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TMI Blog2020 (6) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Roshanlal Deshraj Party and if satisfied with the transactions then necessary relief, if any, available to assessee may be given as per the provisions of Income Tax Act. - ITA No.775 And 776/Ind/2016 - - - Dated:- 22-5-2020 - Shri Kul Bharat, Judicial Member And Shri Manish Borad, Accountant Member For the Appellant : Shri S.S. Deshpande, CA For the Revenue : Shri S.S. Mantri, CIT ORDER PER MANISH BORAD, AM. The above captioned appeals filed at the instance of assessee pertaining to Assessment Year 2007-08 and 2008-09 are directed against the orders of Commissioner of Income Tax (Appeals) (in short Ld.CIT ], Ujjain dated 23.3.2016 and 01.03.2016 respectively which are arising out of the order u/s 143(3)/147 of the Income Tax Act 1961(In short the Act ) dated 30.03.2013 and 28.03.2014 framed by ITO, Neemuch. 2. As the issues raised in these appeals belongs to the same assessee they are being heard together and disposed off for the sake of convenience and brevity. 3. Brief facts of the case as culled out from the records are that the assessee is an individual deriving income from the business of trading of poppy straw. Return of income wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before Ld. CIT(A) for Assessment Year 2007-08 and 2008-09 and partly succeeded for Assessment Year 2007-08 but failed to succeed for Assessment Year 2008-09. 7. Now the assessee is in appeal before the Tribunal raising following grounds of appeal :- ITA No.775/Ind/2016 Assessment Year 2007-08 'l. The Ld. AO has erred in making additions and Ld CITCA) has erred in confirming the additions of unsecured loans taken from the Income-tax payer, having PAN NO, and filing their IT return regularly and deposits has been duly confirmed by the depositors and some of the depositors has been enquired by the Ld U/s. 131 of the Act, the Ld AO has made addition contending that none of the creditors is produced is not correct 0t the facts and records. 2. The Ld. AO has erred in not considering the cash deposits in the bank A/c out of regular books maintained and the Ld CIT(A) has erred in confirming the addition without appreciating the facts of the case that cash deposits is out of regular books of accounts maintained by the appellant. 3. The Ld AO has not find any other business or investment of the appellant in which the cash drawn is invested and cash deposited in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson to do the business in partnership. Accordingly the assessee joined hands with the said party. The deed of partnership is enclosed at Page 9 of PB for AY 2008-09. The said partnership is also assessed to tax and all these amounts have been added as the income of the partnership. For the purpose of doing the business there was a requirement of substantial funds. On the strength of the license the assessee raised loans from the market through Dalal from nearly 192 parties. All the payments were received through account payee cheques from the local persons who were income tax assessee and were filling their regular returns. While framing the assessment the Ld. AO observed that the assessee has deposited the requisite fees while applying for the tender for Poppy Straw (doda chura). But unfortunately the draw was not opened in his name. He further observed that the sundry debtors have been disclosed in the Balance Sheet to the tune of 4,10,47,937/- representing the advance to M/s Roshanlal Deshraj Party. The assessee has further shown the unsecured loan of ₹ 6,27,56,000/- and the advances are shown at ₹ 2,14,53,330/-. The Ld. A.O during the course of various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled. The Ld. AO has wrongly mentioned that none of the creditors were produced for confirming the transactions. An appeal was taken before the Ld. CIT CA) who confirmed the addition of ₹ 6,19,49,750/- being the loans taken from 192 creditors with the short observation that the assessee has failed to produce the above parties for examination before the A.O and as such the assessee has failed to discharge the burden of proof for establishing the genuineness of the transaction. He further upheld the addition of ₹ 3,21,81,267/- being the cash deposit with the wrong observation that the appellant has given advances through cheque and it is highly unlikely that the appellant has received cash from these persons for repayment of loans. It is submitted that small advances were given in cash after withdrawing the same from the bank. The Ld. CIT CA) did not consider the cash withdrawn from the bank, and did not allow the telescopic benefit for the cash availability. It is humbly submitted that the assessee has borrowed the funds for the purpose of the business. All the amounts have been received by account payee cheque and practically all the creditors are assessed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is humbly submitted that the Balance Sheet clearly showed the sundry debtors. In the earlier year, the creditors and cash deposits in the bank have already been taxed. Under these circumstances it is a double taxation, once on account of sundry creditors and secondly on account of the recoveries of the same amount from the sundry debtors. If it is presumed that there were no advances, the amount was available in cash with the assessee for depositing the same in the bank. Here it is pointed out that the amount received from Roshanlal Deshraj includes an amount of ₹ 1,35,00,000/- by way of a cheque. (Page 8 of PB) The Ld AO has already taxed all the amounts in the.hands of Roshanlal Deshraj Co. and all the transactions are verifiable from their books. In view of this it is I humbly prayed that the additions made may please be deleted. 9. Ld. Counsel for the assessee submitted commonly for both the assessment years that assessee was not provided reasonable opportunity of being heard. Ld. A.O have made additions for cash credits even when all confirmation were filed for and many of them were produced but the same seems to have been over looked by both lower authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee had advanced the money in the preceding financial year thereby totalling to ₹ 3,87,50,000/- and the remaining amount is also out of the advance given in the preceding year. On the other hand the Ld. A.O did not accepted the explanation of the assessee, confirmations filed for the unsecured cash credits were also not found sufficient to prove the genuineness and creditworthiness. Ld. A.O also seeked personal attendance of each of the cash creditors. Ld. CIT(A) had confirmed the finding of Ld. A.O without making any further enquiry. 13. Ld. Counsel for the assessee has contended that double additions have been made during both the Assessment Years. For Assessment Year 2007-08 addition for unexplained cash deposited has been made by completely ignoring the fact that the source of cash deposit is from the unsecured loan from 192 parties and therefore the addition for unexplained cash credit for 2007-08 is a double addition. Ld. Counsel for the assessee also submitted that apart from confirmations, few of the cash creditors as required by the Ld. A.O were also produced for the statements. Some of the additions for Assessment Year 2008-09 are having direct nexus with the ..... 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