SHRI MANISH KUMAR MUKIM , ALWAR V. .INCOME TAX OFFICER, WARD-2-2, ALWAR

ITA 233/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5732 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 22-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Keywords: Onus to prove; Reassessment proceedings
• Section: 133(6); 68; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 233/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SH. MANISH KUMAR MUKIM H. NO. 907, APNA GHAR SHALIMAR, TIJARA ROAD, ALWAR. CUKE VS. THE ITO WARD-2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ASLPM 2549 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B.K. GUPTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 24/07/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 07/08/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 17.12.2018 OF THE LD. CIT(A), ALWAR FOR THE ASSESSM ENT YEAR 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 8,62,66,333/- MADE BY THE AO BY TRE ATING THE CASH DEPOSIT IN THE BANK ACCOUNT AS UNEXPLAINED INC OME. 1.1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N CONFIRMING THE ABOVE ADDITION BY MAKING VARIOUS INCORRECT OBSE RVATIONS AND BY:- ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 2 (I) HOLDING THAT ASSESSEE FAILED TO PROVE THE GENUI NENESS OF CASH CREDIT IN THE BANK ACCOUNT (II) IGNORING THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNT IS OUT OF SALE PROCEEDS OF RS. 13,14,78,613/- WHICH IS DUL Y REFLECTED IN TRADING AND P&L A/C (III) IGNORING THAT SALE PROCEEDS DEPOSITED IN THE BANK ACCOUNT IS USED FOR MAKING PAYMENT TO THE CREDITORS FROM WHOM GOODS WERE PURCHASED AND THERE IS NO OUTSTANDING CREDITOR AT T HE YEAR END (IV) NOT CONSIDERING THE FACT THAT ASSESSEE HAS FUR NISHED THE CONFIRMATION OF THE PARTIES AND ALSO THE IDENTITY P ROOF OF SOME OF THESE PARTIES AND THEREFORE, ONLY BECAUSE THESE PAR TIES COULD NOT BE PRODUCED IS NO GROUND FOR TREATING THE CASH DEPO SIT IN THE BANK ACCOUNT AS UNEXPLAINED. 2. THE APPELLANT CRAVES TO ALTER, AMEND AND MODIFY ANY GROUND OF APPEAL. 4. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 2. THE ASSESSEE IS AN INDIVIDUAL AND PROPRIETOR OF M/S SUNMANGAL AND M/S MUKTA ARTS. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF TRADING IN FABRICS DURING THE YEAR UNDER CONSIDERAT ION. THE ASSESSEE FILED HIS RETURN OF INCOME ON 04.10.2010 DECLARING TOTAL INCOME OF RS. 1,39,500/-. SUBSEQUENTLY THE ASSESSING OFFICER RECE IVED INFORMATION FROM INVESTIGATION WING, UNIT-3 KOLKATA ON 02.03.20 15 THAT THE ASSESSEE HAS DEPOSITED CASH OF RS. 8,62,66,333/- IN HIS SAVING BANK ACCOUNT. IN PURSUANT TO THE SAID INFORMATION ALONG WITH THE BANK ACCOUNT STATEMENT OF THE ASSESSEE THE AO HAS CONDUC TED ENQUIRY TO VERIFY THE SOURCE OF THE DEPOSIT AND FINALLY THE AO REOPENED THE ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 3 ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE ACT DAT ED 30.03.2017. IN THE REASSESSMENT PROCEEDINGS, THE AO ISSUED COMMISS ION U/S 131(1)(D) OF THE I.T. ACT TO ADDL./JOINT DIT(INVESTIGATION), KOLKATA VIDE LETTER DATED 06.12.2017 FOR CONDUCTING ENQUIRY ABOUT THESE PARTIES WITH WHOM THE ASSESSEE HAS CLAIMED TO HAVE MADE PURCHASE AND SALE OF FABRIC. AFTER RECEIVING THE REPORT FROM THE INVESTI GATION WING, KOLKATA THE AO HAS HELD THAT THE CLAIM OF THE ASSESSEE THAT THE DEPOSIT WAS MADE OUT OF THE SALE PROCEEDS OF BUSINESS OF TRADIN G OF FABRICS IS BOGUS AS NO SUCH TRANSACTIONS HAVE TAKEN PLACE. THE AO FU RTHER OBSERVED THAT THERE WAS NOT BUSINESS ACTIVITY DONE BY THE ASSESSE E. CONSEQUENTLY THE AO HAS MADE ADDITION OF RS. 8,62,66,333/- ON ACCOU NT OF CASH DEPOSIT IN THE BANK ACCOUNT TREATING THE SAME AS UNEXPLAINE D INCOME OF THE ASSESSEE. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT(A) BUT COULD NOT SUCCEED. 3. BEFORE US, THE LD. AR OF THE ASSESSEE HAS SUBMIT TED THAT THE CASH DEPOSIT IN DIFFERENT BANK ACCOUNTS WAS OUT OF SALE PROCEEDS OF GOODS TO DIFFERENT PARTIES FOR WHICH CASH BOOK WAS SUBMITTED BEFORE THE AO. THE COPY OF SALE AND PURCHASE BILLS, LEDGER ACCOUNT OF ALL DEBTORS AND CREDITORS WERE ALSO SUBMITTED BEFORE THE AO. THE BO OKS OF ACCOUNT OF THE ASSESSEE WERE DULY AUDITED AND CASH DEPOSITED I N THE BANK ACCOUNT ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 4 IS VERIFIABLE FROM THE CASH BOOK ACCOUNTS. THE AO H AS NOT REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE THEREFORE, THE ADD ITION MADE BY THE AO IS NOT JUSTIFIED AND LIABLE TO BE DELETED. THE L D. AR HAS FURTHER SUBMITTED THAT THE ONLY REASON GIVEN BY THE AO FOR MAKING THE ADDITION IS THAT THE ASSESSEE COULD NOT PRODUCE THE PERSONS TO WHOM NOTICES U/S 133(6) OF THE ACT AND THE REPORT OF THE ENQUIRY REV EALS THAT THE PARTIES WERE NOT FOUND AT THE GIVEN ADDRESS. ALL THESE PART IES ARE CREDITORS OF THE ASSESSEE FROM WHOM HE HAS PURCHASED GOODS AND T HE PAYMENTS WERE MADE THROUGH CHEQUES AND THEY HAVE FILED THE C ONFIRMATION IN RESPONSE TO THE NOTICE ISSUED U/S 133(6) OF THE ACT . THEREFORE, THE ASSESSEE DISCHARGED ITS ONUS TO PROVE THE IDENTITY AND GENUINENESS OF THE TRANSACTION OF PURCHASE OF GOODS FROM THESE PER SONS THE SALES WERE MADE IN CASH THEREFORE, THE DEPOSIT MADE IN THE BAN K ACCOUNT WAS OUT OF THE SALE PROCEEDS. THE LD. AR HAS SUBMITTED THAT THE DECISIONS RELIED UPON BY THE LD. CIT(A) ARE IN RESPECT OF SHARE APPL ICATION MONEY AND THEREFORE, CANNOT BE APPLIED TO THE CASE OF THE ASS ESSEE WHERE THE DEPOSIT IN THE BANK ACCOUNT HAS BEEN MADE OUT OF TH E SALE PROCEEDS. ALTERNATIVELY, THE LD. AR HAS SUBMITTED THAT WHEN T HERE ARE WITHDRAWALS FROM THE BANK ACCOUNT THEN THE ADDITION IF ANY COUL D HAVE BEEN RESTRICTED ONLY TO THE PICK CASH DEPOSIT. ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 5 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE PARTIES FROM WHOM THE ASSESSEE HAS CLAIMED TO HAVE PURCHASED THE FABRICS WERE NOT FOUND AT THE GIVEN ADDRESS. EVEN THE ASSESSEE HAS N OT PRODUCED ANY DOCUMENTS TO SUBSTANTIATE THE TRANSACTION OF PURCHA SE AND SALE. THE AO HAS CONDUCTED THE DUE ENQUIRY BY ISSUING COMMISSION TO ADDL. JOINT DIT(INVESTIGATION), KOLKATA AND AFTER RECEIVING THE REPORT IT WAS FOUND THAT THE ALLEGED PERSONS WERE NOT IN EXISTENCE AS N OT FOUND AT THE GIVEN ADDRESS. THE LD. DR HAS FURTHER SUBMITTED THAT THE ASSESSEE CLAIMED THAT THESE PERSONS HAVE FILED CONFIRMATION IN RESPO NSE TO NOTICE U/S 133(6) OF THE ACT HOWEVER, THE ALLEGED CONFIRMATION S ARE CONTRADICTORY AS THE LETTER DATED 08.02.2017 IS SIGNED BY A DIFFE RENT PERSON CLAIMED AS DIRECTOR OF THE COMPANY WHEREAS HIS LEDGER STATE MENT AT PAGE 13 AND 14 OF THE PAPER BOOK IS SIGNED BY THE ANOTHER P ERSON IN THE CAPACITY OF PROPRIETOR. THUS, THESE LETTERS WERE SI GNED AT THE SAME TIME BUT SHOW DIFFERENT SIGNATURES AND IN THE DIFFERENT CAPACITY WHICH IS NOT POSSIBLE. THUS THESE DOCUMENTS ARE NOT GENUINE DOCU MENT. HE HAS ALSO REFERRED TO THE CONFIRMATION ISSUED BY AMULYA DISTR IBUTORS DATED 01.04.2009 HOWEVER, LEDGER ACCOUNT PAGE 20 HAVE BEE N SIGNED BY DIFFERENT PERSON. THERE WAS NO CLOSING STOCK AND OP ENING STOCK IN BOTH PROPRIETORSHIP CONCERNS AS WELL AS THE ASSESSEE HAS NOT CLAIMED ANY ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 6 DIRECT EXPENDITURE. THEREFORE, THE DEPOSITS MADE IN THE 7 DIFFERENT BANK ACCOUNTS WHICH WERE NOT DISCLOSED BY THE ASSESSEE I N THE RETURN OF INCOME OR IN THE BALANCE SHEET HAS BEEN RIGHTLY CON SIDERED AS UNEXPLAINED INCOME OF THE ASSESSEE. HE HAS RELIED U PON THE FOLLOWING DECISIONS:- 1. RAJIV JAIN VS. ITO 410 ITR 179 (DELHI) 2. CIT VS. SARWANKUMAR SHARMA 227 TAXMAN 34 (GUJARAT) 3. TRUPTIBEN BAKULBHAI PATEL VS. ITO (GUJARAT) 4. CHAMPALAL S. SHAH VS. ITO 86 TAXMANN.COM 258 (MUMBA I TRIB.) THUS, THE LD. DR HAS SUPPORTED THE ORDERS OF THE AU THORITIES BELOW. IN REJOINDER THE LD. AR HAS SUBMITTED THAT THE CONFIRM ATION WERE SIGNED BY DIFFERENT PERSONS BECAUSE THE PROPRIETORSHIP CONCER NS MIGHT HAVE BEEN CONVERTED INTO PRIVATE LIMITED COMPANIES. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. IN THE RETURN OF INCOME THE ASS ESSEE HAS SHOWN PROFIT OF RS. 79,170/- IN THE PROPRIETORSHIP CONCER N M/S SUNMANGAL AND LOSS OF RS. 90,251/- OF M/S MUKTA ARTS THEREFORE, N ET RESULT FROM THE BUSINESS IS DECLARED AT RS. 11,081/-. IT IS ALSO NO T IN DISPUTE THAT THE CASH DEPOSIT IN THE DIFFERENT BANK ACCOUNT AS MANY AS 7 ACCOUNTS WERE ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 7 NOT DECLARED BY THE ASSESSEE IN THE RETURN OF INCOM E. THE DETAILS OF THE CASH DEPOSIT HAS BEEN GIVEN BY THE AO AT PAGE 2 AS UNDER:_ 1. ICICI BANK ACCOUNT 032101582093 RS. 11,000/- 2. AXIS BANK ACCOUNT 00505010200070373 RS. 64,45,2 80/- 3. AXIS BANK ACCOUNT 005010200070285 RS. 65,38,280 /- 4. ICICI BANK ACCOUNT 000605020401 RS. 3,02,69,56 5/- 5. ICICI BANK ACCOUNT 054005000833 RS. 3,33,00,40 8/- 6. HDFC BANK ACCOUNT 10158620000271 RS. 59,80,600/ - 7. HDFC BANK ACCOUNT 10158620000264 RS. 37,21,200/ - TOTAL RS. 8,62,66,333/- IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS CLAIM ED TO HAVE DONE BUSINESS OF TRADING OF FABRICS UNDER THE NAME AND S TYLE OF TWO PROPRIETORSHIP CONCERNS M/S SUNMANGAL AND M/S MUKTA ARTS ONLY DURING THE YEAR UNDER CONSIDERATION. NEITHER ANY SUCH BUSI NESS WAS DONE BY THE ASSESSEE IN PAST NOR ANY SUCH ACTIVITY IS CARRI ED OUT IN FUTURE. THUS ONLY DURING THE YEAR CONSIDERATION THE ASSESSEE HAS CLAIMED TO HAVE DONE THE BUSINESS OF TRADING IN FABRIC. THE ASSESSE E CLAIMED THAT THIS BUSINESS WAS DONE AT KOLKATA UNDER THESE TWO PROPRI ETORSHIP CONCERNS HOWEVER, IN THE BOOKS OF ACCOUNT THERE IS NOTHING A S FIXED ASSETS OF THE ASSESSEE AND ONLY THE RENT OF RS. 10,000/- IN CASE OF EACH PROPRIETORSHIP CONCERNS HAS BEEN CLAIMED. THE ASSES SEE CLAIMED TO ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 8 HAVE ACHIEVED TURNOVER OF MORE THAN RS. 13 CRORES D URING THE YEAR UNDER CONSIDERATION. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS COMMENCED THESE BUSINESS ACTIVITIES DURING THE YEAR ITSELF AND CLOSED THE SAME DURING THE YEAR ITSELF. DURING THIS SHORT PERIOD THE ASSESSEE HAS ACHIEVED THE TURNOVER OF MORE THAN RS. 13 CRORE S THAT TOO THE ENTIRE OF SALE CLAIMED IN CASH WITHOUT HAVING ANY D ETAILS OR PARTICULARS OF THE PERSONS TO WHOM THE SALE WAS MADE. THE ASSES SEE HAS NOT PRODUCED A SINGLE DOCUMENT OF SALE HAVING ANY DETAI L OR PARTICULARS OF THE PURCHASER. THIS MAGNITUDE OF TURNOVER IS NOT PO SSIBLE WHILE DOING RETAIL SALE TO INDIVIDUALS AND THEREFORE, IF THE SA LE IS MADE IN WHOLESALE THEN THE PARTICULARS OF PURCHASER SHOULD HAVE BEEN PRODUCED BY THE ASSESSEE. THUS THE ASSESSEE HAS FAILED TO SUBSTANTI ATE THE CLAIM THAT THE DEPOSIT MADE IN THE BANK ACCOUNT IS OUT OF SALE PROCEEDS. FURTHER, THE AO DEDUCTED THE ENQUIRY BY ISSUING THE COMMISSI ON TO ADDL./JOINT DIT(INVESTIGATION) WING, KOLKATA VIDE LETTER DATED 06.12.2017. IN THE REPORT RECEIVED VIDE LETTER DATED 22.12.2017 IT WAS STATED THAT THE ENQUIRY CONDUCTED IN RESPECT OF 10 PARTIES FROM WHO M THE ASSESSEE CLAIMED TO HAVE PURCHASED THE MATERIALS WERE NOT FO UND AT THE GIVEN ADDRESS. THE PECULIARITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE AS WELL AS RESULT OF THE ENQUIRY CONDUCTED BY THE AO T HROUGH INVESTIGATION ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 9 WING, KOLKATA CLEARLY ESTABLISHED THAT THE CLAIM OF THE ASSESSEE IS NOT GENUINE. THE LD. CIT(A) HAS ADJUDICATED THIS ISSUE IN PARA 5.3 AND 5.4 AS UNDER:- 5.3 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S SUBMISSIONS MADE BY THE APPELLANT. FOLLOWING FACTS HAVE EMERGED ; 1. THAT THE APPELLANT HAS CLAIMED TO HAVE BEEN ENGAGED IN THE BUSINESS OF FABRIC TRADING UNDER THE NAME OF M/S SU MANGAL & M/S MUKTA ARTS DURING THE YEAR UNDER CONSIDERATIO N AND DECLARED INCOME OF RS.1,39,500/-. 2. THAT THE A.O HAD FOUND CASH DEPOSITS TO THE TUNE OF RS. 8,62,66,333/- IN VARIOUS BANK ACCOUNTS DURING THE Y EAR UNDER CONSIDERATION. 3. THAT THE APPELLANT HAS CLAIMED THAT SUCH CASH DEPOS ITS WERE MADE OUT OF CASH SALE PROCEEDS TO VARIOUS CLIENTS. 4. THAT IN ORDER TO VERIFY THE SOURCE OF SUCH CASH DEPOSITS, THE A.O HAD ISSUED NOTICES UNDER SECTION 133(6) OF THE ACT. HOWEVER, NOTICES WERE RECEIVED BACK WITH THE POSTAL REMARKS 'NO SUCH PERSONS LIVES ON THE ADDRESS GIVEN '. 5. THAT THE DEPARTMENT HAS FURTHER DEPUTED THE INSP ECTOR OF INCOME TAX TO VERIFY THE EXISTENCE OF SUCH PERSONS AT THE GIVEN ADDRESSES. NO SUCH PERSONS OR FIRMS HAVE BEEN FOUND AT THE GIVEN ADDRESS. 6. THAT THE A.O HAD GIVEN OPPORTUNITY TO THE ASSESSEE TO PRODUCE SUCH PERSONS BUT ASSESSEE DID NOT AVAIL THE OPPORTUNITY. 7. THAT THE A.O HAD ADDED THE CASH DEPOSITS OF RS. 8,62,66,333/- AS INCOME OF THE ASSESSEE AS UNEXPLAI NED CASH CREDITS. ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 10 8. THAT DURING THE APPELLATE PROCEEDINGS ALSO THE A PPELLANT FAILED TO SUBMIT ANY COGENT EVIDENCES IN SUPPORT OF THE CLAIM. 5.4 I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE APPELLANT'S SUBMISSION. SO FAR AS THE ISSUE OF CASH CREDIT IS CONCERNED, VARIOUS COURT JUDGMENTS HAVE SETTLED THE PARAMETERS AND THE SCOPE OF ONUS TO BE DISCHARGED B Y THE ASSESSEE. IN THIS REGARD, SUPREME COURT IN CIT V. L OVELY EXPORTS PVT. LTD.(SUPRA), HAS HELD THAT THE INITIAL BURDEN IS UPON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF THE SHARE APPLICATION MONEY AND IN ORDER TO DISCHARGE THIS ONUS, THE ASSESSEE SHOULD PROVE (A) THE IDENTI TY OF SHAREHOLDER; (B) GENUINENESS OF THE TRANSACTION; AN D (C) CREDITWORTHINESS OF SHAREHOLDERS. IT WAS FURTHER OB SERVED THAT FOR DISCHARGING THE ABOVE BURDEN, THE ASSESSEE MUST FILE SOME DOCUMENTS OR PRODUCE THE SHAREHOLDER TO PROVE HIS I DENTITY. IN THE CASE OF SUBSCRIBER BEING A COMPANY DETAILS IN T HE FORM OF REGISTERED ADDRESS OR PAN IDENTITY, ETC. WOULD SUFF ICE. THE GENUINENESS OF THE TRANSACTION MAY BE DEMONSTRATED BY SHOWING THAT THE ASSESSEE HAD, IN FACT, RECEIVED MO NEY FROM THE APPLICANT SHAREHOLDER AND THAT IT HAD COME NOT FROM THE COFFERS OF THE ASSESSEE BUT FROM THAT OF THE APPLICANT SHAR EHOLDER. AS TO THE CREDITWORTHINESS OR FINANCIAL STRENGTH OF THE S UBSCRIBER, THE PROOF COULD INCLUDE BANKS STATEMENTS OF THE SUBSCRI BER SHOWING SUFFICIENT BALANCE IN ITS KITTY TO ENABLE IT TO SUB SCRIBE. THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF THE COMMISSIONER OF INCOME TAX, AJMER VS SHRI JAI KUMAR BAKLIWAL, DATE OF ORDER: 06/02/2014 HAS HELD THAT 'IN OUR VIEW AS WELL, THREE THINGS ARE REQUIRED TO BE PROVED BY RECIPIENT OF MONEY I.E. (1) IDENTITY OF T HE CREDITOR (2) CAPACITY OF THE CREDITOR TO ADVANCE MO NEY AND (3) GENUINENESS OF THE TRANSACTION. FROM THE FACTS EMERGING ON THE FACE OF RECORD, WE NOTICE THAT IT I S AN ADMITTED FACT THAT ALL THE ABOVE CASH CREDITORS (12 IN NUMBER) ARE ASSESSED TO INCOME TAX AND THEY PROVIDE D A CONFIRMATION AS WELL AS THEIR PERMANENT ACCOUNT NUM BER. THEY HAVE THEIR OWN RESPECTIVE BANK ACCOUNTS WHICH THEY HAVE BEEN OPERATING AND IT IS NOT THE CLAIM OF THE AO THAT ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 11 THE RESPONDENT-ASSESSEE WAS OPERATING THEIR BANK ACCOUNTS RATHER THEY HAVE CATEGORICALLY STATED THAT THEY ISSUED CHEQUE TO THE RESPONDENT-ASSESSEE., IN OUR V IEW, STOOD DISCHARGED AS HE WAS ABLE TO PROVE IDENTITY O F THE CREDITORS. ONCE THE AMOUNT WAS ADVANCED BY ACCOUNT PAYEE CHEQUE FROM THEIR RESPECTIVE OWN BANK ACCOUNT S AND WERE BEING ASSESSED TO INCOME TAX, THEN IN OUR VIEW, CAPACITY OF THE CREDITOR AND GENUINENESS OF THE TRA NSACTION STOOD PROVED. IN SO FAR AS THE RESPONDENT-ASSESSEE IS CONCERNED, IT IS CORRECT THAT HE IS NOT REQUIRED TO PROVE SOURCE OF THE SOURCE AND IF THE AO HAD ANY DOUBT, T HEN THE AO, ASSESSING THE RESPONDENT-ASSESSEE, COULD HAVE S ENT THE INFORMATION TO THE AO, ASSESSING THE CASH CREDI TORS FOR APPROPRIATE ACTION IN THEIR CASES BUT IN SO FAR AS THE RESPONDENT-ASSESSEE IS CONCERNED, IN OUR VIEW, THE RESPONDENT-SSESSEE HAS BEEN ABLE TO DISCHARGE THE B URDEN WHICH LAY UPON HIM. THUS, THE HIGH COURT HAS LAID DOWN FOLLOWING PARAMETERS TO BE DISCHARGED BY THE ASSESSEE ON THE APPLICABILITY OF SECTION 68 OF THE ACT ON SHARE APPLICATION MONEY; THE ASSESSEE HAS TO PRIMA FACIE PROVE; 1. THE IDENTITY OF THE CREDITOR/SUBSCRIBER; 2. THE GENUINENESS OF THE TRANSACTION, NAMELY, WHETHER IT HAS BEEN TRANSMITTED THROUGH BANKING OR OTHER INDISPUTA BLE CHANNELS; 3. THE CREDITWORTHINESS OR FINANCIAL STRENGTH OF THE CREDITOR/SUBSCRIBER. 4. IF RELEVANT DETAILS OF THE ADDRESS OR PAN IDENTITY OF THE CREDITOR/SUBSCRIBER ARE FURNISHED TO THE DEPARTMENT IT WOULD CONSTITUTE ACCEPTABLE PROOF OR ACCEPTABLE EXPLANATI ON BY THE ASSESSED 5. THE DEPARTMENT WOULD NOT BE JUSTIFIED IN DRAWING AN ADVERSE INFERENCE ONLY BECAUSE THE CREDITOR/SUBSCRIBER FAIL S OR NEGLECTS TO RESPOND TO ITS NOTICES; 6. THE ONUS WOULD NOT STAND DISCHARGED IF THE CREDITOR/SUBSCRIBER DENIES OR REPUDIATES THE TRANSA CTION SET UP BY THE ASSESSED NOR SHOULD THE AO TAKE SUCH REPUDIATION AT FACE VALUE AND CONSTRUE IT, WITHOUT MORE, AGAINST THE ASSESSED. ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 12 7. THE ASSESSING OFFICER IS DUTY-BOUND TO INVESTIGATE THE CREDITWORTHINESS OF THE CREDITOR/SUBSCRIBER THE GEN UINENESS OF THE TRANSACTION AND THE VERACITY OF THE REPUDIATION . ' IN VIEW OF THE ABOVE MENTIONED JUDGMENTS AND PARAME TERS, I FOUND THAT THE APPELLANT HAS NOT BEEN ABLE TO DISCH ARGE EVEN THE BASIC ONUS TO PROVE THE GENUINENESS OF CASH CRE DITS IN HIS BANK ACCOUNTS. THEREFORE, IN MY CONSIDERED VIEW WHE N THE EXISTENCE OF THE SOURCE OF SUCH CASH DEPOSITS IS NO T PROVEN THEN THE A.0 IS FULLY JUSTIFIED IN TREATING SUCH CA SH DEPOSITS AS UNEXPLAINED AND LIABLE TO BE TAXED. ACCORDINGLY, THE ADDITION OF RS. 8,62,66,333/- IS S USTAINED AND THE APPELLANTS GROUND OF APPEAL ON THE ISSUE IS DI SMISSED. WE FIND THAT THE FINDING OF THE AO AS WELL AS THE L D. CIT(A) IS BASED ON THE SPECIFIC FACTS DETECTED DURING THE ENQUIRY COND UCTED BY THE AO WHEREAS THE ASSESSEE HAS FAILED TO PRODUCE ANY EVID ENCE WHICH CAN BE INDEPENDENTLY VERIFIED IN SUPPORT OF HIS CLAIM. ACC ORDINGLY, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS THE DECISION RELIED UPON THE LD. DR, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT(A). IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/08/2019. FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/08/2019. ITA NO.233/JP/2019 SH. MANISH KUMAR MUKIM VS ITO 13 * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. MANISH KUMAR MUKIM, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2(2), ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 233/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR