Subbiah Ramanathan, CHENNAI V. ITO, Trichy

ITA 2314/CHNY/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 90506 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 31-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN IRS
• Keywords: Unexplained cash credit; Salary income
• Section: 131; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . !' , # $% BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER ./ I.T.A. NO.2314/MDS/2013 ( / ASSESSMENT YEAR : 2009-2010) SUBBIAH RAMANATHAN, PLOT NO.34, 3 RD MAIN ROAD, AYYAPPA NAGAR, KOYAMBEDU, CHENNAI 600 092 [PAN: AEDPR 9755E] VS THE INCOME TAX OFFICER, WARD I(2), TRICHY 620 001. ./ I.T.A. NO.2315/MDS/2013 ( / ASSESSMENT YEAR : 2009-2010) R.M. JANAKI, PLOT NO.34, 3 RD MAIN ROAD, AYYAPPA NAGAR, KOYAMBEDU, CHENNAI 600 092 [PAN: ACVPJ 8434A ] ( &' /APPELLANT) VS THE INCOME TAX OFFICER, WARD I(2), TRICHY 620 001. ( ()&' /RESPONDENT) / APPELLANT BY : SHRI. S.P. CHIDAMBARAM, ADVOCATE / RESPONDENT BY : SHRI. N. MADHAVAN, IRS, JCIT. /DATE OF HEARING : 11.06.2015 /DATE OF PRONOUNCEMENT : 19.06.2015 I.T.A.NOS.2314 & 2315/MDS/2013. :- 2 -: + / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE TWO APPEALS BY DIFFERENT ASSESS EES ARE DIRECTED AGAINST DIFFERENT ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS), TIRUCHIRAPALI, FOR THE ABOVE ASSESSMENT YEARS. SIN CE ISSUE IN THESE APPEALS ARE COMMON IN NATURE, THESE APPEALS ARE CLU BBED TOGETHER, HEARD TOGETHER, AND DISPOSED OF BY THIS COMMON ORDE R FOR THE SAKE OF CONVENIENCE. 2. THE FACTS OF THE CASE WITH REGARD TO SHRI. SUBBIA H RAMANATHAN ARE THAT HE FILED HIS RETURN OF INCOME FOR THE ASSE SSMENT YEAR 2009-10 ON 04.03.2010 , ADMITTING A TOTAL INCOME OF E1,11,320/- AND AGRICULTURAL INCOME OF E1,05,000/- . THE RETURN WAS PROCESSED U/S. 143(1) OF THE INCOME-TAX ACT, 1961 ON 25.02.2011 . THIS CASE WAS SELECTED FOR SCRUTINY THROUGH CASS. ACCORDINGLY, NO TICE U/S . 143(2) WAS DULY SERVED ON THE ASSESSEE ON 30.08.2010. ON VERIFICATION, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE ALONG WI TH HIS WIFE SMT. R. M. JANAKI AND HIS SON SHRI. R. M. SUBBIAH HAS PURCH ASED A PLOT NO. 34 MEASURING ONE GROUND 400 SQ. FEET EQUAL TO 260.13 S Q. MTRS. AT AYYAPPA NAGAR IN S. F.NO 119/1A1A1A1H OF KOYAMBEDU VILLAGE, NUNGAMBKKAM TALUK, CHENNAI FROM SHRI K. RAMAKRISHNA N AND HIS SON R. SURESH FOR E50,00,000/-. ON PERUSAL OF BALANCE SHEET, THE I.T.A.NOS.2314 & 2315/MDS/2013. :- 3 -: ASSESSING OFFICER FOUND THAT ON THE LIABILITY SIDE , THE ASSESSEE HAD ADMITTED A FRESH LOAN OF E43,90,000/- FROM R. BALASUBRAMANIAN EQUALLY IN THE HANDS OF THE ASSESSEE AND HIS WIFE F OR E27,25,000/- (INCLUDING STAMP DUTY). IN THIS REGARD THE ASSESSEE WAS ASKED TO PRODUCE THE