SANI DEVELOPERS P. LTD, MUMBAI V. ITO 7(2)(2), MUMBAI

ITA 15/MUM/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8848 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 23-11-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 02-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D SONGATE
• Assessee Lawyers: R ASHOKAN
• Keywords: Unexplained cash credit; Corroborative evidences
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M. JAGTAP, AM AND SHRI V. DURGA RAO , JM I.T.A.NO. 15/MUM/2009 ASSESSMENT YEAR : 2005-06 M/S. SANI DEVELOPERS PVT. LTD., C/O. K.C. MEHTA & ASSOCIATES, (C.A.) 32-J, LAXMI INDUSTRIAL ESTATE, NEW LINK ROAD, ANDHERI(W),MUMBAI - 53. PAN: AAICS 4790 A VS. THE INCOME-TAX OFFICER 7(2)(2), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R. ASHOKAN RESPONDENT BY : SHRI D. SONGATE O R D E R PER V. DURAGA RAO, JM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 7 TH NOVEMBER 2008 OF THE COMMISSIONER OF INCOME- TAX (APPEALS)-VII, MUMBAI, AND RELATES TO THE ASS ESSMENT YEAR 2005-06. 2. THE ONLY GROUND TAKEN BY THE ASSESSEE READS AS UND ER: THE LEARNED CIT(A) HAS ERRED IN DISMISSING APPEAL A GAINST ORDER U/S. 143(3) AND CONFIRMING ADDITION OF UNPROV ED LOANS U/S.68 OF RS. 70,00,000/- AND ADDING UNPROVED ADVANCE OF RS. 30,00,000/- AND LEVIED TAX CUM PENAL TY ACCORDINGLY. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 26.10.2005 DECLARING TOTAL INCO ME AT RS. NIL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSING OFFICER OBSERVED THAT THE ASSESSEE HAD INTRODUCED U NSECURED LOANS OF RS. 87,75,000/- OUT OF WHICH RS. 70 LAKHS WAS CLAIMED TO HAVE BEEN RECEIVED FROM ONE OF THE DIRECTORS OF THE COMPANY, MR. JUNAID SHARIF MOTLEKAR AND RS.17,75,000/- FROM M/S. LUSIN ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 2 INDUSTRIES. LTD. THE ASSESSEE HAD ALSO SHOWN LIABIL ITY WARDS ADVANCE RECEIVED FOR THE FLAT AMOUNTING TO 30 LAKH S. THE A.O. VIDE NOTICE DATED 17.05.2007 ASKED THE ASSESSEE TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE L ENDERS IN RESPECT OF THE ABOVE MENTIONED LIABILITIES. IN RESP ONSE TO THE ABOVE NOTICE, THE ASSESSEE HAS FILED A REPLY DATED 24.5.2007, THE RELEVANT PORTIONS OF THE REPLY ARE REPRODUCED BELOW : 7. DURING THE YEAR THE COMPANY HAS TAKEN INTEREST FREE UNSECURED LOAN OF RS,. 70,00,000/- FROM DIRECTOR, M R. JUNAID SHARIF, MANIK MOTI BUILDING, YARI ROAD, ANDHERI(WEST), MUMBAI 400 061, HOLDER OF PAN NO.AOJ PM 7556 C. THE LEDGER EXTRACT IS ENCLOSED HEREWITH ALO NG WITH CONFIRMATION. ALSO THE COMPANY HAS TAKEN LOAN OF RS . 17,75,000/- FROM M/S. LUSIN INDUSTRIES LTD., HOLDER OF PAN NO.AAACL-3886 A ON WHICH INTEREST AT THE RATE O F 12% HAS BEEN PAID . THE LOAN CONFIRMATION IS ENCLO SED HEREWITH. 9. THE ADVANCE FOR FLAT AT RS. 30,00,000/- SHOWN IN TH E BOOKS OF ACCOUNTS WAS RECEIVED FROM MR. DILIP SHETY E FOR FLAT NO. 801 IN PROPOSED BUILDING TO BE EXTENDED ON SARGAM CO-OPERATIVE HOUSING SOCIETY LIMITED AT 30 TH ROAD, BANDRA, MUMBAI 400 050. SUBSEQUENTLY, NOTICE U/S.133(6) WAS ISSUED TO THE D IRECTOR MR. JUNAID SHARIF MOTLEKAR AT THE ADDRESS FURNISHED BY THE ASSESSEE. HOWEVER, THE SAME WAS RETURNED UNDELIVERED BY THE P OSTAL AUTHORITIES WITH THE REMARK NOT KNOWN. THE A.O. A GAIN ISSUED NOTICE DATED 11..6.207 REQUESTING THE ASSESSEE TO P RODUCE MR. MOTLEKAR, ALONG WITH CERTAIN DETAILS, SUCH AS (A) PROOF OF HIS IDENTITY AND DETAILS OF HIS INCOME, EA RNING ACTIVITIES WITH DOCUMENTARY EVIDENCE; (B) DOCUMENTARY EVIDENCE OF TRANSACTION DONE WITH M/S. SANI DEVELOPERS PT. LTD. DURING THE PERIOD 01.04.20 04 TO 31.03.2005; (C) MODE OF RECEIPT/PAYMENT WITH SUPPORTING EVIDENCE; (D) COPY OF ACCOUNT OF M/S. SANI DEVELOPERS PVT. LTD. I N THE BOOKS OF JUNAID SHARIF MOTLEKAR. IF ANY PAYMENT/RECEIPT ARE OUTSTANDING AS ON 31.3.2005, THEN THE DATE(S) OF SUBSEQUENT SETTLEMENT WITH EVIDENCE THEREOF. (E) PROOF OF FILING THE RETURN OF INCOME BY JUNAID SHAR IF MOTLEKAR FOR THE ASSESSMENT YEAR 2005-06 WITH COPIE S OF BALANCE SHEET AND PROFIT & LOSS ACCOUNT. ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 3 THE RELEVANT PART OF THE REPLY OF THE ASSESSEE, IN RESPONSE TO THE ABOVE LETTER ISSUED BY THE ASSESSING OFFICER, IS RE PRODUCED BELOW: 2 (A) COPY OF PASSPORT OF MR. JUNAID SHARIF MOTLEK AR IS ENCLOSED HEREWITH AS PROOF OF HIS IDENTITY. HE IS A NON- RESIDENT INDIAN RESIDING IN UAE. (B) DURING THE ABOVE ASSESSMENT YEAR HE PURCHASED 5 0 EQUITY SHARES OF RS.100/- EACH OF THE SAID M/S. SAN I DEVELOPERS PVT. TD. HE WAS ONE OF THE DIRECTORS OF M/S. SANI DEVELOPERS PVT. LTD. AS A DIRECTOR HE LEND A L OAN OF RS. 70,00,000/- TO THE COMPANY. (C) THE ABOVE AMOUNTS WERE PAID FROM HIS NRE A/C. BEARING NO. 006610850815 WITH DEVELOPMENT CREDIT BA NK LTD. A COPY OF HIS BANK STATEMENT IS ENCLOSED HEREW ITH AS EVIDENCE. (D) SINCE HE IS AN NRI, HE DOES NOT MAINTAIN ANY B OOKS OF ACCOUNTS IN INDIA. (E) SINCE HE DID NOT HAVE ANY INCOME IN INDIA DURIN G THE ABOVE ASSESSMENT YEAR, HE HAS NOT FILED ANY RETURN OF INCOME. 4. A COPY OF PASSPORT OF MR. DILIP SHETYA AS EVIDEN CE OF HIS IDENTITY IS ENCLOSED HEREWITH FOR YOUR RECORD. THE FLAT BOOKED BY HIM DURING THE ABOVE ASSESSMENT YEAR WAS RETURNED BACK TO THE COMPANY IN THE SUBSEQUENT YEAR AND HENCE NO DOCUMENT WAS REGISTERED IN RESPECT OF THE SAID FLAT NO.801. HE WAS ALLOTTED ONLY AN ALLOTMENT LETT ER, COPY OF WHICH IS ENCLOSED HEREWITH FOR YOUR RECORD. 4. THE ASSESSING OFFICER FURTHER ASKED THE ASSESSEE TO PRODUCE MR.MOTLEKAR BUT DID NOT DO SO AND NO DOCUM ENT WAS FILED TO PROVE HIS INCOME AND HIS EARNING ACTIVITIE S. THE ASSESSING OFFICER ISSUED ANOTHER NOTICE DATED 30.8.2007 CALLI NG THE ASSESSEE TO FILE THE FOLLOWING DETAILS: 1. IT IS OBSERVED THAT M/S. KAZI & CO. ADVOCATES AN D MR. NISAR KAZI HAVE FURNISHED INFORMATION ON BEHALF OF MR. MOTLEKAR AND MR. DILIP SHETYA RESPECTIVELY. WHETHER M/S. KAZI & CO. ADVOCATES AND MR. NISAR KAZI ARE HOLDING POWER OF ATTORNEY TO FURNISH THE INFORMATION CALLED FOR U /S.133(6) FROM MR. MOTLEKAR AND MR. DILIP SHETYE? IF YES, PLE ASE FURNISH THE SAME. 2. IN RESPECT OF QUERY NO.2(A) OF THE QUESTIONNAIR E TO THE NOTICE U/S.142(1) DATED 11.6.2007 YOU WERE REQUESTE D TO FURNISH THE INCOME EARNING ACTIVITIES OF SHRI JUNAI D SHARIF MOTLEKAR ALONG WITH DOCUMENTARY EVIDENCE. HOWEVER, THE ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 4 SAME HAS NOT BEEN PRODUCED, YOU ARE REQUIRED TO PRO DUCE THE SAME. 3. YOU ARE ALSO REQUIRED TO PRODUCE THE BANK STATEM ENT OF THE DRAWN BANK OF SHRI JUNAID SHARIF MOTLEKAR FROM WHERE THE FUNDS HAVE BEEN TRANSFERRED TO HIS NRE A/C. WIT H DEVELOPMENT CREDIT BANK TO PROVE THE CREDIBILITY AN D GENUINENESS OF THE TRANSACTIONS. 4. YOU WERE ASKED TO PRODUCE THE BANK STATEMENT OF DILIP SHETYE FROM WHERE HE HAD PAID ADVANCE OF RS. 30,00, 000/- FOR THE FLAT NO. 801 IN THE BUILDING CONSTRUCTED B Y THE ASSESSEE COMPANY. HOWEVER, THE SAME HAS NOT BEEN PRODUCED. YOU ARE REQUIRED TO PRODUCE THE SAME TO PROVE THE CREDIBILITY AND GENUINENESS OF THE TRANSACTION. 5. IN RESPONSE TO THE ABOVE NOTICE, THE ASSESSEES REPLY DATED 18.09.2007 IS REPRODUCED BELOW: UNDER INSTRUCTIONS OF OUR ABOVE CLIENTS, WITH REFE RENCE TO YOUR ABOVE REFERRED NOTICE AND IN CONTINUATION OF O UR EARLIER SUBMISSIONS, WE HEREBY FURTHER FURNISH THE FOLLOWING INFORMATION/DOCUMENTS: 1. COPIES OF POWER OF ATTORNEY IS IN FAVOUR OF MR. NIS AR KAZI ARE ENCLOSED HEREWITH. 2. MR. JUNAID MOTLEKAR IS AN NRI AND EARNS HIS INCOME ABROAD. WE ARE PUT IN AWKWARD POSITION TO INQUIRE ABOUT THE FINANCIAL STATE OF ANY PERSON. HOWEVER, S INCE WE HAVE RECEIVED THE PAYMENT FROM HIS NRI ACCOUNT, OUT PURPOSE WAS SERVED THAT HE HAD NO INCOME IN IND IA AND HENCE THERE IS NO TAX EVASION. 3. SINCE WE HAVE RECEIVED THE PAYMENT FROM THE NRI SOURCE, WE AS RECIPIENT, DO NOT FIND IT REASONABLE TO ASK FOR THE GENUINENESS OF THE TRANSACTION. HOWEVER, HE HOLDS A PAN CARD BEARING NO.AOJPM 75556 C. 4. AGAIN MR. DILIP SHETYE IS AN NRI CLIENT. HE WAS OUR FLAT PURCHASER. NORMALLY PURCHASERS DO NOT LIKE THE BUILDERS ASKING FOR ALL THE UNWARRANTED DETAILS. HOWEVER, HE HOLDS A PAN CARD BEING NO. BIMPS 9751 H. 6. AGAIN THE ASSESSING OFFICER HAS ISSUED NOTICE D ATED 11.12.2007 CALLING EXPLANATION FROM THE ASSESSEE TH AT THE UNSECURED LOAN OF RS. 70 LAKHS INTRODUCED DURING TH E YEAR SHALL BE TREATED AS UNEXPLAINED CASH CREDIT U/S.68 OF THE I.T.ACT AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE ON T HE GRUND THAT THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF T HE DIRECTOR, ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 5 MR. JUNAID MOTLEKAR HAS NOT BEEN PROVED TILL DATE A ND ALSO THE FACT THAT THE LOAN CONFIRMATION DATED 01.04.2005 FILED IS BOGUS AS MR. MOTLEKAR HAS NOT ALLOTTED PAN ON 05.05.2005. 7. AFTER EXAMINING THE REPLY AND THE DETAILS FROM T HE BANK ACCOUNT, IT WAS OBSERVED THAT THE ASSESSEE HAS FILE D A LOAN CONFIRMATION OF RS. 70 LAKHS ON 01.04.2005 SHOWING THE PAN OF THE LENDER. HOWEVER, NO PAN WAS ALLOTTED TO MR. MOT LEKAR ON 1.4.2005. ON BEING QUESTIONED, THE ASSESSEE HAS NO T FURNISHED ANY REPLY ON THIS ISSUE. THIS PROVES THAT THE ASSES SEE HAS FABRICATED THE EVIDENCE TO PROVE THE GENUINENESS OF THE LOAN TRANSACTION. THE ASSESSEE WAS GIVEN ENOUGH OPPORT UNITIES TO FURNISH THE DETAILS OF INCOME EARNING ACTIVITIES OF MR. JUNAID SHARIF MOTLEKAR, ALONGWITH DOCUMENTARY EVIDENCE. T HE ASSESSEE HAS FAILED TO PROVE THE CAPACITY AND CREDITWORTHINE SS OF THE LENDER. THE ASSESSING OFFICER FURTHER OBSERVED THAT DURING THE YEAR THE ASSESSEE HAS TAKEN RS. 70 LAKHS FROM ONE MR. MOTLEKAR AS LOAN. MR. MOTLEKAR IS ALSO ONE OF THE DIRECTORS OF THE ASSESSEE COMPANY. THE ASSESSEE COMPANY HAS FURNISHED PHOTOCO PIES OF THE BANK ACCOUNT OF MR. MOTLEKAR IN DUBAI BANK. HOWEVER , FROM THE LIMITED NUMBER OF ENTRIES REFLECTED IN THE SHEET OF PAPER, THE CREDITWORTHINESS OF THE SAID PERSON COULD NOT BE ES TABLISHED. THE FIRST ENTRY IN THE SO-CALLED BANK STATEMENT OF MR. MOTLEKAR BEGINS WITH A DEPOSIT OF RS.2,03,685/- ON 15.10.2004. THE REAFTER THERE ARE SIX ENTRIES IN THE BANK ACCOUNT WHICH ACCORDING TO THE ASSESSEES REPRESENTATIVE ARE THE ENTRIES FOR THE P URPOSE OF DRAFTS WHICH WERE ISSUED TO MR.MOTLEKARS BANK ACCOUNT MAI NTAINED IN INDIA WITH DEVELOPMENT CREDIT BANK. THE AO WAS OF T HE OPINION THAT THE INFORMATION GIVEN BY THE ASSESSEE DID NOT THROUGH ANY LIGHT ON THE CREDITWORTHINESS OF MR. MOTLEKAR. ASS ESSEE DID NOT EXPLAIN WHAT WERE THE TRANSACTIONS BEFORE THE SAID DEPOSIT ON 15.10.2004. IT IS ALSO NOT CLEAR WHETHER THIS AMOUN T WAS RECEIVED BY MR. MOTLEKAR FROM THE ASSESSEE ITSELF OR IT IS T HE MONEY EARNED BY MR. MOTLEKAR. THE ASSESSEE HAS NOT PRODUCED ANY DETAILS WITH REGARD TO THE EARNING ACTIVITIES OF MR. MOTLEKAR. O N THE BASIS OF THE ABOVE, THE A.O. CAME TO THE CONCLUSION THAT THE ASSESSEE HAS ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 6 FAILED TO PROVE THE IDENTITY OF THE PARTY, CREDITWO RTHINESS AND GENUINENESS OF THE TRANSACTION AND HE TREATED THE A MOUNT OF RS. 70 LAKHS RECEIVED BY THE ASSESSEE AS UNEXPLAINED A ND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. 8. IN RESPECT OF RS. 30 LAKHS RECEIVED FROM MR. DIL IP SHETYE, THE A.O. ASKED THE ASSESSEE TO PROVE HIS CREDITWORT HINESS OF THE PERSON AND HIS IDENTITY. THE ASSESSEE HAS MERELY SU BMITTED PHOTO-COPY OF THE PASSPORT OF THE SAID PERSON AND S UBMITTED THAT HE IS AN INDIAN PASSPORT HOLDER RESIDING IN USA. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.R. REVEALED THAT HE HAS NOT BEEN ALLOTTED ANY FLAT AND THE BOOKING AMOUNT H AS BEEN RETURNED. WHEN THE A.O. HAS SPECIFICALLY ASKED THE ASSESSEE TO SUBMIT THE CREDITWORTHINESS OF THE PERSON, THE ASSE SSEE HAS MERELY SUBMITTED XEROX COPIES OF CITIBANK STATEMENT (PLACE NOT KNOWN) FOR THE PERIOD 1.7.2004 TO 30.9.2004. THE A. O. OBSERVED THAT THE BANK ACCOUNT SUBMITTED BY THE ASSESSEE REL ATES TO SOME PERIOD WHICH IS NOT AT ALL RELEVANT IN RESPECT OF T HE TRANSACTIONS DONE WITH THE ASSESSEE ON 15.03.2005 AND 17.03.2005 . NO CONFIRMATION WAS FILED FROM DILIP SHETYE. THE A.O. FURTHER OBSERVED THAT THE ASSESSEE HAS ONLY SUBMITTED A PUR PORTED BANK STATEMENT OF DILIP SHETYE FOR THE PERIOD NOT RELEVA NT AND THE ASSESSEE COULD ESTABLISH THE CREDITWORTHINESS AND G ENUINENESS OF THE TRANSACTION. THE A.O. OBSERVED THAT EVEN THOUGH THE PERSON IS RESIDING IN USA, HE IS STATED TO HAVE GIVEN THE MON EY FROM DUBAI SINCE THE DEMAND DRAFTS HAVE BEEN ISSUED FROM DUBAI . HOW AND WHY THE PERSON RESIDING IN USA WILL ISSUE DRAFTS FR OM DUBAI IS NOT KNOWN. IN THE ABOVE FACTS THE A.O. WAS OF THE O PINION THAT THE ASSESSEE HAS FILED TO PROVE THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PERSON AND HELD THAT RS .30 LAKHS CLAIMED TO HAVE BEEN RECEIVED AS FLAT BOOKING FROM SHRI DILIP SHETYE IS UNEXPLAINED AND HENCE ADDED THE SAME TO T HE TOTAL INCOME OF THE ASSESSEE US/.68 OF THE ACT. 9. ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE MA TTER IN APPEAL BEFORE THE CIT(A). AFTER CONSIDERING THE SUB MISSIONS OF THE ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 7 ASSESSEE, THE LEARNED CIT(A) CONFIRMED THE ACTION O F THE A.O. ADDING RS. 1,00,00,000/- TO THE ASSESSEES TOTAL IN COME. 10. ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE MA TTER BEFORE THE TRIBUNAL. ASSESSEE HAS FILED A PAPER BOOK CONSI STING OF 12 PAGES. IT APPEARS FROM THE PAPER BOOK THAT THE DETA ILS FILED BEFORE THE TRIBUNAL WERE ALREADY THERE BEFORE THE LOWER AU THORITIES. THE LEARNED COUNSEL FOR THE ASSESSEE HAS ARGUED THAT T HE ASSESSEE RECEIVED THE AMOUNT AND REPAID THE SAID AMOUNT. THE REFORE THE LOWER AUTHORITIES WRONGLY INVOKED THE PROVISIONS OF SECTION 68 OF THE ACT. 11. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS FAILED TO PRO VE THE IDENTITY OF THE PARTIES, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. HE SUPPORTED THE ORDERS OF THE AUTHORI TIES BELOW. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE AL SO PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW. THE CASE OF THE ASSESSEE IS THAT HE HAS RECE IVED RS. 70,00,000/- FROM ONE OF THE DIRECTORS MR. JUNAID S HARIF MOTLEKAR. HE IS A NON-RESIDENT INDIAN RESIDING IN U AE. THE A.O. INITIALLY ISSUED NOTICE TO MR. JUNAID SHARIF MOTLEK AR AS PER THE ADDRESS GIVEN BY THE ASSESSEE. THE NOTICES WERE RET URNED UNSERVED BY THE POSTAL AUTHORITIES WITH THE REMARK NOT KNOWN. FURTHER, THE AO ISSUED ANOTHER NOTICE TO THE ASSESS EE TO PRODUCE MR. JUNAID SHARIF MOTLEKAR AND ALSO DIRECTED THE A SSESSEE TO FURNISH DOCUMENTARY EVIDENCE WITH REGARD TO THE EAR NING ACTIVITIES OF MR. JUNAID SHARIF MOTLEKAR AND ALSO B ANK STATEMENT OF THE DRAWER BANK. FROM THE PAN CARD PRODUCED BY T HE ASSESSEE THE AO FOUND THAT THE NUMBER IS NOT CORRECT AND NO SUCH PAN CARD WAS ISSUED TO MR. JUNAID SHARIF MOTLEKAR. WHEN THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME, HE FAILED T O DO SO. FROM THIS, IT CAN BE PRESUMED THAT THE ASSESSEE HAS SUBM ITTED A BOGUS PAN CARD NUMBER . EVEN WITH REGARD TO THE EARNING A CTIVITIES AND CREDITWORTHINESS OF THE CREDITOR, THE ASSESSEE FAIL ED TO PRODUCE ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 8 ANY DOCUMENTARY EVIDENCE. AFTER CONSIDERING ALL THE FACTS, THE AO CAME TO THE CONCLUSION THAT THE AMOUNT OF RS.70,00 ,000/- RECEIVED BY THE ASSESSEE IS UNEXPLAINED CASH CREDIT AND BY INVOKING SEC.68 OF THE ACT, HE ADDED THE SAME TO TH E TOTAL INCOME OF THE ASSESSEE. THE VIEW OF THE A.O. WAS CONFIRMED BY THE LEARNED CIT(A). EVEN BEFORE US THE ASSESSEE COULD N OT ABLE TO PRODUCE ANY DOCUMENTARY EVIDENCE TO ESTABLISH THE I DENTITY OF THE PARTY, CREDITWORTHINESS AND GENUINENESS OF THE TRAN SACTION. THEREFORE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A). ACCORDINGLY WE UPHOLD THE SAME. 13. IN RESPECT OF THE ADVANCE OF RS. 30,00,0 00/- RECEIVED FROM MR. DILIP SHETYE, THE ASSESSEE FILED ONLY A CO PY OF HIS PASSPORT. THE ASSESSEE SUBMITTED BEFORE THE A.O. TH AT MR. DILIP SHETYE HAS BOOKED A FLAT BY PAYING R. 30,00,000/-. IT WAS STATED BY THE ASSESSEE THAT THE FLAT BOOKED BY MR. DILIP S HETYE DURING THE CURRENT YEAR WAS ACTUALLY RETURNED BACK TO THE COMPANY IN THE SUBSEQUENT YEAR AND THEREFORE, NO DOCUMENTS WER E REGISTERED IN RESPECT OF THE SAID FLAT. WHEN THE A.O. SPECIFIC ALLY ASKED THE ASSESSEE TO PROVE THE CREDITWORTHINESS OF THE PERSO N, THE ASSESSEE FILED A COPY OF THE CITI BANK STATEMENT (WITHOUT M ENTIONING PLACE OF THE BANK), FOR A SHORT PERIOD OF 1.7.2004 TO 30. 9.2004. NEITHER THE ASSESSEE HAS FILED ANY CONFIRMATION LETTER FRO M MR. DILIP SHETYE NOR ANY DOCUMENTARY EVIDENCE BEFORE THE A.O. TO SUBSTANTIATE THAT THE ASSESSEE HAD RECEIVED A SUM O F RS. 30,00,000/- FOR THE PURPOSE OF BOOKING A FLAT. ACCO RDING TO THE ASSESSEE MR. DILIP SHETYE IS RESIDING IN USA. HOWE VER, THE DEMAND DRAFT HAS BEEN ISSUED FROM DUBAI. IT WAS NO T EXPLAINED EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE THE T RIBUNAL THAT HOW A PERSON RESIDING IN USA CAN ISSUE A DEMAND DRA FT FROM DUBAI. EVEN BEFORE US NOTHING WAS PRODUCED TO ESTAB LISH CREDITWORTHINESS OF THE CREDITORS AND GENUINENESS O F THE TRANSACTION. WE, THEREFORE, TAKING INTO CONSIDERATI ON ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, FIND NO INFIRMITY IN THE ORDER PASSED BY THE CIT(A) AND UPHOLD THE SAME. ITA NO.15/M/2009 M/S SANI DEVELOPERS PVT. LTD. . . 9 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF JANUARY, 2011. SD/- SD/- (P.M. JAGTAP) (V. DURGA RAO) ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI DATED THE 21 ST JANUARY, 2011. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-7, MUMBAI 4. THE CIT(A)-VII, MUMBAI 5. THE DR E BENCH, MUMBAI BY ORDER /TRUE COPY/ SST. REGISTRAR, ITAT, MUMBAI