Dy Comm of Income-tax, Ahmednagar Circle, Ahmednagar V. Bora Rajendra Pannalal, Ahmednagar

ITA 1101/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2027 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-10-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S P JOSHI
• Keywords: Opportunity of being heard; Additional evidence; Speculation loss; Corroborative evidences; Futures and options
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1101/PN/2011 (ASSESSMENT YEAR 2007-08) DCIT, AHMEDNAGAR CIRCLE, AAYAKAR BHAVAN, BEHIND HOTEL NATRAJ, NAGAR-AURANAGABAD ROAD, AHMEDNAGAR. .. APPELLANT VS. BORA RAJENDRA PANNALAL A/P. GOGALGAON, TAL : RAHALA, AHMEDNAGAR .. RESPONDENT PAN NO. AGNPB 3855H CO. NO.124/PN/2012 (ASSESSMENT YEAR 2007-08) BORA RAJENDRA PANNALAL A/P. GOGALGAON, TAL : RAHALA, AHMEDNAGAR .. APPELLANT PAN NO. AGNPB 3855H VS. DCIT, AHMEDNAGAR CIRCLE, AAYAKAR BHAVAN, BEHIND HOTEL NATRAJ, NAGAR-AURANAGABAD ROAD, AHMEDNAGAR. .. RESPONDENT ASSESSEE BY : SRI S.P. JOSHI RESPONDENT BY : SRI ACHAL SHARMA DATE OF HEARING : 15-02-2013 DATE OF PRONOUNCEMENT : 22-02-2013 ORDER PER R.K. PANDA, AM : THE APPEAL FILED BY THE REVENUE AND THE CO FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 27-01-2011 OF THE CIT(A)-I, PUNE RELATING TO ASSESSMENT YEAR 2007-08. FOR THE SAKE OF CONVENIENCE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2 ITA NO.1101/PN/2011 (BY REVENUE) : 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE, AN INDIVIDUAL, IS ENGAGED IN THE BUSINESS OF TRADING IN SHARES AND ALSO DERIVES INCOME FROM GIVING THE VEHICLES ON HIRE. HE FILED HIS RETURN OF INCOME ON 31-10-20 07 DECLARING TOTAL INCOME OF NIL AND AGRICULTURAL INCOME OF ` 1,30,548. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE AS SESSEE HAD SHOWN SPECULATION LOSS OF ` 11,13,870. HE NOTED THAT EVEN AFTER ASKING AGAIN A ND AGAIN THE ASSESSEE DID NOT GIVE ANY DETAILS IN RESPECT OF LOSSES SO SU FFERED EXCEPT A VAGUE STATEMENT STATING THAT OWING TO THE STEEP FALL IN VALUE OF S HARES THE LOSS HAS OCCURRED. IN ABSENCE OF ANY SUPPORTING OR SUBSTANTIAL EVIDENCE T HE ASSESSING OFFICER DISALLOWED THE CLAIM OF SPECULATION LOSS OF ` 11,13,870. HE ACCORDINGLY HELD THAT THERE WILL BE NO SET OFF OR CARRY FORWARD OF THE LOSSES. 3. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE ASSE SSEE WAS TRADING IN SHARES BY WAY OF INTRA-DAY, FUTURES AND OPTIONS, THROUGH H IS BROKERS M/S. RELIGARE & JOINDRE CAPITAL SERVICES. IT WAS SUBMITTED THAT TH E ACCOUNT EXTRACTS ISSUED BY M/S. RELIGARE & JOINDRE CAPITAL SERVICES WERE PRODUCED B EFORE THE ASSESSING OFFICER TO SUPPORT THE CLAIM OF LOSS. HOWEVER, THE ASSESSING O FFICER REJECTED THE LOSS ON THE GROUND THAT A VAGUE STATEMENT REGARDING STEEP FALL IN THE VALUE OF SHARES WAS MADE. IT WAS SUBMITTED THAT THE PRIMARY EVIDENCE IN THE F ORM OF A COPY OF CLIENT NET POSITION IN THE FUTURES TRANSACTIONS WAS SUBMITTED BEFORE THE ASSESSING OFFICER. HAD HE PROPERLY PERUSED THE SAID STATEMENT HE WOULD HAVE NOTICED THAT THERE ARE DETAILS SUCH AS NAME OF THE COMPANY, PURCHASE DETAI LS GIVING QUANTITY, VALUE, SALES DETAILS ETC. AND THE DETAILS OF PROFIT AND LOSS ACC OUNT MADE IN EVERY SCRIP. THE CONTRACT NOTES WERE ALSO PRODUCED FOR HIS VERIFICAT ION. HOWEVER, WITHOUT PROPERLY APPRECIATING THE FACTS THE ASSESSING OFFICER MADE T HE ADDITION ON FLIMSY GROUNDS. 3 IT WAS ACCORDINGLY SUBMITTED THAT THE LOSSES CLAIME D BY THE ASSESSEE SHOULD BE ALLOWED. 4. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LEARNED CIT(A) HELD THAT THE ASSESSING OFFICER FAILED TO CONSIDER THE V ARIOUS DETAILS FURNISHED. HE, THEREFORE, DIRECTED THE ASSESSING OFFICER TO EXAMI NE THE VERACITY OF THE DOCUMENTS IN RESPECT OF SPECULATION LOSS WHILE GIVING APPEAL EFFECT AND ALSO DIRECTED THE ASSESSING OFFICER TO SET OFF OF SUCH SPECULATION LO SS AGAINST SPECULATION PROFIT AS PER LAW. 4.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REV ENUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) ERRED IN DIRECTING THE ASSESSING OFFICER TO EXAMINE THE VERA CITY OF THE DOCUMENTS FILED IN APPEAL IN RESPECT OF SPECULATION LOSS WHILE GIVING APPEAL EFF ECT BECAUSE THIS AMOUNTS TO SETTING ASIDE THE ASSESSMENT ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(APPEALS) GROSSLY ERRED IN ACCEPTING THE FRESH EVIDENCE IN RESPECT OF LOSS FROM SPECULATION AND THUS ALLOWING THE ASSESSEE TO PRESENT A FRESH CASE, WHIC H WAS NOT BEFORE THE ASSESSING OFFICER AT THE TIME OF ASSESSMENT. 3. FOR THESE AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL DURING THE COURSE OF APPELLATE PR OCEEDINGS BEFORE THE HONBLE TRIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). WE FIND THE MAIN GRIEVANCE OF THE ASSESSEE BEFORE THE LEARNED CIT(A) WAS THAT THE ASS ESSING OFFICER DID NOT PROPERLY PERUSE THE VARIOUS DETAILS FURNISHED BY HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS. WE FIND THE LEARNED CIT(A) DIRECTED T HE ASSESSING OFFICER TO VERIFY THESE DOCUMENTS AND ALLOW THE CLAIM OF SPECULATION LOSS OUT OF SUCH SPECULATION PROFIT. 4 5.1 IT IS THE GRIEVANCE OF THE REVENUE THAT THE DIR ECTION OF THE LEARNED CIT(A) TO EXAMINE THE VERACITY OF THE DOCUMENTS FILED IN APPE AL IN RESPECT OF SPECULATION LOSSES WHILE GIVING APPEAL EFFECT AMOUNTS TO SETTIN G ASIDE THE ASSESSMENT ORDER WHICH IS NOT PERMISSIBLE. FURTHER, ACCORDING TO TH E REVENUE THE LEARNED CIT(A) HAS ACCEPTED FRESH EVIDENCE WHICH WAS NOT PUT BEFORE TH E ASSESSING OFFICER AT THE TIME OF MAKING THE ASSESSMENT. A PERUSAL OF THE ORDER O F THE CIT(A) SHOWS THAT THE ASSESSEE HAS NOT PRODUCED ANY ADDITIONAL EVIDENCE. IT HAS ONLY STATED THAT VARIOUS DOCUMENTS WERE FILED BEFORE THE ASSESSING OFFICER D URING THE COURSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSING OFFICER HAS NOT TAKEN THE TROUBLE TO GO THROUGH THOSE DOCUMENTS. THE LEARNED CIT(A) ACCORDINGLY DI RECTED THE ASSESSING OFFICER TO VERIFY THE VERACITY OF THE DOCUMENTS AND ALLOW T HE SPECULATION LOSS OUT OF SPECULATION PROFIT. THERE APPEARS TO BE SOME TYPOG RAPHICAL ERROR IN THE CONCLUDING PARAGRAPH OF THE LEARNED CIT(A), WHICH IN OUR OPINI ON, PROMPTED THE REVENUE TO FILE THIS APPEAL. 6. NEVERTHELESS, EVEN IF THE LEARNED CIT(A) HAS NO POWER TO SET-ASIDE THE MATTER, THE TRIBUNAL IN OUR OPINION, HAS GOT THE PO WER TO SET-ASIDE THE ORDER OF THE CIT(A). CONSIDERING THE TOTALITY OF THE FACTS OF T HE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE THE CLAIM OF SPECULATION LOSS. THE ASSESSING OFFICER S HALL CAREFULLY PERUSE THE DOCUMENTS FILED BEFORE HIM DURING THE ASSESSMENT PR OCEEDINGS AND DECIDE THE ISSUE AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE G ROUNDS RAISED BY THE REVENUE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. CO NO. 124/PN/2012 (BY ASSESSEE) : 7. THE GROUNDS RAISED BY THE ASSESSEE IN THE CO ARE AS UNDER : 1. THE LD. CIT(APPEALS) ERRED IN UPHOLDING ADDITIO N OF ` 36,92,000 MADE BY THE ASSESSING OFFICER U/S.68 OF THE I. T. ACT, 1961. 5 2. THE REASONS GIVEN BY THE LD. CIT(A) FOR UPHOLDIN G THE ADDITION ARE CONTRARY TO THE FACTS AND THE LAW. 8. FACTS OF THE CASE, IN BRIEF, ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE A SSESSEE HAS RAISED UNSECURED LOANS TO THE EXTENT OF ` 36,92,000. THE ASSESSEE FILED CONFIRMATION LETTERS IN RESPECT OF UNSECURED LOANS. HOWEVER, THE ASSESSING OFFICER NOTED THAT THESE ARE NOT SUPPORTED WITH SUPPORTING EVIDENCE. HE THEREFORE A SKED THE ASSESSEE TO FURNISH EVIDENCES KEEPING IN MIND THE PROVISIONS OF SECTION 68 THAT THE CLAIMED UNSECURED LOANS ARE GENUINE. SINCE THERE WAS NO COMPLIANCE F ROM THE ASSESSEE THE ASSESSING OFFICER PROPOSED TO MAKE ADDITION OF THE UNSECURED LOANS TAKEN FROM 94 PARTIES. FROM THE STATEMENT FILED BY THE ASSESSEE IN RESPONS E TO SUCH PROPOSED ADDITION, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE OFFERED T O PRODUCE THE CREDITORS IN PERSON FOR HIS EXAMINATION. THE ASSESSING OFFICER THEREFO RE ASKED THE ASSESSEE TO PRODUCE THE FOLLOWING LOAN CREDITORS ON TEST CHECK BASIS: SL.NO. NAME OF THE LOAN CREDITORS LOAN AMOUNT 1 SHRI AVINASH D. AHER ` 4,00,000 2 SMT. JAYASHRI AVINASH AHER ` 4,00,000 3 SHRI MILIND B. VAIDYA 1,00,000 4 SHRI MILIND D. AHER ` ,1,50,000 5 SMT. BHAGYASHRI BORA ` 10,00,000 6 SMT. PUJA ANAJI KHADE ` 19,000 7 SHRI RAJENDRA B. KHADE ` 10,000 8 SMT. KALPANA RAVI ANDHURE ` 19,500 THE ASSESSEE PRODUCED 6 LOAN CREDITORS AND DID NOT PRODUCE SMT. JAYASHRI AHER AND SMT. KALPANA RAVI ANDHURE. THE ASSESSING OFFICER R ECORDED THE STATEMENT OF THE REMAINING PARTIES AND CAME TO THE CONCLUSION THAT T HE ABOVE LOAN CREDITORS WERE NOT IN A POSITION TO LEND MONEY AS THEY COULD NOT EXPLA IN THEIR CREDIT WORTHINESS. THE ASSESSING OFFICER THEREFORE HELD THAT THE ENTIRE LO AN AMOUNT OF ` 36,92,000 IS NOT EXPLAINED PROPERLY BY THE ASSESSEE. RELYING ON A C OUPLE OF DECISIONS HE MADE ADDITION OF THE UNSECURED LOAN AMOUNT OF ` 36,92,000 TO THE TOTAL INCOME OF THE ASSESSEE. 6 9. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE ASSE SSEE INCURRED HUGE LOSSES IN HIS SHARE TRADING BUSINESS FOR WHICH FUNDS WERE REQ UIRED TO LIQUIDATE THE LIABILITY OF PAYMENTS. THEREFORE, LOANS WERE TAKEN IN THE BOOKS TO MEET THE ABOVE REQUIREMENT. THE ASSESSEE PRODUCED 6 LOAN CREDITOR S OUT OF 8 LOAN CREDITORS AS ASKED BY THE ASSESSING OFFICER ON TEST CHECK BASIS. THE OTHER 2 LOAN CREDITORS NAMELY SMT. JAYASHRI AHER AND SMT. KALPANA RAVI AND HURE COULD NOT BE PRODUCED SINCE SMT. JAYASHRI AHER WAS NOT WELL AND SMT. KALP ANA RAVI ANDHURE WHO IS EMPLOYED IN ANGANVADI SCHOOL COULD NOT GET LEAVE ON MONDAY AND THURSDAY. HOWEVER, THE ASSESSEE HAD MADE A REQUEST TO THE ASS ESSING OFFICER TO GIVE ANOTHER DAY SO THAT BOTH THE CREDITORS COULD BE PRODUCED. IT WAS SUBMITTED THAT ALL THE CREDITORS PRODUCED BEFORE THE ASSESSING OFFICER WER E EXAMINED BY HIM. ALL OF THEM HAVE CONFIRMED THE LOAN TRANSACTIONS. ALL THE PERSONS PRODUCED BEFORE THE ASSESSING OFFICER EXCEPT POOJA ANAJI KHADE ARE ASS ESSED TO TAX. THEIR PERMANENT ACCOUNT NUMBERS WERE ALSO GIVEN. SINCE THE ASSESSE E FILED THE RELEVANT DETAILS AND ESTABLISHED THE CREDIT WORTHINESS OF THE CREDIT ORS, THEREFORE, IT WAS PLEADED THAT THE ADDITION MADE BY THE ASSESSING OFFICER SHOULD B E DELETED. VARIOUS CASE DECISIONS WERE ALSO CITED BY THE ASSESSEE BEFORE T HE CIT(A). IT WAS FURTHER SUBMITTED THAT THE PRINCIPLE OF TEST CHECK APPLIED BY THE ASSESSING OFFICER IN RESPECT OF ADDITION ON ACCOUNT OF REMAINING 87 CRED ITORS IS NOT ONLY CONTRADICTORY TO THE PROVISIONS OF LAW BUT EVEN UNKNOWN TO LAW. THE VARIOUS DETAILS PRODUCED BEFORE THE ASSESSING OFFICER WERE AGAIN FURNISHED B EFORE THE CIT(A) TO SUBSTANTIATE THE IDENTITY AND CREDIT WORTHINESS OF THE LOAN CREDITORS AND THE GENUINENESS OF THE TRANSACTION. 10. HOWEVER, THE LEARNED CIT(A) ALSO WAS NOT PLEASE D WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. WHILE DOING SO, HE OBSERVED THAT THE ASSESSEE WAS G IVEN ENOUGH OPPORTUNITY TO 7 ESTABLISH THE IDENTITY AND CREDIT WORTHINESS OF THE CREDITORS AND THE GENUINENESS OF THE TRANSACTIONS. THE VARIOUS DETAILS AVAILABLE IN THE ASSESSMENT ORDER SHOW THAT THE ASSESSEE DID NOT AVAIL OF THE OPPORTUNITY GIVEN BY THE ASSESSING OFFICER. ON THE CONTRARY, THE ASSESSEE ACTED IN DESIGN TO WITHH OLD COMPLETE INFORMATION REQUIRED IN DISCHARGE OF OBLIGATION CAST U/S.68 OF THE INCOME TAX ACT TO RELEASE IT BIT BY BIT IN A MANNER SO THAT THE ASSESSING OFFICE R DOES NOT GET ADEQUATE TIME TO MAKE ADEQUATE ENQUIRY AND INVESTIGATION FOR NAILING THE ASSESSEE. 11. RELYING ON A COUPLE OF DECISIONS THE LEARNED CI T(A) UPHELD THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE FAILED TO EXPLAIN SATISFACTORILY REGARDING THE IDENTITY AND CREDIT WORTHINESS OF THE LOAN CREDITORS AND GENUINENESS OF THE TRANSACTIONS. HE HELD THAT MERE FILING OF C ONFIRMATION OR PAN NOS. OR THE FACT THAT THE LOAN WAS RECEIVED THROUGH CHEQUE CANN OT BE HELD SUFFICIENT IN DISCHARGING THE ONUS CAST ON THE ASSESSEE. FURTHER , THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE SHOW THAT THESE ARE NOT COMPLETE SO AS TO CONSTITUTE THE DISCHARGE OF ONUS EXCEPT FOR THE IDENTITY. HE FURTHER HELD THAT ADDITION CAN BE MADE ON ACCOUNT OF THE ALLEGED CREDITORS ON THE BASIS OF TEST CHECK DONE BY THE ASSESSING OFFICER IN THE CASE OF 6 CREDITORS. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE HAS FILED THE CROSS OBJECTION. 12. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SAME ARGUMENTS AS MADE BEFORE THE ASSESSING OFFICER AND CIT(A). REFERRING TO THE COPY OF THE PAPER BOOK, HE SUBMITTED THAT THE ASSESSEE HAS FILED THE COPIES OF CONFIRMATION LETTERS BY THE CREDITORS, COPY OF ACKNOWLEDGEMENT OF RETURN OF INC OME AND STATEMENT OF TOTAL INCOME FILED FOR A.Y. 2007-08 IN CASE OF VARIOUS PE RSONS AND EVIDENCE OF AGRICULTURAL LAND HOLDING IN THE FORM OF 7/12 EXTRA CTS IN RESPECT OF 35 CREDITORS. HE SUBMITTED THAT EVEN IN CASE OF VERY SMALL LOANS OF ` 18,000 TO ` 20,000 THE ASSESSING OFFICER DISBELIEVED THE CAPACITY OF THE LOAN CREDIT ORS THOUGH THEY ARE EMPLOYED 8 AND ARE HAVING HUGE AGRICULTURAL INCOME. HE SUBMIT TED THAT EVEN THE LOAN OBTAINED FROM THE WIFE OF THE ASSESSEE, SMT. BHAGYASHREE R. BORA AMOUNTING TO ` 10 LAKHS WAS DISALLOWED ALTHOUGH SHE HAD OBTAINED LOAN OF ` 10 LAKHS FROM VARDHAMAN SAHAKARI PAT SANSTHA FOR ADVANCING THE LOAN TO THE ASSESSEE. HE SUBMITTED THAT THE ASSESSING OFFICER DISBELIEVED THE CLAIM STATING THA T EVEN IF THE LOAN IS RAISED BY TAKING A LOAN FROM VARDHAMAN SAHAKARI PAT SANSTHA, SHE WOULD HAVE TO GIVE SECURITY OR PLEDGE THE ASSETS. HOWEVER, IN THE NAR RATION IN PARA 2 OF PAGE 15 THE ASSESSING OFFICER ADMITS THAT THE DETAILS OF MORTGA GED ASSETS FOR GETTING THE LOAN WERE FURNISHED. HOWEVER, HE REJECTED THE CLAIM ON THE GROUND THAT NO SUPPORTIVE EVIDENCE WAS PRODUCED FOR TAILORING BUSINESS. 12.1 HE SUBMITTED THAT DUE TO LACK OF TIME THE ASSE SSING OFFICER HAD TO PASS THE ORDER HURRIEDLY. THEREFORE, ENOUGH OPPORTUNITY WAS NOT GIVEN TO THE ASSESSEE. FURTHER, EACH CASH CREDIT IS SEPARATE AND THEREFORE THE ASSESSING OFFICER CANNOT MAKE ADDITION OF THE ENTIRE LOAN AMOUNT FOR 94 PERS ONS ON THE BASIS OF THE STATEMENT RECORDED FROM 6 PERSONS. FINALLY, HE SUB MITTED THAT IN THE INTEREST OF JUSTICE THE ASSESSEE SHOULD BE GIVEN ONE MORE OPPOR TUNITY TO PRODUCE ALL THE CREDITORS TO SUBSTANTIATE WITH EVIDENCE TO THE SATI SFACTION OF THE ASSESSING OFFICER REGARDING THE IDENTITY AND CREDIT WORTHINESS OF THE LOAN CREDITORS AND THE GENUINENESS OF THE TRANSACTIONS. 13. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A). HE SUBMITTED THAT FOR CLAIMING A CASH CREDIT TO BE GENUINE THE ONUS IS ALWAYS ON T HE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFIC ER REGARDING THE IDENTITY AND CREDIT WORTHINESS OF THE LOAN CREDITOR AND THE GENU INENESS OF THE TRANSACTION. IN THE INSTANT CASE, DESPITE SUFFICIENT OPPORTUNITY GIVEN BY THE ASSESSING OFFICER, THE ASSESSEE FAILED TO DISCHARGE THE ONUS CAST ON HIM. SIMILARLY, EVEN THOUGH HE WAS 9 ASKED TO PRODUCE THE 8 LOAN CREDITORS OUT OF 94 LOA N CREDITORS THE ASSESSEE COULD PRODUCE ONLY 6 CREDITORS AND EVEN IN THOSE CASES HE FAILED MISERABLY TO SUBSTANTIATE WITH SATISFACTORY EVIDENCE REGARDING THEIR CREDIT W ORTHINESS. HE SUBMITTED THAT MERE FILING OF CONFIRMATION LETTERS OR PAN NUMBERS IS NOT SUFFICIENT TO PROVE THE CREDIT WORTHINESS OF THE LOAN CREDITORS. THE ASSES SEE HAS TO SUBSTANTIATE WITH SUFFICIENT SUPPORTING EVIDENCES TO PROVE THE CREDIT WORTHINESS OF THE LOAN CREDITORS. SINCE IN THE INSTANT CASE THE ASSESSEE FAILED TO DI SCHARGE THE ONUS CAST ON HIM, THEREFORE, THE CIT(A) WAS JUSTIFIED IN UPHOLDING TH E ADDITION MADE BY THE ASSESSING OFFICER. 14. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIO US DECISIONS CITED BEFORE US. IN THE INSTANT CASE, WE FIND THE ASSESSEE HAD TAKEN LO ANS FROM 94 PERSONS AMOUNTING TO ` 36,92,000 AND EXCEPT 5 CASES ALL THE LOANS WERE ADM ITTEDLY BELOW ` 20,000. IT IS THE CASE OF THE ASSESSEE THAT SUFFICIENT OPPORTUNIT Y WAS NOT GIVEN TO HIM AND BASED ON THE STATEMENT OF 6 PARTIES THE ASSESSING OFFICER IS NOT JUSTIFIED IS DISBELIEVING THE LOANS OBTAINED FROM 94 PERSONS. IT IS ALSO THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT EVEN ALL THE DETAILS WERE GIVEN AND THAT THE ASSESSEE IS WILLING TO PRODUCE ALL THE LOAN CREDITORS BEFORE TH E ASSESSING OFFICER FOR HIS EXAMINATION. IT IS THE CASE OF THE REVENUE THAT DE SPITE SUFFICIENT OPPORTUNITY GIVEN TO THE ASSESSEE TO SUBSTANTIATE THE CREDIT WORTHINE SS OF THE LOAN CREDITORS HE HAS NOT AVAILED OF THE OPPORTUNITY PROPERLY, THEREFORE, THE ORDER OF LEARNED CIT(A) ON THIS ISSUE SHOULD BE UPHELD. 15. IT IS THE SETTLED PROPOSITION OF LAW THAT FOR A CCEPTING ANY CASH CREDIT AS GENUINE THE ONUS IS ALWAYS ON THE ASSESSEE TO SUBST ANTIATE WITH EVIDENCE TO THE SATISFACTION OF THE ASSESSING OFFICER REGARDING THE IDENTITY AND CREDIT WORTHINESS OF 10 THE LOAN CREDITORS AND GENUINENESS OF THE TRANSACTI ONS. IN THE INSTANT CASE, ALTHOUGH THE IDENTITY OF THE LOAN CREDITORS HAVE BEEN PROVED BY THE ASSESSEE BY WAY OF FILING OF LOAN CONFIRMATION LETTERS, COPIES OF ACKNOWLEDGE MENT OF INCOME TAX RETURNS, COPIES OF 7/12 EXTRACTS IN CASE OF AGRICULTURAL LAN D HOLDING OF SOME OF THE LOAN CREDITORS ETC. WE FIND THE ASSESSEE HAS NOT PROVED TO THE SATISFACTION OF THE ASSESSING OFFICER REGARDING THE CREDIT WORTHINESS O F THE LOAN CREDITORS. WE FURTHER FIND THE ASSESSEE HAD PRODUCED ONLY 6 CREDITORS OUT OF 8 CREDITORS AS ASKED BY THE ASSESSING OFFICER OUT OF 94 CREDITORS. CONSIDERING THE VOLUMINOUS PAPER BOOK FILED BEFORE US CONTAINING 233 PAGES GIVING THE SUB MISSION MADE BEFORE THE ASSESSING OFFICER, COPIES OF CONFIRMATION LETTERS B Y CREDITORS, THEIR ACKNOWLEDGEMENT OF RETURN OF INCOME WHERE THE CREDI TORS ARE TAX PAYERS, THE 7/12 EXTRACTS IN CASE OF VARIOUS PERSONS ETC. AND THE BA NK ACCOUNT OF CERTAIN LOAN CREDITORS WHICH WERE PRODUCED BEFORE THE ASSESSING OFFICER WE ARE OF THE CONSIDERED OPINION THAT THE MATTER REQUIRES THOROUG H EXAMINATION AT THE LEVEL OF THE ASSESSING OFFICER IN CASE OF ALL THE LOAN CREDITORS BEFORE COMING TO A FINAL CONCLUSION. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE BAC K TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNI TY TO THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION REGARDING THE CRE DIT WORTHINESS OF THE LOAN CREDITORS AND THE GENUINENESS OF THE TRANSACTIONS. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT AC CORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE IN THE CO ARE ACCORDINGLY ALLOWED F OR STATISTICAL PURPOSES. 11 16. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND THE CO FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS, THE 22 ND DAY OF FEBRUARY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED THE 22 ND FEBRUARY 2013 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-I, PUNE 4. CIT-I, PUNE 5. D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENI OR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE