KALU RAM MEENA, Jaipur V. ITO, Jaipur

ITA 230/JPR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6280 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 21-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence; Onus to prove
• Section: 131; 68; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,O JH HKKXPUN] YS[KK LNL; LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM VK;DJ VIHY LA-@ ITA NO. 230/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2007-08 SHRI KALU RAM MEENA 47, BAWADI, KHEDA SHYAM DAS TEHSIL: AMER, JPR CUKE VS. THE ITO WARD- 3(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ALHPM 4929 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY:SMT. POONAM RAI, DCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20/06/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 24 /07/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE APPEAL FILED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(A)-1, JAIPUR DATED 21-02-2017 FOR THE AS SESSMENT YEAR 2007-08 RAISING THEREIN FOLLOWING GROUNDS OF APPE AL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMIN G THE ACTION OF THE AO IN PASSING ORDER U/S 144 OF THE AC T WITHOUT PROVIDING PROPER OPPORTUNITY OF BEING HEARD. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD. CIT(A) HAS ERRED IN CONFI RMING THE ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 2 ADDITION OF RS. 31.68 LACS BEING AMOUNT PAID FOR PU RCHSE OF AGRICULTURE LAND MADE BY AO ALLEGING THE SAME AS IN COME FROM UNDISCLOSED SOURCES BY GROSSLY IGNORING THE SO URCE EXPLAINED BY ASSESSEE. APPELLANT PRAY ADDITION SO M ADE MAY PLEASE BE DELETED. 2.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW , THE LD. CIT(A) HAS ERRED IN CONFI RMING THE ADDITION MADE ON ASSUMPTION AND PRESUMPTION, THUS T HE ADDITION MADE DESERVES TO BE DELETED. 2.2 THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION BY IGNORING THE SUBMISSION OF THE ASSESSEE THAT AGRICULTURE LAND WAS PURCHASED OUT OF LOAN TAKEN FR OM PARTNERSHIP FROM M/S. K.L. TRADERS FOR WHICH NECESS ARY DOCUMENTARY EVIDENCES WERE FURNISHED, THUS THE ADDI TION OF RS. 31.68 LACS IS CONTRARY TO FACTS AND THEREFORE, DESERVES TO BE DELETED. 2.1 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 1. HENCE, THE SAME IS DISMIS SED BEING NOT PRESSED. 2.2 APROPOS GROUND NO. 2 TO 2.2. OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 3.2.2 DETERMINATION (I) THE BRIEF FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT PURCHASED A N IMMOVABLE PROPERTY FOR A CONSIDERATION OF RS. 31.68 ,000/- AND SINCE NO EXPLANATION WAS FURNISHED REGARDING TH E SOURCE THEREOF, THE AO HAS HELD THIS INVESTMENT AS MADE FR OM UNDISCLOSED INCOME AND ADDED THE SAME AS UNDISCLOSE D INCOME OF THE APPELLANT. ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 3 (II) DURING APPELLATE PROCEEDING, IT WAS SUBMITTED BY THE APPELLANT THAT:- . THE IMMOVABLE PROPERTY UNDER CONSIDERATION WAS PURCHASED BY IT THROUGH REGISTERED SALE DEED DATED 11-10-2006. . THE ENTIRE PAYMENT WAS MADE THROUGH ACCOUNT PAYEE CHEQUES FORM THE BANK ACCOUNT OF THE PARTNERSHIP FIRM M/S. K.L. TRADERS WHEREIN THE APPELLANT WAS ONE OF THE PARTNERS. . THE SOURCE OF RS. 34,70,000/- WAS THE LOAN TAKEN FROM M/S. GOEL ISHA COLONIZERS (P) LTD. . THUS THE SOURCE OF INVESTMENT MADE IN PURCHASE OF THE SAID LAND STANDS FULLY EXPLAINED. (III) IT WAS FINALLY SUBMITTED BY THE APPELLANT THA T THE INVESTMENT STANDS DULY EXPLAINED FROM THE BANK STATEMENT OF THE FIRM WHERE THE APPELLANT IS A PART NER WHEREFROM THE CHEQUES FOR PURCHASES OF THE SAID LAN D HAVE BEEN ISSUED AND THUS NO ADDITION OF THE ALLEGE D UNDISCLOSED INCOME OUGHT TO BE MADE AND THUS THE ENTIRE ADDITION OF RS. 31,68,000/- DESERVES TO BE DELETED. (IV) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. IT IS NOTED THAT THE APPELLANT HAS NOT FILE D COPY OF ITS BANK STATEMENT EVEN DURING THE REMAND PROCEEDINGS. IT APPEARS THAT THE PAYMENT WERE MADE FROM THE BANK ACCOUNT OF PARTNERSHIP FIRM OF THE APPELLANT M/S. K.L. TRADERS. VIDE ORDER SHEET ENTRY DATED 07-02-2017, THE A.R. WAS REQUIRED TO FILE: . THE ASSESSMENT DETAILS OF M/S. K.L. TRADERS. . CURRENT STATUS OF LOAN TAKEN FROM M/S. ISHA ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 4 . WHETHER ANY INTEREST WAS CHARGED BY THE LENDER. . WHETHER M/S. K.L. TRADERS CHARGED ANY INTEREST FROM THE APPELLANT (V) HOWEVER, NO DETAILS WERE FURNISHED BY THE APPELLANT INCLUDING THE CAPITAL ACCOUNT OF THE APPE LLANT IN THE BOOKS OF ACCOUNT OF M/S. K.L. TRADERS FOR TH E REASON BEST KNOWN TO THE APPELLANT AND IT COULD BE PRESUMED THAT THE DISCLOSURE OF THESE DETAILS WOULD NOT BE IN THE INTEREST OF THE APPELLANT. THE APHAS FILE D CONFIRMATION DATED 01-04-2007 FROM M/S. GOEL ISHA COLONIZERS (P) LTD REGARDING LOAN GIVEN TO M/S. K.L . TRADERS BUT NEITHER ANY COPY OF BANK ACCOUNT OF M/S . GOEL ISHA COLONIZERS (P) LTD NOR THE PURCHASE FOR WHICH SUCH LOAN WAS ADVANCED BY IT TO M/S. K.L. TRADERS, AN ENTITY WHICH APPEARS TO BE NOT ASSESSED TOP INCOME TAX AS NO DETAILS WERE FURNISHED ABOUT ITS ASSESSMENT DETAILS AS REQUIRED SPECIFICALLY DURING THE APPELLATE PROCEEDINGS. THE APPELLANT HAS NOT BROUGH T ON RECORD ANY MATERIAL ABOUT THE CURRENT STATUS OF THE LAND PURCHASED BY THE APPELLANT AND LOAN TAKEN BY I T THROUGH ITS ALLEGED PARTNERSHIP FIRM M/S. K.L. TRAD ERS FROM M/S. GOEL ISHA COLONIZERS (P) LTD INCLUDING TH E CHARGING OF INTEREST BY M/S. K.L. TRADERS AND M/S. GOEL ISHA COLONIZERS (P) LTD ON SUCH LOAN TO THE APPELLANT. IT WAS NOT STATED WHETHER THE SAID LOAN WAS REPAID BY THE APPELLANT AND IN TURN BY M/S. K.L. TRADERS TO M/S. GOEL ISHA COLONIZERS (P) LTD. (VI) IT MAY BE MENTIONED THAT IN GROUND OF APPEAL NO. 2.1 ITSELF IT WAS STATED THAT THE IMMOVABLE PRO PERTY UNDER CONSIDERATION WAS PURCHASED FROM AGRICULTURE INCOME WHEREIN DURING APPELLATE PROCEEDINGS, THE SOURCE OF INVESTMENT WAS STATED TO BE LOAN FROM PARTNERSHIP FIRM M/S. K.L. TRADERS. THUS THERE ARE CONTRADICTION BETWEEN THE GROUND OF APPEAL AND SUBMISSION MADE BY THE APPELLANT. ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 5 (VII) THEREFORE, LOOKING TO THE TOTALITY OF THE FAC TS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE AO WAS JUSTIFIED IN MAKING ADDITION OF RS. 31,68,000/- TO THE INCOME OF THE APPELLANT AS UNDISCLOSED INVESTME NT IN THE PURCHASE OF IMMOVABLE PROPERTY UNDER CONSIDERATION, THUS THE SAME IS HEREBY SUSTAINED. HENCE, THIS GROUND OF APPEAL IS HEREBY REJECTED. 2.3 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED THAT THE LOWER AUTHORITIES HAVE ERRED IN CONFIRMING THE ADDITION OF RS. 31.68 LACS FOR WHICH THE LD.AR FILED THE FOLLOWING WRITTE N SUBMISSION. IN THESE GROUNDS THE ASSESSEE HAS CHALLENGED THE AD DITION OF RS. 31,68,000/- MADE BY LD. AO BY HOLDING THE SAME AS U NEXPLAINED INVESTMENT BEING THE PURCHASE CONSIDERATION PAID TOWARDS THE AGRICULTURAL LAND PURCHASED BY ASSESSEE. BRIEFLY STATING, DURING THE YEAR UNDER CONSIDERATIO N, AS PER AIR GENERATED INFORMATION, IT HAS COME TO THE KNOWLEDGE OF LD. AO THAT ASSESSEE HAD PURCHASED AN IMMOVABLE PROPERTY FOR RS. 31,68,0 00/-. THE LD. AO HELD THIS INVESTMENT TO BE MADE FROM UNDISCLOSED INCOME, AS NO EXPLANATION WAS PROVIDED REGARDING THE SOURCE THEREOF, AND LD. AO A DDED THE SAME AS UNDISCLOSED INCOME OF THE ASSESSEE. IN APPEAL BEFOR E THE LD. CIT(A), REGARDING THE SOURCE OF INVESTMENT MADE IN PURCHASE OF THE SAID LAND FOLLOWING EVIDENCES WERE SUBMITTED AS ADDITIONAL EV IDENCES: (I) COPY OF BANK STATEMENT OF M/S K L TRADERS, PART NERSHIP FIRM WHEREIN ASSESSEE IS ONE OF THE PARTNER, WITHUCO BAN K FOR THE PERIOD MAY 2006 TO NOV 2006 FROM WHERE THE PURCHASES CONSIDERA TION WAS PAID. (APB 1- 2) (2) CONFIRMATION FROM M/S GOEL ISHA COLONIZERS (P) LTD., A COMPANY WHO GRANTED THE LOAN TO M/S K. L. TRADERS W HICH WAS UTILIZED FOR MAKING THE PAYMENT FOR PURCHASES OF LAND (APB 3) (3) PARTNERSHIP DEED OF M/S K L TRADERS. (APB 4-7) (4) SALE DEED DATED 11.10.2006 (APB 8-13) ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 6 IT WAS EXPLAINED THAT THE ASSESSEE IS A PARTNER IN M/S K L TRADERS AND THE SAID AMOUNT WAS WITHDRAWN FROM THE PARTNERSHIP FIRM, WHICH STOOD DEBITED IN THE CAPITAL