CREDITOR ON 05.12.2011 FOR EXAMINATION. SINCE THE ASSESSEE AND HIS REPRESENTATIVE FAILED TO PRODUCE T HE CREDITOR, A SUMMON U/S. 131 WAS ISSUED TO HIM THROUGH INCOME TAX INSPECTORS . THE INSPECTORS REPORTED THAT SHRI. R.BALASUBRAMANIA N HAD RELOCATED TO SRIRANGAM WHERE HE WAS ISSUED SUMMONS. SHRI. BALASU BRAMAINAN APPEARED ON 07.12.2011 AND A SWORN STATEMENT WAS RECORDED THAT HE WAS WORKING AS A MANAGER IN MAHALAKSHMI ENGINEERING COLLEGE, THODAIYUR, TRICHY FOR A MONTHLY SALARY OF E15,000/- , DID NOT HAVE ANY MOVABLE AND IMMOVABLE PROPERTY IN HIS NAME OR HIS F AMILY MEMBERS NAME, DOES NOT HAVE ANY BANK ACCOUNT AND IS NOT ASS ESSED TO INCOME TAX. REGARDING THE LOAN GIVEN BY HIM TO THE ASSESSE E HE STATED THAT HE HAS GIVEN A LOAN OF E47,00,000/- THROUGH DEMAND DRA FT OUT OF THE LOAN TAKEN FROM ONE SHRI. ANANDHARAMAN, CHENNAI. HE FURTHER STATED THAT NO INTEREST WAS RECEIVED FROM THE ASSESSEE FO R THAT LOAN AND SHRI. R. BALASUBRAMANINAN HAS NOT PRODUCED ANY EVID ENCE FOR THE LOAN TAKEN BY HIM FROM SHRI. ANANDHARAMAN. THE ASSESS ING OFFICER HELD THAT THE LENDER SHRI. R. BALASUBRAMANIAN WAS NOT A CREDITWORTHY I.T.A.NOS.2314 & 2315/MDS/2013. :- 4 -: PERSON TO LEND A HUGE AMOUNT OF E43,90,000/- SINCE THE SAID CREDITOR IS A EMPLOYEE OF A PRIVATE COLLEGE FOR A MONTHLY SA LARY OF E15,000/- AND DOES NOT HAVE EVEN A BANK ACCOUNT, MOVABLE OR I MMOVABLE PROPERTY. FURTHER THE ASSESSING OFFICER HELD THAT ONLY A TRANSACTION THROUGH ACCOUNT PAYEE CHEQUE FOR SUCH HUGE SUM CANN OT BE CONSIDERED AS GENUINE. IN THE ABOVE CIRCUMSTANCES, THE AMOUNT OF E43,90,000/- SAID TO BE OBTAINED FROM SHRI. R. BALASUBRAMANIAN W AS TREATED BY THE ASSESSING OFFICER AS UNEXPLAINED CAS H CREDIT OF THE ASSESSEE U/S. 68 OF THE ACT AND WAS ADDED TO THE I NCOME RETURNED. 2.1 THE FACTS OF THE CASE IN RESPECT OF R.M.JANAKI IS THAT SHE WAS DERIVING SALARY INCOME FROM FIRM AND INCOME FROM TA ILORING FILED HER RETURN OF INCOME ON 21.12.2009, FOR THE YEAR UNDER CONSIDERATION, ADMITTING INCOME AT E1,85,000/- ALONGWITH AGRICULTU RAL INCOME OF E1,52,000/-. THE CASE WAS SELECTED FOR SCRUTINY TH ROUGH CASS TO EXAMINE THE SOURCE FOR INVESTMENT IN PROPERTY AS PE R THE AIR INFORMATION, THE ASSESSEE HAS PURCHASED IMMOVABLE P ROPERTY JOINTLY AT A COST OF E50,00,000/- ON 02.07.2008, REGISTERED WI TH SUB-REGISTRAR, ANNA NAGAR, CHENNAI. APPROPRIATE NOTICES WERE ISSU ED AND THE ASSESSMENT WAS COMPLETED ON 21.12.2011. IN THE RET URN OF INCOME FILED, THE ASSESSEE DECLARED SALARY INCOME FROM PAR TNERSHIP FIRM, INCOME FROM TAILORING AND AGRICULTURAL INCOME OF E7 2,000/-, E29,500/- I.T.A.NOS.2314 & 2315/MDS/2013. :- 5 -: AND E1,52,000 RESPECTIVELY. THE PURCHASE OF THE AB OVE PROPERTY WAS NOT REFLECTED IN THE RETURN