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TMI Blog2019 (9) TMI 1738X X X X Extracts X X X X X X X X Extracts X X X X ..... and if the same is discharged by the assessee by producing sufficient material in support of the loan transaction, the onus shifts to the AO and after verification, he can call for further explanation from the assessee. Examining the fact we find that the assessee discharged its initial onus by filing necessary documents to prove identity, genuineness and creditworthiness of the loan taken and further the loan was also stands repaid. But the ld. AO made the addition only for not producing the cash creditors. Thus, merely for not producing the cash creditors before the Ld. AO even when all the necessary documents as required to prove the identity, creditworthiness and genuineness of the cash creditors are furnished by the assessee, cannot be a reasonable basis to make addition for unexplained cash credit u/s 68 - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... on u/s 68 of the Act for unexplained cash credit of Rs. 1,85,00,000/- was made in the hands of assessee and assessed income at Rs. 9,82,27,010/-. 5. Aggrieved assessee preferred an appeal before the Ld. CIT(A) and succeeded on merits, as Ld. CIT(A) deleted the addition on observing that sufficient evidence were placed on record and the alleged loan taken by the assessee was repaid back in the subsequent year. 6. Now the revenue is in appeal before the Tribunal against the deletion of addition by the Ld. CIT(A) and the assessee has raised Cross Objection contending that no addition was called for, as no incriminating material relating to A.Y. 2009-10 was found during the course of search. 7. As regards the Cross Objection raised by the assessee Ld. counsel for the assessee placed reliance on following judgments, submitting that since no incriminating material was found during the course of search, addition on the basis of post search inquiry was uncalled for:- (i) PCIT vs. Ms. Lata Jain 384 ITR 543 (Delhi) (ii) PCIT vs. Saumya Construction (P) Ltd. 387 ITR 529 (Guj) (iii) CIT vs. Gurinder Singh Bawa 386 ITR 483 (Bom) (iv) M/s Anant Steel Pvt. Ltd. vs. ACIT 5(1), Bhopal IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that Ld. CIT(A) has given a detailed finding of fact along with enumerating various documents filed by the assessee to prove the identity, genuineness and creditworthiness observing as follows:- 5.2 Grounds No.1, 2 and 3 are being taken up together. From the facts mentioned by the A.O in the assessment order as quoted above, it can be gathered that the appellant produced all the supporting documents including PAN No., confirmation, copies of tax returns of the persons who provided loan and copies of bank statements etc. All the supporting documents proving the bonafides of the unsecured loans were submitted to the assessing officer during the assessment proceedings. The A.O also has not disputed this claim of the appellant. The A.O has made additions of Rs. 1,85,00,000/- on account of cash credits from M/s Nikunj Alloy and Steel Pvt. Ltd. for the sole reason that the appellant could not produce the creditors for examination by the A.O. It is also relevant to mention here that additions made on account of loans from M/s Rudra Steel and Alloys for an amount of Rs. 60,00,000/- during the preceding A.Y. 2008-09 are also found to have been actually received during this A. Y 2009-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 68 of the LT. Act on account of unsecured loans from the aforesaid lender for a number of reasons. Firstly it is important to understand that the assessment order under consideration is an order under section 143(3) read with section 153(A). The department having subjected the appellant to search and seizure action u/s l32 of the Act has admittedly not been able to seize/produce any evidence/documents which might have made the aforesaid unsecured loan suspect. There are a number of authorities/case laws on the scope of assessment u/s 153A where it has been repeatedly held that the Scope of assessments in the search matters where the proceedings have not abated is restricted to incriminating material found and seized during the Course of search. 9. Secondly, in the case of the appellant all the supporting documents substantiating the bonafides of the loan were submitted by the appellant during the assessment proceedings, yet the A. a made the additions merely for the reason that the appellant was not able to produce the lenders. This inspite of clear and categorical request of the appellant to issue appropriate process u/s l31/133(6) of the Act. The A.O has given no reason as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the loan. Ld. AO has not doubted any of the documents filed by the assessee and only reason for which he made addition was that the assessee failed to produce the cash creditors before him. 15. Hon'ble Calcutta High Court in the case of S.K. Bothra & sons vs. ITO (supra) while dealing with the issue of genuineness of transactions of loan taken by the assessee, held that the initial onus is always upon the assessee and if the same is discharged by the assessee by producing sufficient material in support of the loan transaction, the onus shifts to the AO and after verification, he can call for further explanation from the assessee. 16. Examining the fact of the instant case, in the light of the above judgment we find that the assessee discharged its initial onus by filing necessary documents to prove identity, genuineness and creditworthiness of the loan taken at Rs. 1,85 crores and further the loan was also stands repaid. But the ld. AO made the addition only for not producing the cash creditors. 17. In our considered view merely for not producing the cash creditors before the Ld. AO even when all the necessary documents as required to prove the identity, creditworthines ..... 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