ACCOUNT OF THE ASSESSEE WITH THE FIR M. THE ASSESSEE HAD SUBMITTED THE BANK STATEMENT FOR THE RELEVANT PERIO D OF M/S K L TRADERS (APB 1-2) SHOWING THE CHEQUES ISSUED TO THE SELLER, WHICH CH EQUE NOS. ARE ALSO APPEARING IN THE REGISTERED SALE DEED (APB 10). THUS IT IS EVIDENT THAT SOURCE OF INVESTMENT BY ASSESSEE IN PURCHASES OF LAND WAS FULLY EXPLAINED BEFORE CIT(A) WITH EVIDENCES. THE SOURCE OF THESE FUNDS IN THE HANDS OF M/S K L TRADERS WAS ALSO EXPLAINED RECEIPT FROM M/S GOEL IS HA COLONIZERS (P) LTD AND A COPY OF CONFIRMATION DULY ISSUED BY M/S GOYAL ISH A COLONIZERS (P) LTD. DULY ACCEPTING OF THE ISSUE OF FUNDS TO M/S K.L. TRADERS WAS ALSO SUBMITTED (APB 3). THUS THE ASSESSEE HAS FULLY DISCHARGED THE ONUS CAS T UPON HIM TO PROVE THE SOURCE OF INVESTMENT MADE BY HIM IN THE PURCHASE OF THE AGRICULTURAL LAND IN QUESTION. RATHER THE ASSESSEE HAS FURTHER ESTABLISH ED THE SOURCE OF SOURCE OF THE FUNDS IN THE HANDS OF THE PARTNERSHIP FIRM FROM WHERE ASSESSEE HAS PAID THE SALES CONSIDERATION. THE LD. CIT(A) WHILE HOLDING THE INVESTMENT MADE BY ASSESSEE AS UNEXPLAINED ALLEGED AS UNDER: (I) THAT THE ASSESSEE DID NOT SUBMIT THE COPY OF BA NK ACCOUNT OF M/S K L TRADERS TO THE AO, EVEN DURING THE REMAND P ROCEEDINGS: IN THIS REGARD IT WAS EXPLAINED VIDE LETTER DT. 7.2 .2017 (APB 19- 20) THAT THE ASSESSEE ALONGWITH THE PRAYER U/R 46A HAD FILED COPY OF THE SAID BANK ACCOUNT (APB 14) AND THE SAME WAS FORWARDED BY THE BY THE OFFICE OF CIT(A) TO THE LD. AO WHILE CALLING FO R THE REMAND REPORT. THUS THERE WAS NO QUESTION THAT THE SAID BANK STATE MENT NOT AVAILABLE IN THE FILE OF LD.AO. SUCH OBSERVATION OF LD. CIT(A ) THUS DESERVES TO BE GROSSLY IGNORED. (II) THE ASSESSEE HAD NOT SUBMITTED ASSESSMENT DETA ILS OF M/S K L TRADERS, CURRENT STATUS OF LOAN TAKEN FROM M/S GOEL ISHA COLONIZERS, DETAILS OF INTEREST CHARGED BY M/S GOEL ISHA COLONIZERS AND WH ETHER M/S K L TRADERS HAD CHARGED ANY INTEREST FROM THE ASSESSEE: IN THIS REGARD IT IS SUBMITTED THAT THE ADDITION OF RS. 31,68,000/- WAS MADE IN THE HANDS OF THE ASSESSEE AS UNEXPLAINED IN VESTMENT MADE OUT OF UNDISCLOSED SOURCES AND ASSESSEE WITH THE SUPPORT O F THE AFORESAID DOCUMENTS HAVE BEEN ABLE TO ESTABLISH THE NATURE AND SOURCE O F INVESTMENT. THAT IT IS WITHDRAWN FROM FIRM M/S K.L. TRADERS, WHEREIN APPEL LANT IS ONE OF THE PARTNER, BY WAY OF CHEQUE GIVEN TO SELLER. THE ASSE SSEE HAS ALSO FURNISHED THE COPY OF BANK STATEMENT OF THE FIRM M/S K.L. TRADERS AS ADDITIONAL EVIDENCE AND EVEN FURNISHED EVIDENCE ABOUT THE SOURCE FROM W HICH M/S K.L. TRADERS HAS GIVEN FUNDS TO ASSESSEE BEING THE LOAN TAKEN FR OM M/S GOEL ISHA ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 7 COLONIZERS PVT. LTD. AND ALSO FURNISHED