M/s GDA Cement Industry Pvt. Ltd., Purulia V. ACIT, CIR-3, ASANSOL, Asansol

ITA 1465/KOL/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9496 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 30-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRIAJAY SING H R CHOUDHARYCIT
• Assessee Lawyers: U DASGUPTA
• Keywords: Unexplained cash credit; Bogus Share capital; Opportunity of cross examination; Accommodation entries; Bogus loan
• Section: 143(3); 133(6); 143(1); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.1465/KOL/2014 ( / ASSESSMENT YEAR: 2010-11) M/S GDA CEMENT INDUSTRY PVT. LTD. CHOWDHURY MARKET, S.N. SARKAR ROAD, MUNSIFFDANGA, PURULIA 723101. VS. ACIT, CIR-3, ASANSOL ./ ./PAN/GIR NO. :AADCG 4934 F (APPELLANT) .. (RESPONDENT) APPELLANT BY :SHRI U. DASGUPTA, ADVOCATE RESPONDENT BY :SHRIAJAY SING H CIT(DR)&R.CHOUDHARY, ADDL-CIT / DATE OF HEARING : 13/12/2018 /DATE OF PRONOUNCEMENT : 19/12/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAI NING TO ASSESSMENT YEAR 2010-11, IS DIRECTED AGAINST AN ORDER PASSED BY THE COMMISSIONER OF INCOME TAX(APPEALS)-, ASANSOL, IN APPEAL NO.256/CIT(A)/ASL /CIR-3/ASL/12-13, DATED 22.05.2014, WHICH IN TURN ARISES OUT OF AN ORDER PA SSED BY THE ASSESSING OFFICER U/S.143(3) OF THE I.T. ACT, 1961 (HEREINAFTER REFER RED TO AS THE ACT) DATED 14.02.2013. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA DS AS UNDER: 1. FOR THAT THE ORDER OF THE LD. CIT(A) IS ARBITRA RY, EXCESSIVE, HENCE BAD IN LAW. 2. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A ), WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 44,50,000/- U/S 68 OF THE ACT, 1961 (WITHOUT GIVING COGNIZANCE TO THE WRITTEN SUBMISSIONS FILED) WHEN THE IDENTITY, CREDIT WORTHI NESS AND GENUINENESS OF SHARE APPLICANTS WERE ESTABLISHED BEYOND DOUBT AND THE ADDITION MADE MAY PLEASE BY DELETED. 3. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A ), WAS NOT LEGALLY JUSTIFIED IN SUSTAINING THE ADDITION U/S 68 OF THE ACT, 1961 ON THE BASIS OF AD IT REPORT (CONDUCTED THROUGH A.O. DURING REMAND), WITHOUT ANY OPPORTUNITY OF REBUTTAL, WITHO UT ANY OPPORTUNITY OF CROSS EXAMINATION AND WITHOUT ANY INFRA DEPARTMENTAL VERIFICATION THR OUGH CONCERNED ASSESSING OFFICER EVEN THOUGH ALL CONCERNED PARTICULARS HAS BEEN FILED ON RECORD. M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 2 22 2 4. FOR THAT ON THE FACTS OF THE CASE, THE LD. CIT(A ), WAS NOT JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 4,00,000/- ON ACCOUNT OF LOAN CREDITORS, WHE N THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF LOAN CREDITORS WERE ESTABLISHED BEYO ND DOUBT AND THE ADDITION MADE MAY PLEASE BE DELETED. 5. FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTE R, AMEND ANY FURTHER GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. GROUND NOS.2 & 3 RAISED BY THE ASSESSEE RELATE T O ADDITION OF RS.44,50,000/- U/S 68 OF THE INCOME TAX ACT, ON ACCOUNT OF SHARE A PPLICATION MONEY. 4. THE FACTS APROPOS THIS ISSUE ARE THAT THE ASSE SSEE FILED ITS RETURN OF INCOME FOR THE A.Y 2010-11 ON 26.09.2010. THE ASSESSEES CASE WAS PROCESSED U/S 143(1) OF THE I.T. ACT. LATER, THE ASSESSEES CASE WAS SELECTED FOR SC RUTINY U/S 143(2) OF THE ACT AND THE AO COMPLETED THE ASSESSMENT U/S 143(3) BY MAKING AD DITION ON ACCOUNT OF UNEXPLAINED SHARE CAPITAL / SHARE PREMIUM TO THE TU NE OF RS.44,50,000/- AND ON ACCOUNT OF BOGUS LOAN CREDITORS TO THE TUNE OF RS.5 ,00,000/-. THE AO NOTED THAT THE ASSESSEE HAS ISSUED 317800 SHARES @ RS. 10 EACH OUT OF 10,00,000 AUTHORIZED SHARES. NOTICES U/S 133(6), DATED 21.08.2012, WERE ISSUED T O THE ALLEGED SHAREHOLDERS CALLING FOR THE FOLLOWING DOCUMENTS/INFORMATION: (I) BRIEF NOTE ON BUSINESS, (II) COPY OF FORM OF SHARE APPLICATION, (III) COPY OF THE SHARE ALLOTMENT CERTIFICATE, IF ALLOTTED, OR OTHER RELEVANT DOCUMENTS, IF NOT PENDING, (IV) MODE OF PAYMENT OF SHARE APPLICATION MONEY, (V) COPY OF THE ITR-V FOR THE RELEVANT ASSES SMENT YEAR AND COPY OF BALANCE SHEET ALONG WITH ITS ANNEXURE. THE SHAREHOLDERS TO WHOM NOTICES U/S 133(6) WERE ADDRESSED ARE AS FOLLOWS: NAME OF THE SHAREHOLDERS NO. OF SHARE ALLOTTED DATE OF ALLOTMENT SHARE APPLICATION MONEY ADONIS VANIJYA PVT. LTD. 2000 31.03.2010 200000.00 JAIN AGENCY PVT. LTD. 8500 31.03.2010 850000.00 RAJSHREE TRADERS PVT. 3000 31.03.2010 300000.00 SALUJAVYAPAR PVT. LTD. 9000 31.03.2010 900000.00 SILVER POINT INFRATECH LTD. 5000 31.03.2010 500000. 00 VERSATILE VYAPAR PVT. LTD. 7000 31.03.2010 700000.0 0 VIRGEVYAPAR PVT. LTD. 5000 31.03.2010 500000.00 KOLKATA VANIJYA PVT. LTD. 5000 31.03.2010 500000.00 TOTAL 44509 4450000.00 M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 3 33 3 SINCE, THE ASSESSEE COMPANY COULD NOT PROVE THE IDE NTITY, CREDITWORTHINESS AND GENUINENESS OF THESE TRANSACTIONS, THEREFORE, AO HE LD THAT THESE SHAREHOLDER COMPANIES WERE PROVIDEDACCOMMODATION ENTRIES AND THE AMOUNT O F MONEY CREDITED IN THE BOOKS OF THE ASSESSEE, BELONGED TO THE ASSESSEE WHICH WAS CHANNELIZING THROUGH BANKING ACCOUNT THEREFORE, THE AO MADE THE ADDITION OF RS.4 4,50,000/-. 5. AGGRIEVED BY THE ADDITION MADE BY THE AO, THE AS SESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ADDITION MADE BY THE AO. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 6. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AT THE OUTSET ITSELF , THE LD COUNSEL SUBMITTED BEFORE US THAT SHARE APPLICATION MONEY RECEIVED FROM THE FOLL OWING SHARE SUBSCRIBERS PERTAIN TO THE PREVIOUS YEAR 2008-09, RELEVANT TO ASSESSMENT Y EAR 2009-10: SALUJAVYAPAR PVT. LTD. 9000 REC.IN AY 2009-10 9,0 0,000 SILVER POINT INFRATECH LTD. 5000 REC.IN AY2009-10 5,00,000 VIRGEVYAPAR PVT. LTD. 5000 REC.IN AY 2009-10 5,00,000 KOLKATA VANIJYA PVT. LTD. 5000 REC.IN AY2009-10 5,00,000 TOTAL 24,00,000 THE LD COUNSEL SUBMITTED THAT SINCE THE SAID AMOUNT OF RS. 24,00,000/-, WAS RECEIVED FROM THE ABOVE MENTIONED FOUR SHARE SUBSCRIBERS IN THE PREVIOUS YEAR 2008-09, RELEVANT TO ASSESSMENT YEAR 2009-10, THEREFORE, SAI D CASH CREDIT AMOUNT IS NOT ASSESSABLE IN THE ASSESSMENT YEAR 2010-11, UNDER CO NSIDERATION. THE LD DR FOR THE REVENUE HAS FAIRLY AGREED WITH THE PROPOSITION CANV ASSED BY THELD COUNSEL FOR THE ASSESSEE THAT THE SAID AMOUNT OF RS.24,00,00,000/-, WHICH BELONG TO FOUR SHARE SUBSCRIBERS AND PERTAIN TO ASSESSMENT YEAR 2009-10, AND THEREFORE, ADDITION ON ACCOUNT OF CASH CREDIT U/S 68 OF THE ACT, SHOULD NOT BE MAD E IN THE ASSESSMENT YEAR 2010-11, UNDER CONSIDERATION. M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 4 44 4 7. DURING THE COURSE OF HEARING, THE LD. COUNSEL FO R THE ASSESSEE SUBMITTED BEFORE US A CHART SHOWING THE PAYMENT RECEIVED FROM SHAREHOLDER S BY ACCOUNT PAYEE CHEQUES AND OTHER DETAILS, WHICH IS GIVEN BELOW FOR READY REFER ENCE: NAME OF SHARE APPLICANTS PAN MODE OF PAYMENT AMOUNT DATED REMARKS ADONIS VANIJYA PVT. LTD. 5 COUNCIL HOUSE STREET, KOLKATA 700001 AAHCA1770H ITO WARD 12(1) CHEQUE A/C PAYEE BANK STATEMENT FILED 200000.00 30.01.2010 ONE CHEQUE OF RS. 7,00,000/- RECEIVED FROM GRACE DEALERS PVT. LTD. ON 27.01.2010 OUT OF WHICH RS. 2,00,000/- INVESTED IN GDA CEMENT ON 30.01.2010 (SOURCE OF SOURCE STANDS EXPLAINED) SUPPORTING DOCUMENTS FILED: (BANK STATEMENT, ITR-V RECEIPT, COPIES OF AUDITED AC COUNTS, SHARE APPLICATION FORM) JAIN AGENCY PVT. LTD., 20,SYNAGOUE STREET, 2 ND FLOOR, KOLKATA 700001 AAACI7584M ITO WARD 6(2), KOLKATA RTGS A/C TRF. BANK STATEMENT FILED 350000.00 16.02.2010 CHEQUE FROM THIRD PARTY DEPOSITED IN A/C AND THEREAFTER RTGS MADE IN FAVOUR OF GDA (SOURCE OF SOURCE STANDS EXPLAINED) 500000.00 13.03.2010 CHEQUE FROM THIRD PARTY DEPOSITED IN A/C AND THEREAFTER RTGS MADE IN FAVOUR OF GDA (SOURCE OF SOURCE STANDS EXPLAINED) SUPPORTING DOCUMENTS FILED: (BANK STATEMENT, ITR-V RECEIPT, COPIES OF AUDITED AC COUNTS, SHARE APPLICATION FORM, BOARD RESOLUTION) RAJSHREE TRADERS PVT. LTD. 5, COUNCIL HOUSE STREET, KOLKATA 700001 AADCR8010K ITO WARD 4(1) KOLKATA RTGS A/C TRF BANK STATEMENT FILED 300000.00 03.03.2010 CHEQUE OF RS. 8,00,000/- TRANSFERRED FROM THIRD PARTY ON 02.03.2010, OUT OF WHICH RTGS MADE FOR INVESTMENT IN GDA CEMENT RS. 3,00,000/-. (SOURCE OF SOURCE STANDS EXPLAINED) SUPPORTING DOCUMENTS FILED: (BANK STATEMENT, ITR-V RECEIPT, COPIES OF AUDITED AC COUNTS, SHARE APPLICATION FORM) SALUJAVYAPAR PVT. LTD. 6A, RAJA SUBODH MULLICK SQUARE, 11 TH FLOOR, KOLKATA 700013 AAKCS7274D A/C PAYEE CHEQUE, BANK STATEMENT FILED A/C PAYEE CHEQUE, BANK STATEMENT FILED 500000.00 400000.00 03.10.2008 24.12.2008 CHEQUE OF RS. 6,00,000/- TRANSFERRED FROM THIRD PARTY ON 03.10.2008, OUT OF WHICH CHEQUE FOR INVESTMENT IN GDA CEMENT RS. 5,00,000/- (SOURCE OF SOURCE STANDS EXPLAINED) CHEQUE OF RS. 4,00,000/- TRANSFERRED FROM THIRD PARTY ON 23.12.2008, OUT OF WHICH CHEQUE FOR INVESTMENT IN GDA CEMENT RS. 4,00,000/- (SOURCE OF SOURCE STANDS EXPLAINED) VERSTILEVYAPAAR PVT. LTD. 5 COUNCIL HOUSE STREET, KOLKATA - 700001 AACCV7869H ITO WARD 6(1) A/C PAYEE CHEQUE 300000.00 31.12.2009 CHEQUE OF RS. 36 LACS TRANSFERRED FROM THIRD PARTY ON 29.12.2009, OUT OF WHICH INVESTMENT MADE IN GDA CEMENT RS. 7,00,000/- (SOURCE OF SOURCE STANDS M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 5 55 5 A/C PAYEE CHEQUE BANK STATEMENT FILED 400000.00 12.01.2010 EXPLAINED) VIRGO VYPAR LTD ., 13/A DAKERS LANE, KOLKATA AACCV4497M A/C PAYEE CHEQUE BANK STATEMENT FILED (ASST. YEAR 2009-10) 500000.00 08.12.2008 CHEQUE OF RS. 5,00,000/- TRF. FROM THIRD PARTY ON 04.12.2008 OUT OF WHICH CHEQUE FOR INVESTMENT IN GDA CEMENT RS. 5,00,000/-. (SOURCE OF SOURCE STANDS EXPLAINED) KOLKATA VANIJYA PVT. LTD. AADCK3571C A/C PAYEE CHEQUE, BANK STATEMENT FILED (ASST. YEAR 2009- 10) 500000.00 13.02.2009 CHEQUE OF RS. 10,00,000/- TRF FROM THIRD PARTY ON 13.02.2009, OUT OF WHICH CHEQUE FOR INVESTMENT IN GDA CEMENT RS. 5,00,000/-. (SOURCE OF SOURCE STANDS EXPLAINED) SILVER POINT INFRATECH PVT.LTD 500000.00 13.02.2009 CHEQUE FOR INVESTMENT IN GDA CEMENT RS. 5,00,000/-. FROM THE ABOVE CHART IT IS ABUNDANTLY CLEAR THAT AS SESSEE COMPANY RECEIVED THE SHARE APPLICATION MONEY FROM THE SHARE SUBSCRIBERS, NAMEL Y: SALUJAVYAPAAR PVT. LTD., VIRGO VYPAR LTD, KOLKATA VANIJYA PVT. LTD, AND SILVER POI NT INFRATECH PVT LTD. IN THE PREVIOUS YEAR 2008-09, RELEVANT TO ASSESSMENT YEAR 2009-10. THEREFORE, THE ONLY QUESTION THAT NEEDS TO BE ADDRESSED IN THE ASSESSEE `S CASE UNDER CONSIDERATION IS WHETHER THE CASH CREDIT UNDER SECTION 68 OF THE ACT CAN BE ADDED AND ASSESSED IN THE HANDS OF THE ASSESSEE FOR THE A.Y.2010-11? WE NOTE THATTHE HONBLE SUPREME COURT IN THE CASE OFITO VS. CH. ATCHAIAH (1996) 218 ITR 239 (SC) HAS HELD THAT THE INCOME SHOULD BE ASSESSED ON THE RIGHT PERSON, RIG HT YEAR AND IT SHOULD BE ON THE RIGHT INCOME. THE RELEVANT OBSERVATION OF THE HONBLE SU PREME COURTARE GIVEN BELOW: 4. IN OUR OPINION, THE CONTENTION URGED BY DR. GAURI SHANKER MERITS ACCEPTANCE. WE ARE OF THE OPINION THAT UNDER THE PRESENT ACT, THE ITO HAS NO OPTION LIKE THE ONE HE HAD UNDER THE 1922 ACT. HE CAN, AND HE MUST, TAX THE RIGHT PERSON AND THE RIGHT PERSON ALONE. BY 'RIGHT PERSON', WE MEAN THE PERSON WHO IS LIABLE TO BE TAX ED, ACCORDING TO LAW, WITH RESPECT TO A PARTICULAR INCOME. THE EXPRESSION 'WRONG PERSON' IS OBVIOUSLY USED AS THE OPPOSITE OF THE EXPRESSION 'RIGHT PERSON'. MERELY BECAUSE A WRONG P ERSON IS TAXED WITH RESPECT TO A PARTICULAR INCOME, THE AO IS NOT PRECLUDED FROM TAX ING THE RIGHT PERSON WITH RESPECT TO THAT INCOME.. FROM THE AFORESAID DECISION OF THE HONBLE SUPREME COURT ONLY THE RIGHT INCOME ALONE IS LIABLE TO BE TAXED IN THE RIGHT ASSESSMENT YEAR AND IN THE HAND OF RIGHT ASSESSEE. SINCE THE CASH CREDIT AMOUNT OF RS. 24,00,00,000/- BELONGS TO ASSESSMENT YEAR 2009- 10, AND DOES NOT BELONG TO A.Y.2010-11 UNDER CONSID ERATION, HENCE WE DELETE THE M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 6 66 6 ADDITION TO THE EXTENT OF RS. 24,00,00,000/-, AND B ALANCE ADDITION ON ACCOUNT OF CASH CREDIT OF RS.20,50,000/- ( RS.44,50,000 RS. 24,00,0 0,000) IS HEREBY CONFIRMED. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO MAKE ADDITION TO THE TUNE OF RS.20,50,000/- ONLY. 8. GROUND NOS.1 & 3 RAISED BY THE ASSESSEE ARE SUPP ORTIVE TO GROUND NO.2, HENCE, DO NOT REQUIRE ADJUDICATION. 9. GROUND NO.4 RAISED BY THE ASSESSEE RELATES TO AD DITION OF RS.4,00,000/- ON ACCOUNT OF LOAN CREDITORS. 10. THE FACTS APROPOS THIS ISSUE ARE THAT DURING TH E PREVIOUS YEAR 2009-10, THE ASSESSEE HAS TAKEN UNSECURED LOAN OF RS.5,00,000/- FROM THE FOLLOWING PERSONS: NAME & ADDRESS OF THE LOAN CREDITORS AMOUNT OF LOAN DATE OF TRANSACTION MODE OF TRANSACTION CHANDA AGARWAL COURT ROAD, NEAR M M HIGH SCHOOL, PURULIA 723101. 1,00,000.00 26/08/2009 BANK GOBIND PRASAD AGARWAL (HUF) COURT ROAD, NEAR M M HIGH SCHOOL, PURULIA 723101. 1,00,000.00 15/10/2009 BANK SANGITA AGARWAL COURT ROAD, NEAR M M HIGH SCHOOL, PURULIA 723101. 1,00,000.00 1,00,000.00 02/05/2009 26/08/2009 BANK SANJAY KUMAR AGARWAL (HUF) COURT ROAD, NEAR M M HIGH SCHOOL, PURULIA 723101. 1,00,000.00 15/10/2009 BANK TOTAL 5,00,000.00 DURING THE ASSESSMENT PROCEEDINGS, THE AO SENT NOTI CES U/S 133(6) TO THESE CREDITORS TO VERIFY THE GENUINENESS, IDENTITY & CREDITWORTHIN ESS OF THE LOAN CREDITORS. THE LOAN CREDITORS HAVE SENT THE REQUISITE DOCUMENTS/INFORMA TION WHICH HAVE BEEN EXAMINED BY THE AO. HOWEVER, THE AO NOTED IN SOME CASES, THAT T HE CREDITWORTHINESS OF PROVIDING LOAN TO THE ASSESSEE COMPANY WAS SEEMED TO BE DOUBT FUL. HENCE, THEY HAD BEEN ISSUED SUMMONS U/S 131 OF THE ACT FOR THEIR PERSONAL APPEA RANCE WITH CERTAIN DOCUMENTS LIKE NATURE OF BUSINESS, BANK STATEMENTS, COPY OF BALANC E SHEET/PROFIT & LOSS ACCOUNT ETC. DURING THE ASSESSMENT PROCEEDINGS, EXCEPT SHRI SANJ AY KUMAR AGARWAL NONE APPEARED BEFORE THE ASSESSING OFFICER. HOWEVER, ALL THE LOAN CREDITORS HAD SENT THE M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 7 77 7 REQUISITE DOCUMENTS AND INFORMATION TO THE ASSESSIN G OFFICER. THE AO HELD THAT LOAN CREDITORS DID NOT EXPLAIN THE SOURCE OF THEIR INCOM E AND ASSESSEE HAD TRIED TO INJECT BLACK MONEY BY CHANNELIZINGHIS MONEY THROUGH THEIR RESPECTIVE BANK ACCOUNTS AND THEREFORE, THE AO MADE THE ADDITION OF RS.5,00,000/ - U/S 68 OF THE ACT. 11. AGGRIEVED BY THE ADDITION MADE BY THE AO, THE A SSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO HAS PARTLY DELETED THE ADDITION. THE LD. CIT(A) HELD THAT LOAN GIVEN BY SHRI SANJAY KUMAR AGARWAL IS TO BE TREATED AS GE NUINE AND THE TESTS OF GENUINENESS AND CREDITWORTHINESS IN RESPECT OF OTHER LOAN CREDI TORS HAD FAILED. THEREFORE, THE LD. CIT(A) DELETED, THE ADDITION PARTLY AT RS. 1,00,00 0/- AND CONFIRMED THE BALANCE ADDITION OF RS.4,00,000/- (RS.5,00,000 -RS.1,00,000 ). 12. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE A SSESSEE IS IN APPEAL BEFORE US. THE LD COUNSEL RELIED ON THE SUBMISSIONS MADE BEFOR E THE LD CIT(A). ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REIT ERATED THE STAND TAKEN BY THE ASSESSING OFFICER, WHICH WE HAVE ALREADY NOTED IN O UR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 13. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD, WE NOTE THAT ALL THE TRANSACTIONS WERE DONE BY THE ASSESSEE THROUGH BANKING CHANNELAND RESPECTIVE LOAN CREDITOR HAS SUBMITTED CONFIRMATION, INCOME TAX RETURN, PAN CARD, LEDGER A CCOUNT, COPY OF BANK STATEMENTS,(VIDE PAPER BOOK PAGE 105 TO 165), DURIN G THE ASSESSMENT PROCEEDINGS. DURING THE ASSESSMENT PROCEEDINGS, SHRI SANJAY KUMA R AGARWAL, ONE OF THE CREDITORS APPEARED BEFORE THE ASSESSING OFFICER AND EXPLAINED THE DOCUMENTS SUBMITTED BY HIM BEFORE THE AO. THE ASSESSING OFFICER DID NOT DOUBT THE LOAN GIVEN BY SHRI SANJAY KUMAR AGARWAL, TO THE ASSESSEE AND DID NOT BRING AN Y EVIDENCE ON RECORD TO SHOW THAT LOAN GIVEN BY SANJAY KUMAR AGARWAL IS BOGUS. HOWEV ER, OTHER FOUR LOAN CREDITORSHAD SENT THE REQUISITE DOCUMENTS AND INFORMATION TO THE ASSESSING OFFICER AND DID NOT APPEAR PERSONALLY BEFORE HIM. 14. WE NOTE THAT ALL LOAN CREDITORS HAVE SUBMITTED THE REQUIRED DOCUMENTS BEFORE THE AO AND IT IS ALSO IMPORTANT TO NOTE THAT NEITHER TH E AO NOR THE LD. CIT(A) HAS M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 8 88 8 EXAMINEDTHE CONFIRMATION, INCOME TAX RETURN, PAN CA RD, LEDGER ACCOUNT, COPY OF BANK STATEMENTS SUBMITTED BY THE RESPECTIVE LOAN CR EDITOR. BOTH THE AUTHORITIES BELOW DID NOT COMMENT WHETHER DOCUMENTS SUBMITTED BY CRED ITORS ARE FALSE AND UNTRUE. WE ALSO NOTE THAT BOTH, LD AO AS WELL AS LD CIT(A), FA ILED TO BRING ANY COGENT EVIDENCE ON RECORD TO SHOW THAT THESE DOCUMENTS SUBMITTED BY TH E RESPECTIVE CREDITORS ARE FALSE AND UNTRUE AND DO NOT CARRY ANY WEIGHT.EXCEPT PHYSI CAL APPEARANCE, THE RESPECTIVE LOAN CREDITORS HAS PRODUCED DOCUMENTS AND INFORMATI ON AND THESE DOCUMENTS AND INFORMATION HAVE NOT BEEN VERIFIED AND NO COMMENTS WERE GIVEN BY THE AO, DURING THE ASSESSMENT STAGE. THAT IS, AO HAD NOT DEALT WIT H THE ISSUE JUDICIOUSLY AND CONSISTENTLY WITH THE EVIDENCE ADDUCED DURING THE C OURSE OF THE ASSESSMENT PROCEEDINGS BY THE ASSESSEE AND THE REPLIES OF THE CREDITORS IN RESPECT OF THE BORROWED AMOUNT, DO NOT WARRANT THE INFERENCE THAT SUCH MONI ES RECEIVED FROM CREDITORS IS UNACCOUNTED CASH CREDIT. THERE IS NO MATERIAL BROUGHT ON RECORD TO THAT EFF ECT AND WILD SPECULATION OF THIS GENRE CANNOT BE PASSED OFF AS GOSPEL TRUTH. ALL THE TRANSACTIONS WITH THE LOAN CREDITORS WERE D ONE THROUGH BANKING CHANNEL, AND ASSESSEE HAS PROVED THE GENUINENESS CREDITWORTHINES S AND IDENTITY BY SUBMITTING CONFIRMATION, INCOME TAX RETURN, PAN CARD, LEDGER A CCOUNT, COPY OF BANK STATEMENTS, AND THEREFORE, ADDITION MADE BY THE ASS ESSING OFFICER NEEDS TO BE DELETED, ACCORDINGLY, WE DELETE THE BALANCE ADDITION SUSTAIN ED BY LD CIT(A) TO THE TUNE OF RS.4,00,000/-. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE (IN GROUND NO.4) IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 19.12.201 8. SD/- (A.T.VARKEY) SD/- (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED 19/12/2018 (RS, SPS) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT M/S GDA CEMENT INDUSTRY PVT. LTD. 2. / THE RESPONDENT-ACIT, CIR-3, ASANSOL M/S GDA CEMENT INDUSTRY PVT. LTD. ITA NO.1465/KOL/2014 ASSESSMENT YEAR: 2010-11 PAGE | PAGE | PAGE | PAGE | 9 99 9 TRUE COPY BY ORDER ASSISTANT REGISTRAR I.T.A.T, KOLKATA BENCHES, KOLKATA . 3. ( ) / THE CIT(A), 4. / CIT 5. !'# , # , / DR, ITAT, KOLKATA 6. '$%& / GUARD FILE.