Shri Upendrasingh S.Singh, Nani Daman V. The Income tax Officer,Vapi Ward-4, Daman

ITA 1449/AHD/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5650 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 02-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 07-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH
• Keywords: Additional evidence; Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) ITA NO.1449/AHD/2009 A. Y. 2005-06 SHRI UPENDRASINGH S. SINGH, C/O. PSL HOLDINGS PVT. LTD., KACHIGAM, NANI DAMAN VS THE INCOME TAX OFFICER, VAPI, WARD -4, DAMAN PA NO. ARDPS 3694 G (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAJESH UPADHYAY, AR RESPONDENT BY SHRI K. M. MAHESH, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF THE LEARNED CIT(A)-I, SURAT DATED 16-03-2009FOR ASSESSMENT YEAR 2005-06. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE P ARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERE D THE MATERIAL ON RECORD POINTED OUT BY THE PARTIES. THIS APPEAL WAS EARLIER DISMISSED ON DEFAULT WHICH WAS RECALLED BY ALLOWING M. A. NO.291 /AHD/2009. 3. ON GROUND NO.1, THE ASSESSEE CHALLENGED THE ADDI TION OF RS.25,909/- IN PROVIDENT FUND (PF) EXPENSES. THE AO HAS NOTED THAT THE ASSESSEE IS ENGAGED IN SUPPLY OF LABOURERS TO VARIO US COMPANIES. THE ASSESSEE HAS DEBITED PF EXPENSES OF RS.5,82,968/-. THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF PROOF OF PAYMENT. THE A SSESSEE STATED THAT THE ARRANGEMENT WITH THE COMPANIES IS SUCH THAT THESE C OMPANIES MADE PAYMENT OF PF ON BEHALF OF THE ASSESSEE. THEREAFTER , THE ASSESSEE WAS AGAIN ASKED TO GET THE DETAILS FROM THESE COMPANIES REGARDING TOTAL RECEIPT AND PAYMENT OF PF. THE ASSESSEE FURNISHED A CERTIFICATE FROM PSL LTD. IT WAS SEEN THAT THE COMPANY HAS PAID PF OF RS .6,08,877/-, WHEREAS ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 2 THE ASSESSEE HAS CLAIMED EXPENSES OF RS. 5,82,968/- IN THE PROFIT & LOSS ACCOUNT. SINCE THE ASSESSEE COULD NOT RECONCILE THE DIFFERENCE OF RS.25,909/-, THE AO MADE THE ADDITION ACCORDINGLY. THE LEARNED CIT(A) CONFIRMED THE ADDITION. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION OF LESSER EXPEN SES. THEREFORE, ADDITION IS NOT JUSTIFIED. THE LEARNED DR RELIED UP ON THE ORDERS OF THE AUTHORITIES BELOW. 4. ON CONSIDERATION OF THE ABOVE FACTS, WE DO NOT FIND ANY JUSTIFICATION TO SUSTAIN THE ADDITION OF RS.25,909/ -. ACCORDING TO THE ASSESSEE, IT HAS SUPPLIED LABOURERS TO VARIOUS COMP ANIES AND THESE COMPANIES WERE MAKING PAYMENT OF PF ON BEHALF OF TH E ASSESSEE. THE CERTIFICATE FURNISHED BY THE ASSESSEE SHOWS THAT PS L LTD. HAS PAID PF OF RS.6,08,877/- WHEREAS THE ASSESSEE CLAIMED DEDUCTIO N IN THE PF ACCOUNT OF RS.5,82,968/-. THUS, THE ASSESSEE HAS NOT MADE P AYMENT OF THE EXPENDITURE RATHER CLAIMED LESSER DEDUCTION OF THE EXPENDITURE IN THE PROFIT & LOSS ACCOUNT. THERE IS THUS, NO BASIS TO M AKE THE ADDITION OF THE DIFFERENTIAL AMOUNT BECAUSE THE LESSER AMOUNT CLAIM ED BY THE ASSESSEE IN THE PROFIT & LOSS ACCOUNT IN RESPECT OF THE AMOU NT PAID BY M/S. PSL LTD. WOULD SHOW THAT THE ASSESSEE HAS NOT CLAIMED E XCESSIVE PAYMENT FROM UNKNOWN SOURCES. WE ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW BECAUSE THE DIFFERENTIAL AMOUNT N OT CLAIMED CANNOT BE TREATED AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. IN THE RESULT, ADDITION IS DELETED. GROUND NO.1 OF THE APP EAL OF THE ASSESSEE IS ALLOWED. 5. ON GROUND NO.2 OF THE APPEAL, THE ASSESSEE CHALL ENGED THE ADDITION OF RS.37,550/-BEING DIFFERENCE IN THE BALANCE AS PE R BOOKS OF ACCOUNT IN STATE BANK OF INDIA AND THAT AS PER BANK STATEMENT. THIS GROUND WAS NOT RAISED BEFORE THE LEARNED CIT(A) DUE TO INADVERTENC E. HOWEVER, THIS GROUND IS ARISING OUT OF THE ORDER OF THE AO. THE A SSESSEE, THEREFORE, ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 3 MADE A PRAYER FOR ADMISSION OF THE ADDITIONAL GROUN D OF APPEAL BY FILING A SEPARATE APPLICATION FOR ADMISSION OF ADDITIONAL GR OUND IN THIS REGARD. THE AO ON VERIFICATION OF THE DETAILS OF BANK ACCOU NT AND RECONCILIATION STATEMENT FOUND THAT THERE IS A DIFFERENCE OF RS.37 ,550/-. IN THE ABSENCE OF ANY RECONCILIATION AND INABILITY SHOWN BY THE AS SESSEE, THE ADDITION WAS ACCORDINGLY MADE. THE LEARNED COUNSEL FOR THE A SSESSEE SUBMITTED THAT DUE TO INADVERTENCE THE ABOVE GROUND COULD NOT BE TAKEN BEFORE THE LEARNED CIT(A). HE HAS REFERRED TO PB-8 WHICH IS CO PY OF THE STATEMENT OF ACCOUNT OF STATE BANK OF INDIA AND SUBMITTED THAT T HE DIFFERENCE WAS DUE TO CONTRA ENTRY WHICH COULD NOT BE EXPLAINED PROPER LY AT THE ASSESSMENT STAGE. HE HAS SUBMITTED THAT SINCE THE DIFFERENCE I S EXPLAINED NOW THROUGH THE BANK STATEMENT, THEREFORE, THE ADDITION IS CLEARLY UNJUSTIFIED AND ADDITIONAL GROUND OF APPEAL MAY BE ADMITTED. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDER OF THE AO. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THAT ADDITIONAL GROUND SO RAISED BY THE ASSESSEE SHALL H AVE TO BE ADMITTED IN THE INTEREST OF JUSTICE. THE AO ON VERIFICATION OF THE BANK ACCOUNT AND DETAILS FOUND THAT DIFFERENCE OF RS.37,550/- COULD NOT BE RECONCILED BY THE ASSESSEE. HOWEVER, THE LEARNED COUNSEL FOR THE ASSESSEE RIGHTLY EXPLAINED THROUGH THE BANK STATEMENT THAT THE DIFFE RENCE WAS ON ACCOUNT OF SOME CONTRA ENTRIES WHICH COULD NOT BE E XPLAINED. IT THEREFORE, APPEARS THAT THE ASSESSEE HAS A PRIMA FA CIE CASE FOR ADMISSION OF THE ADDITIONAL GROUND OF APPEAL. SINCE THIS GROU ND WAS NOT RAISED BEFORE THE LEARNED CIT(A), THEREFORE, WE ARE OF THE VIEW THAT BY ADMITTING ADDITIONAL GROUND OF APPEAL, THE MATTER REQUIRES RE CONSIDERATION AT THE LEVEL OF THE AO. WE ACCORDINGLY, ADMIT THE ADDITION AL GROUND OF APPEAL IN THIS REGARD AND RESTORE THE ISSUE TO THE FILE OF TH E AO FOR VERIFICATION OF THE ADDITION THROUGH THE BANK ACCOUNT AS POINTED BY THE LEARNED COUNSEL FOR THE ASSESSEE. THE AO IS DIRECTED TO RE- DECIDE THIS ISSUE BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 4 THUS, GROUND NO.2/ADDITIONAL GROUND OF APPEAL OF TH E ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. ON GROUND NO.3, THE ASSESSEE CHALLENGED THE ADDI TION OF RS.30,000/- TOWARDS ESTIMATED HOUSEHOLD EXPENSES. T HE AO NOTED THAT APART FROM THE ASSESSEE, HE HAS FOUR MORE FAMILY ME MBERS I.E. HIS WIFE, MARRIED DAUGHTER, UNMARRIED DAUGHTER AND SON. THE A SSESSEE MADE WITHDRAWAL OF RS.38,600/- ONLY. THE AO CONSIDERED T HE EDUCATIONAL STATUS OF THE CHILDREN STUDYING IN SCHOOL AND MADE ADDITION OF RS.30,000/- ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWAL . THE LEARNED CIT(A) CONFIRMED THE ADDITION. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADDITION MADE IS ON EXCESSIVE SI DE. ON THE OTHER HAND, THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8. ON CONSIDERATION OF THE RIVAL SUBMISSION WE ARE OF THE VIEW THAT THE ADDITION IS ON EXCESSIVE SIDE. THE ASSESSEE HAS DECLARED INCOME UNDER CONSTRUCTION IN A SUM OF RS.1,76,891/-. THE A O HAS NOT GIVEN ANY SPECIFIC FINDING AS TO ON WHAT BASIS HE HAS ESTIMAT ED THE HOUSE HOLD EXPENSES OF THE ASSESSEE. IT IS EQUALLY A FACT THAT THE ASSESSEE HAS ALSO SHOWN LESSER HOUSE HOLD EXPENSES DESPITE HAVING 3 D EPENDENTS. CONSIDERING THE SMALL NATURE OF BUSINESS OF THE ASS ESSEE AND THAT THE AO HAS NOT GIVEN HIS BASIS OF ESTIMATION OF THE HOUSE HOLD EXPENSES, WE ARE OF THE VIEW INTEREST OF JUSTICE REQUIRES THAT ADDIT ION IN ALL IN A SUM OF RS.15,000/- MAY BE MADE ON THIS ISSUE. WE ACCORDING LY, MODIFY THE ORDERS OF THE AUTHORITIES BELOW AND RESTRICT THE AD DITION TO RS.15,000/- BEING REASONABLE AND PROPER. THE AUTHORITIES BELOW SHALL MAKE ADDITION OF RS.15,000/- ON THIS ISSUE. AS A RESULT, THIS GRO UND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 9. ON GROUND NO.4 THE ASSESSEE CHALLENGED THE ADDIT ION OF RS.71,000/- IN RESPECT OF FOUR CASH CREDITS AND ON GROUND NO.5, THE ASSESSEE REQUESTED FOR ADMISSION OF ADDITIONAL EVID ENCES IN TERMS OF ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 5 AFFIDAVITS OF THE CREDITORS NAMELY RANJITSINGH YADA V , DARSHAN R. MODI AND HETAL GAJARE. THE AO NOTED THAT THE ASSESSEE HA S TAKEN UNSECURED LOANS FROM VARIOUS PARTIES. THE ASSESSEE FAILED TO PRODUCE THE FOLLOWING DEPOSITORS FOR EXAMINATION OR PRODUCE ANY CONFIRMAT ION, IDENTITY OF THE PARTIES, CREDITWORTHINESS OF THE DEPOSITORS AND GEN UINENESS OF THE TRANSACTIONS: 1) MUNNA YADAV RS.18,000/- 2) DARSHAN R. MODI RS.18,500/- 3) HETAL GAJARE RS.17,500/- 4) RANJITSINGH YADAV RS.17,000/- THE AO HAS STATED THAT WHEN TWO REPEATED REMINDERS HAVE BEEN GIVEN TO THE ASSESSEE, EVEN CONFIRMATIONS WERE NOT FILED. AD DITION OF RS.71,000/- WAS ACCORDINGLY MADE U/S 68 OF THE IT ACT. AT THE A PPELLATE STAGE THE ASSESSEE FILED CONFIRMATIONS AND SAME WERE SENT TO THE AO FOR COMMENTS. THE AO FILED REMAND REPORT STATING THEREIN THAT LET TER WAS ISSUED TO THE ASSESSEE TO PRODUCE THE FOLLOWING DETAILS: 1) NAME AND ADDRESS OF THE EMPLOYER WHERE THE DEPOS ITORS WERE WORKING 2) DETAILS OF BUSINESS ACTIVITIES BEING RUN BY THEM WITH NAME AND ADDRESS 3) PRODUCE THE DEPOSITORS BEFORE THE AO AND 4) BANK PASS BOOK FROM WHERE LOAN AMOUNT WAS TRANSF ERRED TO THE ACCOUNT OF THE ASSESSEE. THE ASSESSEE HOWEVER, FAILED TO GIVE ANY REPLY BEFO RE THE AO. HIS COUNSEL ALSO MADE NON-COMPLIANCE. SIMILAR REQUIREMENTS WERE MADE TO ALL THE CREDITORS. NO DEPOSITORS HAS COMPLIED THE LETTER AN D IN THE CASE OF HETAL GAJARE THE NOTICE WAS RETURNED UN-SERVED. THUS, THE ASSESSEE FAILED TO PRODUCE ALL THE CREDITORS BEFORE THE AO. NO SOURCE OF INCOME AND CREDITWORTHINESS WAS PROVED. THE ABOVE COPY OF THE REMAND REPORT WAS ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 6 SUPPLIED TO THE ASSESSEE FOR COMMENTS. HOWEVER, THE ASSESSEE FAILED TO FILE ANY REPLY BEFORE THE LEARNED CIT(A). THE LEARN ED CIT(A) CONSIDERING THE ABOVE FACTS CONFIRMED THE ADDITION DISMISSING T HE APPEAL OF THE ASSESSEE ON THIS ISSUE. THE FINDINGS OF THE LEARNED CIT(A) IN PARA 4.3 ARE REPRODUCED AS UNDER: 4.3 I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND THE OBSERVATION OF THE A. O. THE AMOUNT OF RS.17,000/- FROM SHRI RANJITSINGH YADAV I S STATED TO BE RECEIVED IN CASH ON 09.05.2004. SHRI RANJITSINGH YADAV IS NOT ASSESSED TO TAX, NO PAN IS GIVEN AND NO ADDRESS IS GIVEN ON THE CONFIRMATION LETTER. HOWEVER, A PAN CARD COPY OF SHRI RANJITSING H IS GIVEN HOWEVER IT DOES NOT MENTION SHRI RANJITSINGH YADAV. THE CONFIRMATION DOES NOT BEAR ANY ADDRESS A T ALL. IN RESPECT OF RECEIPT OF RS.18,500/- FROM SHRI DARSHAN R. MODI, IT IS ALSO STATED TO BE RECEIVED I N CASH ON 02.05.2004. THERE IS NO ADDRESS ON THE CONFIRMATION, THERE IS NO PAN MENTIONED ON THE CONFIRMATION. HOWEVER, A PAN CARD COPY HAS FILED BU T IT IS NOT CLEAR WHETHER DARSHAN MODI IS ASSESSED TO TA X OR NOT. IN RESPECT OF RECEIPT OF RS.17,500/- FROM SHRI HETAL GAJARE, IT IS ALSO MADE IN CASH ON 05.05.2004 AND T HERE IS NO ADDRESS ON THE CONFIRMATION. ONLY AN ELECTION COMMISSION CARD HAS BEEN FILED. IN RESPECT OF RECEI PT OF RS.18,000/- FROM MUNNA YADAV, IT IS ALSO RECEIVED I N CASH ON 07.05.2004 AND THERE IS NO ADDRESS MENTIONE D ON THE CONFIRMATION LETTER. THERE IS NO SIGNATURE O N THE IDENTITY CARD FURNISHED BY THE ASSESSEE. FROM THESE FACTS, IT IS CLEAR THAT THE ASSESSEE HAS MISERABLY FAILED TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE DEPOSITORS AND GENUINENESS OF THE TRANSACTION. HENC E THE ADDITION U/S 68 MADE BY THE A. O. IS CORRECT AN D THIS GROUND OF APPEAL IS DISMISSED. 10. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED O PB-17 TO 30 WHICH ARE COPIES OF CONFIRMATION FILED IN THE CASE OF SHR I RANJITSINGH YADAV, DARSHAN R. MODI AND HETAL GAJARE. HE HAS SUBMITTED THAT THE CONFIRMATIONS ARE SUPPORTED BY THEIR IDENTITY IN TH E SHAPE OF ELECTION CARD, PAN CARD AND DRIVING LICENSES. HE HAS SUBMITT ED THAT EXCEPT IN THE ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 7 CASE OF HETAL GAJARE ALL NOTICES WERE SERVED UPON T HE CREDITORS AS THEY DID NOT RETURN BACK. THEREFORE, THEIR IDENTITY HAS BEEN PROVED. HE HAS SUBMITTED THAT SINCE SMALL AMOUNT HAS BEEN INVESTED BY THESE PERSONS WITH THE ASSESSEE AND THEY HAVE CONFIRMED THEIR CRE DIT IN THEIR CONFIRMATION LETTERS, THEREFORE, BURDEN UPON THE AS SESSEE TO PROVE GENUINE CREDITS HAS BEEN DISCHARGED. HE HAS SUBMITT ED THAT COPIES OF AFFIDAVITS OF THREE CREDITORS ARE FILED IN THE PAPE R BOOK WHICH IS FILED FOR THE FIRST TIME BEFORE THE TRIBUNAL. THEREFORE, SAME MAY BE ADMITTED FOR EVIDENCE BEING ADDITIONAL EVIDENCE IN NATURE. HE HA S RELIED UPON THE ORDER OF THE HONBLE RAJASTHAN HIGH COURT IN THE CA SE OF ARAVALI TRADING CO. VS ITO 220 CTR 622 IN WHICH IT WAS HELD THAT WHEN EXISTENCE OF THE CREDITORS IS FOUND IN WHOSE NAME CREDIT FOUND IN TH E BOOKS OF ACCOUNT AND SUCH PERSONS OWNED THE CREDITS, THERE IS NO NEE D TO PROVE THE SOURCE OF THE SOURCE . ON THE OTHER HAND THE LEARNED DR RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE H AS FAILED TO PROVE THE IDENTITY OF THE CREDITORS, THEIR CREDITWORTHINESS A ND GENUINENESS OF THE TRANSACTIONS. THE LEARNED DR SUBMITTED THAT SINCE N O EVIDENCE WAS FILED BEFORE THE AO AND ONLY CONFIRMATIONS WERE FILED BEFORE THE LEARNED CIT(A), THEREFORE, THE SAME WOULD NOT PROVE THE CASE OF THE ASSESSEE. THE ASSESSEE HAS ALSO FAILED TO PRODUCE THE CREDITORS BEFORE THE AO EVEN AT THE APPELLATE STAGE. THEREFORE, NO INTERFERENCE IS CALLED FOR IN THE MATTER. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIALS AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS FAILED TO FILE ANY CONFIRMATION FROM ANY OF THE DEPOSITORS BEFORE THE AO AT THE ASSTT. STAGE. THE AO REPEATEDLY ISSUED REMINDERS TO THE ASSESSEE TO FILE CONFIRMATIONS AND TO PRODUCE THE CREDITORS FOR EXAMINATION BEFORE HIM. BUT THE ASSESSEE FAILED TO PRODUCE THE CONFIRM ATION AND THE CREDITORS BEFORE THE AO FOR VERIFICATION OF THE GEN UINE CREDITS. THE ASSESSEE FILED CONFIRMATION AT THE APPELLATE STAGE WHICH WAS REMANDED TO THE AO FOR VERIFICATION. IT WAS FOUND THAT ALL THE CREDITS HAVE BEEN MADE ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 8 IN CASH AND THAT THE CONFIRMATIONS DID NOT BEAR ANY ADDRESS OF THE CREDITORS. NO SOURCE OF GIVING CREDIT HAS BEEN EXPL AINED. THUS, CREDITWORTHINESS OF THE CREDITORS HAS NOT BEEN PROV ED EVEN AT THE APPELLATE STAGE. THE AO SPECIFICALLY ASKED THE ASSE SSEE TO GIVE SOURCE OF THE CREDITORS AND COPY OF THEIR BANK ACCOUNT FROM W HERE THE AMOUNTS HAVE BEEN GIVEN TO THE ASSESSEE. THE ASSESSEE WAS A LSO DIRECTED TO PRODUCE THE CREDITORS BEFORE THE AO FOR EXAMINATION . BUT THE ASSESSEE DID NOT COMPLY WITH THE NOTICES AT THE APPELLATE ST AGE AND ALSO DID NOT PRODUCE THE CREDITORS FOR VERIFICATION BEFORE THE A O. SIMILARLY, NOTICES WERE ALSO ISSUED TO THE CREDITORS WITH DIRECTIONS T O GIVE THE SOURCES OF THEIR INCOME AND EMPLOYMENT ETC. BUT THREE OF THE C REDITORS DID NOT COMPLY WITH THE NOTICES AND IN ONE CASE OF HETAL GA JARE EVEN THE NOTICE WAS RETURNED UN-SERVED. THE ABOVE FACTS, THEREFORE, WOULD SHOW THAT THE ASSESSEE FAILED TO PROVE IDENTITY OF THE CREDITORS, THEIR CREDITWORTHINESS TO GIVE THE LOAN TO THE ASSESSEE AND GENUINENESS OF TH E TRANSACTION. MERE FILING OF INCOMPLETE CONFIRMATION WOULD NOT PROVE A NY OF THE ABOVE INGREDIENTS. IF THE ABOVE CREDITORS WERE GENUINE AN D HAVE GIVEN THE GENUINE LOANS TO THE ASSESSEE THERE WAS NO REASON F OR THE ASSESSEE NOT TO PRODUCE THE CREDITORS BEFORE THE AO. IT IS THE PRER OGATIVE OF THE AO TO EXAMINE THE CASH CREDITS SPECIFICALLY WHEN THE CRED ITS HAVE BEEN SHOWN TO BE GIVEN IN CASH. IN THE ABSENCE OF ANY CO-OPERA TION FROM THE SIDE OF THE ASSESSEE, THE AUTHORITIES BELOW WERE JUSTIFIED IN MAKING THE ADDITION AS WELL AS CONFIRMING THE SAME. THE LEARNED CIT(A) GAVE SPECIFIC OPPORTUNITY TO THE ASSESSEE AT THE APPELLATE STAGE TO PROVE HIS CASE IN ACCORDANCE WITH LAW BUT THE ASSESSED DID NOT AVAIL THE OPPORTUNITY IN THE MATTER. FILING OF CONFIRMATION EVEN WOULD NOT PROVE THE IDENTITY OF THE CREDITORS, TO SHOW THEIR CREDITWORTHINESS OR GENUIN ENESS OF THE TRANSACTION IN THE MATTER. THE DECISION IN THE CASE OF ARAVALI TRADING CO. (SUPRA) IS CLEARLY DISTINGUISHABLE ON FACTS OF THE PRESENT CASE AS NOTED ABOVE. WE ACCORDINGLY, DO NOT FIND ANY MERIT IN GRO UND NO.4 OF THE APPEAL OF THE ASSESSEE. SIMILARLY, THE ASSESSEE SOU GHT ADMISSION OF THE ITA NO.1449/AHD/2009 UPENDRASINGH S. SINGH, DAMAN VS ITO, VAPI 9 AFFIDAVITS OF THE THREE CREDITORS AT THE APPELLATE STAGE. THE REQUEST OF THE ASSESSEE CANNOT BE ACCEPTED BECAUSE THE ORIGINAL AF FIDAVITS ARE NOT FILED BEFORE THE TRIBUNAL. MOREOVER, NO REASON HAS BEEN E XPLAINED AS TO WHY THE ABOVE AFFIDAVITS WERE NOT FILED BEFORE THE AO A S WELL AS BEFORE THE LEARNED CIT(A). FILING OF COPIES OF THE AFFIDAVITS OF THE THREE CREDITORS THUS WOULD NOT SERVE ANY PURPOSE AND EVEN WOULD NOT PROV E THEIR CREDITWORTHINESS AS WELL AS GENUINENESS OF THE TRAN SACTION IN THE MATTER. WE ACCORDINGLY, DO NOT INTEND TO ADMIT COPIES OF TH E THREE AFFIDAVITS OF THE CREDITORS. IN THE RESULT, GROUND NO.5 OF THE AP PEAL OF THE ASSESSEE IS ALSO DISMISSED. 12. CONSIDERING THE ABOVE DISCUSSIONS, GROUNDS NO.4 AND 5 OF THE APPEAL OF THE ASSESSEE ARE ACCORDINGLY DISMISSED. 13. NO OTHER POINT IS ARGUED OR PRESSED. 14. AS A RESULT, THE APPEAL OF THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9-07-2010 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 9-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD