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TMI Blog2020 (3) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER PER H.S. SIDHU, JM Revenue has filed the present appeal against the impugned order dated 30.6.2010 passed by the Ld. CIT(A)-VII, New Delhi relating to assessment year 2006-07. 2. The facts relating to issue in dispute are that the assessee filed its return of income for the assessment year 2006-07 on 28.11.2004 declaring income at Rs. NIL after adjusting the brought forward losses of A.Y. 2000-01 to the extent of ₹ 3,18,801/-. The return of income of the assessee was taken up for scrutiny assessment and notice u/s. 143(2) of the Income Tax Act, 1961 (in short "Act") was issued on 05.10.2007. The assessment proceedings were completed under section 143(3) of the Act on 19.12.2008 determining the total income at ₹ 3,04,98,629/- by making the addition of ₹ 3,07,00,000/- on account of unsecured loans under section 68 of the Act vide assessment order dated 20.01.2009. Against the assessment order dated 20.1.2009, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 30.6.2010 has partly allowed the appeal of the assessee. Aggrieved with the impugned order dated 30.6.2010, the Revenue is in appeal before the Tribunal. 3. At the time of he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of money and if the assessee fails to rebut the said evidence the same can be used against him by holding that it was a receipt of income as held in the case of Sumati Dayal Vs. CIT (1995) 214lTR 801(SC). it was held by the Hon'ble Apex Court: "It is no doubt true that in all cases in which a receipt is sought to be taxed as income, the burden lies on the Department to prove that it is within the taxing provision and if a receipt is in the nature of income, the burden of proving that it is not taxable because it falls within the exemption provided by the Act lies upon the assessee .... But in view of section 68 of the Income-tax Act, 1961, where any sum is found credited in the books of the assessee for any previous year it may be charged to income-tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory. In such a case there is, prima facie, evidence against the assessee, viz., the receipt of money, and if he fails to rebut the said evidence, it can be used against him by holding that it was a receipt of an income nature." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d may be charged to income-tax as the income of the assessees of that previous year. The expression "the assessees offer no explanation" means where the assessees offer no proper, reasonable and acceptable explanation as regards the sums found credited in the books maintained by the assessees. It is true the opinion of the Assessing Officer for not accepting the explanation offered by the assessees as not satisfactory is required to be based on proper appreciation of material and other attending circumstances available on record. The opinion of the Assessing Officer is required to be formed objectively with reference to the material available on record. Application of mind is the sine qua non for forming the opinion." 5.9 On these facts and circumstances of the case and in the light of the case laws mentioned above, it is observed that the assessee has duly discharged its onus of proving the identity and creditworthiness of the persons and genuineness of the transactions by furnishing the confirmation letters, assessment particulars including PAN and copy of I.T. return, balance-sheet & P&L account, Bank statement to show that the payments have been made through b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a who has advanced loan of ₹ 55,00,000/-, it is observed that he is a resident of Los Angeles, USA and he does not have Permanent Account umber which also implies that he is not assessed to income-tax. However, the perusal of copy of bank statement relating to the bank account maintained by him with State Bank of India, New Delhi reveals it is a Current on-resident account wherein there are sufficient funds/balances to the extent of ₹ 1,50,07,666/- available so as to enable the said loan creditor, Shri Surjeet Multani alias Bawa to advance a loan of ₹ 55,00,000/- to the appellant. These details show that the lender was person of means with the financial capacity to advance the loans. Therefore, it is held that the primary onus of proof regarding the identity of the creditor, the "capacity" of such creditor to advance the said amount and the genuineness of the transaction has been discharged by the appellant in respect of loan advanced by Shri Surjeet Multani alias Bawa. 5.12 When the assessee had filed the confirmation letters giving the details such as permanent account number (PAN), copies of Income tax return, balance sheet and profit & loss account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade enquiries thereon and inferred understatement of income, I am therefore inclined to agree with the submissions made on behalf of the appellant to the effect that statement recorded behind back of the assessee without being subjected to cross-examination cannot be fully admitted as evidence against the assessee. 5.14 In view of the discussion made above, I am of the considered view that the A.O. was not justified in making addition on account of unsecured loans to the extent of ₹ 2,74,00,000/- from the eleven(11) loan creditors listed in para 5.1 0 above. Therefore, the addition of ₹ 2,74,00,000/- made on account of unsecured loans from the eleven(11) loan creditors is deleted." 5.1 After hearing both the parties and perusing the orders passed by the revenue authorities, especially the impugned order dated 30.6.2019 of the Ld. CIT(A), as reproduced above, we are of the considered view that Ld. CIT(A) has decided the issue and deleted the addition, after elaborately discussing the detailed evidences and the provisions of law and the judgment/decisions of the Hon'ble Supreme Court, Hon'ble High Court and the Tribunal. Therefore, we are fully agree with the finding o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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