FILED. THE ASSESSING O FFICER CONVEYED THE AIR INFORMATION AND SOUGHT FOR DETAILS, WHICH INCLU DED COPY OF PURCHASE DEED, STATEMENT OF INCOME, BALANCE SHEET A ND CAPITAL ACCOUNT FOR THE ASSESSMENT YEAR 2009-10 ALONGWITH C ORRESPONDING DETAILS FOR A.Y. 2008-09. FROM THE DETAILS FILED, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAD PURCHASED HOUSING PLOT MEASURING 1 GROUND AND 400SQ FT. AT CHENNAI, JOINTLY WITH HER H USBAND AND SON. THE ASSESSEES SHARE OF THE PLOT AS WELL AS THE COS T OF CONSTRUCTION CARRIED OUT IN THE PLOT WAS MET OUT OF THE BORROWIN GS OF E44,00,000/- FROM ONE SHRI. R. BALASUBRAMANIAN. THE ASSESSING O FFICER, ASKED THE ASSESSEE TO FILE CONFIRMATION LETTER FROM THE SAID CREDITOR. THE CONFIRMATION LETTER, SO PRODUCED BEFORE THE ASSESSI NG OFFICER, LACKED DETAILS OF SOURCES FROM WHICH THE LOAN WAS ADVANCE D AND THE ASSESSMENT DETAILS OF THE CREDITOR. THE ASSESSEE D ID NOT PRODUCE THE CREDITOR FORM EXAMINATION. AFTER HECTIC EFFORTS IN TRACING OUT THE CREDITOR, THE ASSESSING OFFICER, IN RESPONSE TO THE SUMMONS U/S.131 ISSUED. SHRI. BALASUBRAMANIAN, APPEARED AND DEPOSE D THAT HE IS DRAWING A MONTHLY SALARY OF E15,000/- AS MANAGER IN MAHALAKSHMI ENGINEERING COLLEGE, THUDAIYUR, AND, THAT HE HAS NO T GIVEN ANY LOAN TO THE ASSESSEE SMT. R.M. JANAKI. SHRI. BALASUBRAMANI AN ALSO STATED THAT I.T.A.NOS.2314 & 2315/MDS/2013. :- 6 -: HE HAS NO BANK ACCOUNT AND NOT ASSESSED TO INCOME T AX. SINCE THE CREDITOR SHRI. R. BALASUBRAMANIAN, IN HIS DEPOSITIO N, HAS DENIED ANY LOAN GIVEN TO THE ASSESSEE, THE ASSESSING OFFICER T REATED THE SUM OF E44,00,000/- AS UNACCOUNTED CASH CREDIT U/S.68 OF T HE ACT. 2.2 AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICE R IN MAKING ADDITIONS OF E43,90,000/- IN THE CASE OF SUBBIAH R AMANATHAN AND E44,00,000/- IN THE CASE OF R.M. JANAKI AS UNEXPLAI NED CASH CREDIT, BOTH WENT ON APPEAL BEFORE THE COMMISSIONER OF INCO ME TAX (APPEALS) WHO, IN TURN, CONFIRMED THE ACTION OF THE ASSESSING OFFICER. AGAINST THIS, BOTH ARE IN APPEAL BEFORE US. 3. THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE SU BMITTED THAT SUBBIAH RAMANATHAN HAS RECEIVED A SUM OF E43,90,000 /- AS LOAN FROM R. BALASUBRAMANIAN, SIMILARLY R.M. JANAKI RECEIVED A SUM E44,00,000/- AS LOAN FROM R. BALASUBRAMANIAN BY WAY OF BANK DEMA ND DRAFT AND TO THIS EFFECT THESE ASSESSEES FILED A CONFIRMATION LE TTER FROM HIM. FURTHER, HE SUBMITTED THAT SHRI. R. BALASUBRAMANIAN HAD AVAILED LOAN FROM MAHALAKSHMI ESTATES, CHENNAI WHO HAS CONFIRME D THE LOAN BY WAY OF LETTER WHICH WAS FILED BEFORE THE LOWER AUTH ORITIES AND ALSO PLACED ON RECORD IN PAPER BOOK AND HE DREW OUR ATTE NTION TO THE SAID LETTER. ACCORDING TO THE LD. AUTHORISED REPRESENTAT IVE FOR ASSESSEES, I.T.A.NOS.2314 & 2315/MDS/2013. :- 7 -: THE ASSESSEES HAVE RECEIVED THE ABOVE LOANS BY WAY OF BANKING CHANNEL. FURTHER, HE SUBMITTED THAT THE SAID AMOUNT HAS BEEN REPAID BY CROSSED DEMAND DRAFT FOR WHICH HE HAD FILED XERO X COPY OF DEMAND DRAFT WHICH WAS PLACED ON RECORD. THUS, HE SUBMITTE D THAT THE ASSESSEE HAS PROVED THE SOURCE OF CREDIT AND ALSO PROVED SOURCE OF SOURCE OF CREDIT I.E. SHRI. BALASUBRAMANIAN HAD AD VANCED THE AMOUNT OUT OF LOAN PROCEEDS RECEIVED FROM MAHALAKSHMI ESTA TES, REAL ESTATE CONSULTANTS AND FLAT PROMOTERS, NO.1, SRINIVASAPILL AI STREET, WEST MAMALAM, CHENNAI WHO WAS ASSESSED TO TAX AND ITS P AN NO. AAIFM 2345L. ACCORDING TO THE LD. AUTHORISED REPRESENTATI VE FOR ASSESSEES, IDENTITY OF PARTY IS PROVED AND THE TRANSACTION IS GENUINE AS IT IS THROUGH BANKING CHANNEL AND THE CREDITWORTHINESS IS ALSO PROVED AS THE MAHALAKSHMI ESATES WAS ASSESSED TO TAX. ACCORD ING TO HIM, INGREDIENTS OF U/S.68 ARE TOTALLY COMPLIED WITH AND THERE IS NO QUESTION OF TREATING THE AMOUNT AS UNEXPLAINED CAS H CREDIT IN THE HAND OF THESE TWO ASSESSEES. 4. IN THE CASE OF SUBBIAH RAMANATHAN, THE LD. DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 BY ADMITTING A TOTA L INCOME OF E1,11,320/-. DURING THE COURSE OF ASSESSMENT PROCE EDINGS THE ASSESSING OFFICER HAS MADE AN ADDITION OF E43,90,00 0/- ON ACCOUNT OF I.T.A.NOS.2314 & 2315/MDS/2013. :- 8 -: LOAN RECEIVED FROM R. BALASUBRAMANIAN FOR NON FURNI SHING OF DETAILS SUCH AS IDENTITY OF THE CREDITORS, CREDITWORTHINESS AND ASSESSMENT PARTICULARS OF THE CREDITORS. THE ASSESSING OFFICE R DURING THE COURSE OF ASSESSMENT PROCEEDINGS RECORDED A STATEMENT FROM R. BALSUBRAMANIAN WHO DEPOSED BEFORE HIM THAT HE IS WO RKING AS A MANAGER IN MAHALAKSHMI ENGINEERING COLLEGE, THODAIY UR, TRICHY FOR A MONTHLY SALARY OF E15,000/- AND RESIDING AT SRIRENG AM ON A RENTED HOUSE FOR E5,000/- PER MONTH. FURTHER SHRI. BALASU BRAMANIAN STATED THAT HE DOES NOT HAVE ANY MOVABLE OR IMMOVABLE PROP ERTIES IN HIS NAME OR IN HIS FAMILY MEMBERS NAME AND ALSO DOES NO T HAVE ANY BANK ACCOUNT AND NOT ASSESSED TO INCOME TAX. HOWEVER, R EGARDING THE LOAN GIVEN BY HIM TO THE ASSESSEE HE HAS STATED THAT THE LOANS AMOUNT OF E47 LAKHS WAS GIVEN THROUGH DEMAND DRAFT OUT OF THE LOAN TAKEN FROM ONE SHRI. ANANTHARAMAN, CHENNAI. HE HAS NOT CHARGED ANY INTEREST FROM THE ASSESSEE. THUS, THE ASSESSING OFFICER HAS DOUBTED THE CREDITWORTHINESS OF BALSUBRAMANIAN AND GENUINENESS OF THE TRANSACTION AS THE LOAN CREDITOR HIMSELF HAS NOT SH OWN ANY EVIDENCE THAT LOAN TAKEN BY HIM FROM SHRI.ANANTHARAMAN. THU S, THE ASSESSING OFFICER HAS TREATED THE LOAN SAID TO HAVE BEEN RECE IVED FROM R. BALSUBRAMANIAN AS UNACCOUNTED CASH CREDIT. THE ASSE SSING