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TMI Blog2022 (4) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... 408/MUM/2019 - - - Dated:- 31-3-2022 - Shri Amarjit Singh, Accountant Member, And Shri Rahul Chaudhary, Judicial Member For the Appellant/Department : Shri B.K. Bagchi For the Respondent/ Assessee : Shri A.K. Tibrewal ORDER PER RAHUL CHAUDHARY, JUDICIAL MEMBER: 1. By way of the present appeal the Appellant/Department has challenged the order, dated 14.02.2019, passed by the Ld. Commissioner of Income Tax (Appeals)-8, Mumbai [hereinafter referred to as the CIT(A)‟] under Section 250 of the Income Tax Act, 1961 in appeal [CIT-8/IT-536/15-16] for the Assessment Year 2005-06, whereby the CIT(A) had allowed the appeal filed by the Assessee against the Assessment Order, dated 29.01.2016, passed under section 143(3) read with section 263 of the Income Tax Act, 1961 (hereinafter referred to as the Act‟.) 2. The Revenue has raised the following grounds of appeal: 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) was right in holding that the AO has erred in making addition of ₹ 41,49,500/- to the returned income in terms of section 68 of the Act not being satisfied with the genuineness of credit? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness income. Subsequently, order under Section 263 of the Act, dated 19.03.2015 was passed setting aside the aforesaid order passed under Section 143(3) read with Section 147 of the Act. 4. In the set aside the proceedings under Section 143(3) read with section 263 of the Act, notice under Section 142(1) to the Assessee, inter alia, seeking details/documents pertaining to outstanding loan/liability of INR 13,91,000/- pertaining to BMPL and INR 27,58,500/- pertaining to SSL recorded in the books of accounts of the Assessee. Simultaneously notice under Section 133(6) was issued to BMPL, one of the group companies belonging to Dalmia Group suspected to be indulging in providing accommodation entries. Further, the Assessee was asked to show cause why transactions with SSL, another company belonging to the Dalmia Group, should be treated as genuine. In response to the same, the Assessee fled reply vide letter dated 29.09.2015, 29.12.2015 and 22.01.2016. BMPL also filed response along with copy of ledger and account confirmation. However, the Assessing Officer, not being satisfied with the replies/submissions and documents received during the assessment proceedings, concluded that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions, it would be for the Department to disprove the same {CIT v/s Baishnab Charan Mohanty (1995) 212 IFR 199} {Yalan Timbers v/s CAT (1997) 223 ITR 11 [Cal]}. In the present context the assessee has not discharge its onus u/s 68. In view of the same the loan entries from BMPL and SSL totaling to ₹ 41,49,500/- are treated as unexplained Cash Credits u/s 68 of the-Income Tax Act, 1961 and aggregated to the income of the assessee. No set off on account of brought forward loss is allowable. 5. Being aggrieved, the Assessee filed appeal before the CIT(A) challenging the addition of INR 41,49,500/- made by the Assessing Officer under Section 68 of the Act, and subsequently raised an additional ground seeking set-off of the brought forward losses against the aforesaid additions made under Section 68 of the Act. The CIT(A) allowed the appeal of the Assessee and deleted the addition of INR 41,49,500/- made under Section 68 of the Act. Further, the CIT(A) also allowed the additional ground raised by the Assessee and directed the Assessing Officer to grant benefit of setoff of the brought forward losses after verification. The relevant extract of the order, dated 14.02.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had failed to discharge onus to establish identity, creditworthiness and genuineness of transaction undertaken by the Assessee with BMPL and SSL. The CIT(A) had relied upon the decision of the Tribunal in the case of Harsh Dalmia for the Assessment Year 2008-09 in ITA No. 7459/Mum/2016, dated 17.10.2017 without appreciating that the said decision has not been accepted by Revenue. Further, specific information has been received from CBI/ACB, Mumbai that BMPL and SSL were engaged in bogus transaction. The Ld. Departmental Representative relied upon the assessment order to support his contentions. Per contra, the Ld. Authorised Representative appearing on behalf of Assessee submitted that all the relevant documents including ledger account, confirmation received from BMPL and SSL were filed in the assessment proceedings. Further, BMPL, in response to the notice issued under Section 133(6) of the Act, had also filed reply and provided copy of ledger and confirmation. The Assessee had discharge the onus under Section 68 of the Act by placing all the relevant information/document before the Assessing Officer. The Ld. Authorized Representative, without prejudice to the aforesaid, furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom earlier years. Ledger Accounts of BMPL and SSL maintained by the Assessee were filed to show that the aforesaid amounts were outstanding at the beginning of the year and constituted opening balance as on 01.04.2004. Confirmations supporting this factual position were also given by BMPL and SSL. These documents have been placed before us as part of the paper-book filed by the Assessee. Perusal of Paragraph 6.1 of the Assessment Order (relevant extract reproduced in paragraphs 4 above) would show that it is admitted position, as noted by the Assessing Officer, that the loan/liability pertaining to BMPL and SSL were brought forward from earlier years and had remained static for many years. The concern of the Assessing Officer was that the since the agewise analysis was not provided, the year in which these credits were made in the books was not clear. Therefore, it was never the case of the Revenue that the credits pertain to the previous year relevant to the Assessment Year 2005-06. The provisions of Section 68 of the Act are attracted in case of unexplained credits during the relevant previous year. Since the outstanding loan/liability of INR.13,91,000/- pertaining to BMPL and I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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