THE CONFIRM ATION FROM THE SAID COMPANY. IT IS HUMBLY SUBMITTED BEFORE YOUR HONORS THAT ASSE SSEE WAS NOT REQUIRED TO SUBMIT FURTHER DETAILS LIKE CURRENT STA TUS OF LOAN RECEIVED BY FIRM M/S K.L. TRADERS, RATE OF INTEREST CHARGED BY THIRD PARTY FROM FIRM M/S K.L. TRADERS DURING HIS OWN ASSESSMENT PROCEEDINGS IN IN DIVIDUAL CAPACITY. AS PER THE SETTLED LAW ON THIS ISSUE, THE CONFIRMATION OF ADDITION BY LD. CIT(A) ONLY ON THE PLEA OF NOT SUBMITTING SUCH DETAILS WITHOUT REBUTTING THE MATERIAL EVIDENCE FURNISHED BY ASSESSEE AND WITHOUT BRINGING ANY MATERIAL TO THE CONTRARY IS TOTALLY UNJUST AND BAD IN LAW. FURTHER, CURRENT STATUS OF THE LOAN BY M/S K L TRAD ERS, CHARGING OF INTEREST BY BOTH M/S K.L. TRADERS AS WELL AS M/S GO EL ISHA HAS NO RELEVANCE, IN SO FAR AS THE SOURCE OF INVESTMENT MADE BY THE A SSESSEE IN PURCHASE OF LAND IS CONCERNED, WHICH THE ASSESSEE HAD ALREADY EXPLAI NED AS BEING WITHDRAWN FROM HIS PARTNERSHIP FIRM, AND ALSO FURTHER ESTABLI SHED THE SOURCE OF SOURCE SUCH RECEIPT IN THE HANDS OF THE FIRM. THUS THE ONU S CASTED UPON THE ASSESSEE STOOD FULLY DISCHARGED AND THE LD. CIT(A) HAS RAISE D IRRELEVANT QUESTIONS AS REGARD THE CHARGING OF INTEREST BY M/S GOEL ISHA CO LONIZERS AND M/S K.L.TRADERS. IT IS SUBMITTED THAT THE CHARGING OR N ON-CHARGING OF INTEREST BY BOTH OR ANY OF THE FIRMS CANNOT BE A YARDSTICK TO H OLD THE GENUINENESS OF SOURCE EXPLAINED BY THE ASSESSEE. THUS THE ABOVE RE MARK OF THE LD. CIT(A) DESERVES TO BE IGNORED. (III) THE ASSESSEE HAD NOT SUBMITTED THE BANK STATE MENTS OF M/S GOEL ISHA COLONIZERS, NOR THE REASON FOR WHICH SUCH LOAN WAS GIVEN TO M/S K L TRADERS AND ITS CURRENT STATUS: IN THIS REGARD IT IS SUBMITTED THAT, THE ASSESSEE H AD FILED THE BANK STATEMENTS OF M/S K L TRADERS WHICH DULY SHOWED THE CREDITS FOR LOAN RECEIVED FROM M/S GOEL ISHA ON 11.10.2006 AND 10.11 .2006 RESPECTIVELY. THUS THE SOURCE OF SOURCE FOR INVESTMENT MADE BY THE ASS ESSEE HAS BEEN SUBSTANTIATED, AND THE ASSESSEE NEED NOT GO BEYOND THAT TO ESTABLISH THE GENUINENESS OF SOURCE OF INVESTMENT SO MADE MORE PA RTICULARLY WHEN THE CONFIRMATION ISSUED BY M/S GOEL ISHA COLONIZERS DUL Y CONFIRMING THE ADVANCED OF SUM OF RS. 31,68,000/- (APB 3) WAS ALSO SUBMITTED. SIMILARLY THE CURRENT STATUS OF THE SAID LOAN DOES NOT HINDER THE BREVITY OF EXPLANATION OFFERED BY THE ASSESSEE AND THUS THE ALLEGATION OF THE LD. CIT(A) IS HENCE IRRELEVANT AND NEEDS TO BE IGNORED. (IV) THE ASSESSEE IN SUB GROUND NO. 2.1 OF MEMORAND UM OF APPEAL HAD STATED THE SOURCE OF INVESTMENT IN LAND AS INCOME F ROM AGRICULTURAL SOURCES, WHEREAS DURING THE APPELLATE PROCEEDINGS THE SOURCE WAS EXPLAINED TO BE LOAN TAKEN FROM PARTNERSHIP FIRM OF THE ASSESSEE: IN THIS REGARD IT IS SUBMITTED THAT NO SUBMISSION I N THIS REGARD WAS MADE BEFORE THE LD. CIT(A) AND WHEN THE ASSESSEE HAD EXPLAINED THE SOURCES IN HIS HANDS ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 8 WHICH WERE CHALLENGED IN GROUND NO. 2, THE OBSERVAT ION OF THE LD. CIT(A) ARE MISPLACED AND DESERVES TO BE IGNORED. IN THE INSTANT CASE, APPELLANT HAS NOT ONLY OFFERED EXPLANATION REGARDING NATURE AND SOURCE OF INVESTMENT BUT ALSO SUBSTANTIA TED THE SAME WITH DOCUMENTARY EVIDENCES IN THE SHAPE OF CONFIRMATIONS , BANK STATEMENT OF LENDER WHICH WERE NOT AT ALL DOUBTED BY LD. CIT(A) BUT HE CONFIRMED THE ADDITIONS ON MERE ASSUMPTIONS AND HYPOTHETICAL ALLE GATIONS. BASED ON ABOVE IT IS HUMBLY SUBMITTED THAT THE ASSE SSEE HAS DULY ESTABLISHED WITH DOCUMENTARY EVIDENCES THE SOURCE O F INVESTMENT MADE IN PURCHASE OF AGRICULTURAL LAND WHICH REMAINED UNREBU TTED BY THE LD. AO AS WELL AS THE LD. CIT(A), WHO INSTEAD RAISED IRRELEVANT QU ESTIONS/ QUERIES. FURTHER IT IS ESTABLISHED LAW THAT ASSESSEE SHOULD NOT BE ASKED T O PROVE THE SOURCE OF SOURCE HOWEVER, IN THE INSTANT CASE, THE SOURCES OF SOURCE IN THE HANDS OF THE LENDER I.E. M/S K.L. TRADERS WAS ALSO ESTABLISHED BY FILING THE CONFIRMATION OF M/S GOEL ISHA COLONIZERS PVT. LTD. RELIANCE IS PLACED ON: (I) 159 ITR 78 (SC) ORISSA CORPN. (P) LTD WHEN THE ASSESSEE FURNISHES NAMES AND ADDRESSES OF THE ALLEGED CREDITORS, THE BURDEN SHIFTS TO THE DEPARTMENT TO E STABLISH THE REVENUES CASE AND IN ORDER TO SUSTAIN THE ADDITION THE REVEN UE HAS TO PURSUE THE INQUIRY AND TO ESTABLISH THE LACK OF CREDITWORTHINE SS AND THE MERE ISSUE OF NOTICE U/S 131 IS NOT SUFFICIENT. THUS, THE APPE LLANT HAS DISCHARGED THE PRIMARY BURDEN OF ESTABLISHING THE IDENTITY AND GENUINENESS OF THE CREDITOR. HONBLE BOMBAY HIGH COURT IN THE CASE OF PR. CIT VS M/S PARADISE INLAND SHIPPING PVT. LTD . TAX APPEAL NO. 66 OF 2016 HAS CATEGORICALLY HELD THAT ONCE THE ASSESSEE HAS PRODUCED DOCUMENTARY EVIDENCE TO ESTABLISH THE EXISTENCE OF SUCH COMPANI ES, THE BURDEN WOULD SHIFT ON THE REVENUE TO ESTABLISH THEIR CASE. 187 TAXMAN 338 ARAVALI TRADING CO. VS. ITO (RAJ.) ASSESSMENT YEAR 1993-94 WHETHER ONCE EXISTENCE OF PERSONS IN WHOSE NAMES CREDITS ARE FOUND IN BOOKS OF ASSESS EE IS PROVED AND SUCH PERSONS OWN SUCH CREDITS WITH ASSESSEE, ASSESS EE IS NOT REQUIRED TO PROVE SOURCES FROM WHICH CREDITORS COULD HAVE ACQUI RED MONEY TO BE DEPOSITED WITH IT HELD, YES WHETHER MERELY BECA USE DEPOSITORS EXPLANATION ABOUT SOURCES WHEREFROM THEY ACQUIRED M ONEY IS NOT ACCEPTABLE TO ASSESSING OFFICER, IT CANNOT BE PRESU MED THAT DEPOSITS MADE BY SUCH CREDITORS ARE MONEYS OF ASSESSEE ITSEL F HELD, YES WHETHER IN ORDER TO FASTEN LIABILITY ON ASSESSEE BY INCLUDING SUCH CREDITS AS ITS INCOMES FROM UNEXPLAINED SOURCES, A NEXUS HA S TO BE ESTABLISHED ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 9 BY REVENUE THAT SOURCES OF CREDITORS DEPOSIT FLOW FROM ASSESSEE HELD, YES . 