ACIT, CC-XXIV, Kolkata, Kolkata V. Rakesh Agarwal, Kolkata

ITA 250/KOL/2011

• Counselvise Citation: 25023514 RSA 2011
• Duration Of Justice: 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2011
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 02-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 14-02-2011
• Court: TRIBUNAL
• Department Lawyers: M BHATTACHARYA; S SINHA
• Assessee Lawyers: D S DAMLE
• Keywords: Document seized; Accommodation entries; Onus to prove; Retraction; Documents seized
• Section: 68; 132; 133(6)

Judgement Text

1 , B , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- B , KO LKATA [ . . . . . .. . , ,, , . .. . ! ! ! !. .. . , , , , '# ] BEFORE SHRI B.R.MITTAL, JUDICIAL MEMBER & SRI C.D. RAO, ACCOUNTANT MEMBER $ $ $ $ / ITA NO. 250 (KOL) OF 2011 %& '( / ASSESSMENT YEAR 2006-07 ASSTT.COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-XXIV, KOLKATA. RAKESH AGARWAL, KOLKATA. (PAN-ACGPA7388B) (+, / APPELLANT ) - % - - VERSUS - (/0+,/ RESPONDENT ) +, 1 2 '/ FOR THE APPELLANT: / S/SRI S.SINHA & M.BHATTACHARYA /0+, 1 2 ' / FOR THE RESPONDENT: / SRI D.S. DAMLE '3 / ORDER ( . . . . . .. . ), (B.R.MITTAL), JUDICIAL MEMBER : THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSME NT YEAR 2006-07 AGAINST ORDER OF LD. C.I.T.(A), CENTRAL-III, KOLKATA DATED 29/11/ 2010 ON FOLLOWING GROUND :- 1. THAT IN THE FACTS AND CIRCUMSTANCES O F THE CASE AND IN LAW THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.10,00,000/- MA DE U/S. 68 OF THE ACT WITHOUT PROPER APPRECIATION OF THE EVIDENCES BROUGHT ON REC ORD BY THE DEPARTMENT THAT IT WAS ASSESSEES OWN UNACCOUNTED MONEY INTRODUCED AS UNSE CURED LOAN RECEIVED FROM M/S. RAJEEV TRADING COMPANY PVT. LTD. ARRANGED THROUGH A CCOMMODATION ENTRIES IN THE BOOKS OF THE SAID COMPANY WHICH THE DIRECTORS OF TH E COMPANY HAD CONFESSED TO THE INCOME TAX AUTHORITIES. 2. THE RELEVANT FACTS GIVING RISE TO THIS APPEAL A RE THAT THERE WAS A SEARCH & SEIZURE OPERATION CONDUCTED U/S. 132 OF THE ACT ON 08/12/20 06 IN THE CASE OF AGARWAL GROUP OF COMPANIES AND OFFICE PREMISES OF ONE SRI ARUN KR. K HEMKA WERE ALSO COVERED BY THE SAID SEARCH OPERATION. THE ASSESSEE IS THE DIRECTOR OF M/S. R.S. ISPAT LTD., WHICH IS ONE OF THE COMPANIES OF AGARWAL GROUP. DURING SEARCH OP ERATION, SOME PAPERS AND DOCUMENTS RELATING TO LOAN TRANSACTION WITH THE ASS ESSEE WERE FOUND WITH THE POSSESSION OF SRI KHEMKA AND SEIZED. THE A.O. OBSERVED THAT TH E SEIZED DOCUMENTS CONTAINED UNSECURED LOAN TRANSACTIONS AMOUNTING TO RS. 10 LAK HS MADE WITH THE ASSESSEE DURING THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR UNDE R CONSIDERATION. THIS UNSECURED LOAN 2 WAS GIVEN IN THE FORM OF CHEQUE BY M/S. RAJEEV TRAD ING CO. PVT. LTD. SRI ARUN KR. KHEMKA IN HIS STATEMENT RECORDED U/S. 132(4) OF THE ACT ON 09/12/2006 STATED THAT THE SAID LOAN TRANSACTION WAS ACCOMMODATION ENTRIES WHE REIN CASH WAS RECEIVED FROM THE PARTY CONCERNED AND CHEQUE WAS ISSUED IN LIEU THERE OF. DURING THE COURSE OF POST-SEARCH INVESTIGATION AND AT THE TIME OF MAKING THE ASSESSM ENT, THE A.O. HAS STATED THAT M/S. RAJEEV TRADING CO. PVT. LTD., WHO CLAIMED TO HAVE G IVEN UNSECURED LOAN TO THE ASSESSEE, HAS CATEGORICALLY ADMITTED VIDE ITS LETTE R DATED 16/1/2007 THAT THE UNSECURED LOANS GIVEN WERE ACCOMMODATION ENTRIES BY RECEIVING CASH AND ISSUING CHEQUES IN LIEU THEREOF. THE A.O. HAS STATED THAT THE TRANSACTIONS INVOLVED ARE THUS BOGUS. THE A.O. HAS STATED THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS AFFORDED AN OPPORTUNITY TO EXAMINE THE STATEMENT OF SRI ARUN KR . KHEMKA AS WELL AS THE LETTER DATED 16/1/2007 FILED BY THE SAID LENDER COMPANY. IN REP LY, THE ASSESSEE FILED A COPY OF AN AFFIDAVIT SWORN BY SRI SUNIL KR. TIBREWAL, DIRECTOR OF M/S. RAJEEV TRADING CO. PVT. LTD. RETRACTING THE CONTENTS OF LETTER DATED 16/1/2 007. THE A.O. HAS REPRODUCED THE CONTENTS OF THE AFFIDAVIT AT PAGE 2 OF THE ASSESSME NT ORDER WHEREIN IT IS, INTER ALIA, STATED THAT THE STATEMENTS RECORDED DURING SEARCH WERE OBT AINED BY THE SEARCH TEAM USING COERCION AND THREAT AND THEY HAD PUT UNDUE INFLUENC E AND PRESSURE AS A RESULT OF WHICH HE WAS COMPELLED TO MAKE STATEMENT U/S. 132(4) OF T HE ACT IN ACCORDANCE WITH THE DIRECTIONS OF THE SEARCHING OFFICERS. 2.1. THE A.O. DID NOT ACCEPT THE SAID RETRACTION BY STATING THAT DURING SEARCH & SEIZURE OPERATION AS ALSO DURING POST-SEARCH INVEST IGATION AND ASSESSMENT PROCEEDINGS, EITHER SRI KHEMKA OR DIRECTOR OF M/S. RAJEEV TRADIN G CO. PVT. LTD. WAS PRODUCED OR ANY EVIDENCE FILED REGARDING ALLEGATION OF THREAT, UNDUE INFLUENCE AND COERCION ON THE PART OF THE DEPARTMENT. IN THIS CONNECTION, THE A.O . ALSO RELIED ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF SURJIT SINGH CHAB RA VS. UNION OF INDIA [AIR 1997 (SC) 2560]. HE, THEREFORE, TAKING INTO COGNIZANCE THE STATEMENT RECORDED AT THE TIME OF SEARCH U/S. 132(4) OF THE ACT AS ALSO THE LETTER OF THE LENDER COMPANY DATED 16/1/2007, 3 CONSIDERED THE SAID UNSECURED LOAN OF RS.10 LAKHS A S APPEARING IN THE BOOKS OF THE ASSESSEE NOT GENUINE AND ADDED THE SAME TO HIS INCO ME U/S. 68 OF THE ACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. BEING AGGRIEV ED, THE ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 3. BEFORE THE LD. C.I.T.(A), THE ARGUMENTS OF THE ASSESSEE WERE IN THE SAME LINE AS WERE MADE IN THE CASE OF RADHESHYAM AGARWAL, ASSESS EES BROTHER. THE LD. C.I.T.(A) IN HIS APPELLATE ORDER HAS STATED THAT THE FACTS AND C IRCUMSTANCES OF THE CASE OF THE ASSESSEE ARE SIMILAR TO THOSE DISCUSSED IN THE APPEAL OF RAD HESHYAM AGARWAL FOR ASSESSMENT YEAR 2006-07 AND THE REASONS GIVEN BY THE A.O. IN HIS RE MAND REPORT AND FOR MAKING ADDITION U/S. 68 OF THE ACT IN THE PRESENT CASE ARE ALSO IDE NTICAL. HE FURTHER OBSERVED THAT IN RESPONSE TO NOTICE U/S. 133(6) OF THE ACT, M/S. RAJ EEV TRADING CO. PVT. LTD. HAD FILED ACCOUNT CONFIRMATION ALONG WITH I.T. ACKNOWLEDGEMEN T, BALANCE SHEET AND COPY OF BANK STATEMENT OF HDFC BANK. HE, THEREFORE, FOLLOWING HI S OWN ORDER DATED 29/11/2010 IN THE CASE OF RADHESHYAM AGARWAL FOR ASSESSMENT YEAR 2006-07 DELETED THE ADDITION OF RS.10 LAKHS IN THE CASE OF THE ASSESSEE BY HOLDING AS UNDER :- 3. PERUSAL OF THE BALANCE-SHEET OF THE LOAN CREDI TOR SHOWED THAT ITS OWNED FUNDS IN THE FORM OF SHARE CAPITAL & RESERVE WERE RS.529 LAC S WHEREAS LOAN AMOUNT WAS ONLY RS.10 LACS. THE BANK STATEMENT OF THE LOAN CREDITO R SHOWED THAT THE LOAN WAS PAID THROUGH PROPER BANKING CHANNELS AND THERE WAS NO CA SH DEPOSIT IN THE BANK A/C OF THE CREDITOR PRIOR TO ENCASHMENT OF THE CHEQUE BY T HE ASSESSEE. THE LOAN CREDITOR WAS REGULARLY ASSESSED TO TAX AND THE LOAN AMOUNT WAS R EFLECTED IN THE LOAN CREDITORS AUDITED ACCOUNTS WHICH INDICATED THAT THE LOAN WAS GRANTED OUT OF EXPLAINED SOURCES OF THE LOAN CREDITOR. I THEREFORE FIND THAT THE FA CTS AND CIRCUMSTANCES OF THE ASSESSEES LOAN TRANSACTION ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF SRI RADHE SHYAM AGARWAL. IN MY APPELLATE ORDER OF THE EVEN DATE IN APPEAL NO. 251/CC/XXIV/ CIT(A)-C-III/08-09, I HAVE EXTENSIVELY DEALT WITH T HE SUBMISSIONS OF THE RIVAL PARTIES AND AFTER CONSIDERING THE DOCUMENTS FURNISHED I HEL D THAT THE AO WAS UNABLE TO PROVE INFIRMITY IN THE EVIDENCES FURNISHED IN SUPPORT OF LOAN. SINCE THE FACTS IN THE PRESENT CASE ARE IDENTICAL; FOLLOWING MY APPELLATE ORDER IN THE CASE OF SRI RADHE SHYAM AGARWAL, I DIRECT THE AO TO DELETE THE ADDITION OF RS. 10 LACS. HENCE THE DEPARTMENT IN IN APPEAL BEFORE THE TRIBUN AL. 4. BEFORE US, BOTH THE PARTIES REITERATED THEIR SU BMISSIONS AS MADE IN THE CASE OF RADHESHYAM AGARWAL FOR ASSESSMENT YEAR 2006-07 IN I .T.A.NO. 254 (KOL)/2011. THE EVIDENCES/DOCUMENTS PRODUCED ARE ALSO SIMILAR IN NA TURE. IN OUR ORDER DATED 5 TH SEPTEMBER, 2011 IN RESPECT OF THE AFORESAID APPEAL , WE HAVE UPHELD THE ORDER OF LD. 4 C.I.T.(A) IN DELETING THE ADDITION MADE BY THE A.O. U/S. 68 OF THE ACT BY HOLDING AS UNDER :- 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF TH E PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE FACTS OF THE CASE HAVE BEEN NARRATED ABOVE. AFTER PERUSING THE ASSESSMENT ORDER, WE OBSERVE THAT THE IMPUGNED ADDITION U/S. 68 OF THE ACT OF RS.10 LAKHS WAS MADE BY THE A.O. MAINLY RELYING ON THE ST ATEMENT OF SHRI KHEMKA RECORDED ON 9/12/2006 U/S. 132(4) OF THE ACT AND LETTER OF M /S. GLOBE STOCKS & SECURITIES LTD. DATED 16/1/2007 IN WHICH THEY HAD CLAIMED TO HAVE A DMITTED THAT THE ASSESSEE WAS PROVIDED ACCOMMODATION ENTRIES BY THEM IN LIEU OF C ASH RECEIPT. EXCEPT THESE STATEMENTS OF SRI KHEMKA AND M/S. GLOBE STOCKS & SE CURITIES LTD., NO OTHER CORROBORATIVE OR SPECIFIC EVIDENCE COULD BE BROUGHT ON RECORD BY THE A.O. TO JUSTIFY THE DEPTH OF AUTHENTICITY OF SUCH STATEMENTS AND SUBSEQ UENT ACTION THEREUPON AS PER LAW, WHICH WERE SUBSEQUENTLY RETRACTED BY THOSE PERSONS BY FILING AFFIDAVIT STATING THEREIN THAT THE SEARCHING TEAM RECORDED THE STATEMENT OF S RI AURN KR. KHEMKA, WHO IS ALSO DIRECTOR OF M/S. GLOBE STOCKS & SECURITIES LTD., BY USING COERCION AND THREAT AND FURTHER IT WAS DUE TO UNDUE INFLUENCE, PRESSURE AND THREAT OF DIRE CONSEQUENCES BY THE SEARCHING TEAM THAT HE WAS COMPELLED TO MAKE STATEM ENTS, WHICH WERE BEYOND THE CORRECT STATE OF AFFAIRS. WE OBSERVE THAT THE LD. C .I.T.(A) NOT ONLY CONSIDERED THE RETRACTED STATEMENT BUT ALSO CONSIDERED THE EVIDENC ES FILED IN SUPPORT OF PAYMENTS MADE TOWARDS ADVANCING UNSECURED LOAN TO THE ASSESSEE IN RESPONSE TO NOTICE U/S. 133(6) OF THE ACT. WE OBSERVE FROM THE ASSESSMENT ORDER THAT THE A.O. DID NOT EXAMINE SRI KHEMKA, DIRECTOR OF THE LENDER COMPANY ON HIS RETRA CTION FROM THE EARLIER STATEMENT TO ESTABLISH THAT THE CASH WAS GIVEN BY THE ASSESSEE B EFORE INTRODUCTION OF THE SAME IN THE SHAPE OF UNSECURED LOAN TO THE ASSESSEE. HE HAS ALS O NOT MADE ANY EFFORTS TO LINK THE CASH RECEIVED AND DEPOSITED BY SRI KHEMKA IN HIS BA NK ACCOUNT TO ESTABLISH THAT THE MONEY WAS, IN FACT, CAME FROM THE COFFER OF THE ASS ESSEE. THEREFORE, THE MONEY ADVANCED AS UNSECURED LOAN WAS THE UNDISCLOSED MONE Y OF THE ASSESSEE, AS ALLEGED BY THE A.O., IS NOT BASED ON ANY INDEPENDENT EVIDENCE GATHERED PRIOR TO OR DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT IS ALSO AN EST ABLISHED POSITION IN LAW THAT THE INITIAL BURDEN TO PROVE THAT THE CONFESSION WAS VOLUNTARY I N NATURE WOULD BE ON THE DEPARTMENT, WHICH, IN OUR OPINION, HAS NOT BEEN DIS CHARGED BY THE DEPARTMENT. THE LD. A/R RELIED ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF VINOD SOLANKI VS. UNION OF INDIA (SUPRA) AND DECISION OF HONBLE BOMB AY HIGH COURT IN THE CASE OF CIT VS. UTTAMCHAND JAIN (SUPRA). THE HONBLE BOMBAY HI GH COURT IN THE CASE OF CIT VS. UTTAMCHAND JAIN (SUPRA) FOLLOWING THE SAID DECISION OF HONBLE APEX COURT HAS HELD THAT THE RETRACTED CONFESSION OF A PERSON CAN BE RE LIED UPON ONLY IF THERE IS INDEPENDENT AND COGENT EVIDENCE TO CORROBORATE THE STATEMENT OF THAT PERSON MADE EARLIER. IN THE PRESENT CASE, SRI KHEMKA WHO IS ALSO DIRECTOR OF M/ S. GLOBE STOCKS & SECURITIES LTD. NOT ONLY RETRACTED HIS STATEMENT RECORDED EARLIER B Y FILING AFFIDAVIT BUT ALSO FILED AUDITED ACCOUNTS, EVIDENCE OF FILING OF I.T. RETURN, BANK S TATEMENT, DETAILS OF CHEQUES AND CONFIRMATION IN SUPPORT OF GENUINENESS OF UNSECURED LOAN. THEREFORE, IN OUR CONSIDERED OPINION, THE LD. C.I.T.(A) ACTED JUDICIOUSLY IN TAK ING INTO CONSIDERATION THE RETRACTED STATEMENTS CORROBORATED BY THE EVIDENCES REFERRED T O ABOVE. 7.1. WE FURTHER OBSERVE THAT THE LD. C.I.T.(A) FIN DING THAT THERE WAS OMISSION ON THE PART OF THE A.O. TO EXAMINE SRI KHEMKA PERSONALLY A ND AS THERE WAS NO EVIDENCE EXCEPT THE STATEMENT OF SRI KHEMKA RECORDED U/S. 132(4) OF THE ACT AND LETTER OF M/S. GLOBE STOCKS & SECURITIES LTD. FILED BEFORE THE A.D.I.T. (INV.) TO JUSTIFY THE ADDITION AND THE 5 A.O. COULD NOT BRING ON RECORD ANY EVIDENCE TO LINK THE ALLEGED CASH PAID BY THE ASSESSEE AND ITS RECEIPT IN THE FORM OF UNSECURED L OAN, THE A.O. WAS GIVEN OPPORTUNITY IN THE REMAND PROCEEDINGS TO INVESTIGATE THE MATTER FU RTHER AND ESTABLISH THE ALLEGED TRAIL OF CASH AND ALSO AFFORD OPPORTUNITY OF CROSS-EXAMIN ATION OF THE DEPARTMENTAL WITNESSES TO THE ASSESSEE. DESPITE THIS CLEAR INSTRUCTIONS B Y THE LD. C.I.T.(A) IN THIS REGARD, WE OBSERVE THAT IN THE REMAND PROCEEDINGS ALSO THE A.O . WAS NOT ABLE TO BRING ON RECORD ANY MATERIAL ESTABLISHING THE ALLEGED TRAIL OF CASH WHICH ALLEGEDLY ORIGINATED FROM THE ASSESSEE AND CULMINATED IN THE FORM OF RECEIPT OF C HEQUE TOWARDS PAYMENT OF UNSECURED LOAN. THE FAILURE ON THE PART OF THE A.O. TO CONDUC T ANY ENQUIRY OF HIS OWN AND HIS FURTHER FAILURE TO PROVE ANY INFIRMITY OR FALSITY I N THE EVIDENCES FILED BEFORE HIM BY THE LOAN CREDITOR IN RESPONSE TO NOTICE U/S. 133(6) OF THE ACT IS NOTHING BUT GLARING. EVEN BEFORE US, THE DEPARTMENT WAS NOT ABLE TO BRING ON RECORD ANY MATERIAL TO DISPROVE THE GENUINENESS THE DOCUMENTARY EVIDENCES FILED BEFORE THE A.O. BY THE LOAN CREDITOR IN SUPPORT OF ITS ADVANCING UNSECURED LOAN TO THE ASSE SSEE. 7.2. IN THE ABOVE BACKGROUND OF THE CASE, NOW LE T US EXAMINE WHETHER ADDITION OF RS.10 LAKHS IS WARRANTED IN THE HANDS OF THE ASSESS EE. PROVISIONS OF SEC.68 OF THE ACT HAVE BEEN JUDICIALLY CONSIDERED BY SEVERAL COURTS O F LAW, AS PER WHICH AN ADDITION U/S. 68 CAN BE MADE WHERE AN ASSESSEE FAILS TO PROVE IDE NTITY OF THE CREDITOR; HIS CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . IN THE PRESENT CASE IT WAS NECESSARY FOR A.O. TO PROVE THAT ON ALL 3 INGREDIENTS THE ASS ESSEE HAD FAILED AND, THEREFORE, ADDITION WAS WARRANTED. IT WAS THEREFORE, NECESSARY THAT THE AO PROVED INFIRMITY IN THE DOCUMENTS TO WARRANT ADDITION U/S. 68 OF THE ACT. I N THE CASE BEFORE US, THE A.O. DID NOT DISPUTE THE IDENTITY OF THE LOAN CREDITOR AND ITS C REDITWORTHINESS. AS STATED BY THE LD. C.I.T.(A) AND EVIDENT FROM THE AUDITED ACCOUNTS OF M/S. GLOBE STOCKS & SECURITIES LTD. PLACED IN THE PAPER BOOK AT PAGES 8 TO 13, IN PARTI CULAR BALANCE SHEET AS AT 31/3/2006 THAT THE SAID COMPANY WAS HAVING OWN CAPITAL IN EXC ESS OF RS.10 CRORES WHICH WAS SEVERAL TIMES MORE THAN THE LOAN AMOUNT. FURTHER T HE IMPUGNED LOAN TRANSACTION IS DULY RECORDED IN THE BOOKS OF ACCOUNT OF BOTH THE ASSESS EE AS WELL M/S. GLOBE STOCKS & SECURITIES LTD. AND NO INFIRMITY THEREIN COULD BE P OINTED OUT BY THE A.O. THE SUBMISSION OF THE LD. A/R THAT THE SAID LOAN IS STI LL OUTSTANDING AND APPEARING IN THE ACCOUNTS OF THE LENDER COMPANY, ON WHICH THE ASSESS EE HAS BEEN PAYING INTEREST, WHICH IS BEING ASSESSED IN THE HANDS OF THE SAID COMPANY YEAR AFTER YEAR HAS NOT BEEN CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE . THEREFORE, IN SUCH CIRCUMSTANCES, THE GENUINENESS OF THE TRANSACTION COULD NOT BE DOU BTED MERELY ON GUESS, SURMISE AND CONJECTURE, MORE SO WHEN ADVANCING OF LOAN IS DULY SUPPORTED BY DOCUMENTS INCLUDING CONFIRMATION FROM THE LENDER COMPANY WHICH THE DEPA RTMENT COULD NOT CONTROVERT BY ADDUCING ANY EVIDENCE ON RECORD. 7.3. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF DCIT VS. ROHINI BUILDERS (SUPRA) AND HONBLE GAUHATI HIGH COURT IN THE CASE OF NEMIC HAND KOTHARI VS. CIT (SUPRA) HAVE HELD THAT WHERE THE LOAN CREDITORS ARE IDENTIFIED A ND THEY ARE REGULARLY ASSESSED TO TAX AND HAVE ADMITTED THE LOAN TRANSACTION WITH THE ASS ESSEE, THEN ADDITION U/S. 68 OF THE ACT IS NOT PERMISSIBLE. REFERRING TO SEC. 106 OF T HE EVIDENCE ACT, THE HONBLE GAUHATI HIGH COURT IN THE SAID CASE OF NEMICHAND KOOTHARI ( SUPRA) HELD THAT WHERE THE PAYMENT HAS BEEN MADE BY THE LOAN CREDITOR BY ACCOUNT PAYEE CHEQUE AND GOES THROUGH THE BANK ACCOUNT OF THE LOAN CREDITOR, THEN IT CAN BE HELD T HAT THE ASSESSEE ESTABLISHED THE CREDITWORTHINESS OF THE LOAN CREDITOR. IN THE CASE BEFORE US, IDENTITY OF M/S. GLOBE STOCKS & SECURITIES LTD. IS BEYOND DOUBT. THE GENUI NENESS OF THE TRANSACTION RECORDED 6 IN THE AUDITED BOOKS OF ACCOUNTS OF BOTH THE PARTIE S HAS NOT BEEN DISPUTED AND THE CAPACITY OF THE LOAN CREDITOR IS ALSO PROVED BEYOND DOUBT. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY I NFIRMITY IN THE ORDER PASSED BY THE LD. C.I.T.(A) DELETING THE ADDITION OF RS. 10 LAKHS MADE BY THE A.O. U/S. 68 OF THE ACT IN THE HANDS OF THE ASSESSEE. THE ORDER OF LD. C.I.T.( A) IS, THEREFORE, UPHELD AND THE GROUND OF APPEAL OF THE DEPARTMENT IS DISMISSED. THEREFORE, FOLLOWING OUR AFORESAID ORDER DATED 6 TH SEPTEMBER, 2011, WE HOLD THAT THERE IS NO INFIRMITY IN THE ORDER OF LD. C.I.T.(A) IN DE LETING THE ADDITION OF RS.10 LAKHS MADE BY THE A.O. U/S. 68 OF THE ACT. HENCE, WE UPHOLD H IS ORDER AND REJECT THE GROUND OF APPEAL TAKEN BY THE DEPARTMENT. 5. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. 4 '3 #5' 6 5% 7 48 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 07-09 -2011 SD/- SD/- ( . .. . ! ! ! !. .. . ) '# ( . . . . . .. . ) (C.D.RAO) , ACCOUNTANT MEMBER (B.R.MITTAL) , JUDICIAL MEMBER ( (( (!# !# !# !#) )) ) DATE: 07 -09-2011 '3 1 /9 :'9';- COPY OF THE ORDER FORWARDED TO : 1. +, / THE APPELLANT : A.C.I.T., CENTRAL CIRCLE-XXIV, KOLKATA. 2 /0+, / THE RESPONDENT : RAKESH AGARWAL, R-605, CITY CENTRE, SALT LAKE, KOLKATA-700 064. 3. 3% () : THE C.I.T.(A), CENTRAL-III, KOLKATA. 4. 3% : THE C.I.T., CENTRAL-III, KOLKATA. 5. ?7 /% / DR, ITAT, KOLKATA BENCHES, KOLKATA 6 . GUARD FILE . 09 // TRUE COPY, '3%5/ BY ORDER, (DKP) @ A / DY/ASSTT. REGISTRAR .