creditors and the GIR numbers, the burden shifts to the Department to establish the Revenue's case and in order to sustain the addition the Revenue has to pursue the enquiry and to establish the lack of creditworthiness and mere non-compliance of summons issued by the Assessing Officer under section 131, by the alleged creditors will not be sufficient to draw an adverse inference against the assessee. In the case of six creditors who appeared before the Assessing Officer and whose statements were recorded by the Assessing Officer, they have admitted having advanced loans to the assessee by account payee cheques and in case the Assessing Officer was not satisfied with the cash amount deposited by those creditors in their bank accounts, the proper course would have been to make assessments in the cases of those creditors by treating the cash deposits in their bank accounts as unexplained investments of those creditors under section 69. 8. Further, we may point out that section 68 under which the addition has been made by the Assessing Officer reads as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case and in law, orders of the Tribunal was perverse in deleting the addition of Rs. 95,00,000/- made u/s. 68 of the Act, relying only on the documentary evidence produced by the Respondent company while ignoring the key factor that these entities were not traceable at their given addresses. 6.4 Whether on the facts and circumstances of the case and in law, orders of the Tribunal erred in not appreciating the observations made by the Delhi High Court in Nova Promoters and Finlease Pvt. Ltd. 18 Taxaamnn.com 217 wherein the Court has observed that cases of this type cannot be decided only on the basis of documentary evidences above and there is need to take into account the surrounding circumstances. 6.5 The Tribunal ought to have taken note of the fact thatthe assessee was not able to produce even a single party before the Assessing Officer despite agreeing before the learned CIT(A) that will produce all parties before the Assessing Officer during remand proceedings." 4. We have considered the submissions. 5. The Assessing Officer added ₹ 95 lakhs as income under Section 68 of the Income Tax Act only on the ground that the parties to whom the share certif ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
