Appeal Details
Counselvise Citation
[2020] 110 COUNSELVISE.COM (IT) 3266 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
7 month(s) 22 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
11-11-2020
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
SMC
Assessment Year
2013-2014
Appeal Filed On
20-03-2020
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 LANHI XLKA] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 256/JP/2020 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2013-14 MEERA DEVI, 772, SINDHI COLONY, RAJA PARK, JAIPUR. C UKE VS. I.T.O., WARD 6(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFNPD 6394 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI TANUJ AGARWAL (FCA) JKTLO DH VKSJ LS@ REVENUE BY : MS. CHANCHAL MEENA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 29/09/2020 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT :11/11/2020 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-2, JAIPUR DATED 15/01/2020 FOR TH E A.Y. 2013-14, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) GROSSLY ERRED IN NOT QUASHING THE REOPENING OF ASSESSMENT U/S 147 OF THE INCOME-TAX ACT, 1961 AND ALSO ERRED IN NOT TREATING THE REASSESSMENT ORDER PASSED AS ILLEGAL, UNJUSTIFI ED AND VOID AB INITIO. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) GROSSLY ERRED IN SUSTAINING AN ADDITION OF RS. 5,00,000/- U/S 68 OF THE INCOME TAX ACT, 1961 BY TREATING THE LOAN TAKEN BY THE APPELLANT FROM SMT. KAMLA TAHALIYANI AS BOGUS. ITA 256/JP/2020_ MEERA DEVI VS ITO 2 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) GROSSLY ERRED IN SUSTAINING AN ADDITION OF R S. 5,11,000/- BY TREATING THE ADVANCE TAKEN AGAINST SALE OF PROPERTY FROM SHRI RAM SWAROOP MALI THE SOURCE OF WHICH WAS TRUCK SOLD BY HIS SON AS BOGUS. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) GROSSLY ERRED IN NOT QUASHING THE INVOCATION OF THE PROVISIONS OF SECTION 115BBE OF THE INCOME TAX ACT, 1961 TO THE ADDITIONS SUSTAINED. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALT ER, MODIFY, SUBSTITUTE OR DELETE ANY GROUND OR GROUNDS OF APPEA L ON OR BEFORE THE HEARING OF THE APPEAL. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH V IDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMI C. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE FILED HER RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED U/S 148 OF T HE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) ON 29/06/2018 DECLARING INCOME FROM BUSINESS AND PROFESSION U/S 44AE OF THE ACT. INCOME FROM HOUSE P ROPERTY AND INCOME FROM OTHER SOURCES AT THE SAME INCOME DECLARED INIT IALLY U/S 139 OF THE ACT. THE ASSESSMENT IN THE PRESENT CASE WAS REOPENED U/S 147 OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD PURCHASED AN IMMOVABLE PROPERTY AND THE SOURCE OF WHICH REMAINED UNEXPLAINED. THEREFORE, OR DER U/S 147/143(3) OF THE ACT WAS PASSED WHEREBY MAKING ADDITION U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE PROPERTY. ITA 256/JP/2020_ MEERA DEVI VS ITO 3 4. AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A), WHO AFTER CONSIDERING BOTH TH E PARTIES, PARTLY ALLOWED THE APPEAL. 5. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE AS SESSEE PREFERRED PRESENT APPEAL BEFORE THE TRIBUNAL ON THE GROUNDS M ENTIONED HEREINABOVE. 6. GROUND NO.1 OF THE APPEAL RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF THE LD. CIT(A) FOR UPHOLDI NG THE ORDER OF REOPENING OF ASSESSMENT U/S 147 OF THE ACT. IN THIS REGARD, T HE LD AR APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SAME ARGU MENTS AS WERE RAISED BEFORE THE LD. CIT(A) AND HAS ALSO RELIED UPON THE WRITTEN SUBMISSIONS FILED BEFORE US. THE CONTENTS OF THE SUBMISSIONS OF THE L D. AR IS REPRODUCED BELOW: IT IS HUMBLY SUBMITTED THAT THE LOWER AUTHORITIES G ROSSLY ERRED IN APPRECIATING THE PROVISIONS OF THE LAW WHILE INVOKING THE PROVIS IONS OF SECTION 147 OF THE INCOME-TAX ACT, 1961. IT IS SUBMITTED THAT THE INVOCATION OF THE PROVISIO NS OF SECTION 147, REASSESSMENT PROCEEDINGS AND THE ORDER PASSED IN CO NSEQUENCE THEREOF, ARE ILLEGAL, UNJUSTIFIED AND VOID, DUE TO THE FOLLOWING REASON :- 1. REASON BEHIND REOPENING OF ASSESSMENT WAS VOID AND ILLEGAL AS MERELY BECAUSE PROPERTY WAS PURCHASED BY ANY ASSESSEE, IT DOES NOT AT ALL LEAD TO AN INFERENCE THAT INCOME HAS ESCAPED ASSESSMENT. THERE MUST BE REASON TO ITA 256/JP/2020_ MEERA DEVI VS ITO 4 BELIEVE AND NOT REASON TO SUSPECT THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS MOST RESPECTFULLY SUBMITTED THAT EVEN IF FOR A MOMENT JUST FOR THE SAKE OF ARGUMENT IT IS DEEMED FOR A WHILE THAT THE APPEL LANT PURCHASED A PROPERTY, THEN ALSO, MERELY BECAUSE A PROPERTY WAS PURCHASED, IT DOES NOT AT ALL AUTOMATICALLY LEAD TO AN INFERENCE THAT INCOME HAS ESCAPED ASSESSMENT AS THE ASSESSEE MIGHT HAVE USED HIS DISCLOSED INCOME F OR INVESTMENT IN THE ASSET PURCHASED. THERE MUST BE REASON TO BELIEVE AND NOT REASON TO SUSPECT THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IT IS NOW A WELL SETTLED LAW THAT REOPENING OF ASSESSMENT IS NO T PERMITTED FOR VERIFICATION PURPOSES, FOR EXAMPLE: FOR VERIFICATION OF SOURCE O F INVESTMENT IN PROPERTY OR CASH DEPOSIT IN BANK ACCOUNT. RELIANCE IS BEING PLACED ON THE JUDGMENT OF CIT VS. MANIBEN VALJI SHAH (2006) 283 ITR 453 (BOM), WHEREIN HONBLE BOMBAY HI GH COURT HELD THAT AO CANNOT REOPEN ASSESSMENT U/S 147 FOR VERIFICATIO N OF SOURCE OF PURCHASE OF FLAT BY THE ASSESSEE AS THERE IS NO REASON TO BE LIEVE THAT ANY INCOME HAS ESCAPED ASSESSMENT. COPY OF THE JUDGMENT IS SUBMITT ED HEREWITH AT PAPER BOOK PAGE NO. 36 TO 38, RELEVANT PARA NO. 8 AT PAGE NO. 38, WHICH IS ALSO REPRODUCED HEREUNDER :- 8. HAVING HEARD SHRI DESAI, THE LEARNED SENIOR COU NSEL FOR THE APPELLANT, AS WELL AS SHRI BHUJALE, THE LEARNED COUNSEL FOR TH E RESPONDENTS, IT IS AN ADMITTED POSITION THAT THE ASSESSEE HAD INVESTED A SUM OF RS. 2,50,000/- FOR THE PURPOSE OF PURCHASING THE FLAT AND WHAT WAS SOUGHT TO BE INVESTIGATED WAS THE SOURCE OF INCOME. A BARE PERUS AL OF THE AFORESAID NOTICE DATED 10.10.1991, CLEARLY INDICATES THAT THE OFFICER WAS WANTING TO KNOW THE DETAILS WITH REGARD TO THE SOURCE OF FUNDS WITH REGARD TO PURCHASE OF THE SAID FLAT FOR A SUM OF RS. 2,50,000 /-. OBVIOUSLY IN THE ABOVE, THERE IS NO QUESTION OF THE ASSESSING OFFICE R HAVING ANY BASIS TO REASONABLY ENTERTAIN THE BELIEF THAT ANY PART OF TH E INCOME OF THE ITA 256/JP/2020_ MEERA DEVI VS ITO 5 ASSESSEE HAD ESCAPED THE ASSESSMENT AND THAT SUCH E SCAPEMENT WAS BY REASON OF OMISSION OR FAILURE ON THE PART OF THE AS SESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. THE WORDS USED IN SECTION 147 HAS REASON TO BELIEV E ARE STRONGER THAN THE WORDS IS SATISFIED. IN OTHER WORDS, THE AO MUST F ORM AN OBJECTIVE AND PRIMA FACIE OPINION HIMSELF ON THE BASIS OF EXPRESS ED STATEMENT OR REASONS OR DEFINITE / RELEVANT (AND NOT VAGUE) MATERIAL IN HIS POSSESSION. TO PUT IT DIFFERENTLY, THE WORDS REASON TO BELIEVE SUGGEST THAT THE BELIEF MUST BE THAT OF AN HONEST AND REASONABLE PERSON BASED UPON REASONABLE GROUNDS AND THAT THE AO MAY ACT ON DIRECT OR CIRCUMSTANTIAL EVIDENCE BUT NOT ON MERE SUSPICION, GOSSIP OR RUMOUR. THE AO WOULD BE A CTING WITHOUT JURISDICTION IF THE REASONS FOR HIS BELIEF THAT THE CONDITIONS ARE SATISFIED DOES NOT EXIST OR IS NOT MATERIAL OR RELEVANT TO THE BEL IEF REQUIRED BY THE SECTION - SHEO NATH SINGH VS. AAC (1971) 82 ITR 147 (SC). IN VIEW OF THE REASONS STATED ABOVE, IT IS HUMBLY R EQUESTED THAT THE NOTICE FOR REASSESSMENT ISSUED U/S 147 AND PROCEEDINGS IN CONSEQUENCE THEREOF MAY KINDLY BE QUASHED AS ILLEGAL. 7. ON THE OTHER HAND, THE LD. DR HAS RELIED ON THE ORDER PASSED BY THE LD. CIT(A). SHE HAS ALSO SUBMITTED THAT THE A.O. HA S REOPENED THE ASSESSMENT PROCEEDINGS AFTER RECORDING DUE REASONS AND DUE SATISFACTION AFTER FOLLOWING DUE PROCESS. THE CASE OF THE ASSESSE E WAS REOPENED IN THE LIGHT OF INFORMATION/DOCUMENTS TO THE EXTENT WHICH WE RE AVAILABLE WITH THE A.O. THEREFORE, THE A.O. WAS HAVING REASONS TO BELIE VE THAT THE INCOME HAD ESCAPED ASSESSMENT. THE LD. DR HAS RELIED ON THE DE CISION OF THE HONBLE ITA 256/JP/2020_ MEERA DEVI VS ITO 6 MADRAS HIGH COURT IN THE CASE OF M/S HOME FINDERS H OUSING LTD. VS ITO IN W.A. NO. 463 OF 2017 DATED 25/04/2018. 8. WE HAVE HEARD THE LD. COUNSELS OF BOTH THE PARTI ES AND HAVE PERUSED THE MATERIAL PLACED ON RECORD. WE HAVE ALSO DELIBER ATED UPON THE DECISIONS CITED IN THE ORDERS PASSED BY THE AUTHORITIES BELOW AS WELL AS CITED BEFORE US AND WE HAVE ALSO GONE THROUGH THE ORDERS PASSED B Y THE REVENUE AUTHORITIES. WE NOTICED FROM THE FACTS ON RECORD TH AT THE ASSESSMENT IN THE PRESENT CASE WAS REOPENED AFTER RECORDING THE DUE R EASONS AND DUE SATISFACTION. THE CASE OF THE ASSESSEE WAS REOPENED BY THE A.O. IN THE LIGHT OF INFORMATION/DOCUMENTS WHICH WERE AVAILABLE WITH THE A.O. ALTHOUGH, IT HAS BEEN SUBMITTED BY THE LD AR THAT THE REASONS BE HIND REOPENING OF ASSESSMENT WAS VOID AND ILLEGAL AS MERELY BECAUSE PR OPERTY WAS PURCHASED BY THE ASSESSEE, IT DOES NOT AT ALL LEAD TO AN INFE RENCE THAT THE INCOME HAS ESCAPED ASSESSMENT. IT WAS SUBMITTED THAT THERE MUST BE REASONS TO BELIEVE AND NOT REASON TO SUSPECT THAT INCOME CH ARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IN THIS REGARD, THE LD AR HAS RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS MANIBEN VALJI SHAH (2006) 283 ITR 453 (BOM) AND ALSO THE DECISION REND ERED BY THE HONBLE SUPREME COURT IN THE CASE OF SHEO NATH SINGH VS AAC (1971) 82 ITR 147 (SC). HOWEVER, AFTER CONSIDERING THE DECISIONS RELIE D UPON THE ASSESSEE, WE FOUND THAT THE FACTS OF THE CITED CASES ARE DISTING UISHABLE FROM THE FACTS OF ITA 256/JP/2020_ MEERA DEVI VS ITO 7 THE PRESENT CASE, THEREFORE, THE JUDGMENTS RELIED U PON BY THE ASSESSEE ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. AS FAR AS THE PRESENT CASE OF THE ASSESSEE IS CONCERNED, WE ARE OF THE VIEW THAT TH E MATERIAL BEFORE THE A.O. WAS RELEVANT AND AFFORDS A LIVE LINK OR NEXUS T O THE FORMATION OF A PRIMA FACIE BELIEF THAT INCOME CHARGEABLE TO TAX HA S ESCAPED ASSESSMENT IN THE HANDS OF THE ASSESSEE. IN OUR VIEW, THE SUFFICIE NCY AND CORRECTNESS OF MATERIAL NEED NOT BE LOOKED AT THE INITIAL STAGE AT THE TIME OF REOPENING OF THE CASE. 8.1 WHILE CONSIDERING WHETHER COMMENCEMENT OF REASS ESSMENT PROCEEDINGS WAS VALID, THE COURT HAS ONLY TO SEE WHET HER THERE WAS PRIMA FACIE SOME MATERIAL ON THE BASIS OF WHICH THE DEPAR TMENT COULD REOPEN THE CASE. THE SUFFICIENCY AND CORRECTNESS OF THE MATERI AL IS NOT ANYTHING TO BE CONSIDERED AT THAT STAGE. THE REASONS TO BELIEVE WOULD MEAN CAUSE OR JUSTIFICATION. IF THE A.O. HAS CAUSE OR JUSTIFICAT ION TO KNOW OR SUPPOSE THAT INCOME HAD ESCAPED ASSESSMENT, HE CAN BE SAID TO HA VE REASONS TO BELIEVE THAT AN INCOME HAD ESCAPED ASSESSMENT. THE EXPRESSI ON CANNOT BE READ TO MEAN THAT THE A.O. SHOULD HAVE FINALLY ASCERTAINED THE FACT BY LEGAL EVIDENCE OR CONCLUSION THAT WHAT IS REQUIRED IS REA SON TO BELIEVE BUT IT IS NOWHERE MENTIONED THAT HE HAS TO ESTABLISH THE FACT OF ESCAPEMENT OF INCOME. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT AT THE STAGE OF INITIATING THE PROCEEDINGS FOR REOPENING OF ASSESSM ENT BY ISSUING NOTICE, THE ITA 256/JP/2020_ MEERA DEVI VS ITO 8 ONLY QUESTION WHICH SHOULD BEAR IN MIND IS AS TO WHET HER THERE WAS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COULD HAVE FOR MED A REQUISITE BELIEVE AND IN OUR VIEW, THE A.O. WAS WELL WITHIN HIS RIGHT TO REOPEN THE ASSESSMENT ON THE BASIS OF INFORMATION RECEIVED FRO M I&CI WING OF THE DEPARTMENT THAT THE ASSESSEE HAD PURCHASED PROPERTY IN THE YEAR UNDER CONSIDERATION AND DURING THE COURSE OF ENQUIRIES MA DE BY I&CI WING OF THE DEPARTMENT, THE ASSESSEE COULD NOT EXPLAIN THE SOUR CE OF INVESTMENT. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND NO REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A) QUA THIS ISSUE, ACCORDI NGLY, WE UPHOLD THE SAME. 9. GROUND NO. 2 OF THE APPEAL RAISED BY THE ASSESSE E RELATES TO CHALLENGING THE ORDER OF THE LD. CIT(A) IN SUSTAINI NG ADDITION OF RS. 5.00 LACS U/S 68 OF THE ACT BY TREATING THE LOAN TAKEN BY THE ASSESSEE FROM SMT. KAMLA TAHALIYANI AS BOGUS. IN THIS REGARD, THE LD A R APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SAME ARGUMENTS AS WE RE RAISED BEFORE THE LD. CIT(A) AND HAS ALSO RELIED UPON THE WRITTEN SUB MISSIONS FILED BEFORE US. THE CONTENTS OF THE SUBMISSIONS OF THE LD. AR IS RE PRODUCED BELOW: IT IS HUMBLY SUBMITTED THAT THE LOWER AUTHORITIES G ROSSLY ERRED IN APPRECIATING THE FACTS OF THE CASE AS WELL AS THE P ROVISIONS OF LAW. FOR PURCHASE OF IMMOVABLE PROPERTY, THE APPELLANT T OOK LOANS FROM HER RELATIVES. DETAIL OF LOANS IS SUMMARIZED AS UNDER : - ITA 256/JP/2020_ MEERA DEVI VS ITO 9 S.NO. NAME LOAN TAKEN(RS.) ADDITIONS MADE BY LD. AO (RS.) 1 SH. HARISH GYANANI 75,000 0 2 SH. NARESH GYANANI 50,000 0 3 SH. DIKSHA GYANANI 2,50,000 2,50,000 DELETED BY CIT(A) 4 SH. KAMALA TAHALIYANI 5,00,000 5,00,000 UNDER THIS APPEAL 5 SH. LAL CHAND PARCHANI 4,00,000 4,00,000 DELETED BY CIT(A) TOTAL 12,75,000 11,50,000 FOLLOWING DOCUMENTS ARE FURNISHED HEREWITH IN SUPPO RT OF THE LOAN TRANSACTIONS :- S.NO. PARTICULARS PAGE NOS. 1 CONFIRMATION OF KAMLA TAHALIYANI 6 2 BANK STATEMENT OF KAMLA TAHALIYANI 7 TO 11 3 PURCHASE DEED DATED 12.07.2012 12 TO 19 4 COPY OF BANK ACCOUNT PASS BOOK OF MEERA DEVI 20 T O 22 5 REPLY LETTERS BY THE ASSESSEE TO THE A.O DURING ASSESMENT PROCEEDINGS 23 TO 25 FROM THE DOCUMENTS SUBMITTED AS ABOVE, IT IS AMPLY EVIDENT THAT THE LOAN IS GENUINE & THE CREDITOR HAD CAPACITY TO ADVANCE T HE LOANS. MOREOVER, MERELY BECAUSE CASH IS DEPOSITED IN THE BANK ACCOUN TS OF THE CREDITORS BEFORE ISSUE OF CHEQUE, IT DOES NOT NECESSARILY IMP LY EITHER THAT THE CASH DOES NOT BELONG TO THE CREDITOR OR THE CREDITOR DOE S NOT HAVE CAPACITY TO DEPOSIT SUCH AMOUNT IN HIS BANK ACCOUNT. IN CASE OF KAMLA TAHILYANI, CASH WAS DEPOSITED IN BANK ACCOUNT BUT IT WAS FULLY SOUR CED FROM THE CASH WITHDRAWALS FROM THE BANK ACCOUNT ON EARLIER OCCASI ON FEW DAYS AGO. THIS IS EXPLAINED IN DETAIL AS UNDER :- S.NO. AOS OBSERVATIONS AT PARA NO. 4.1 & 4.2 OF THE ASSESSMENT ORDER APPELLANTS HUMBLE SUBMISSIONS PAPER BOOK PAGE NO. 1 SH. KAMLA TAHILYANI RS.5,00,000/- ITA 256/JP/2020_ MEERA DEVI VS ITO 10 (I) OTHER THAN THE CONFIRMATION NO OTHER EVIDENCE WAS SUBMITTED BY THE ASSESSEE (II) THE LOAN CREDITOR WAS NOT EVEN ASSESSED TO TAX. NO PROOF OF FILING RETURN WAS SUBMITTED BY THE ASSESSEE. (III) AS PER ASSESSEES OWN ADMISSION, CASH DEPOSITS ARE THERE IN THE BANK ACCOUNT OF THE LOAN CREDITOR. IN VIEW OF THESE FACTS THE CREDIT WORTHINESS OF THE CREDITOR WAS NOT ESTABLISHED BY THE ASSESSEE IT IS HUMBLY SUBMITTED THE BANK STATEMENT OF THE LOAN CREDITOR WAS FILED ALONGWITH THE CONFIRMATION CONTAINING ADDRESS. THE BANK STATEMENT OF KAMLA TAHILYANI IS THE VITAL EVIDENCE AS THE LOAN GIVEN TO THE APPELLANT WAS DEBITED THEREIN. HENCE, THE CONTENTION OF THE LD. A.O. THAT NO OTHER EVIDENCE OTHER THAN THE CONFIRMATION WAS FILED IS ERRONEOUS. MERELY BECAUSE LOAN CREDITOR DOES NOT FILE RETURN OF INCOME DOES NOT AUTOMATICALLY LEAD TO A CONCLUSION THAT LOAN IS BOGUS. RETURN WAS NOT FILED BY THE LOAN CREDITOR LADY AS SHE HAD NO TAXABLE INCOME. SHE RECEIVED FUNDS FROM HER CHILDREN SETTLED ABROAD. ALL MATERIAL EVIDENCES IN THE FORM OF CONFIRMATION, BANK STATEMENTS HAVE TO BE CONSIDERED BEFORE ARRIVING AT ANY CONCLUSION. MOREOVER FOR PURCHASE OF IMMOVABLE PROPERTY, THE APPELLANT TOOK LOANS FROM HER RELATIVES, HENCE THE GENUINENESS OF LOAN TRANSACTION IS ALSO ESTABLISHED. THE APPELLANT SUBMITTED DURING THE ASSESSMENT PROCEEDINGS (P.B. PG 25) THAT CASH OF RS.6,00,000/- WAS WITHDRAWN BY THE LOAN CREDITOR FROM THE BANK ACCOUNT ON 18- 19.05.2012 WHICH WAS DEPOSITED BACK ON 31.05.2012 BEFORE ADVANCING A SUM OF RS.5,00,000/- TO THE APPELLANT. HENCE, IN FACT, THE CASH 6 7 TO 11 10, 11, 25 ITA 256/JP/2020_ MEERA DEVI VS ITO 11 DEPOSITS IN THE BANK ACCOUNT ARE TOTALLY SOURCED BY THE CASH WITHDRAWALS MADE EARLIER, HENCE ANY ADVERSE INFERENCE IN THESE FACTS IS UNWARRANTED. THE LD. CIT(A) ERRED IN SUSTAINING THE ADDITION WITHOUT CONSIDERING THIS FACT THAT THE CASH DEPOSITS IN BANK ACCOUNT WERE FULLY SOURCED FROM THE EARLIER CASH WITHDRAWALS FROM THE SAME BANK ACCOUNT. HENCE, THE FINDING OF THE LD. CIT(A) THAT IMMEDIATE SOURCE OF ADVANCING MONEY IS UNVERIFIABLE IS PERVERSE. 1.1 IDENITITY, CAPACITY OF CREDITORS AND GENUINENESS OF TRANSACTION STANDS ESTABLISHED APPELLANT HAS DISCHARGED ITS ONUS. IT IS HUMBLY SUBMITTED THAT THE APPELLANT HAS ESTAB LISHED THE IDENTITY AND CAPACITY OF THE LOAN CREDITORS AS WELL AS THE CAPAC ITY & GENUINENESS OF THE TRANSACTIONS. THIS IS EVIDENT FROM THE FOLLOWING :- A) THE IDENTITY OF THE LOAN CREDITORS HAS BEEN ESTA BLISHED BY FILING CONFIRMATIONS, BANK PASS BOOKS, ETC. B) THE CAPACITY OF THE LOAN CREDITORS IS PROVED THR OUGH BANK PASS BOOKS WHEREIN THEY HAD SUFFICIENT BALANCE TO ADVANCE LOAN S TO THE APPELLANT. C) FOR PURCHASE OF IMMOVABLE PROPERTY, THE APPELLA NT TOOK LOANS FROM HER RELATIVES, HENCE THE GENUINENESS OF THE TRANSACTION IS ESTABLISHED. D) THE ALLEGED LOANS WERE TAKEN THROUGH BANKING CHA NNELS AS IS EVIDENT FROM THE BANK STATEMENT OF THE APPELLANT AS WELL AS THE BANK PASS BOOKS OF THE CREDITORS. ITA 256/JP/2020_ MEERA DEVI VS ITO 12 THE APPELLANT HAD DISCHARGED ITS ONUS OF ESTABLISHI NG THE IDENTITY, CAPACITY AND GENUINENESS. THE ONUS SHIFTED ON THE ASSESSING OFFICER TO PROVE THAT THE ALLEGED CASH CREDITORS WERE BOGUS, HOWEVER, HE GROSSLY FAILED IN DISCHARGING HIS ONUS. RELIANCE IS BEING PLACED ON THE FOLLOWING JUDGMENTS IN THIS REGARD :- S. NO. PARTICULARS CITATION HONBLE COURT / TRIBUNAL 1 CIT VS. LOVELY EXPORTS P. LTD.(2008) 216 CTR 195 SUPREME COURT 2 CIT VS. KAMDHENU STEEL & ALLOYES LTD.(2012) 2006 TA XMAN 254 DELHI HIGH COURT 3 CIT VS. ARUNANANDA TEXTILES(P) LTD.(2011) 15 TAXMAN.COM 226 KARNATAKA HIGH COURT 4 CIT VS. DWRAKADHISH INVESTMENT (P) LTD. (2010) 194 TAXMAN 43 DELHI HIGH COURT 5 CIT VS. VALUE CAPITAL SERVICES (P) LTD. (2008) 307 ITR 334 DELHI HIGH COURT 1.2 AO FAILED TO BRING ANY MATERIAL EVIDENCES ON RECORD TO SUPPORT HIS BELIEF THAT THE CREDITORS WERE BOGUS. HE MERELY ACTED ON SURMISES AND CONJECTURES. THE LD. A.O. MERELY ACTED ON SURMISES AND CONJECTUR ES AND FAILED TO BRING ANY MATERIAL EVIDENCES ON RECORD TO SUPPORT HIS BEL IEF THAT THE CREDITORS WERE BOGUS. HE WRONGLY CONCLUDED THAT THE APPELLANT ROUTED HER OWN MONEY THROUGH CHEQUES FROM THE BANK ACCOUNTS OF CAS H CREDITORS WITHOUT ANY BASIS AND MERELY ON SURMISES AND CONJECTURES. 1.3 LOAN FROM A PERSON WHO DOES NOT FILE HIS/HER RETURN OF INCOME OR WHO DO NOT HAVE BANKING HABITS NEED NOT NECESSARILY ALWAYS BE BOGUS. IT IS HUMBLY SUBMITTED THAT SIMPLY BECAUSE A CASH C REDITOR DOES NOT FILE HIS/HER RETURN OF INCOME, IT DOES NOT NECESSARILY M EAN THAT THE LOAN IS ITA 256/JP/2020_ MEERA DEVI VS ITO 13 BOGUS OR NOT GENUINE. RELIANCE IS BEING PLACED ON T HE FOLLOWING JUDGMENTS IN THIS REGARD :- PRABHAJEET KAUR VS. ITO (ITAT, JAIPUR BENCH) XXXIV TAX WORLD 101 IN THIS CASE, THE HONBLE BENCH HELD AS UNDER :- A) WHETHER NON-FILING OF INCOME-TAX RETURN BY CREDITOR S IPSO FACTO BRING THE TRANSACTION OF CASH CREDIT UNDER SHADOW OF DOUB T? - HELD NO. B) WHETHER TRANSACTION OF CASH CREDIT NOT HAVING BEEN DONE THROUGH BANKING CHANNELS DOES BY ITSELF CONSTITUTE TO BE NO N-GENUINE? HELD NO. C) ALSO HELD THAT ONCE ASSESSEE HAS DISCHARGED ITS ONU S, IT IS FOR THE DEPARTMENT TO BRING ON RECORD SUFFICIENT EVIDENCE T O PROVE THAT CREDITORS ARE PERSONS OF NO MEANS AND TRANSACTIONS ARE NOT GENUINE. 1.5 SOURCE OF SOURCE NEED NOT BE PROVED. THE ISSUE UNDER CONSIDERATION IN THIS APPEAL IS SQU ARELY COVERED BY THE JUDGMENT OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF M/S ARAVALI TRADING CO. VS. INCOME TAX OFFICER REPORTED AT (200 8) 8 DTR 199, WHEREIN IT WAS HELD THAT ONCE THE EXISTENCE OF THE CREDITORS IS PROVED AND SUCH PERSONS OWN THE CREDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE, THE ASSESSEES ONUS STANDS DISCHARGED AND THE LATTER IS NOT FURTHER REQUIRED TO PROVES THE SOURCE FROM WHICH TH E CREDITORS COULD HAVE ACQUIRED THE MONEY DEPOSITED WITH HIM EITHER IN TER MS OF SECTION 68 OR ON GENERAL PRINCIPLE. MERELY BECAUSE THE DEPOSITORS E XPLANATION ABOUT THE SOURCES OF MONEY WAS NOT ACCEPTABLE TO THE AO, IT C ANNOT BE PRESUMED THAT THE DEPOSIT MADE BY THE CREDITORS IS MONEY BEL ONGING TO THE ASSESSEE ITSELF. HENCE, IT IS NOW A WELL ESTABLISHED LAW THAT IN CAS E OF LOAN TRANSACTIONS, SOURCE OF SOURCE NEED NOT BE PROVED. ONCE THE IDENT ITY, CAPACITY AND GENUINENESS OF A LOAN TRANSACTION IS PROVED BY THE ASSESSEE, THE PRIMARY ITA 256/JP/2020_ MEERA DEVI VS ITO 14 ONUS WHICH LAY UPON HIM IS DISCHARGED AND IS SHIFTE D ON THE REVENUE. THE ASSESSEE NEED NOT TO PROVE THE SOURCE OF SOURCE OF THE LOAN TRANSACTION. RELIANCE IS ALSO BEING PLACED ON THE FOLLOWING JUDG MENTS IN THIS REGARD :- S.NO. PARTICULARS CITATION HONBLE COURT / TRIBUNAL 1 CIT VS. FIR ST POINT FINANCE LTD. 286 ITR 477 RAJ. HIGH COURT 2 ACIT VS. RAJASTHAN ASBESTOS CEMENT CO. XLI TAX WORLD 153 ITAT, JAIPUR BENCH FOR THE REASONS STATED ABOVE, IT IS HUMBLY REQUESTE D THAT THE IMPUGNED ADDITION MADE BY THE LD. A.O., BEING ILLEGAL AND UN JUSTIFIED, MAY KINDLY BE DELETED. 10. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDER PASSED BY THE LD. CIT(A). 11. WE HAVE HEARD THE LD. COUNSELS OF BOTH THE PART IES AND HAVE PERUSED THE MATERIAL PLACED ON RECORD. WE HAVE ALSO DELIBER ATED UPON THE DECISIONS CITED IN THE ORDERS PASSED BY THE AUTHORITIES BELOW AS WELL AS CITED BEFORE US AND WE HAVE ALSO GONE THROUGH THE ORDERS PASSED B Y THE REVENUE AUTHORITIES. FROM THE RECORDS, WE FOUND THAT INITIAL LY THE A.O. HAD TREATED LOAN RECEIVED FROM THREE PERSONS NAMELY SMT. DIKSHA GYANANI, SHRI LAL CHAND PARCHANI AND SMT. KAMLA TAHALIYANI AS UNEXPLA INED. HOWEVER, DURING THE APPELLATE PROCEEDINGS, THE LD. CIT(A) DELETED T HE ADDITIONS IN RESPECT OF LOAN TAKEN FROM SMT. DIKSHA GYANANI AND SHRI LAL CH AND PARCHANI AS THE ASSESSEE HAD ESTABLISHED IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTIONS BY FILING CONFIRMATIONS AND BANK ACCOU NTS AND COPY OF RETURN OF ITA 256/JP/2020_ MEERA DEVI VS ITO 15 INCOME. HOWEVER, IN THE CASE OF SMT. KAMLA TAHALIYAN I, IT WAS HELD BY THE REVENUE AUTHORITIES THAT THE ASSESSEE HAD ONLY PLAC ED ON RECORD CONFIRMATION AND APART FROM THAT NO OTHER EVIDENCE WAS SUBMITTED BY THE ASSESSEE. IT WAS ALSO HELD THAT THE LOAN CREDITOR I. E. SMT. KAMLA TAHALIYANI WAS NOT ASSESSED TO TAX. HOWEVER, WHILE GOING THROUGH THE DOCUMENTS PLACED ON RECORD IN THE PAPER BOOK BY THE ASSESSEE IN RESPECT OF LOAN TAKEN FROM SMT. KAMLA TAHALIYANI IS CONCERNED, WE NOTICED THAT APART FROM CONFIRMATION OF SMT. KAMLA TAHALIYANI, THE BANK STA TEMENT OF THE SAID LADY HAS ALSO BEEN PLACED ON RECORD, WHICH IS AT PAGE NO S. 7 TO 11 OF THE PAPER BOOK. HOWEVER, THE CLAIM OF THE ASSESSEE WAS DENIED I N RESPECT OF LOAN TAKEN FROM SMT. KAMLA TAHALIYANI MERELY ON THE GROU ND THAT CASH WAS DEPOSITED IN THE BANK ACCOUNT OF THE CREDITOR BEFOR E ISSUE OF CHEQUE. WE ARE OF THE VIEW THAT MERELY BECAUSE CASH WAS DEPOSITE D IN THE BANK ACCOUNT OF THE CREDITOR DOES NOT NECESSARILY IMPLIE D EITHER THE CASH DOES NOT BELONG TO THE CREDITOR OR THE CREDITOR DOES NOT HAV E CAPACITY TO DEPOSIT SUCH AMOUNT IN HER BANK ACCOUNT. IN THE CASE OF SMT. KAM LA TAHALIYANI, CASH WAS DEPOSITED IN THE BANK ACCOUNT, BUT IT WAS FULLY S OURCED FROM THE CASH WITHDRAWN FROM THE BANK ACCOUNT ON EARLIER OCCASION F EW DAYS AGO. IN THIS RESPECT, WE HAVE SEEN THAT THE BANK STATEMENT OF THE SAID CREDITOR WHEREIN IT HAS BEEN SHOWN THAT THE CASH OF RS. 6.00 LACS WER E WITHDRAWN BY THE LOAN CREDITOR FROM HER OWN BANK ACCOUNT ON 18/05/201 2 AND 19/05/2012 ITA 256/JP/2020_ MEERA DEVI VS ITO 16 WHICH WAS SUBSEQUENTLY DEPOSITED BACK IN THE BANK ACC OUNT ON 31/05/2012 BEFORE ADVANCING A SUM OF RS. 5.00 LACS TO THE ASSE SSEE. THEREFORE, IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE CASH DEPOS ITED IN THE BANK ACCOUNT IS TOTALLY SOURCED BY THE CASH WITHDRAWALS MA DE EARLIER. HENCE, ADVERSE INFERENCE DRAWN BY THE REVENUE AUTHORITIES U NDER THESE PECULIAR FACTS AND CIRCUMSTANCES IS UNWARRANTED. THEREFORE, I N OUR VIEW, THE LD. CIT(A) ERRED IN SUSTAINING THE ADDITION WITHOUT CONS IDERING THIS FACT THAT THE CASH DEPOSITED IN THE BANK ACCOUNT WAS FULLY SOURCED FROM THE EARLIER CASH WITHDRAWALS FROM THE SAME BANK ACCOUNT, THEREFORE, TH E FINDINGS OF THE LD. CIT(A) THAT IMMEDIATE SOURCE OF ADVANCING MONEY IS UNVERIFIABLE, ARE FACTUALLY INCORRECT AND ARE PERVERSE. THEREFORE, KE EPING IN VIEW OUR ABOVE DISCUSSION, WE DIRECT THE A.O. TO DELETE THE ADDITIO N OF RS. 5,00,000/- MADE U/S 68 OF THE ACT. 12. GROUND NO. 3 OF THE APPEAL RELATES TO CHALLENGI NG THE ORDER OF THE LD. CIT(A) IN SUSTAINING ADDITION OF RS. 5.11 LACS BY T REATING THE ADVANCE PAYMENT BY THE ASSESSEE AGAINST THE SALE OF PROPERT Y FROM SHRI RAM SWAROOP MALI. IN THIS REGARD, THE LD AR APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SAME ARGUMENTS AS WERE RAISED BEF ORE THE LD. CIT(A) AND HAS ALSO RELIED UPON THE WRITTEN SUBMISSIONS FILED B EFORE US. THE CONTENTS OF THE SUBMISSIONS OF THE LD. AR IS REPRODUCED BELOW: ITA 256/JP/2020_ MEERA DEVI VS ITO 17 IT IS HUMBLY SUBMITTED THAT THE APPELLANT HAS RECEI VED ADVANCE OF RS.10,00,000/- FROM SHRI RAMSWAROOP MALI FOR SALE O F HER SHARE IN PLOT NO. 58, SINDHI COLONY, RAJAPARK, JAIPUR. IT IS PERTINENT TO MENTION HERE THAT AS EVIDENT FRO M PARA NO. 5.3 OF THE ASSESSMENT ORDER, STATEMENTS OF SHRI RAM SWAROOP MA LI WERE RECORDED BY THE LD. A.O. ON PERUSAL OF THE ASSESSMENT ORDER, IT IS AMPLY EVIDENT THAT SHRI RAM SWAROOP MALI ACCEPTED HAVING PAID A SUM OF RS.1 0,00,000/- CASH TO THE APPELLANT TOWARDS ADVANCE FOR PURCHASE OF PROPERTY. SHRI RAM SWAROOP MALI NEVER DENIED THAT RS.10 LAKHS WAS NOT PAID TO THE A PPELLANT, INSTEAD MR. RAM SWAROOP MALI ALSO EXPLAINED THE SOURCE OF CASH PAYM ENT OF RS.10 LAKHS WITH EVIDENCES. RS.5,11,000/- WAS RECEIVED BY MR. RAM SW AROOP MALI FROM HIS SON SHRI CHITHAR MALI TOWARDS PURCHASE OF HOUSE WHI CH WAS RECEIVED BY HIS SON FROM SALE OF TATA TRUCK NO. RJ-05-G-4334 (CHASS IS NO. 82332GVZ733023, ENGINE NO. 497TC89GVZ90408) THE DOCUMENTS OF WHICH WERE SUBMITTED DURING THE ASSESSMENT PROCEEDINGS (PAPER BOOK PAGE NO. 34 TO 35). MR. RAM SWAROOP MALI CONTENDED THAT SOURCE OF THE BALANCE R S.4,89,000/- WAS HIS AGRICULTURAL INCOME IN SUPPORT OF WHICH HE SUBMITTE D COPY OF JAMABANDI, SARPACH CERTIFICATE ETC. WHICH WAS DULY ACCEPTED BY THE LD. CIT(A). FOLLOWING DOCUMENTARY EVIDENCES WERE SUBMITTED BY T HE APPELLANT BEFORE BOTH THE LOWER AUTHORITIES:- S.NO. PARTICULARS PAGE NOS. 1 COPY OF AADHAR CARD OF RAMSWAROOP MALI 26 2 AFFIDAVIT OF RAMSWAROOP MALI 27 TO 28 3 AGREEMENT TO SELL DATE 04.07.2012 WHEREIN RS. 10 LA KHS CASH WAS RECEIVED 29 TO 31 4 CANCELLATION AGREEMENT DATED 05.04.2013 32 TO 33 5 DOCUMENTS PERTAINING TO TRUCK IN THE CASE OF SON OF RAMSWAROOP MALI 34 TO 35 ITA 256/JP/2020_ MEERA DEVI VS ITO 18 IT IS FURTHER SUBMITTED THAT THE LD. CIT(A) SUSTAIN ED THE PART ADDITION AMOUNTING TO RS.5,11,000/- PERTAINING TO SALE OF TR UCK BY SON BY HOLDING AT PARA NO. 4.3 (PAGE NO. 19-20) OF THE APPELLATE ORDE R AS UNDER:- I FIND THAT THAT THE TRUCK WAS SOLD BY THE SON OF SHRI RAMSWAROOP MALI AND NOT BY RAMSWAROOP MALI. THERE IS NO EVIDENCE TH AT THE SON GAVE THE AMOUNT TO SHRI RAMSWAROOP MALI. THEREFORE, THE SOURCE TO THE EXTENT OF RS.5,11,000/- CANNOT BE ACCEPTED AND IS C ORRECTLY ADDED BY THE ASSESSING OFFICER. THE BALANCE AMOUNT OF RS.4,8 9,000/- IS DELETED. THIS GROUND OF APPEAL IS PARTLY ALLOWED. IT IS MOST RESPECTFULLY SUBMITTED THAT SHRI RAMSWAR OOP MALI HAS ACCEPTED THE PAYMENT OF MONEY TO THE APPELLANT BEFORE THE LD. A. O. BY WAY OF HIS STATEMENTS RECORDED DURING THE ASSESSMENT PROCEEDIN GS AND ALSO BY WAY OF AFFIDAVITS AND OTHER DOCUMENTS AS MENTIONED IN THE TABLE ABOVE. THE LD. CIT(A) HELD THAT THERE WAS NO EVIDENCE TO SHOW THAT SHRI RAMSWAROOP MALI RECEIVED THE SALE PROCEEDS OF TRUCK FROM HIS SON TH EREBY IGNORING THAT THEY ARE NOT OUTSIDERS BUT FATHER AND SON AND WHEN THE F ATHER HAS ADMITTED TO HAVE RECEIVED AN AMOUNT FROM HIS SON FOR PURCHASING A HOUSE, THERE IS NO REASON TO DISBELIEVE PARTICULARLY IN ABSENCE OF ANY EVIDENCE TO THE CONTRARY. MOREOVER, AT THIS JUNCTURE, IT IS PERTINENT TO DRAW KIND ATTENTION OF THE HONBLE BENCH TOWARDS THE PROVISIONS OF THE PROHIBI TION OF BENAMI PROPERTY TRANSACTIONS ACT, 1988, WHEREIN A PROPERTY ACQUIRED BY FATHER IN THE NAME OF HIS SON IS NOT TREATED AS BENAMI PROPERTY UNDER THE BENAMI LAWS EVEN. FURTHER, IT IS HUMBLY SUBMITTED THAT MERELY BECAUSE A SUM OF MONEY HAS BEEN RECEIVED IN CASH FROM AN AGRICULTURIST, IT DOE S NOT AUTOMATICALLY LEAD TO AN INFERENCE THAT IT IS BOGUS. IT IS HUMBLY SUBMITT ED THAT SIMPLY BECAUSE A CASH CREDITOR DOES NOT FILE HIS/HER RETURN OF INCOM E, IT DOES NOT NECESSARILY MEAN THAT THE LOAN IS BOGUS OR NOT GENUINE. RELIANC E IS PLACED IN THE DECISION OF THE JAIPUR ITAT IN THE CASE OF PRABHAJE ET KAUR VS. ITO (ITAT, JAIPUR BENCH) XXXIV TAX WORLD 101 ITA 256/JP/2020_ MEERA DEVI VS ITO 19 IT IS FURTHER SUBMITTED THAT THOUGH THE APPELLANT H AS ESTABLISHED WITH EVIDENCES THE SOURCE OF SOURCE OF THE SUM OF MONEY OF RS.10,00,000/- RECEIVED FROM MR. RAM SWAROOP MALI, BUT AS PER THE SETTLED PROPOSITION OF LAW, THE SOURCE OF SOURCE NEED NOT BE PROVED AS PER THE JUDGMENT OF THE HONBLE RAJASTHAN HIGH IN THE CASE OF M/S ARAVALI T RADING CO. VS. INCOME TAX OFFICER REPORTED AT (2008) 8 DTR 199, WHEREIN I T WAS HELD THAT ONCE THE EXISTENCE OF THE CREDITORS IS PROVED AND SUCH PERSO NS OWN THE CREDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE, THE ASSESSE ES ONUS STANDS DISCHARGED AND THE LATTER IS NOT FURTHER REQUIRED T O PROVES THE SOURCE FROM WHICH THE CREDITORS COULD HAVE ACQUIRED THE MONEY D EPOSITED WITH HIM EITHER IN TERMS OF SECTION 68 OR ON GENERAL PRINCIPLE. MER ELY BECAUSE THE DEPOSITORS EXPLANATION ABOUT THE SOURCES OF MONEY WAS NOT ACCE PTABLE TO THE AO, IT CANNOT BE PRESUMED THAT THE DEPOSIT MADE BY THE CRE DITORS IS MONEY BELONGING TO THE ASSESSEE ITSELF. HENCE, IT IS NOW A WELL ESTABLISHED LAW THAT IN CAS E OF LOAN TRANSACTIONS, SOURCE OF SOURCE NEED NOT BE PROVED. ONCE THE IDENT ITY, CAPACITY AND GENUINENESS OF A LOAN TRANSACTION IS PROVED BY THE ASSESSEE, THE PRIMARY ONUS WHICH LAY UPON HIM IS DISCHARGED AND IS SHIFTE D ON THE REVENUE. THE ASSESSEE NEED NOT TO PROVE THE SOURCE OF SOURCE OF THE LOAN TRANSACTION. RELIANCE IS ALSO BEING PLACED ON THE FOLLOWING JUDG MENTS IN THIS REGARD :- S.NO. PARTICULARS CITATION HONBLE COURT / TRIBUNAL 1 CIT VS. FIRST POINT FINANCE LTD. 286 ITR 477 RAJ. HIGH COURT 2 ACIT VS. RAJASTHAN ASBESTOS CEMENT CO. XLI TAX WORLD 153 ITAT, JAIPUR BENCH IT IS FURTHER SUBMITTED THAT MERELY BECAUSE THE REC EIPT AND PAYMENT BY THE APPELLANT ARE CLAIMED TO HAVE BEEN MADE IN CASH, IT DOES NOT MEAN THAT TRANSACTION MADE BETWEEN THE APPELLANT AND SHRI RAM SWAROOP MALI ARE NOT ACTUAL/GENUINE. HENCE, TREATING OF ADVANCE PAYMENT AS BOGUS BRUSHING ASIDE ITA 256/JP/2020_ MEERA DEVI VS ITO 20 ALL THE MATERIAL EVIDENCES ON RECORD BY THE LD. A.O . IS ILLEGAL, UNJUSTIFIED AND DESERVES TO BE DELETED. 13. ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDER PASSED BY THE LD. CIT(A). 14. WE HAVE HEARD THE LD. COUNSELS OF BOTH THE PART IES AND HAVE PERUSED THE MATERIAL PLACED ON RECORD. WE HAVE ALSO DELIBER ATED UPON THE DECISIONS CITED IN THE ORDERS PASSED BY THE AUTHORITIES BELOW AS WELL AS CITED BEFORE US AND WE HAVE ALSO GONE THROUGH THE ORDERS PASSED B Y THE REVENUE AUTHORITIES. DURING THE COURSE OF ARGUMENT, THE ASS ESSEE HAD ALSO PLACED ON RECORD AN APPLICATION DATED 21/09/2020 TO ACCEPT AN AFFIDAVIT AS ADDITIONAL EVIDENCE UNDER THE PROVISIONS OF INCOME TAX APPELLA TE RULES, 1963 (IN SHORT, THE RULES). IN THE SAID APPLICATION, THE ASS ESSEE WANTS TO PLACE ON RECORD AN AFFIDAVIT OF SHRI CHHITAR MALI, S/O- SHRI RAMSWAROOP MALI AS ADDITIONAL EVIDENCE, HOWEVER, THE LD AR HAS FAILED T O DEMONSTRATE AS TO HOW THE PRESENT APPLICATION FILED BY THE ASSESSEE IS ME ETING WITH THE INGREDIENTS CONTAINED IN RULE 29 OF THE RULES. THEREFORE, IN OU R VIEW, THE PRESENT APPLICATION FOR ACCEPTING THE AFFIDAVIT AS ADDITION AL EVIDENCE MOVED BY THE ASSESSEE DESERVES TO BE DISMISSED AND THE SAME IS A CCORDINGLY DISMISSED. 15. FROM THE RECORDS, WE NOTICED THAT AS PER THE AS SESSEE, AN AMOUNT OF RS. 10.00 LACS WERE RECEIVED FROM SHRI RAMSWAROOP MAL I VIDE AGREEMENT TO SELL AND IN SUPPORT THEREOF, THE ASSESSEE HAS PLACE D ON RECORD COPY OF ITA 256/JP/2020_ MEERA DEVI VS ITO 21 AGREEMENT TO SELL. HOWEVER, DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, THE SAID SHRI RAMSWAROOP MALI WAS CALLED BY THE A.O. WHEREIN HIS STATEMENT WAS RECODED. THE SAID SHRI RAMSWAROOP MALI WAS NOT ASSESSED TO TAX AND IN HIS ANSWER TO QUESTION NO. 8, HE HAS S PECIFICALLY STATED THAT HE HAD RECEIVED RS. 5.11 LACS FROM HIS SON, WHO HAD SOL D HIS TRUCK AND THE SAME WAS USED TO ADVANCE MONEY TO THE ASSESSEE. APAR T FROM THAT IT WAS ALSO SUBMITTED THAT THE BALANCE AMOUNT OF RS. 4,89, 000/- WAS OUT OF HIS AGRICULTURAL INCOME. THE A.O. HAD BELIEVED THE SOUR CE OF RS. 4,89,000/- FROM THE AGRICULTURAL INCOME OF SHRI RAMSWAROOP MALI BUT IN RESPECT OF THE AMOUNT OF RS. 5.11 LACS, THE ASSESSEE HAS NOT PLACE D ON RECORD ANY DOCUMENT IN RESPECT OF PURCHASE AND SALE OF TRUCK B Y SON OF SHRI RAMSWAROOP MALI. THE ASSESSEE HAS NOT PLACED ON RECO RD ANY CORROBORATIVE EVIDENCE, SUCH AS, REGISTRATION, TRANSFER CERTIFICA TE OR ANY OTHER DOCUMENTS TO DEMONSTRATE FOR ACQUIRING AND SALE OF TRUCK BY S ON OF SHRI RAMSWAROOP MALI AND ABSOLUTELY NO EVIDENCE TO PROVE THAT THE S AID SON HAD GIVEN AMOUNT TO SHRI RAMSWAROOP MALI. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND NO REASON TO INTERFERE IN THE ORDER OF THE LD. CIT(A) QUA THIS ISSUE, ACCORDINGLY, WE UPHOLD THE SAME. 16. GROUND NO. 4 OF THE APPEAL RELATES TO CHALLENGI NG THE ORDER OF THE LD. CIT(A) IN NOT QUASHING THE INVOCATION OF PROVISIONS OF SECTION 115BBE OF THE ACT. DURING THE COURSE OF HEARING, THE LD AR APPEAR ING ON BEHALF OF THE ITA 256/JP/2020_ MEERA DEVI VS ITO 22 ASSESSEE DOES NOT WANT TO PRESS THIS GROUND OF APPEA L. THE LD DR HAS RAISED NO OBJECTION IF THIS GROUND OF APPEAL IS DIS MISSED BEING NOT PRESSED. ACCORDINGLY, WE DISMISS THIS GROUND OF APPEAL BEING NOT PRESSED. 17. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH NOVEMBER, 2020. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11/11/2020 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. MEERA DEVI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 6(1), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 256/JP/2020) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR
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