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TMI Blog2022 (11) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances of the case as well as in law, the ld. CIT(A), NFAC, has erred in upholding the addition of Rs.3,96,370/- u/s 68 of the Act on account of bogus profit from bogus trading in commodities through the broker Jet Air Agencies Pvt. Ltd., whereas no transactions have been done by the appellant with or through the said broker and no such profit was ever received credited or claimed by the appellant. 3. That the ld. CIT(A), NFAC, has grossly erred in law in taking the view that onus is on the appellant to prove the negative i.e. that the appellant has not done any transactions with or through the said broker, whereas, as per settled law, this onus is on AO, who has claimed the existence of these facts by making proper inquiry and calling for relevant evidences from the broker. The view so taken by ld. CIT(A) is contrary to the settled law and is unsustainable in law. 4. The appellant craves leave to add, alter, delete or modify any grounds of appeal." 2. At the outset of hearing, the Learned Authorized Representative (ld. AR) for the assessee submits that he is not pressing ground no.1 which relates to validity of reopening under section 147/148. Considering the submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade addition of Rs.3,96,370/- on account of bogus profit from commodity transaction through Jet Air Agencies Private Limited. The assessee submitted that he never done any commodity transaction through any or such broker nor any amount of profit of Rs.3,96,370/-, was credited in his account. When no such profit was credited in the books of account, hence, there is no question of addition under Section 68. The addition under Section 68 can be made only when assessee credited any sum of his books of account. The addition is made without any basis and beyond the scope of Section 68. The assessee specifically stated that the said broker had misused his name and PAN Number for trading such transaction. The Assessing Officer has not collected any details or evidences or account opening papers or Know Your Customer (KYC) papers or evidence or details of impugned transaction and the ultimate payments to the assessee. The Assessing Officer instead of making any investigation or inquiries to find out that truth, find it convenient to make wrong and unjustified addition. The assessee specifically submitted that he has not done any such of transaction or received any such profit. No amounts we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to prove in negative. Once the assessee has denied his involvement of transaction with said sub-broker or having received any such profit in his books of account or in bank account, the onus was shifted for the Assessing Officer to prove that assessee is beneficiary of any such bogus entry. The ld. AR submits that he has already placed on record, the passbook of bank account with UCO Bank for relevant financial year right from August, 2009 to December, 2011 and there is no such transaction reflected in the books of account. 7. The ld. AR of the assessee submits that burden to prove that the assessee received bogus entry was on the Revenue and the Assessing Officer failed to discharge his onus. To support his submission, the ld. AR of the assessee relied upon the decision of Hon'ble Gujarat High Court in the case of Krishna Textiles [2008] 174 Taxman 372 (Gujarat), and the decision of Division Bench of this Tribunal in the case of Dr. Swati Mahesh Vinchurkar vs DCIT, in ITA No.43/SRT/2021 for AY.2017- 18), dated 28.06.2021. 8. On the other hand, ld. Sr. DR for the Revenue supported the order of lower authorities. The ld. Sr. DR for the Revenue submits that in the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bank statement of assessee with UCO Bank for relevant financial year wherein there is no such credit in the bank statement. 10. At the cost of repetition, I may retreat that neither the Assessing Officer nor ld. CIT(A) given any finding on the fact and the evidences furnished by assessee. The Assessing Officer has not calculated evidence either from Jet Air Agencies Private Limited or from Multi National Commodity Exchange about account of information, KYC paper and any evidence regarding the said transaction. No trail of such benefit was traced if such benefit was derived in the name of assessee was in fact ever received by the assessee. In my view, once the assessee denied the transaction through Jet Air Agencies Private Limited and furnished bank account and books of account of assessee that he has not earned any such income, the onus shifted on the Assessing Officer to prove the fact that assessee has in fact earned such profit, or to bring such evidence which may primary show that assessee earned any such income. 11. The Hon'ble Gujarat High Court in the case of Krishna Textiles vs CIT (supra) held that when assessee's stand was that instead of asking the assessee to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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