57 ITR 532 (SC) P. SEETHARAMAMMA 87 ITR 349 (SC) DAULAT RAM RAWATMULL IT WAS HELD THAT THE FACT, THAT AS ASSESSEE WAS NOT ABLE TO SATISFY THE AUTHORITY AS TO THE SOURCE OF THE SOURCE, FROM WHICH THE CREDITOR OF ASSESSEE DERIVE THE MONEY WOULD NOT JUSTIFY THE ADD ITION BEING MADE IN RESPECT OF SUCH CREDIT IN THE HANDS OF ASSESSEE CIT VS. HEERALA CHAGAN LAL 257 ITR 281 (RAJ.) CASH CREDITS- FINDING BY TRIBUNAL THAT IDENTITY OF CREDITOR HAD BEEN ESTABLISHED- AMOUNT REPRESENTING CASH CREDITS NOT INCLUDIBLE IN TOTAL INCOME OF ASSESSEE- INCOME TAX ACT, 1961. SHEON NARAIN MOHARILAL VS ACIT 24 TW 318 (ITAT, JAIPUR) NO ADDITION OF CASH CREDIT CAN BE MADE SIMPLY ON TH E BASIS OF PRESUMPTION IN THE ABSENCE OF ANY CONTRARY EVIDENCE . SIDEWAY INVESTMENT PVT. LTD. V/S DCIT 24 TW 146 (IT AT, JAIPUR) ESTABLISHING THE IDENTITY OF THE CREDITOR, PROVING THE GENUINENESS OF THE TRANSACTION AND THE SOURCE OF TH E CREDIT APPEARING IN THE BOOKS OF CREDITOR IS SUFFICIENT TO DISCHARGE TH E ONUS FOR EXPLAINING THE GENUINENESS OF THE CASH CREDIT. CIT VS. KISHORI LAL CONSTRUCTION LTD. [2010] 5 TAXMANN.COM 60 (DELHI) THE ONUS CAST ON THE ASSESSEE STANDS DISCHARGED WHE RE THE ASSESSEE IS ABLE TO ESTABLISH THE THREE INGREDIENTS OF SECTION 68 I.E. (A) THE IDENTITY OF THE CREDITOR, (B) THE GENUINENESS O F THE TRANSACTION, AND (C) CREDITWORTHINESS OF THE CREDITOR. 43 DTR 449 TULIP HOTELS (P) LTD. VS. DY. CIT (MUMB AI E) (TM) BURDEN OF PROOF AND GENUINENESS ASSESSEE HAVING D ULY ESTABLISHED THE IDENTITY OF THE CREDITOR, HIS CREDI TWORTHINESS AND ALSO GENUINENESS OF THE TRANSACTION, THE ADDITION UNDER S. 68 TOWARDS UNEXPLAINED CREDIT IS LIABLE TO BE DELETED. IN THE CIRCUMSTANCES, IT IS HUMBLY PRAYED THAT THE ADDITION OF RS. 31,68,000/- AS MADE AND SUSTAINED BY LD. CIT(A) BAS ED MERELY ON WHIMSICAL GROUNDS AND FANTASIES, DESERVES TO BE FULLY DELETED AND THE ASSESSEE PRAYS ACCORDINGLY. ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 10 2.4 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ERS OF THE LOWER AUTHORITIES. 2.5 WE HAVE HEARD THE RIVAL CONTENTION. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE PURCHASED AN IMMOVABLE PROPERTY FOR R S. 31,68,000/- AND SOURCE OF WHICH WAS NOT EXPLAINED BEFORE THE AO WHO HAS PASSED THE ORDER U/S 147/ 144 OF THE ACT. BEFORE CIT(A), IT WA S EXPLAINED THAT THE AMOUNT WAS INVESTED OUT OF THE WITHDRAWAL FROM THE PARTNERSHIP FIRM M/S K.L. TRADERS WHERE THE ASSESSEE IS ONE OF THE P ARTNER. IT WAS FURTHER EXPLAINED THAT THE FIRM M/S K.L. TRADERS HAS TAKEN FUNDS