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TMI Blog2020 (12) TMI 859X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, in the light of the provisions of section 68 it was incumbent upon the assessee to discharge the initial burden in proving the identity, genuineness and creditworthiness of the lender, which in our opinion the assessee has grossly failed to discharge. Once the assessee fails to discharge the initial burden cast upon it, the provisions of section 68 become imperative. The FAA has been carried away with the fact that the same amount has been added in the group concerns which was not at all relevant on the facts of the present case. - ITA No. 6150/DEL/2014 - - - Dated:- 11-12-2020 - N. K. Billaiya , Member ( A ) And Suchitra Kamble , Member ( J ) For the Appellant : Sushma Singh , CIT ( DR ) For the Respondents : Rakesh Gupta , Advocate ORDER N.K. Billaiya, Member (A) This appeal by the revenue is preferred against the order of the CIT(A)-3, New Delhi dated 08.08.2014 pertaining to A.Y. 2011-12. 2. Representatives of both the sides were heard at length. Case record carefully perused. 3. The grievance of the revenue read as under:- 1. On the facts and in the circumstances of the case, the CIT(A) has erred in deleting the disallowance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings the AO found that the assessee has debited expenditure on account of purchase of material made from the following parties:- 1. M/s. Mohan Ram Trading Co. amounting to ₹ 1,25,40,049/- 2. M/s. Shyamji Traders amounting to ₹ 25,79,978/- 3. Ganga Trading Co. amounting to ₹ 85,01,193/- 4. U-Tek Sales Corporation amounting to ₹ 5,50,00,100/- 6. During the course of search and seizure proceedings carried out by the investigation wings, it was found that these parties are not existing at the addresses mentioned on the bills and could not be found in the field inquiries conducted for this purpose. The AO made the additions by holding as under:- 5. I have considered the reply filed by the assessee and do not find any merit in the submissions. When a claim of expenditure has been made, the assessee is duty bound to support the same by positive evidences. The alleged suppliers of materials were neither found existing at the given addresses during the course of search seizure proceedings and post search inquiries, nor they could be located during the present proceedings. Summons u/s. 131 of the Income Tax Act were issued to all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils, VTA details, TIN Numbers, confirmations and bank statements. There is no dispute that all the payments have been made by account payee cheques. The lower authorities have taken an adverse view because they found that the payees have withdrawn cash on the same or succeeding day. There is not an iota of evidence whatsoever to show that the cash has reached back to the assessee. 16. The Hon'ble Calcutta High Court in the case of CIT Vs, Dataware Private Limited in Tax Appeal No. 263 of 2011 a GA No. 2856 of 2011 in its order dated 21.09.2011 has observed as under: In our opinion, in such circumstances, the Assessing officer of the assessee cannot take the burden of assessing the profit and loss account of the creditor when admittedly the creditor himself is an income tax assesses. After getting the RAN number and getting the information that the creditor is assessed under the Act, the Assessing officer should enquire from the Assessing Officer of the creditor as to the genuineness of the transaction and whether such transaction has been accepted by the Assessing officer of the creditor but instead of adopting such course, the Assessing officer himself could not ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appellate authority has heavily relied upon the decision in the case of Vijay Proteins Ltd. 55 TTJ [Ahd] 76. Considering the facts of the case in totality, as discussed hereinabove, we are of the considered view that that entire addition deserves to be deleted. We, accordingly, set aside the findings of the CIT(A) and direct the AQ to delete the entire addition of ₹ 7,86,21,320/-. 8. As no distinguishing facts have been brought to our notice nor we find any in the assessment order, respectfully following the findings of the coordinate Bench (supra) ground No. 1 to 5 taken together are dismissed. 9. Ground No. 6 to 8 relates to the deletion of addition of ₹ 6.25 crores. 10. Facts on record show that during the course of assessment proceedings the AO noticed that the assessee has obtained loans from various persons as under:- 1. Bhola Motor Finance (P) Ltd. ₹ 1,00,00,000/- 2. P. Seven General Finance (P) Ltd. ₹ 2,55,00,000/- 3. Toor Finance Company Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction from the four lenders. Additional evidences were furnished under rule 46 A which were duly considered by the CIT(A). A remand report was called and the AO submitted his report vide letter dated 15.04.2014 which is exhibited at para 8.3 of the order of the CIT(A). 16. The assessee made further submissions by way of a rejoinder to the AO's remand report and such rejoinder is exhibited at pages 22 to 30 of the order of the CIT(A). 17. After considering the facts and the submissions and the rejoinder the CIT(A) held as under:- I have gone through the above submission of the appellant and have considered the facts and evidences on record. The AO's contention is that they received loans from the above mentioned 4 parties and immediately the said loans were returned back to them and thereafter the same amount was invested by these 4 investors, as share application money in appellant's other group company for which separate addition has also been made by the same AO. The details of amounts received and returned back are as under:- From the perusal of the above chart, it is clear that ₹ 6.25 crore which was received during the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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