OFFICER IN HIS ASSESSMENT ORDER TREATED THE LOAN CREDITOR AS N OT GENUINE LENDER I.T.A.NOS.2314 & 2315/MDS/2013. :- 9 -: AS HE WAS NOT A CREDITWORTHY PERSON. SHRI R. BALASU BRAMANIAN IS ONLY AN EMPLOYEE OF A PRIVATE COLLEGE EARNING ONLY A MON THLY SALARY OF E15,000/- AND EVEN DOES NOT HAVE ANY BANK ACCOUNT OR ANY MOVA BLE OR IMMOVABLE PROPERTY. THE ASSESSEE'S CONTENTION TH AT THE ABOVE LOAN WAS RECEIVED FROM R.BALASUBRAMANIAN THROUGH BANKING CHANNEL WAS ALSO NOT CORRECT AS THE SAID LENDER DOES NOT HAVE A NY BANK ACCOUNT IN HIS NAME. EVEN THE STORY OF DEMAND DRAFT TAKEN BY S OME OTHER THIRD PARTY WAS REASONED AS GIVEN BY SHRI R.BALASUBRAMANI AN. OVER AND ABOVE, IN THE RETURN OF INCOME FILED FOR THE ASSESS MENT YEAR 2009-10 ON 04.03.2010 THE ASSESSEE HAS NOT DISCLOSED THESE TRANSACTIONS OF PURCHASE OF PROPERTY AND THE BORROWAL OF LOAN OF E4 3,90,000/-. SINCE THE SOURCE OF MONEY FOR LENDING HAS NOT BEEN PROVED ALONG WITH THE IDENTITY OF THE CREDITOR AND CREDITWORTHINESS AS WE LL AS GENUINENESS OF THE TRANSACTION HAS NOT BEEN PROVED BY THE ASSESSEE TO THE SATISFACTION OF THE ASSESSING OFFICER, THE ADDITION MADE BY THE ASSESSING OFFICER WAS THUS JUSTIFIED. THE ALLEGED L ENDER WAS ONLY A SALARY EMPLOYEE NOT ASSESSED TO INCOME TAX. THE COM MISSIONER OF INCOME TAX (APPEALS) IN AGREEMENT WITH THE REASONI NG TAKEN BY THE ASSESSING OFFICER THAT A DEMAND DRAFT CAN BE TAKEN FROM ANY BANK BY ANY PERSON IN ANYBODY'S NAME. THUS THERE WAS NO TR UTH IN THE CONTENTION OF THE AUTHORISED REPRESENTATIVE FOR ASS ESSEE THAT SHRI I.T.A.NOS.2314 & 2315/MDS/2013. :- 10 -: R.BALASUBRAMANIAN HAS TAKEN A DEMAND DRAFT AND LEND THE MONEY TO THE ASSESSEE WAS ONLY A COLOURED TRANSACTION TO SHO W IT AS GENUINE TRANSACTION WHEN THE LENDER WAS A MAN OF NO MEANS A ND ALSO WITHOUT CHARGING ANY INTEREST ON THE AMOUNT SAID TO HAVE BE EN LENT TO THE ASSESSEE PROVES THAT IT WAS A SHAM TRANSACTION. HE NCE, THE ADDITION MAY BE SUSTAINED. 5. FURTHER, IN THE CASE OF R.M. JANAKI, THE LD. DEPA RTMENTAL REPRESENTATIVE SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER EXAMINED THIS ISS UE AND ASKED THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTIO N, CAPACITY OF THE LENDER AND CREDITWORTHINESS OF THE ABOVE TRANSACTIO N. EVEN THOUGH THE AMOUNT OF LOAN WAS RECEIVED BY THE ASSESSEE BY WAY OF CHEQUE PAYMENTS THE LENDER IN HIS DEPOSITION BEFORE THE AS SESSING OFFICER, HAS DENIED THAT HAVING GIVEN ANY LOAN TO THE ASSESSEE A T E44,00,000/- AND ALSO STATED THAT HE IS A SALARIED EMPLOYEE ON A MON THLY SALARY OF E15,000/- AND HAS NO BANK ACCOUNT AND NOT ASSESSED TO INCOME TAX.. EVEN THOUGH THE ASSESSEE'S REPRESENTATIVE IN HIS SU BMISSIONS DEFENDED THE ABOVE TRANSACTION BUT THE SAME PERSON I.E., R.B ALASUBRAMANIAN, THE CREDITOR, WHO HIMSELF HAS DENIED HAVING LENT TH E ABOVE LOAN AMOUNT OF E44,00,000/- TO THE ASSESSEE. WHEN THE S AID LOAN CREDITOR, HIMSELF DEPOSED BEFORE THE ASSESSING OFFICER, DENYI NG ANY LOAN I.T.A.NOS.2314 & 2315/MDS/2013. :- 11 -: AMOUNT GIVEN TO THE ASSESSEE, AND ALSO STATED THAT HE IS NOT HAVING ANY BANK ACCOUNT, THE DEFENCE PUT FORWARD BY LD. AU THORISED REPRESENTATIVE FOR ASSESSEE LACK ANY CREDIBLE EVIDE NCE IN HIS HANDS TO SUPPORT HIS CLAIM. HENCE, THE ASSESSEE WAS NOT ABL E TO PROVE THE GENUINESS OF THE TRANSACTION AS WELL THE CAPACITY O F THE LENDER I.E. CREDITWORTHINESS TO PROVE THE CORRECTNESS OF THE TR ANSACTION. HENCE, THE ADDITIONS MADE BY THE LOWER AUTHORITIES MAY BE SUSTAINED. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. ACCORDING TO SECTION 68 OF THE INCOME TAX A CT, THE ASSESSEES OUGHT TO HAVE PROVED NATURE AND SOURCE OF CREDITS A PPEARING IN HIS/HER BOOKS OF ACCOUNTS. IN OTHER WORDS, THE ASSESSEE HA S TO PROVE NOT ONLY IDENTITY OF THE CREDITORS BUT ALSO TO PROVE THAT CREDITORS HAD THE REQUISITE CAPACITY TO ADVANCE THE LOAN AND ALSO PRO VE THE GENUINENESS OF THE TRANSACTION. IN THE PRESENT CASE, ACCORDING TO THE LOWER AUTHORITIES THE ASSESSEE HAS NOT DISCHARGED THE BUR DEN CAST UPON THEM, EVEN AFTER FILING CONFIRMATION LETTER FROM TH E CREDITOR AND ALSO SOURCE OF CREDIT FROM WHERE LENDER HAS BORROWED MON EY. BUT NOW THE QUESTION WHETHER SUCH ONUS HAS BEEN DULY DISCHARGED BY THE ASSESSEE OR AS HAS BEEN SHIFTED TO THE REVENUE CAN BE DETERM INED AFTER EVALUATION OF THE SURROUNDING CIRCUMSTANCES. THERE CANNOT BE ONE GENERAL OR UNIVERSAL PROPOSITION OF LAW WHICH COULD BE THE GUIDING I.T.A.NOS.2314 & 2315/MDS/2013. :- 12 -: HARDSTICK IN THE MATTER. IN THE PRESENT CASE, THE ASSESSEES FILED CONFIRMATION LETTER FROM SHRI. R. BALASUBRAMANIAN W HO HAD ADVANCED THE IMPUGNED MONEY TO THESE ASSESSEES. IT WAS ALSO STATED BY HIM IN HIS SWORN STATEMENT RECORDED BY THE ASSESSING OFFIC ER THAT HE HAS ADVANCED MONEY TO THESE ASSESSEES WHICH WAS BORROWE D FROM M/S. MAHALAKSHMI ESTATES, REAL ESTATE CONSULTANTS AND FL AT PROMOTERS, NO.1, SRINIVASAPILLAI STREET, WEST MAMALAM, CHENNAI THROUGH DEMAND DRAFT AND THE SAME WAS PASSED ON TO THESE ASSESSEES AS LOAN. FURTHER, M/S. MAHALAKSHMI ESTATES ALSO CONFIRMED THAT THEY H AVE ADVANCED MONEY TO SHRI. R. BALASUBRAMANIAN WHOSE PAN NO. HAS ALSO BEEN GIVEN. INSPITE OF THIS, LOWER AUTHORITIES WERE NOT READY TO ACCEPT THE TRANSACTION AS GENUINE. THERE WAS A DOUBT IN THE M IND OF THE ASSESSING OFFICER REGARDING GENUINENESS OF THE TRAN SACTION. IN THE PRESENT CASE THERE IS POSITIVE EVIDENCE LIKE (1) EXISTENCE OF CREDITORS. (2) THEIR PAN NOS. (3) THE CONFIRMATION LETTER FROM THEM. THE CREDITORS GIVEN LOANS TO THE ASSESSEES THROUGH DEMAND DRAFT AND THE ASSESSEES FURNISHED THE DETAILS OF THE SAME ALO NGWITH CONFIRMATION LETTER AND ALSO EXPLAINED MODE OF TRANSACTION, WHIC H IS THROUGH BANKING CHANNEL AND ALSO REPAID THE SAID LOAN THROU GH BANKING I.T.A.NOS.2314 & 2315/MDS/2013. :- 13 -: CHANNEL. CONSIDERING THESE FACTS, IN OUR OPINION T HE ASSESSEE HEREIN HAD DISCHARGED THEIR ONUS PLACED ON THEM. THE FACT THAT CREDIT ENTRY SHOWN IN THE NAME OF A PERSON OTHER THAN THE ACTUAL LENDER OF THE MONEY WOULD NOT BY ITSELF, BE RELEVANT WHERE COGENT EVIDENCE IS INDEPENDENTLY AVAILABLE. IN THE CASE OF CIT VS. ORISSA CORPORATION P. LTD 159 ITR 78 (SC) WHEREIN IT WAS HELD THAT THE ASSESSEE PRODUCED BEFORE THE ASSESSING OFFICER LETTER OF CONFIRMATION BY CREDITORS, DISCHARGED ONUS AND PARTICULARS OF THE DIFFERENT CR EDITORS WHOSE INCOME TAX FILES NOS WERE WITH THE DEPARTMENT. THE SUMMONS ISSUED TO THE CREDITORS BY THE ASSESSING OFFICER U/S.131 A T THE ADDRESSES GIVEN BY THE ASSESSEE WERE RETURNED UNSERVED WITH T HE ENDORSEMENT LEFT. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CRE DITWORTHY. THUS, THE SUPREME COURT AFFIRMED THE VIEW OF THE HIGH COURT A S WELL AS THE TRIBUNAL THAT THE ASSESSEE HAD DISCHARGED THE BURDE N LAY ON IT. IN OUR OPINION, ONCE THE EXISTENCE OF THE CREDITORS IS PROVED AND SUCH PERSON OWED THE CREDITS WHICH ARE FOUND IN THE BOOK S OF ACCOUNTS OF THE ASSESSEES, THE ONUS STAND DISCHARGED AND THE AS SESSEE IS NOT FURTHER REQUIRED TO PROVE THE SOURCE OF INCOME FROM WHICH THE CREDITORS WOULD HAVE ACQUIRED THE MONEY AND, THEREF ORE, ADDITION U/S.68 CANNOT BE SUSTAINED IN THE ABSENCE OF ANYTHI NG TO ESTABLISH THAT I.T.A.NOS.2314 & 2315/MDS/2013. :- 14 -: SOURCE OF CREDITORS DEPOSIT, FLEW FROM THE ASSESSEE ITSELF. IN OUR OPINION, CREDITOR HAVING APPEARED BEFORE THE ASSESS ING OFFICER IN RESPONSE TO THE SUMMONS ISSUED U/S.131 OF THE ACT B EFORE THE ASSESSING OFFICER AND CONFIRMED BY FILING OF CONFIRMATION LETTER, THE TRANSACTION CANNOT BE DOUBTED. THE ASSESSEE DISCHA RGED ONUS PLACED UPON THEM BY ESTABLISHING THE IDENTITY OF THE CREDI TOR, HIS CREDIT WORTHINESS, GENUINENESS OF THE TRANSACTION. BEING SO, IN OUR OPINION THE ADDITION MADE IN THIS CASE U/S.68 IS UNWARRANTE D. THE SAME IS DELETED. 7. IN THE RESULT, BOTH THE ASSESSEES APPEAL IN ITA NO S.2314/13 AND 2315/13 ARE ALLOWED. ORDER PRONOUNCED ON FRIDAY , THE 19TH DAY OF JUNE, 2015, AT CHENNAI. SD/- SD/- ( . !' ) V. DURGA RAO # / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER !' /CHENNAI. #$ /DATED:19.06.2015. KV $% &' (' /COPY TO: 1. ) APPELLANT 2. / RESPONDENT 3. * ( )/CIT(A) 4. * /CIT 5. '+, - /DR 6. ,. / /GF. I.T.A.NOS.2314 & 2315/MDS/2013. :- 15 -: