Sarthav Club & Resorts, Ahmedabad V. DCIT, Central Circle-1(2), Ahmedabad

CO 122/AHD/2019

AI Insights

The case involves multiple appeals by both the assessee, Sarthav Club & Resorts, and the Revenue against the orders of the Commissioner of Income-Tax (Appeals)-11, Ahmedabad, concerning the assessment orders passed under sections 153C and 143(3) of the Income Tax Act for the Assessment Years 2011-12 to 2015-16. The primary issues revolved around the legality of notices issued under section 153C and the additions made under section 69B of the Act concerning alleged unaccounted investments. The Tribunal examined the evidentiary value of an MS Excel sheet seized during a search operation and the subsequent entries related to cash payments for land purchases. The Tribunal's decision highlighted the need for corroborative material to substantiate claims of unaccounted investments and the proper application of legal provisions concerning unexplained cash credits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135640 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 27-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-02-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 08-07-2019
• Other Referred Cases: Pr. CIT -4 vs Saumya Construction Pvt. Ltd, CIT vs. Precision Finance (P) Ltd, CIT vs. Ranchod Jivabhai Nakhava, CIT vs. Apex Therm Packaging Pvt. Ltd, Pr. CIT-1 vs Ridhi Sidhi Corporation, CIT vs. Jagatkumar Satishbhai Patel, CIT vs. Rohini Builders
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Document seized; Tax effect; Corroborative evidences; Third party statement; Tax effect; Documents seized; Set aside
• Section: 68; 132; 144; 143(3); 153A; 69B; 208; 153C

Judgement Text

आयकर आयकरआयकर आयकर अपी अपीअपी अपीलीय लीयलीय लीय अिधकरण अिधकरणअिधकरण अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद यायपीठ यायपीठ यायपीठ यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’A’’ BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND Ms. MADHUMITA ROY, JUDICIAL MEMBER Sr.No. IT(SS)A No. Asstt. Year Name of Appellant Name of Respondent 1-3 IT(SS) A No.280- 282/Ahd/2018 2011-12 To 2013-14 Sarthav Club & Resorts, 203-204, Abhishilp Complex, Nr. Vishweshwari Mahadev Temple, Vastrapur, Ahmedabad-380015. PAN : ABXFS5248B A.C.I.T, Central Circle-1(2), Ahmedabad 4-5 IT(SS)A No.314/Ahd/2018 With C.O No.122/Ahd/2019 2011-12 D.C.I.T, Circle-1(2), Ahmedabad Sarthav Club & Resorts, 203-204, Abhishilp Complex, Nr. Vishweshwari Mahadev Temple, Vastrapur, Ahmedabad-380015. PAN : ABXFS5248B 6-7. IT(SS)A No.315/Ahd/2018 With C.O No.123/Ahd/2019 2012-13 D.C.I.T, Circle-1(2), Ahmedabad Sarthav Club & Resorts, 203-204, Abhishilp Complex, Nr. Vishweshwari Mahadev Temple, Vastrapur, Ahmedabad-380015. PAN : ABXFS5248B 8-9. IT(SS) A No.316/Ahd/2018 With C.O No.124/Ahd/2019 2013-14 D.C.I.T, Circle-1(2), Ahmedabad Sarthav Club & Resorts, 203-204, Abhishilp Complex, Nr. Vishweshwari Mahadev Temple, Vastrapur, Ahmedabad-380015. PAN : ABXFS5248B IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 2 10-11 IT(SS) A Nos.276 & 2088/Ahd/2018 2014-15 & 2015-16 Sarthav Club & Resorts, 203-204, Abhishilp Complex, Nr. Vishweshwari Mahadev Temple, Vastrapur, Ahmedabad-380015. PAN : ABXFS5248B A.C.I.T, Circle-1(2), Ahmedabad (Applicant) (Responent) Assessee by : Shri Dhiren Shah, A.R Revenue by : Shri Vijay Kumar Jaiswal, C.I.T.DR सुनवाई क तारीख/D a t e o f H e a r i n g : 2 1 / 0 2 / 2 0 2 3 घोषणा क तारीख /D a t e o f P r o n o u n c e m e n t : 2 8 / 0 2 / 2 0 2 3 आदेश आदेशआदेश आदेश/O R D E R PER WASEEM AHMED ACCOUNTANT MEMBER: The above appeals and Co’s have been filed by the Assessee and the Revenue against the orders of the Ld. Commissioner of Income-Tax (Appeals)-11, Ahmedabad, arising in the matter of the Assessment Order passed u/s 153C r.w.s. 143(3) of the Act Income Tax Act 1961 (here-in-after referred to as "the Act") relevant to the Assessment Years 2011-2012 to 2015-16. Since, the issues involved in all these appeals are identical, we proceed to dispose of all the appeals by this common order for the sake of convenience and brevity. First, we take up IT(SS)A No. 280/Ahd/2018, an appeal by the assessee for A.Y. 2011-12 as lead year. 2. The assessee has raised the following grounds of appeal: The Ld. CIT (A) has grossly erred in law and on facts in partly allowing the appeal. He ought to have allowed the appeal fully in accordance with the grounds of appeal raised by the appellant before him. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 3 I. Challenging the_yajidjty_gf_notice._ issued_u/s._1_53C_ofthe_Agt and the order passed u/s. 153C r.w.s. 143(3) of the Act 1. The Ld. CIT (A) has erred in law and on facts in confirming the action of the Ld. AO in issuing the notice u/s. 153C of the Act dated 07.03.2016 in the case of the appellant firm as no satisfaction is recorded by the AO of the person searched and accordingly, the provisions of section 153C are not applicable on facts and circumstances of the case. 2. That on the facts and in the circumstances of the case, the notice u/s 153C issued on 07.03.2016 is illegal as no incriminating material belonging to the appellant firm was found/seized during the course of search conducted in the case of Barter Group of cases on 04.12.2014 and consequently, the assessment made u/s. 143(3) r.w.s. 153C of the Act is also illegal and deserves to be quashed. II. ADDITION ON ACCOUNTOF ALLEGED UNACCOUNTED INVESTMENT U/5. 69B OF THE ACT - RS. 2.52.100/- 1. The Ld. CIT(A) has erred in law and on facts in confirming the addition of Rs. 2,52,100/- out of total addition of Rs. 1,52,52,100/- on account of alleged unaccounted investment u/s. 69B of the Act on the basis of notings found in the seized computer MS excel sheet "CCCCC.xls" found and seized from the possession of Anil Hiralal Shah and ShriSanket Shah (Vora). 2. The Ld. CIT(A) has erred in law and on facts in not treating the MS Excel Sheet titled as "CCCCC.xls" found and seized from the possession of Mr. Anil Shah, Mr. Atul Shah and Mr. Sanket Shah (Vora) as a dumb document in absence of any cogent material and/or independent clinching evidences brought on record by the AO as well as in view of various judicial pronouncements. The appellant reserves its right to add, amend, alter or modify any of the grounds stated hereinabove either before or at the time of hearing. 3. The issue raised by the assessee in ground no. 2 is that the learned CIT(A) erred in sustaining the part addition of Rs. 2,52,100/- made by AO on account of unaccounted investment instead of deleting the same in entirety. 4. The AO during the assessment proceeding observed based on excel sheet found during the course of search that the assessee has made cash payment of Rs. 1,52,52,100/- to one Shri Madhaji Gugaji on different dates against the purchase of property bearing survey no. 688/1 and 688/2, detailed as under: DR 08.05.10 2 50000.00 SIPL A/C H.O SHRI MADHAJI GUGAJI 29.05.10 2 100000.00 MADHAJI GUGAJI, SERVE NO 688/1- 688/2 MAKARBA IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 4 4.1 The AO also found that the assessee in the immediate subsequent year i.e. in AY 2012-13 also made payment through banking channel for Rs. 2.25 crores to the vendor which is shown as advance against land. Thus, the AO held that entry recorded in the impugned excel sheet is corroborated from the fact that the assessee has shown advance payment against the land to the same party for the same survey number. 4.2 Thus the AO in view of the above held that assessee made unaccounted investment in the land bearing survey number 688/2 for Rs. Rs. 1,52,52,100/- and treated the same as income of the assessee under section 69B of the Act in the assessment framed under section 143(3) r.w.s. 153C of the Act. 5. Aggrieved assesse preferred an appeal before the CIT(A). 6. The assessee before the learned CIT(A) submitted that excel sheet found from the possession of Shri Anil Hiralal Shah and Sanket Shah Vora should be treated as dumb document as noting made in such excel sheet pertains to limited period of the year 2010 whereas it has purchased the property bearing survey no. 668/1 and 688/2 in the year 2015. Further, from the noting in impugned sheet it is not clear that the amount noted represents cash payment. 6.1 It was also observed by the AO that the excel sheet contains the transactions of unaccounted cash against the booking in various projects of M/s SIPL which were utilized for cash payment against purchase of lands. However, the assessee submitted that neither the director of M/s SIPL nor Shri Anil Hiralal Shah and Sanket Vohra in their respective statement admitted that cash was paid for purchase of land. There was no other corroborative material available on record except the impugned excel sheet, therefore in the absence of corroborative material such sheet does not carry any evidentiary value. The AO neither made any enquiry with the vendor with regard to cash payment nor provided any other IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 5 material or statement of individual for rebuttal or cross examination. The AO merely on the basis of some noting in impugned excel sheet containing certain amount and survey number presumed that unaccounted cash payment was made. 6.2 Without prejudice to the above the assessee also submitted that the AO erred in analyzing the impugned excel sheet. The AO in his order observed that as on 29-05-2010, cash amounting to Rs. 1 crores was paid however on perusal of the excel sheet reproduced by the AO no such entry recorded on that day for Rs. 1 crores. As such on 29-05-2010 there was the entry amounting to Rs. 50000.00 which was noted on both debit and credit side, hence the same gets squared off. Likewise the AO has alleged that the cash of Rs. 50 lakh was paid on 08-05-2010, however on perusal of excel sheet it can be seen that the amount is noted against the name SIPL in format “SIPL A/c HO Shri Madhaji Gugaji”. As such, the impugned entry, survey no. or other detail contained therein which could suggest that the amount was paid to the SIPL. Similarly, the AO alleged that on 8-06-2010 and 18-06-2010 cash of Rs. 2100 and 2,50,000/- was paid to Shri Madhaji Gugaji by the assessee for property bearing survey no. 668/1 & 668/2. However, on perusal of the excel sheet dated 08-06-2010 it can be seen that amount is noted against “SP MAKRABA SERVE NO. 668/1, 668/2,669/1”. As such name of Shri Madhaji Gugaji was nowhere mentioned and also the property bearing survey No. 669/1 does not belong to assessee. Similarly, on perusal of excel sheet dated 18- 06-2010 it can be seen that amount of 2500.00 noted against “SP CHETANBHAI ADVOCATED again neither the name of vender nor the survey number was mentioned. Thus, the AO erred in analyzing the excel sheet correctly and made addition in arbitrary manner. 7. The learned CIT(A) after considering the fact in totality deleted the addition made by the AO to the extent Rs. 1.5 crores by observing as under: 5.2. Submission of the appellant and facts mentioned in the assessment order has been carefully considered in totality. The AO has discussed about the unaccounted cash transaction in land in Para 5.2 on Page A & 5 of the assessment . order for the unaccounted cash payment of Rs. 1,50,02,100/- on the basis of seized document MS Excel Sheet" CCCCC. xls" found and seized from the possession of Anil Hiralal Shah and Shri IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 6 Sanket Shah (Vora) during the course of search proceedings in their cases and the AO has prepared a table in Para 5.2.3 on Page 6 " of the assessment order in respect of unaccounted cash payment details. The appellant firm in its submission during the course of appeal hearing has pointed out that the AO has made an apparent mistake for the coded entry of Rs.1,00,000.00 which is debit and credit side o the CCCCCjds sheet on the same date on 29.05.2010, which gets nullified having no bearing of unaccounted cash payment figure in coded form of Rs,1,00,000.00 found from the noting of the seized material relied upon by the AO. The AO has made an apparent mistake in the table prepared while stating the coded figure of RsJ .00,000.00 under (he head debit against date 29.05.2010. From verification of the seized material reproduced by the AO on Page 4 of the assessment order, in respect of date 29.05.2010, the coded figure of Rs. 50,000.00against the name of Madhaji Gugaji appearing on debit as well as on credit side and I agree with the contention of the appellant that it has nullifying effect. The AO has made an apparent mistake in the table prepared Para 5.2.3 of the assessment order stating the date 29.05.2010 under the title "DR" (debit) coded figure of Rs.1,00,000.00 against the name of Madhaji Gugaji treating it as unaccounted cash payment of Rs. 1,00,00,000. On careful consideration of the aforesaid facts and from verification of the seized material reproduced by the AO in the assessment order, out of total addition of Rs. 1,52,52,100/-, the addition of Rs. 1,00,00,000/- made by the AO, being apparent mistake having no unaccounted cash payment, is hereby deleted. Regarding the balance addition of Rs. 52,52,100/-, the appellant firm in its Supplementary Synopsis of Arguments dated 06.07.2018 submitted during the course of appeal hearing has, taken a contention that the AO has made the addition in the case of appellant firm for an amount of Rs. 50,00,000/- as unaccounted cash payment by the appellant firm to Madhaji Gugaji for the land bearing Survey No. 688/2 at Makarba for which the appellant firm has made claim of telescoping effect for the addition is confirmed in . the case of Sarthav Infrastructure Pvt. Ltd for A. Y. 2011-12 on the basis of MS Excel Sheet "CCCCC.xls" found and seized from Shri Anil Hiralal Shah and Shri Sanket Shah (Vora) for an amount of Rs. 13,58,82,010/- in the appellate order of the CIT (A)-11 dated 26.03.2018. That out of the staid addition of Rs.13.58,82,010/- for A.Y.2011-12 in the case of the company Sarthav Infrastructure Pvt.Ltd who is a partner in the appellant firm, the said unaccounted cash payment of Rs. 50,00,000/-is required to be treated as available with Sarthav Infrastructure Pvt. Ltd being a partner of the appellant firm, which has been utilized for unaccounted cash payment to Madhaji Gugaji for an amount of Rs. 50,00,000/- on 08.05.2010-1 I agree with the contention of the appellant firm that the addition confirmed for an amount of Rs. 13,58,82,010/- in the appellate order of Sarthav Infrastructure Pvt.Ltd by the CIT(A)-11, Ahmedabad in the order dated 26.03.2018 who is a partner in the appellant firm, the said cash funds is available with the appellant firm from partner Sarthav Infrastructure Pvt. Ltd. for the cash payment of Rs.50,00,000/- to Madhaji Gugaji and therefore, the contention of the appellant firm for telescoping effect is fnund justified. I hold that the appellant is eligible for claim of telescoping effect as discussed above and I hereby delete the addition on account of unaccounted cash payment of Rs. 50,00,0007- made to Madhaji Gugaji on 08.05.2010 by giving the credit of telescoping effect against the addition confirmed in the case of Sarthav Infrastructure Pvt. Ltd. in A.Y. 2011-12 vide Appeal No. CIT(A)-11/C.C.-1(2)/Ahd/357-A/2016-17 dated 26.03.2018. If the additions confirmed in the hands of Sarthav Infrastructure Pvt. Ltd for A.Y.2011-12 are deleted/reduced below this amount in higher appeal proceedings, this addition stands confirmed in the hands of the appellant. The balance addition of Rs. 2,52,1007- which is made by the AO on the basis of notings found in the seized computer MS Excel Sheet "CCCCC.xls" for which the details have been stated by the AO in Para 5.2.2 on Page 6 of the assessment order, the same is hereby confirmed. The appellant firm gets total relief of Rs. 1,50,00,000/- against the addition on account of unaccounted investment u/s. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 7 69B of the Act of Rs.1,52,52,100/- and the balance addition of Rs. 2,52,1007- is confirmed. This ground of appeal is partly allowed. 8. Being aggrieved by the order of the learned CIT(A), the assessee is in appeal before us. 9. The learned AR before us filed a five paper books running from pages 1 to 1140 and contended that there was no corroborative material available on record suggesting that the assessee has made unaccounted investments within the provisions of section 69B of the Act. Thus as per the learned AR, there cannot be any addition to the total income of the assessee. 10. On the contrary, the learned DR before us vehemently supported the stand of the authorities below by reiterating the findings contained in the respective orders which we have already adverted to in the preceding paragraph. Therefore we are not repeating the same for the sake of brevity. 11. We have heard the rival contentions of both the parties and perused the materials available on record. As regards the alleged cash payment of ₹ 2,50,000/- as per seized excel sheet dated 18-06-2012 by the assessee for purchase of land bearing survey no. 668/1 and 668/2, we, on perusal of impugned excel sheet found that amount noted against the name, the lawyer namely Chetanbhai, there is no concrete information available on record that such payment was made by the assessee in relation to the survey numbers acquired by it. Thus in the absence of such live link, it is difficult to hold that the assessee has made unaccounted cash payment for investment in property. Furthermore, the revenue has not carried out any verification from the lawyer against whose name, the amount was noted whether he has received the payment from the assessee neither any enquiry was made with the actual vendor of the land bearing survey no 668/1 and 668/2 that he has received payment in cash. Similarly, the seized documents was containing the amount of receipt of cash and payment. The receipt of cash has already been considered by the revenue in the hands of M/s SIPL thus the IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 8 payment out of such receipt represents the application. If such payment is added again in the hands of the assessee then it would lead to the double addition which is not desirable under the provisions of law. 11.1 With respect to the alleged payment of ₹ 2100, we note that as per the seized documents such amount was noted against the survey numbers 668/1, 668/2 and 669/1. Admittedly the survey No. 669 was not purchased by the assessee. Thus there is no clarity about the nature of payment reflecting in the seized document whether it was against which survey number. Furthermore, no corroborative material was available on record which could suggest that the amount was paid by the assessee for purchase of land property. 11.2 Thus in view of the above, we do not find any reason to uphold the finding of the learned CIT-A and accordingly we reverse the same with the direction to the AO to delete the addition made by him. Hence the ground of appeal of the assessee is hereby allowed. 11.3 As we have decided the issue on merit in favour of the assessee, we retrain ourselves to give finding on technical ground raised by the assessee. Thus, the other ground of appeal raised by the assessee become infructuous. Hence, the same is dismissed accordingly. 11.4 In the result, appeal of the assessee is partly allowed. Coming to IT(SS) No. 314/Ahd/2018 an appeal by the Revenue for A.Y. 2011-12 12. At the time of hearing, it was submitted by the Ld. AR for the assessee that the appeal filed by the Revenue was hit by CBDT recently issued bearing No. Circular No. 17 of 2019 dated 08/08/2019 revising the previous thresholds limits pertaining to tax effects. It is inter-alia noticed that the CBDT vide Instruction IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 9 No.F No.279/MISC/M-93/2018-ITJ dt. 20/08/2019 has observed that Circular No.17/2019 dated 08/08/2019 relating to enhancement of monetary limits is also applicable to all pending appeals. As per aforesaid Circular read with instruction, all pending appeals filed by Revenue are liable to be dismissed as a measure for reducing litigation where the tax effect does not exceed the prescribed monetary limit which is now revised at Rs.50 Lakhs. In the instant case, the tax effect on the disputed issues raised by the Revenue is stated to be not exceeding Rs.50 lakhs and therefore appeal of the Revenue is required to be dismissed in limine. 13. The Learned DR for the Revenue fairly admitted the applicability of the CBDT Circular No.17 of 2019. Accordingly, appeal of the Revenue is dismissed as not maintainable. However, it will be open to the Revenue to seek restoration of its appeal on showing inapplicability of the aforesaid CBDT Circular in any manner. In the result, the appeal of the Revenue is dismissed. Coming CO. No. 122/Ahd/2019 by the assessee for A.Y. 2011-12 14. The only objection raised by the assessee is that the learned CIT(A) should have deleted the addition made by AO for Rs. 1,52,52,100/- on account of unaccounted investment in its entirety instead of sustaining part addition of Rs. 2,52,100/- 15. At the outset we note identical ground of appeal raised by the assessee in normal appeal for the year under consideration in IT(SS) No. 280/Ahd/2018 where we have allowed the assessee’s appeal vide paragraph 11 of this order. Therefore the same grievance raised in the CO become infructuous. Hence the ground of objection raised by the assessee is hereby dismissed as infructuous. 15.1 In the result, the CO of the assessee is hereby dismissed as infructuous. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 10 Coming to IT(SS) No. 315/Ahd/2018, an appeal by the Revenue for AY 2012-13 16. The Revenue has raised the following grounds of appeal: 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in deleting the addition of Rs.5,55,49,000/- on account of unsecured loan u/s.68 of IT. Act. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in law and on facts in not appreciating that the assessee failed to discharge its onus u/s.68 of the Act to provide the source and nature of the credits amounting to Rs.5,55,49,000/- before the AO. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) ought to have upheld the order of the A.O. 3. It is, therefore, prayed that the order of the Ld. CIT(A) be set aside and that of the A.O. be restored to the above extent.The only issue raised by the Revenue is that the learned CIT(A) erred in deleting the addition made under section 68 of the Act by the treating the unsecured loan as unexplained cash credit. 17. The only issue raised by the Revenue is that the learned CIT-A erred in deleting the addition made by the AO for Rs. 5,55,49,000.00 on account of unexplained cash credit under section 68 of the Act. 18. The assessee during the year under consideration has shown receipt of new loan of Rs. 5,55,49,000/- from two parties namely Shri Kalpeshbhai Atmaramdas Patel and M/s Sidham Finance for Rs. 80,00,000/- and Rs. 4,75,49,000/- respectively. The AO required the assessee to prove the identity of loan parties, genuineness of transaction and credit worthiness of the parties. But the assesse failed to make submission or explanation. Thus, the AO in absence of explanation treated the same as unexplained cash credit under section 68 of the Act and added to the total income of the assessee. 19. Aggrieved assessee preferred an appeal before the ld. CIT(A). IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 11 20. The assessee before the learned CIT(A) submitted that the AO was factually in correct in holding that no reply was made by it (the assessee). As such in response to the show cause notice dated 05-12-2016, a detailed submission on law as well as on merit was made vide letter dated 13-12-2016 where a chart showing the details of the unsecured loan from the parties along with PAN, copies of return of income, ledger and contra confirmation leger copy, bank statement of the loan party showing amount transferred through bank as well as own bank statement showing amount credited in bank were furnished. From the ledger, the copy of bank of statement, it can be been seen that part of loan was returned bank in the year under consideration itself. Thus, it has fully discharged onus cast under section 68 of the Act. However, the AO without considering the same and without making independent inquiries from the loan parties proceeded to make addition in arbitrary manner. Further, the details of the loan parties were also submitted before the AO in the assessment proceeding of M/s SPIL, thus all the details with regard to the loan parties were available before the AO. Indeed, in the assessment order of M/s SPIL, a year wise chart was prepared showing return income declared by the loan parties. Furthermore, in the case of M/s Sidham Finance, an amount aggregating to Rs. 15,55,49,000/- was received out of which a sum of Rs. 10,80,00,000/- was repaid leaving balance of Rs. 4,75,49,000/- which was made subject to addition by the AO. 20.1 The Assessee also submitted that the present assessment proceedings are under section 153C of the Act, thus, the addition to the total income can only be made on account of incriminating materials belonging to the assessee seized during the course of search under section 132 of the Act. However, no such material with regard to unsecured loan was found or seized which belong to it (the assessee). Therefore, on this count also, the addition made by the AO needs to be deleted. 21. The learned CIT(A) after considering the facts in totality deleted the addition made by the AO by observing as under: IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 12 The appellant further contended that during the course of assessment proceedings, the AO has not brought on record any incrimination material in respect of the addition made by the AO for unsecured loan received during the year under consideration from the aforesaid three parties. The appellant has also submitted that without considering the aforesaid legal contention of the appellant as well as without identifying any of the incriminating seized material regarding the addition made for unexplained cash credit for the loan received during the year under consideration from the two parties. A.O. has made the addition in the assessment order passed u/s. 143(3) r.w.s. 153C of the Act which is not tenable under the law. From the perusal of the assessment order, it reveals the fact that the AO has not identified any of the seized material and/or incriminating material found and seized during the course of search proceedings in respect of unsecured loan received during the year under consideration from the aforesaid two parties as stated above. Therefore, in absence of any incriminating material and/or seized material found during the course of search proceedings in respect of unsecured loan received during the year under consideration, the addition made by the AO on account unexplained credits u/s. 68 of the Act of Rs. 5,55,49,QOO/- is not justified. The appellant's case is covered by the decision of Hon'ble Gujarat High Court in the case of Pr. CIT -4 vs Saumya Construction Pvt. Ltd [2017] 337 iTR 529 (Gujarat)and other judicial pronouncements relied upon by the appellant herein above-As the facts of this case are identical to the facts of the above mentioned case laws, the addition of Rs.5,55,49,000/- made by the AO is required to be deleted. 5.3 On merits, submission of the appellant, facts mentioned in the assessment order has been considered carefully in totality. The A.O has discussed the issue of unsecured loans in para 5 of the assessment order and has made the addition in, respect of unsecured loan of Rs.80,00,0007- in respect of party Kalpeshbhai Atmaramdas Patel and unsecured loan of Rs.4,75,49,000/- in respect of party Siddham Finance treating it as unexplained and the A.O. has made total addition of Rs.5,55,49,000/- new introduction of unsecured loan u/s.68 of the Act. The appellant firm in its written submission submitted during the course of appeal hearing contended that the unsecured loan from both the parties during the year under consideration was by Account Payee Cheque through regular banking channel and duly reflected in the bank account of the appellant firm as well as in the books of accounts of the appellant firm. The appellant firm has submitted in its submission during the course of assessment proceedings before the A.O., vide submission dated 13.12.2016 a chart of loans received from each of parties and its application alongwith copy of return of income, contra confirmations, bank statements of lender parties and copy of bank statement of the appellant firm highlighting the transaction of unsecured loan / advances received evidencing that the loans are received through Account Payee Cheque to prove the identity, creditworthiness and genuineness of the lenders. The appellant firm has also taken a contention that in the assessment order of Sarthav Infrastructure Pvt. Ltd. which was also assessed by the A.O. of appellant firm at page no.99 of the assessment order of Sarthav Infrastructure Pvt. Ltd. has stated the PAN of Shri Kalpeshbhai Atmaramdas Patel and income disclosed in return of income of the said entity for A.Y.2011-12 to A.Y.2015-16 and for the A.Y.2012-13 the A.O. stated the income disclosed by the said party for an amount of Rs.16,21,230/-. The A.O. of the appellant firm in the assessment order of Sarthav Infrastructure Pvt. Ltd. has admitted the fact that the lender party Shri Kalpeshbhai Atmaramdas Patel is regular filer of return of income since 2011-12 showing substantial income and for A.Y.2012-13 also he has shown the income as stated above. The appellant firm alongwith submission made during the course of appeal hearing has also once again placed all the aforesaid evidences of the copy of ledger account of Shri Kalpeshbhai Atmaramdas Patel, bank statement of the party, contra confirmation etc. and from verification of the details submitted by the appellant firm and page no.99 of the assessment order of Sarthav Infrastructure Pvt. Ltd. which was also annexed by the appellant firm as Exhibit-IV page no.6 to the submission of the appellant firm filed during the course of appeal hearing, the A.O. was already having the details of return of income of Shri Kalpeshbhai Atmaramdas Patel of A.Y.2012-13 on his record and IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 13 necessary supporting evidences placed by the appellant firm during the course of appeal proceedings to prove the identity of lender party Shri Kalpeshbhai Atmaramdas Patei. On consideration of the aforesaid facts and evidences available on record and following the jurisdictional Hon'ble Gujarat High Court decision in the case of Rohini Builders. 256 ITR 360, the A.O. treating the unsecured loan of Rs.80,00,000/-from lender party Shri Kalpeshbhai Atmaramdas Patel as unexplained is not justified and the addition made in respect of unsecured loan of Rs.80,00,000/- received from Shri Kalpeshbhai Atmaramdas Patel by the appellant firm is hereby directed to be deleted. The appellant firm in its submission for addition made by the A.O. for unsecured loan from Siddham Finance for an amount of Rs.4,75,49,000/- has stated that the said entity Siddham Finance was also under 153C assessment proceedings before the AO of the appellant firm and therefore the return of income of Siddham Finance, books of account, bank statements and all details were available on record of the A.O. and he has admitted this facts by preparing a chart on page no.99 of the assessment order of Sarthav Infrastructure Pvt. Ltd. which was assessed by the A.O. u/s.143(3) rws 153A of the Act for A.Y.2012-13. The appellant firm during the course of assessment proceedings submitted the details of unsecured loan received from Siddham Finance alongwith ledger account and bank statement of the appellant firm and in the case of assessment of Siddham Finance in 153C proceedings also the bank statement of the said lender party was also available on record of the A.O. and therefore all the details were available before the A.O. for verification which proved the identity of the party, credit worthiness and genuineness of the unsecured loan transactions. On verification of the aforesaid facts stated by the appellant firm in its submission, which were placed during the course of appeal proceedings, the identity, credi'worthiness and genuineness of unsecured loan received from Siddham Finance cannot be doubted by the A.O. once the A.O. who is also the A.O. of Siddham Finance for the assessment proceedings initiated U/S.153C of the Act in the case of lender party and all the necessary details were available before the A.O. The A.O. has wrongly treated the unsecured loan from Siddham Finance as unexplained for making the addition u/s.68 of the Act. Therefore the addition made by the AO. for unsecured loan amount for an amount of Rs.4,75,49,000/- received from Siddham Finance is not justified and is hereby deleted. Keeping in view the discussion above in respect of the addition made for unsecured loan of Rs.5,55,49,0001- u/s.68 of the Act is not found justified and hence is deleted on merits. Keeping in view the discussion on merits and on legal technical aspects as above, the addition made for unsecured cash credit u/s.68 of the Act for an amount of Rs.5,55,49,000/- is not found justified and is deleted. This ground of appeal is allowed. 22. Being aggrieved by the order of the learned CIT(A), the Revenue is in appeal before us. 23. The learned DR before us vehemently supported the stand of the AO by reiterating the findings contained in the assessment order which we have already adverted to in the preceding paragraph. Therefore we are not repeating the same for the sake of brevity. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 14 24. On the other hand, the learned AR contended that the assessee has discharged its onus imposed under section 68 of the Act by furnishing all the necessary details. Therefore, there cannot be any addition to the total income of the assessee on account of unexplained cash credit under section 68 of the Act. The learned AR vehemently supported the order of the learned CIT-A. 25. We have heard the rival contentions of both the parties and perused the materials available on record. Admittedly, there was search proceeding under section 132 of the Act dated 4 th December 2014 (i.e. during the financial year 2014-15 corresponding to A.Y. 2015-16) which was carried out in the case of the barter group where an excel sheet was found containing the transactions belonging/ pertaining to the assessee was recorded and accordingly proceedings under section 153C of the Act were initiated for the AY 2011-12 to 2014-15. The assessment under section 153C r.w.s section 143(3) of the Act for the year under consideration i.e. A.Y. 2012-13 was framed after making addition of Rs. 5,55,49,000/-by treating the unsecured loan as unexplained cash credit under section 68 of the Act. On appeal by the assessee the learned CIT (A) deleted the addition made by the AO both on the ground of law as well as on ground of merit. The ld. CIT-A, while deleting the addition on the ground of law, observed that there was no material of incriminating in nature found in the course of the search. Therefore in the year under consideration being unabated/completed assessment year, any addition in the absence of incriminating material is not justified. The learned DR before us vehemently argued that there is no provision under section 153C which restricts the assessment or reassessment in case of search to the extent of incriminating material only. 25.1 In this regard we find that it has been settled by various Hon’ble Court including Hon’ble Jurisdictional High Court that the completed assessment cannot be disturbed in the absence of any incriminating material/ documents whereas the assessment/ reassessment can be made with respect to abated assessment years. The word 'assess' in Section 153A/153C of the Act is relatable to abated IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 15 proceedings (i.e. those pending on the date of search) and the word 'reassess' to the completed assessment proceedings. The Hon’ble Gujarat High Court in the case of Saumya Construction (supra) has held that there cannot be any addition of regular items shown in the books of accounts until and unless there were certain materials of incriminating nature found during the course of search. The word incriminating has not been defined under the Act but it refers to those materials/ documents/ information which were collected during the search proceedings and not produced in the original assessment proceeding. Simultaneously, these documents had bearing on the total income of the assessee. Now coming to the case on hand, we note that there was no incriminating document found during the search which would have made basis for the addition of unsecured loan. 25.2 At the time of hearing, the learned DR has not brought anything on record contrary to the finding of the learned CIT (A). Accordingly, we hold that there cannot be any addition of the regular items which were disclosed by the assessee in the regular books of accounts. In holding so we draw support and guidance from the judgment of Hon’ble Gujarat High Court in case of Saumya Construction (P.) Ltd (supra) wherein it was held as under: Thus, while in view of the mandate of sub-section (1) of section 153A in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition or disallowance can be made only on the basis of material collected during the search or requisition. In case no incriminating material is found, the earlier assessment would have to be reiterated. 25.3 In view of the above we hold that there cannot be any addition to the total income of the assessee of the regular items as made by the AO in the present case. Accordingly, we do not find any infirmity in the order of the learned CIT (A). Hence, we uphold the same. Thus the technical ground of appeal of the Revenue is hereby dismissed. 25.4 As we have held that there cannot be any addition of regular items to the total income of the assessee which have already been disclosed in the return of IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 16 income. Admittedly the additions/disallowances made by the AO represent the regular items, therefore it is directed to the AO delete the addition made by him. 25.5 However without prejudice to the above finding on technical ground, we decided to adjudicate the issue raised by the revenue on merit also. The fact on the merit has been elaborated in the preceding paragraph. Therefore, we are not inclined to repeat the same for the sake brevity. 25.6 The provision of Section 68 of the Act fastens the liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. These liabilities on the assessee were imposed to justify the cash credit entries under Section 68 of the Act by the Hon’ble Calcutta High Court in the case of CIT Vs. Precision Finance (P) Ltd. reported in 208 ITR 465 wherein it was held as under: “It was for the assessee to prove the identity of the creditors, their creditworthiness and the genuineness of the transactions. On the facts of this case, the Tribunal did not take into account all these ingredients which had to be satisfied by the assessee. Mere furnishing of the particulars was not enough. “ 25.7 Now first we proceed to understand the identity of the party. The identity of the party refers existence of such party which can be proven based on evidences. As such the identity of a party can be established by furnishing the name, address and PAN detail, bank details, ITR etc. 25.8 The next stage comes to verify the genuineness of the transaction. Genuineness of transaction refers what has been asserted is true and authentic. A genuine transaction must be proved to be genuine in all respect not merely on a piece of a paper. The documentary evidences should not be a mask to cover the actual transaction or designed in a way to re-present the transaction as true but same is not. Genuineness of transaction can be proved by submitting confirmation of the parties along the details of mode of transaction but merely showing transaction carried out through banking channel is not sufficient to prove the genuineness. As such the same should also be proved by circumstantial/ IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 17 surrounding evidences as held by the Hon’ble Supreme court in the case of Shri Durga Prasad More reported in 82 ITR 540 and in case of Smt. Sumati Dayal reported in 214 ITR 801. 25.9 The last stage comes to verify the creditworthiness of the parties. The term creditworthiness as per Black Law Dictionary refers as: "creditworthy, adj. (1924) (Of a borrower) financially sound enough that a lender will extend credit in the belief default is unlikely; fiscally healthy-creditworthiness.” 25.10 Similarly in The New Lexicon Webster's Dictionary, the word "creditworthy" has been defined as under:- "creditworthy, adj. of one who is a good risk as a borrower." 25.11 It the duty of the assessee to establish that creditor party has capacity to advance such loan and having requisite fund in its books of account and banks. The capacity to advance loan can be established by showing sufficient income, capital and reserve or other fund in the hands of creditor. It is required by the AO to find out the financial strength of the creditor to advance loan with judicious approach and in accordance with materials available on record but not in arbitrary and mechanical manner. 25.12 In the light of the above discussion, we proceed to adjudicate the issue on hand. We find that during the proceedings under section 153C of the Act, the details such as copy of PAN, income tax return, ledger account and confirmation from loan parties and other details such as bank statement were available before the AO. However, the AO without considering and pointing any deficiency in the above primary document held that the assessee failed to explain the genuineness of the credit of unsecured loan. 25.13. Moving further we find that assessee has accepted unsecure loan from 2 parties namely Shri kalpesh Patel and M/s Sidham Finnace. In case of Kalpesh Patel the assessee has furnished copy of PAN, ITR, contra ledger confirmation and bank statement. The AO himself in assessment proceeding of group concern of IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 18 M/s SIPL have given finding with regard to the yearly income declared by Shri kalpesh Patel from A.Y. 2011-12 to 2015-16 and for the year under consideration Shri Kalpesh Patel has declared taxable income of Rs. 16,21,230/- only. Thus the identity of Shri Kalpesh Patel was proved beyond doubt. With regard to genuineness of transaction and creditworthiness of the party, we note that the transaction was carried out through banking channel, the party also confirmed the loan by providing contra ledger confirmation. The AO has not doubted or pointed out any infirmity in these documents neither made independent inquiry. The party was regularly filing return of income and declaring healthy income. Thus, in such facts and circumstances, we do not find any infirmity in the order of the CIT(A) with regard to deletion of the loan of Rs. 80 lakh from Shri Kalpesh. 25.14 Coming to other party namely M/s Siddham Finance, again we note that all the primary documents being PAN, ITR, ledger, confirmation and bank statement were furnished and available before the AO. The AO did not find any infirmity in the primary document or brought any adverse materials by making independent inquiry. We also note that the amount was taken due to temporary shortage of fund and majority of the loan were paid back in the year under consideration itself. Once the amount received through banking channel and repayment of the same was also made through banking channel, then the genuineness of such loan cannot be doubted. In this regard, we draw support and guidance from the judgment of Hon’ble Gujarat High Court in the case of the CIT Vs. Rohini builders reported in 256 ITR 360 wherein it was held as under: “The genuineness of the transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques.” 25.15 In view of the above the elaborated discussion and after considering facts in totality, we hereby held that the assessee on merits discharged the onus cast under section 68 of the Act. Hence we do not find any reason to interfere in the finding of the learned CIT(A). Thus, the ground of appeal of the Revenue on merit is also hereby dismissed. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 19 25.16 In the result, the appeal of the Revenue is hereby dismissed. Coming CO No. 123/Ahd/2019 by the assessee for A.Y. 2012-13 26. At the outset we note that the assessee in the CO filed by it has supported the order of the Ld. CIT-A. Accordingly, we hold that no separate adjudication is required for the CO filed by the assessee. Hence, we dismiss the same as Infructuous. 26.1 In the result, the CO filed by the assessee is dismissed as infructuous. Coming IT(SS) No. 316/Ahd/2018, an appeal by the Revenue for AY 2013-14 27. The Revenue has raised the following grounds of appeal: 1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.19,46,55,000/- on account of unsecured loan u/s.68 of I.T Act. 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) ought to have upheld the order of the AO. 3. It is, therefore, prayed that the order of the Ld.CIT(A) be set aside and that of the A.O be restored to the above extent. 28. The only issue raised by the Revenue is that the learned CIT(A) erred in deleting the addition made by the AO under section 68 of the Act by the treating the unsecured loan as unexplained cash credit. 29. The assessee during the year under consideration shown receipt of new loan of Rs. 19,46,55,000/- from the following parties: IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 20 SN Name of the creditor New Unsecured loan 1. Falgunbhai C. Patel 500000 2. Siddham Finance (71704000 minus 47549000 i.e. addition in old loan) 24155000 3. Gokul Refoil and solvent Limited 150000000 4. Sri Siddhi Infrabuild Pvt. Ltd. 20000000 5. Total 19,46,55,000 30. The AO required the assessee to prove the identity of loan party, genuineness of transaction and credit worthiness. But the assesse failed to make any submission or explanation. Thus, the AO in absence of any explanation treated the same as unexplained cash credit under section 68 of the Act and added to the total income of the assessee. 31. Aggrieved assessee preferred an appeal before the CIT(A). 32. The assessee before the learned CIT(A) submitted that the AO was factually in correct in holding that no reply was made by it (the assessee). As such, the assessee, in response to the show cause notice dated 05-12-2016, claimed to have a detailed submission on law as well as on merit vide letter dated 13-12-2016 where a chart showing unsecured loan received the parties along with PAN, copy of return of income, ledger and contra confirmation leger copy, bank statement of the loan party showing amount transferred through bank as well as own bank statement showing amount credited in the bank were furnished. From the ledger copy, bank statement, it can been seen that part of loan was returned bank in the year under consideration itself. Thus, it has fully discharged its onus cast under section 68 of the Act. However, the AO without considering the same and without making independent inquiry from loan parties proceeded to make IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 21 addition in arbitrary manner. Further, the details of the loan parties were also submitted before the AO in the assessment proceeding of M/s SPIL. Thus, all the details with regard to loan parties were available before the AO. Indeed, the assessee in the assessment order of M/s SPIL has prepared a chart showing year wise return income declared by these loan parties. 33. Further, the AO has made addition of Rs. 50 lakh and Rs. 2 crores on account of loan credit from the parties namely Shri Falgunbhai C Patel and Shree Siddhi Infrabuild Pvt ltd. respectively. However, the amount of loan was carried forward from previous year and no fresh loan was credited during the year. Therefore, the question of invoking the provisions of section 68 of the Act does not arise. 33.1 The loan party M/s Gokul Refoils and Solvent Ltd from which loan of Rs. 15 crores was received is a listed entity with BSE and NSE, regularly filing return of income and complying with other statutory obligation with ROC and SEBI. Therefore, the identity of the party cannot be doubted. From the audited financial statement of the impugned party, it is verifiable that the party has huge fund in form of capital and reserve to the tune of Rs. 343.68 crores. Thus, the credit worthiness of the party is also not in doubt. 33.2 The AO also made addition of Rs. 2,41,55,000/- on account of loan from M/s Siddham Finance. Similar addition was also made in immediate previous year. The party M/s Siddham Finance is a group concern and was also subject to search on barter group and subject to the proceedings under section 153A of the Act before the same AO. Therefore, all the details were available before the AO. The party has declared substantial income of Rs. 36,88,450/- for the year under consideration. Still, the AO proceeded to make addition under section 68 of the Act in arbitrary manner. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 22 33.3 The Assessee also submitted that the present proceeding is under section 153C of the Act. Any addition to the total income can only be made on account of incriminating materials belonging to the assessee seized during the course of search under section 132 of the Act. However no material with regard to unsecured loan was found or seized which belong to it. Therefore, on this count also, the addition made by the AO needs to be deleted. 34. The learned CIT(A) after considering the facts in totality deleted the addition made by the AO by observing as under: 5.3 Submission of the appellant, facts mentioned in the assessment order has been considered carefully in totality. The A.O has discussed the issue of unsecured loans in Para 5 of the assessment order and he has made the addition in respect of unsecured loan of Rs.5,00,000/- in respect of party Falgunbhai C. Patel, unsecured loan of Rs.2,41,55,000/- in respect of party Siddham Finance, unsecured loan of Rs.15,00,00,000/- in respect of party GokulRefoil and Solvent Ltd. and unsecured loan of Rs.2,00,00,000/- in respect of party Sri S\dcM U\frabu\\d Pvt. Ud. treating it as unexplained and the A.O. has made total addition of Rs.19,46,55,000/- u/s.68 of the Act. The appellant firm in its written submission submitted during the course of appeal hearing that the unsecured loan from all the four parties during the year under consideration by Account Payee Cheque through regular banking channel and duly reflected in the bank account of the appellant firm as well as in the books of accounts of the appellant firm. The appellant firm has submitted in its submission that during the course of assessment proceedings before the A.O., vide submission dated 13.12.2016 the chart of loans received from each of parties and its application alongwith copy of contra confirmations, PAN, bank statement of the appellant firm highlighting the transaction of unsecured loan / advances received was submitted evidencing that the loans are received through Account Payee Cheque to prove the identity, ereditworthiness and genuineness of the lenders. The appellant firm has also taken contention that in the assessment order of Sarthav Infrastructure Pvt. Ltd. which was also assessed by the A.O. of appellant firm, the A.O. at page no.99 of the assessment order of Sarthav Infrastructure Pvt. Ltd. has stated the PAN of Falgun C. Patei, Siddham Finance, GokuiRefoil and Solvent Ltd. and Sri Siddhi.. Infrabuild Pvt. Ltd. and income disclosed in return of income of the said entity for A.Y.2009-10 to AY.2015-16 and for the FalgunC.Patel for A.Y.2013-14 the A.O. stated the income disclosed by the said party for an amount of Rs.4,34,04,6607-. The A.O. of the appellant firm in the assessment order of Sarthav Infrastructure Pvt. Ltd. has admitted the fact that the lender party ShriFalgun Patel is regular filer of return of income since 2009-10 showing substantial income and for A.Y.2013-14 also he has shown the income as stated above. The appellant firm alongwith submission made during the course of appeal hearing has also once again placed all the aforesaid evidences of the copy of ledger account and PAN, Bank statement of appellant highlighting the transaction, contra confirmation etc. and from verification of the details submitted by the appellant firm and page no.99 of the assessment order of Sarthav Infrastructure Pvt. Ltd. which has also Annexed by the appellant firm as Exhibit-IV page no.6 to the submission of the appellant firm filed during the course of appeal hearing, it is evident that the A.O. was already having the details of return of income of Shri Falgun Patei of A.Y.2013-14 on his record and necessary IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 23 supporting evidences placed by the appellant firm during the course of assessment proceedings to prove the identity of lender party Shri Falgun Patel. The appellant firm in respect of unsecured !oan of Rs 2 crores in respect of Shree Siddhilnfrabuild Pvt Ltd. has submitted that the said loan has been received by the appellant firm during the FY 2011-12 relevant to A.Y.2012-13 which is evident from the ledger account, bank statement of the party, contra confirmation filed by the appellant firm during the course of assessment proceedings. The appellant firm alongwith submission made during the course of appeal hearing has also once again placed all the aforesaid evidences of the copy of Ledger account and PAN, Bank Statement of appellant highlighting the transaction, return of income and from verification of the details submitted by the appellant firm it can be said that the A.O. was already having the details of the said party of A.Y.2013-14 on his record and necessary supporting evidences placed by the appellant firm during the course of assessment proceedings to prove the identity of lender party Shree Siddhi Infrabuild Pvt. Ltd. The appellant firm has further submitted that the addition with respect to unsecured loans amounting to Rs.2,00,00,000/- of Shree Siddhi Infrabuild Pvt. Ltd. and Falgun Patel of Rs.5,00,0007- is merely the opening balances of the previous year with no fresh new loans received during the year which is apparent from the books of accounts of the appellant firm. The appellant firm further submitted that the closing balance as on 313.2012 is the opening balance as on 1.4.2013 making it clear that there was no unsecured loan received from the said party during the year under consideration. The AO has made mistake in making the addition for the said party for Rs.2,00,00,000/- and Rs.5,00,0007- which are the addition of opening balance though there is no unsecured loan received during the year under consideration and is contrary to the provisions of section 68 of the Act which permit the AO to make the addition in respect of unsecured loan received during the year under consideration. Therefore on the basis of facts the addition made by the AO for opening balance of Rs.2,00,00.0007- and Rs.5,00,000/- is not justified following the jurisdictional Hon'ble Gujarat High Court decision in the case of CIT vs. Jagatkumar Satishbhai Patel, 45 taxmann.com 441 and is hereby directed to be deleted. The appellant firm in its submission in respect of addition made by the A.O. for unsecured loan from Siddham Finance for an amount of Rs.2,41,55,0007- has stated that the said entity Siddharn Finance was also under 153C assessment proceedings before the AO of the appellant firm and therefore the return of income of Siddham Finance, books of account, bank statements and all details were available on record of the A.O. and he has admitted this facts on page no.99 of the assessment order of Sarthav Infrastructure Pvt. Ltd. which was assessed by the A.O. u/s.143(3) r.w.s.153Aof the Act for A.Y.2013-14. The appellant firm during the course of assessment proceedings submitted the details of unsecured loan received from Siddham Finance alongwith ledger account and bank statement of the lender party and in the case of assessment of Siddham Finance in 153C proceedings also the bank statement of the said lender party was also available on record of the A.O. and therefore all the details were available before the A.O. for verification which proved the identity of the party, credit worthiness and genuineness of the unsecured loan transactions. On verification of the aforesaid facts stated by the appellant firm in its submission, which wereonce placed during the course of appeal proceedings, the identity, creditworthiness and genuineness of unsecured loan received from Siddham Finance cannot be doubted by the A.O. once the A.O. also the A.O. of Siddham Finance for the assessment proceedings initiated u/s.153C of the Act in the case of lender party and all the necessary details were available before the A.O. The A.O. has wrongly treated the unsecured loan from Siddham Finance unexplained for making the addition u/s.68 of the Act. Therefore the addition made by the AO. for unsecured loan amount for an amount of Rs.2,41,55,000/- received from Siddham Finance is not justified and is hereby deleted. The appellant firm in its submission in respect of addition made by the A.O. for unsecured loan from GokulRefoilsS. Solvents Ltd. for an amount of Rs.15,00,00,000/- IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 24 has stated that the AO for said entity Goku!Reforls& Solvents Ltdin the assessmen order of Sarthav Infrastructure Pvt. Ltd at page no.99 has stated the PAN of GokulRefoils& Solvents Ltd. and income disclosed in the return of income of the said entity for A.Y.2009-10 to A.Y. 2011-12 having substantial income. The AO in the assessment order of the appellant firm has prepared a table at para 5 where he has given return of income details of the unsecured loan parties whereby he has stated the return income for the lender party for A.Y.2012-13 which means the AO was in possession of the income details of the said party. Further the appellant firm has contended that the said lender company is listed company with BSC& NSC, regular filing its Annual Accounts with ROC, which establishes the identity and genuineness of the lender party. The appellant has also placed on record the copy of ledger account of said party, contra confirmation alongwith highlighted bank statement of the appellant, return of income for the concerned assessment year, to prove that the transaction has taken place by account payee cheque. The appellant has placed on record the audited balance sheet of GokulRefoils& Solvents Ltd. and from verification of audited balance sheet, it has been noticed that the said company is having huge share capital and reserves of Rs.343.68 crores. On careful consideration of above material the identity of the depositor and credit worthiness is duly established and the said lender party has its existence in public domain as available on the ROC website, therefore, addition of Rs.15,00,00,000/- is not justified and the same is directed to be deleted. Keeping in view the discussion on merits and on legal technical aspects as above, the addition made for unsecured cash credit u/s.68 of the Act for an amount of Rs.19,46,55,0007- is not found justified and is deleted. This ground of appeal is allowed. The appellant case has been further found covered by several judgments of Hon'ble High Court of Gujarat, Ahmedabad vide which it has been held that if the transaction is through regular banking channel, additions u/s 68 of the Act cannot be made. Case of CIT v/s Ranchod Jivabhai Nakhava (Tax Appeal no. 50 of 2011), GIT v/s. Apex Therm Packaging Pvt. Ltd (2014) 42, Taxman.corn 473fGui) and Pr. GIT-1 v/s Ridhi Sidhi Corpo_ratig_n in_TA no. 69002018 are prominent. Looking to these binding judgments of jurisdictional High Court, additions made by the A.O. are not sustainable, hence deleted. 35. Being aggrieved by the order of the learned CIT(A), the Revenue is in appeal before us. 36. The learned DR before us vehemently supported the stand of the AO by reiterating the findings contained in the assessment order which we have already adverted to in the preceding paragraph. Therefore we are not repeating the same for the sake of brevity. 37. On the other hand, the learned AR contended that the assessee has discharged its onus imposed under section 68 of the Act by furnishing all the necessary details. Therefore, there cannot be any addition to the total income of the assessee on account of unexplained cash credit under section 68 of the Act. The learned AR vehemently supported the order of the learned CIT-A. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 25 38. We have heard the rival contentions of both the parties and perused the materials available on record. The provision of Section 68 of the Act fastens the liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. These liabilities on the assessee were imposed to justify the cash credit entries under Section 68 of the Act by the Hon’ble Calcutta High Court in the case of CIT Vs. Precision Finance (P) Ltd. reported in 208 ITR 465 wherein it was held as under: “It was for the assessee to prove the identity of the creditors, their creditworthiness and the genuineness of the transactions. On the facts of this case, the Tribunal did not take into account all these ingredients which had to be satisfied by the assessee. Mere furnishing of the particulars was not enough. “ 38.1 Now first we proceed to understand the identity of the party. The identity of the party refers existence of such party which can be proven based on evidences. As such the identity of a party can be established by furnishing the name, address and PAN detail, bank details, ITR etc. 38.2 The next stage comes to verify the genuineness of the transaction. Genuineness of transaction refers what has been asserted is true and authentic. A genuine transaction must be proved to be genuine in all respect not merely on a piece of a paper. The documentary evidences should not be a mask to cover the actual transaction or designed in way to present the transaction as true but same is not. Genuineness of transaction can be proved by submitting confirmation of the parties along the details of mode of transaction but merely showing transaction carried out through banking channel is not sufficient to prove the genuineness. As such the same should also be proved by circumstantial surrounding evidences as held by the Hon’ble Supreme court in the case of Shri Durga Prasad More reported in 82 ITR 540 and in case of Smt. Sumati Dayal reported in 214 ITR 801. 38.3 The last stage comes to verify the creditworthiness of the parties. The term creditworthiness as per Black Law Dictionary refers as: "creditworthy, adj. (1924) (Of a borrower) financially sound enough that a lender will extend credit in the belief default is unlikely; fiscally healthy-creditworthiness.” IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 26 38.4 Similarly in The New Lexicon Webster's Dictionary, the word "creditworthy" has been defined as under:- "creditworthy, adj. of one who is a good risk as a borrower." 38.5 It the duty of the assessee to establish that creditor party has capacity to advance such loan and having requisite fund in its books of account and banks. The capacity to advance loan can be established by showing sufficient income, capital and reserve or other fund in the hands of creditor. It is required by the AO to find out the financial strength of the creditor to advance loan with judicious approach and in accordance with materials available on record but not in arbitrary and mechanical manner. 38.6 In the light of the above discussion, we proceed to adjudicate the issue on hand for each loan party individually. Shree Siddhi Inrabuild Pvt. Ltd and Shri Falgun Patel 38.7 We find that the AO in the assessment order made addition of Rs. 2 crores and Rs. 50 Lakh on account of unexplained loan credit from aforesaid parties. However, the learned CIT(A) deleted the addition by observing that no fresh loan received during the year from these two parties, as the amount of addition represents opening balance. The learned DR before us could not controvert the finding of the learned CIT(A). Therefore, considering the fact that no fresh amount was credited during the year by these two parties namely M/s Shree Siddhi Inrabuild Pvt. Ltd and Shri Falgun Patel, we do not find any infirmity in the order of the learned CIT(A). M/s Sidham Finance 38.8 We find that the AO in the assessment order made addition of Rs. 2,41,55,000/- on account t of unexplained loan credit from the aforesaid party. IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 27 However, we note that the identical addition was also made by the AO in the immediate previous assessment year on account of loan credit from said party which was deleted by the learned CIT(A), against which the Revenue was in appeal before us in IT(SS) No. 315/Ahd/2018 where we have vide paragraph no. 25 of this order upheld the genuineness of the party namely M/s Sidham Finance. Therefore, following the same we do not find any infirmity in the order of the learned CIT(A). M/s GokulRefoils & Solvent Limited 38.9 We find that during the proceedings under section 153C of the Act, the details such as copy of PAN, income tax return, ledger account and confirmation from loan party and other detail (bank statement) were furnished by the assessee. However, the AO without considering and pointing out any deficiency in the above primary documents held that the assessee failed to explain the genuineness of the credit of unsecured loan. Moving further we also find the impugned party is a listed entity at BSE and NSE and its shares are regularly traded in stock market. Thus the identity of the party is not in doubt. Coming to genuineness of transaction we note that amount was received through banking channel, the party also confirmed the transaction by providing contra confirmation ledger. The AO was not able to point out any infirmity in the primary document and also failed to bring any adverse material by making independent inquiry. Thus, in our considered view, the assessee discharged its onus of proving the genuineness of transaction. 38.10 Now coming to the credit worthiness of the party, we note that the assessee has furnished copy of ITR and the AO himself has found that the party has declared income of Rs. 7 crores in the A.Y. 2012-13. The learned CIT(A) has also given categorical finding that the party is regularly disclosing substantial income and having huge fund of Rs. 343.68 crores in form of capital and reserve IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 28 & surplus. Thus considering the facts on record, in our considered view, the creditworthiness of the party is also not in doubt. 38.11 In view of the above elaborated discussion and after considering facts in totality we hereby hold that the assessee on merits has discharged the onus cast under section 68 of the Act. Hence we do not find any reason to interfere in the finding of the learned CIT(A). Thus, the ground of appeal of the Revenue on merit is hereby dismissed. In the result appeal of the Revenue is hereby dismissed. Coming to CO. No. 124/Ahd/2019 by the assessee for A.Y. 2013-14 39. At the outset we note that the assessee in the CO filed by it has supported the order of the Ld. CIT-A. Accordingly, we hold that no separate adjudication is required for the CO filed by the assessee. Hence, we dismiss the same as Infructuous. In the result, the CO filed by the assessee is dismissed as infructuous. Coming to IT(SS) No. 281, 282 & 276/Ahd/2018, all the appeals by the assessee for A.Y. 2012-13, 2013-14 & 2014-15. 40. At the outset we note in all these appeals bearing IT(SS) No. 281, 282 & 276/Ahd/2018 corresponding to A.Ys. 2012-13, 2013-14 and 2014-15, the assessee has challenged the validity of proceedings under section 153C of the Act. As such the assessee has no grievance on merit for the reason that the ld. CIT-A has deleted the addition made by the AO. Against which the Revenue was in appeal before us for the A.Y. 2012-13 and 2013-14 whereas no appeal was preferred by the Revenue for A.Y. 2014-15. The appeals of the Revenue on merit for A.Y. 2012-13 and 2013-14 in IT(SS) 315 & 316/Ahd/2018 have been decided by us against the Revenue i.e. we have confirmed the order of the learned CIT(A) IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 29 on merit. Thus there no grievance remains to the assessee as the assessee succeeded on merit in all these year. Therefore, the appeals filed by the assessee on technical grounds become infructuous, hence we hereby dismiss the same accordingly. Coming to ITA No. 2088/Ahd/2018, an appeal by the assessee for the A.Y. 2015-16 41. The assessee has raised following grounds of appeal: The Ld. CIT (A) has grossly erred in law and on facts in partly allowing the appeal. He ought to have allowed the appeal fully in accordance with the grounds of appeal raised by the appellant before him. I. PASSING THE ORDER UNDER SECTION 144 OF THE ACT. 1. The Ld. CIT(A) has erred in law and on facts in confirming the action of the Ld. AO in passing the order u/s. 144 of the Act. 2. The Ld. CIT(A) has erred in law and on facts in failing to consider the fact that the AO has passed the order u/s. 144 of the Act dated 30.12.2016 on account of non- submission of details in respect of cash deposit of R$. 12.00.000/- in the Ahmedabad Mercantile Co. Op. Bank Ltd. The appellant respectfully submits that one of the partner :-" :-•= appellant firm Shri Sanjay Sufaria introduced the said amount of Rs. 12,00,0007- mcash as his capital contribution in the appellant firm and the capital account of Partner Shri Sanj'ay Sutaria was already available with the AO in the return of income filed by appellant firm for A. Y. 2015-16 which has not been considered by the Ld.AO. The appellant reserves its right to add, amend, alter or modify any of the grounds stated hereinabove either before or at the time of hearing. 42. The only issue raised by the assessee is that the learned CIT(A) erred in upholding the validity of the assessment framed under section 144 of the Act. 43. At the outset we note that the AO in assessment order framed under section 144 of the Act made addition of Rs. 12 Lakh on account of cash deposits in bank. On appeal by the assessee, the learned CIT(A) deleted the addition made by the AO on merit of the case and no appeal was preferred by the Revenue against the order of the leaned CIT(A) meaning thereby the issue reached to the finality. Thus, in our considered view, there remains no grievance to the assessee as the assessee succeeded on merit. Therefore the appeal filed by the assessee on IT(SS)A No.280/Ahd/2018 and 10 others A.Y. 2011-12 30 technical ground become infructuous, hence we hereby dismiss the same accordingly. 43.1 In the result appeal of the assessee is hereby dismissed. 44. In the combined result, appeal of the assessee for A.Y. 2011-12 is partly allowed and appeals for the A.Y. 2013-14 to 2015-16 along with CO of the Assessee for A.Y. 2011-12 to 2013-14 are hereby dismissed. Likewise, the appeals of the Revenue for A.Y. 2011-12 to 2013-14 are hereby also dismissed. Order pronounced in the Court on 28/02/2023 at Ahmedabad. Sd/- Sd/- (MADHUMITA ROY) JUDICIAL MEMBER (WASEEM AHMED) ACCOUNTANT MEMBER (True Copy) (True Copy) Ahmedabad; Dated 28/02/2023 Manish