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TMI Blog2011 (2) TMI 1612X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Parshva Sales Corporation, Shakti Corporation and M. D. Mehta Co. during the year under assessment. As per the Assessing Officer, the assessee failed to prove the genuineness, creditworthiness and existence of the creditors. The Assessing Officer has discussed this issue in detail throughout the assessment order. The Assessing Officer has mentioned that sufficient opportunities of being heard were allowed to the assessee to prove the cash credit. Summons was returned back unserved. No documentary evidence has either been produced by the assessee regarding the credits made in its books of account by way of loans. Therefore, after quoting the decision of Hon ble ITAT Rajkot Bench, Rajkot in the case of Shri R.L. Kalathia (Ind., Bhavnagar) vs. ACIT, CC- 2, Rajkot (ITA No.1135/AHD/1997 (1993-94), in which it is held that : It is the duty of the assessee to prove the identity of the creditors, their creditworthiness and genuineness of the transaction. The burden of proof is on the assessee to explain satisfactory with regard to the amount, which have been credited in the books of account of the assessee, the nature and source of the receipt has to be proved by the assessee an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count payee cheques. The appellant also relies on the following case law in support of his claim that when the assessee has given the names and addresses of the creditors, the burden is on the revenue to examine the source of the income of the said credits, their credit worthiness and capacity to advance the said loan.:- 1. Murlidhar Lahorima vs. CIT 280 ITR 512(Guj). 2. CIT vs. Pragati Co.op. Bank Ltd., (278 ITR-170)(Guj) 3. CIT vs. Orissa Corporation P. Ltd.(1986) 159 ITR 78(SC) 4. Neemi Chand Kothari vs. CIT Another (2003) 264 ITR 254(Gau) 5. DCIT vs. Rohini Builders (2002) 256 ITR-360 (Guj.) 6. Rohini Builders vs. DCIT (2002) 76 TTJ 521 (Ahd). 7. Addl. CIT. Bihar vs. Hanuman Agarwal (1985) 151 ITR0150(PAT) 8. Sarogi Credit Corporation vs. CIT, Bihar (1976) 103 ITR- 344(PAT) 9. Nirma Industries Ltd. vs. DCIT (2006) 283 ITR 402 (Guj.) 5.2. I have carefully considered the facts of the case. I have also gone through the ITAT s order as well as the assessment order. I have given due thought to the judicial decisions cited by the Assessing Officer while adding the amount of ₹ .4,50,000/- by way of loans unexplained credit out of income from undis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d loan out of their bank account with Bhavnagar Welfare Cooperative Bank and Dena Bank Bhavnagar and that deposits were made by these concerns in their respective bank accounts were bogus. The Learned Assessing Officer therefore concluded that the loan shown by the assessee from these concerns were also bogus and made addition under section 68 of the Act. In appeal, the Learned Commissioner of Income Tax (Appeals) confirmed the action of the Learned Assessing Officer. The Learned Authorised Representative of the assessee submitted before us that the Hon ble Gujarat High Court in the case of CIT vs. Sanjay K. Thakkar Tax Appeal Nos.524 of 2004, 525 and 526 of 2004 and 579 to 583 of 2003 vide order dated 12-9-2005 has held that where the assessee showed that the creditors have advanced the money through bank and placed evidence in this regard on record, are assessed to Income tax then in the circumstances the position in law is well settled that if the Assessing Officer is not satisfied about the capacity or the credit worthiness of the party in question or as to the source from which the creditor has deposited the amount, it is open to the Learned Assessing Officer to make the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were deleted by the Learned Commissioner of Income Tax (Appeals) on the ground that confirmations were filed and the creditors were assessed to tax. On further appeal by the Revenue the Tribunal dismissed the appeal of the Revenue. Thus, it was contended that the appeal of the assessee should be allowed as the facts of the assessee s case as well as the depositors are the same. The Learned Departmental Representative on the hand has supported the order of the Learned Assessing Officer. 5. We find that the Learned Assessing Officer has found that the depositors had deposited cash in their account from where they issued the cheques to the assessee. However the Learned Assessing Officer opined that the cash deposits made by the creditor were bogus and therefore not accepted the cash credit in the hands of the assessee. We find that it is not in dispute the cash was deposited in the bank accounts of the depositors before issuing of cheques to the assessee. No material has been brought on record to show that the said cash deposits were made by the assessee or any material to show that cash was given by the assessee in lieu of cheques issued. We find that the Hon ble Jurisdictional Hi ..... 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