FROM M/S GOEL ISHA COLONIZERS PVT. LTD. AND COPY OF CONFIRMATION WAS ALSO SUBMITTED. HOWEVER, LD. CIT(A) HAS NOT ACCEPTED THE EXPLANATIO N AND CONFIRMED THE ADDITION AGAINST WHICH THE ASSESSEE IS BEFORE US IN PRESENT APPEAL. THE LD. A/R OF THE ASSESSEE RE-ITERATED THAT THE ASSESSEE H AS EXPLAINED THE SOURCE BY WAY OF THE WITHDRAWAL FROM THE PARTNERSHIP FIRM M/S K.L. TRADERS AND AS SUBMITTED THE BANK STATEMENTS OF THE FIRM FROM W HERE DIRECT PAYMENT WAS MADE TO THE SELLER. WITH REGARD TO THE SOURCE O F THE FUNDS IN THE HANDS OF THE PARTNERSHIP FIRM NECESSARY CONFIRMATION OF T HE LOAN TAKEN FROM M/S GOEL ISHA COLONIZERS PVT. LTD. WAS ALSO SUBMITTED. THUS ACCORDING TO LD.AR, ASSESSEE HAS ESTABLISHED NOT ONLY THE SOURC E BUT SOURCE OF THE SOURCE ALSO. IN VIEW OF THESE FACTS, THE LD.AR PRA YED FOR THE DELETION OF ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 11 THE ADDITION AND RELIED ON THE CASE LAWS (SUPRA). T HE BENCH TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES OF THE C ASE FINDS FROM THE ARGUMENT OF THE LD.AR AND THE DOCUMENTS SUBMITTED BY THE ASSESSEE, THAT THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE TRANSACTION IS DULY ESTABLISHED AND THEREFORE THESE DOCUMENTS CANNOT BE SUMMARILY REJECTED. FURTHER NO EFFORT HAS BEEN MADE BY THE LOWER AUTHO RITIES OF ISSUING SUMMONS U/S 131 TO THE LENDER IF THERE IS ANY DOUBT WITH REGARD TO THE TRANSACTION OF THE LOAN GIVEN. THE HONBLE RAJASTHA N HIGH COURT IN THE CASE OF ARAVALI TRADING CO. VS. ITO 186 TAXMAN 338 HAS HELD THAT ONCE EXISTENCE OF PERSONS IN WHOSE NAMES CREDITS ARE FOU ND IN BOOKS OF ASSESSEE IS PROVED AND SUCH PERSONS OWN SUCH CREDIT S WITH ASSESSEE, ASSESSEE IS NOT REQUIRED TO PROVE SOURCES FROM WHIC H CREDITORS COULD HAVE ACQUIRED MONEY TO BE DEPOSITED WITH IT. IT IS FURTH ER HELD BY THE HONBLE COURT THAT ASSESSEE IS NOT REQUIRED TO PROVE THE SO URCE OF SOURCE. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT ASSESSEE HAS DULY DISCHARGED THE ONUS CASTED UPON HIM WITH REGARD TO THE SOURCE OF THE INVESTMENT BY WAY OF FILING THE NECESSARY CONFIRMAT ION AND OTHER DOCUMENTS AND THEREFORE NO ADDITION COULD BE MADE W ITH REGARD TO THE SOURCE AND ACCORDINGLY THE ADDITION OF RS. 31,68,00 0/- IS DIRECTED TO BE DELETED. ITA NO.230/JP/2017 SHRI KALU RAM MEENA VS THE ITO, WARD- 3(3), JAI PUR 12 3.0 IN THE RESULT APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24-07-2018 . SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24 /07/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI KALU RAM MEENA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 3(3), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.230 /JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR