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TMI Blog2023 (3) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi [hereinafter referred to as NFAC/CIT(A) ], dated 27.09.2022 for the assessment years 2009-10, which in turn arises from the order passed by the Income Tax Officer Ward- 4(3), Jaipur passed under Section 263/143(3) of the Income tax Act, 1961 (in short 'the Act') dated 26.12.2014. 2. The assessee has raised the following grounds:- 1. That Learned CIT Appeals has erred in law and fact in sustaining the Learned A.O. s order by treating the bank deposit as undisclosed income of assessee which is wrong, unjustified and deserved to be deleted and ld. A.O. has wrongly treated it as undisclosed income of assessee. The impugned order is bad in law and facts. The appellant craves leave to add, amend or alter all or any of the grounds of appeal on or before the date of hearing. 3. None appeared on behalf of the assessee however, the Bench decided to proceed the matter on merit based on the materials available on record, concerning the issue in question. 4. The brief facts of the case are that assessee is an individual and filed its return of income on 31.03.2010 declaring total income of Rs. 1,49,090/-. The assessment u/s 143(3) of the Act was completed v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the assessment order that Mr. Sunda Ram never appeared before the AO, nor explained about the transaction undertaken between them. More importantly, he has failed to substantiate the cash of Rs. 15,00,000/- was given by him to the appellant. It is important to note that, the burden of proof lies on the appellant to prove the genuineness of the transactions by way of fulfilling the following conditions: 1) Identity of the creditor, 2) Creditworthiness of the creditor; and 3) Genuineness of the transaction. 6.4 However, in the instant case, out of the three basic ingredients which are required to be proved in order to demonstrate the genuineness of the transactions, the appellant could fulfil only one i.e., identity of the creditors/person but failed to fulfil the balance two most important conditions stated above i.e., (1) the creditworthiness, and (2) the genuineness of the transactions. Thus, I am of the confirmed view that the appellant has failed to prove the genuineness of cash credits appearing into the bank account to the tune of Rs. 15,00,000/-. 6.5 In the instant case, the appellant has failed to discharge the onus of proving the creditwo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d disallowed Rs. 15,00,000/- 3. SUBMISSIONS 3.1 Without prejudice to the submission cited above it is humbly submitted that even if it is assumed that the appellant could not explained the source of funds of the purchasers for paying advance for purchase of land pursuant to agreement dated 12.08.2008, the said advance paid by the purchasers of land cannot be held as unexplained simply on the basis of the same. Assessee has submit before Ld. A.O documents regarding sale of land i.e. sale agreement, purchasers Id proof, purchasers source of agriculture crop sold in cash, affidavit of purchaser but Ld. A.O. rejected the all evidence and submission of assessee as declared as unexplained income, under the provisions of section 68 of the Act, the assessee cannot be forced to prove the source of source. 3.2 It is not the burden of the assessee to explain the source of funds of the purchasers paying advance for purchase of land. The burden lying upon the assessee u/s 68 of the Act, is to explain the source of the credit found in his books of accounts not the source of the source. If the assessee is enforced to explain the source of funds of the purchasers, it shall amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch funds/sums raised was from the coffers of the assessee. The material on record reveals that lenders have sufficient source to give advance to assessee. 3.7 In the facts of the present case, both the nature source of the amount received was fully explained by the assessee. The assessee had discharged its onus to prove the identity, creditworthiness and genuineness of Shree Sunda Ram Swami. Accordingly all the three conditions as required u/s. 68 of the Act i.e. the identity, of person, creditworthiness/capability of person and genuineness of the transaction was placed before the AO and the onus shifted to AO to disprove the materials placed before him. Without doing so, the addition made by the AO is based on conjectures and surmises cannot be justified. In the facts and circumstances of the case as discussed above, no addition was warranted under Section 68 of the Act. 3.8 It was further submitted that the assessee has taken actual advance from Shree Sunda Ram Swami through cash no accommodation entry was taken from Shree Sunda Ram Swami. In the books of accounts of the assessee, no irregularity has been pointed out by the AO. Therefore, the entries recorded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1849. 7. Per contra, the ld. Sr. DR relied on the order of the lower authorities. 8. We have heard the rival contentions and also gone through the various contentions raised by both the parties. The ld. AR for the assessee was not present but the ld. AR for the assessee has requested in his letter dated 28.02.2023 to consider his written submission dated 22.12.2022 as arguments and that the disallowances and uncalled addition may be deleted. During the course of appellate proceedings, the ld. AR for the assessee has filed the submission which has been considered by the ld. CIT(A) in his order in page No. 5 but the ld. CIT(A) found not satisfactorily with the written submission filed by the assessee where it is observed that Shri Sunda Ram never appeared before the Assessing Officer nor explained about the transactions undertaken between them. It is noted that the assessee has not proved that Rs. 15,00,000/- received from Shri Sunda Ram towards purchase of the property which was deposited in the bank account the source of cash deposit is not explained. On second issue, the ld. CIT(A) observed that the burden of proof lies on the assessee to prove the genuineness of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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