SHRI MUJAFFAR HUSSEN, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 290/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6377 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Unexplained investment; Salary income; Principle of natural justice; Source of fund
• Section: 44AD; 131; 68

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. 290/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2012-13 SHRI MUJAFFAR HUSSAIN PROP: M.S. STEEL, LABHI BAZAR KURESHION KA MOHALLA, P.O. CHAKSU, JAIPUR CUKE VS. THE ITO WARD- 7(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABPPH 8827 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI YOGESH KUMAR SHARMA, CA JKTLO DH VKSJ LS@ REVENUE BY:SMT. POONAM RAI, DCIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 28/06/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 05/07/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE APPEAL FILED BY THE ASSESSEE EMANATES FROM TH E ORDER OF THE LD. CIT(A)-3, JAIPUR DATED 30-11-2017 FOR THE ASSESSME NT YEAR 2012-13 RAISING THEREIN SOLITARY GROUND OF APPEAL AS UNDER . THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITI ON OF RS. 8,11,600/- U/S 68 OF THE ACT. ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 2 2.1 AT THE OUTSET OF THE HEARING, THE BENCH OBSERVE D THAT THE APPEAL FILED BY THE ASSESSEE IS LATE BY 19 DAYS FOR WHICH THE LD. AR OF THE ASSESSEE FILED THE APPLICATION FOR CONDONATION OF D ELAY WITH FOLLOWING PRAYERS. I RECEIVED THE ORDER OF THE LD. CIT(A)-3, JAIPUR IN MY CASE FOR ASSESSMENT YEAR 2012-13. BEING AGGRIEVED BY THE SAI D ORDER, I REQUESTED TO MY CONSULTANTS MR.YOGESH KUMAR SHARMA, FCS TO PREFER AN APPEAL TO THE HON'BLE ITAT. THIS APPEAL WAS DEL AY DUE TO MY ILLNESS (ADMISSION AND DISCHARGE CERTIFICATE OF HOS PITAL IS ATTACHED HEREWITH). HENCE MY AFFIDAVIT DETAILING THE AFORESA ID FACTS AND THESE MAY KINDLY BE PLACED BEFORE THE HON'BLE TRIBUNAL FO R CONDONATION OF THE SHORT DELAY IN SUBMISSION OF THE APPEAL. TO THIS EFFECT, THE LD. AR OF THE ASSESSEE FILED TH E MEDICAL CERTIFICATE ISSUED BY DR AMIT AGARWAL, M.S. (ORTHO), MONILEK H OSPITAL, JAIPUR WHO CERTIFIED THAT THE ASSESSEE WAS SUFFERING FROM BACK PAIN PROBLEM SINCE 5-02-2018 TO 28-02-2018 BESIDES THE ASSESSEE HAS ALSO FILED THE AFFIDAVIT GIVING THE REASON FOR SUCH DELAY IN LATE FILING THE APPEAL BEFORE ITAT. 2.2 ON THE OTHER HAND, THE LD. DR OPPOSED THE COND ONATION APPLICATION OF THE ASSESSEE FOR LATE FILING OF THE APPEAL. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. TAKING INTO CONSIDERATION THE FACTS AND CIRCUMSTANCES ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 3 OF THE CASE AND ALSO THE MEDICAL CERTIFICATES ISSUE D BY THE DOCTOR IN RESPECT OF THE ASSESSEE, IT IS OBSERVED THAT THERE IS SUFFICIENT CAUSE IN PREVENTING THE ASSESSEE TO FILE THE APPEAL IN TIME. IN THIS VIEW OF THE MATTER, THE DELAY IN FILING THE APPEAL BY THE ASSES SEE IS CONDONED. 3.1 APROPOS SOLITARY GROUND OF THE ASSESSEE, THE FA CTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 4.3 I HAVE CAREFULLY CONSIDERED THE MATERIAL BEFO RE ME. I FIND THAT APPELLANT FAILED TO ESTABLISH THE CREDITWORTHINESS OF THE SO CALLED CREDITOR OF RIYAZ UDDIN QURESH AND ASMUDDIND QURESHI BECAUSE THE RIYAZUDDIN QURESHI FILED HIS RETURN U/S 44AD OF THE I.T. ACT W HICH INDICATE THAT THE APPELLANT IS NOT HAVING THE BOOKS OF ACCOUNTS AND HIS TOTAL INCOME IS ONLY RS. 2,65,117/ -. HE PAID LIFE INSURANCE PREMIUM OF RS. 48,096/-AND BALANCE A MOUNT COMES OF RS. 2,17,021/-. THIS AMOUNT IS USED FOR HO USE HOLD EXPENSES. HE FURTHER MADE THE ARGUMENT THAT HE HAD TAKEN LOAN FROM OTHER PERSON IS ALSO NOT BELIEVABLE. THE ABOVE FACTS PROVE THAT THESE PERSONS ARE NOT HAVING SUFFI CIENT FUND TO LEND THE MONEY. THE SO CALLED CASH CREDITOR DEPO SIT THE SAME IN THEIR BANK ACCOUNT AND ISSUED SAME AMOUNT C HEQUES ON THE SAME DAY OR ONE AND TWO DAYS LATER. THEREFOR E, THE CITED CASE LAWS OF THE A/R APPELLANT IS NOT APPLICA BLE IN THS CASE. CONSIDERING THE ABOVE OBSERVATION, I AM OF THE VIEW THAT CREDITWORTHINESS IS NOT PROVED OF THE SO CALLE D CASH CREDITOR OF SHRI ASMUDDIN QURESHI AND SHRI RIYAZUDD IN QURESHI. THEREFORE, I TREAT THAT THE APPELLANT USED HIS UNDISCLOSED MONEY TO DEPOSIT IN THEIR ACCOUNT AD MA DE THE ENTRIES IN THE BOOKS OF ACCOUNTS. HENCE, I CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 8,1 1,600/- U/S 68 OF THE I.T. ACT, 1961. THIS GROUND IS NOT ALLOWE D. ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 4 3.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 8,11,600/- U/S 68 OF THE ACT FOR WHICH THE LD.AR OF THE ASSESSEE F ILED THE FOLLOWING WRITTEN SUBMISSION AND THE SAME HAS BEEN TAKEN INTO CONSIDERATION. 1. THAT THE LD. ASSESSING OFFICER HAS ERRED ON FACTS AND IN LAW IN MAKING THE ADDITION OF TWO UNSECURED LOANS OF RS. 8,11,600 ( FROM ASMUDDIN KURESHI OF RS. 5,36,000 AND FROM RIYAZUDDIN KURESHI OF RS. 248000/- ) ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCE UNDER SECTION 68 OF INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE SUBMITTED PAPERS OF CONFIR MATION OF SUCH LOANS. IN THIS RELATION WE SUBMIT THAT- A. THE APPELLANT WAS RUNNING THE BUSINESS OF TRADING O F IRON SCRAP AT CHAKSU. THE APPELLANT HAVE TOTAL INCOME RS. 5,51,150/- DURI NG THE ASSESSMENT YEAR 2012-13. AS PER NATURE OF THE BUSINESS APPELLANT PU RCHASES SCRAP FROM THE RETAILERS AND THROUGH GENERAL CUSTOMERS. FINANCE IS THE BLOOD OF THE BUSINESS HENCE TO A BOOST AND GROWTH OF THE BUSINES S, THE APPELLANT HAS TAKEN LOAN FROM ASMUDDIN KURESHI OF RS. 5,36,000 AN D FROM RIYAZUDDIN KURESHI OF RS. 248000/- THROUGH BANK. THE APPELLAN T FILED FOLLOWING DOCUMENTS TO THE ASSESSING OFFICER WHILE THE ASSESS MENT COPY OF PAN CARD OF THE CREDITORS COPY OF BANK STATEMENT OF CREDITORS COPY OF THE CONFIRMATION CUM EXPLANATION LETTER SUB MITTED BY CREDITORS COPY OF ACKNOWLEDGEMENT OF RETURN WITH COMPUTATION OF THE CREDITORS WHICH SUPPORT THE IDENTITY, GENUINENESS OF TRANSACTION AN D CREDITWORTHINESS OF LONER COPY OF THE ACCOUNTS OF THE CREDITORS IN THE BOOKS OF THE APPELLANT B. ON THE OTHER HAND , THE LD. AO HAS ALSO CALLED INFO RMATION FROM LONER DIRECTLY AND THEY HAVE SUBMITTED THEIR REPLY MENTIO NING SOURCE OF LOAN GIVEN TO APPELLANT BUT LD. AO HAS NOT CONSIDERED TH E REPLY OF LONER AND REPLY OF LONER AND REPLY OF SHOW CAUSE ISSUED TO AP PELLANT AND ADDED THE AFORESAID AMOUNT OF LOAN TAKEN AND SAME WAS CONFIRM ED BY THE HONORABLE COMMISSIONER OF INCOME TAX (APPEAL-3), JAIPUR. ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 5 ONCE APPELLANT HAS PROVED IDENTITY OF LONER, GENUIN ENESS OF TRANSACTION, AND CREDITWORTHINESS OF LONER THEN LOAN TAKEN BY APPELL ANT COULD NOT BE TREATED AS UNEXPLAINED/UNDISCLOSED AND NOT LIABLE TO ADDITION U/S 68. IN THE CASE OF SUMATI DAYAL V. CIT 214 ITR 801 (SC) HONBLE SUPREME COURT HELD THAT WHILE CONSIDERING THE EXPLANATION OF THE APPEL LANT, THE REVENUE OR DEPARTMENT CANNOT ACT UNREASONABLY . WHERE THE APPELLANT HAS SHOWN ALL THE EVIDENCE TO S UBSTANTIATE THE CASE, THE SAME CANNOT BE INGNORED BY THE DEPARTMENT AND CLAIM UNSA TISFACTORY IN THE CASE OF CIT VS. UTTAMCHAND JAIN (2010) 320 ITR 554, WHEREIN THE APPELLANT SHOWED ALL THE PROOF 18AVAILABLE WITH HIM TO PROVE THE GENUINE SALE OF J EWELLERY BUT THE ASSESSING OFFICER DISALLOWED THE SAME ON EXTRANEOUS GROUNDS. THE HON BLE DELHI HIGH COURT OBSERVED AS UNDER: . THE FACT THAT THE JEWELLERY CLAIMED TO HAVE BEEN SOLD BY THE APPELLANT WAS NOT FOUND WITH THE PURCHASER OR HIS ASSOCIATES CANNOT BE HELD AGAINST THE APPELLANT , BECAUSE, ADMITTEDLY, THE SAID JEWELLERY DECLARED UNDER VDIS, 1997 IS ALSO NOT FOUND WITH TH E APPELLANT AFTER THE SALE IS EFFECTED. IF EXISTENCE OF THE JEWELLERY WITH THE AP PELLANT PRIOR TO THE SALE IS EVIDENCED BY THE VDIS, 1997 CERTIFICATE AND ON SALE OF THE SA ID JEWELLERY THE APPELLANT HAS RECEIVED THE CONSIDERATION WHICH IS DULY ACCOUNTED FOR, THEN THE MERE FACT THAT THE JEWELLERY SOLD BY THE APPELLANT IS NOT FOUND WITH T HE PURCHASER CANNOT BE A GROUND TO HOLD THAT THE TRANSACTION WAS BOGUS AND THE CONSIDE RATION RECEIVED BY THE APPELLANT WAS THE UNDISCLOSED INCOME OF THE APPELLANT .. ... THE FACT THAT THE CASH CREDITS ARE INTRODUCED IN THE ACCOUNTS OF MR. TRIVE DI, IT CANNOT BE INFERRED THAT THE SAID CASH BELONGED TO THE APPELLANT. THE APPELLANT WAS NOT UNDER ANY OBLIGATION TO PROVE THE CASH CREDITS IN THE ACCOUNTS OF MR. TRIVE DI. IN THE PRESENT CASE, THE APPELLANT HAS PROVED THAT HE WAS IN POSSESSION OF T HE DIAMOND JEWELLERY WHICH WAS DULY DECLARED AND CERTIFIED UNDER VDIS, 1997. THE APPELLANT HAS PROVED THE IDENTITY OF THE PERSON TO WHOM THE SAID DIAMOND JEWE11ERY WA S SOLD, HIS CREDIT WORTHINESS AND HAS ACCOUNTED FOR THE SALE PROCEEDS RECEIVED FR OM THE SALE OF THE DIAMOND JEWELLERY. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE LD. ASSESSING OFFICER HAS ERRED IN FINALIZATION OF CREDIT WORTHINESS OF THE CREDITORS IGNORING THE VERIFIED TRANSACTION APPEARI NG IN BANK ACCOUNT OF LENDER, ISSUED NOTICE TO LONER AND RECEIVED THE PROPER REPL Y. ADDITION U/S 68 MADE BY LD. ITO AND LD. COMMISSIONE R OF INCOME TAX (APPEALS-3) IS TOTALLY ILLEGAL AND ARBITRARY IN THIS REALTION WE SUBMIT THAT- A. THE LD. AO AND LD. COMMISSIONER OF INCOME TAX (APPE ALS-3) HAS NOT POINTED OUT ANY DEFECT IN THE REPLY OF LONER REGARD ING SOURCE AND HE DID NOT ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 6 MENTION ANY REASON IN HIS ORDER WHICH SUPPORT HIS V IEW THAT REPLY OF LONER AND APPELLANT IS NOT FOUND SATISFACTORY FOR SOURCE OF LOAN TAKEN. B. AS THE APPELLANT SUBMITTED ALL EVIDENCE, IN SUPPORT OF IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE LENDER AND THE ONUS OF APPELLANT STANDS DISCHARGED BY PROVIDING ALL POSSIBLE EVIDENC ES, FURTHER IS HELD AT VARIOUS DECISIONS OF APEX COURT THAT APPELLANT IS N OT BOUND TO PROVIDE SOURCE OF SOURCE. C. THE LOAN AMOUNT OF THE APPELLANT FULLY VERIFIABLE. THERE ARE NO UNDISCLOSED SOURCE OF INCOME OR UNEXPLAINED LOAN MADE DURING THE ABOVE SAID ASSESSMENT YEAR. THE APPELLANT SUBMITTED PROFI T AND LOSS ACCOUNT , BALANCE SHEET FOR THE ABOVE SAID ASSESSMENT YEAR AN D PROVIDED PROPER CLARIFICATION WITH THE EVIDENCE AND PROOF REGARDING THE RECEIVING OF LOAN FROM CREDITORS. D. THAT APPELLANT HAD TAKEN LOAN FROM ASMUDDIN QURESHI OF RS 563600/- AND RS. 248000/- FROM RIYAZUDDIN QURESHI ON VARIOUS DAT ES THROUGH BANK CHEQUE SIR APPELLANT HAD FURNISHED AND SUBMITTED AL L THE POSSIBLE EVIDENCES AND DOCUMENTS INCLUDING CONFIRMATION, BANK ACCOUNT, DECLARATION AND REPLY FROM LENDER ABOUT SOURCE OF AMOUNT GIVEN ITR GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF LENDER. BUT THE LD. AO HAS NOT ACCEPTED THE REPLY OF APPELLANT BY SAYING JUST THAT REPLY IS NOT SATISFACTORY AND COULD NOT REPLY THE SOURCE OF DEPOSITS IN BANK OF LENDER. THE ID AO FAILED TO POINT OUT THE REPLY THE DEFECT IN REPLY O F APPELLANT WHEN APPELLANT PROVED THE GENUINESS OF TRANSACTION IDENTITY OF LEN DER AND CREDITWORTHINESS OF LENDER AND ID AO ARBITRARY DECIDE AND ADDED THE LOAN AMOUNT U/S 68. E. THAT SIR, MANY HONORABLE APEX AUTHORITIES AND COUR TS HELD IN VARIOUS CASES THAT ONCE APPELLANT HAS PROVED IDENTITY OF LONER GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF LONER THAN LOAN TAKEN BY APPELLANT COULD NOT BE TREATED US UNEXPLAINED AND NOT LIABLE TO ADDITION U/S 68.IN THIS CONNECTION WE SUBMIT THESE THINGS AS FOLLOWS- (I) IDENTITY OF LONER 0. SIR APPELLANT HAS FILLED THE CONFIRMATION OF LOAN T AKEN BY PROVIDING NAME, ADDRESS,PAN, SIGNED CONFIRMATION AND BANK ACCOUNT W ITH CROSS CHECK WITH THE RECORD OF APPELLANT HENCE APPELLANT HAS PROVED THE IDENTITY OF LONER AND LD AO HAD NOT OBJECTED THE SAME. WE ARE ONCE AGAIN RE- FURNISHING THE WHEREABOUTS OF LONER. ASMUDDIN QUERSHI LOAN TAKEN OF RS. 563600.00 S/O KAMRUDDIN QUERSHI WARD NO. 04 KURESHIYON KA MOHALLA VPO- CHAKSU DISTT.- JAIPUR. PAN- BGRPK6405P RIYAZUDDIN QUERSHI LOAN TAKEN OF RS. 248000.00 S/O KAMRUDDIN QUERSHI ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 7 WARD NO. 04 KURESHIYON KA MOHALLA VPO- CHAKSU DISTT.- JAIPUR. PAN-AAGPQ6840C THE IDENTITY OF CASH CREDITOR STOOD PROVED IN AS MU CH AS COPY OF PAN CARD AND COPY OF INCOME TAX RETURN WERE FILED. HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF ARAVALI TRADING CO VS INCOME TAX OFFICER (2008) 8 DTR (RAJ) 199 HAS HELD THAT ONCE THE EXISTENCE OF THE CREDITORS IS PROVED AND SUCH PERSONS OWN THE CREDITS, THE APPELL ANT'S ONUS STANDS DISCHARGED AND THE APPELLANT IS NOT REQUIRED TO PROVE THE SOURCE F ROM WHICH THE CREDITORS COULD HAVE ACQUIRED THE MONEY DEPOSITED WITH HIM. HON'BLE JURI SDICTIONAL HIGH COURT HAS HELD THAT MERELY BECAUSE THE DEPOSITORS' EXPLANATION ABO UT THE SOURCES OF MONEY WAS NOT ACCEPTABLE TO THE AO, IT CANNOT BE PRESUMED THAT TH E DEPOSIT MADE BY THE CREDITORS IS MONEY BELONGING TO THE APPELLANT ITSELF. (II) GENUINENESS OF TRANSACTION 0. THE APPELLANT PROVIDE THE CORRECTNESS AND GENUINENE SS OF TRANSACTION I.E LOAN TAKEN BY THE APPELLANT. THE APPELLANT HAS TAKEN LOA N THROUGH BANK CHEQUE ONLY AND APPELLANT PROVIDED BANK STATEMENT OF LONER AND BANK STATEMENT OF HIMSELF AND LD AO GOT VERIFIED THE BOTH THE ENTRIES AND FOU ND WITH NO DIFFERENCE IN TRANSACTION. THE ID AO HAS NOT DOUBTED ABOUT THE GE NUINENESS OF AFORESAID TRANSACTION . 1. THE FILED CONFIRMATION LETTER, ADMIT THE GIVING OF LOAN. THE APPELLANT FILED COPY OF BANK STATEMENT OF CASH CREDITORS WHERE THE AMOUNT OF PAYMENT IS REFLECTED IN BANK STATEMENT.IT IS THE CLEAR EVIDENC E OF THE CORRECTNESS AND GENUINENESS OF TRANSACTION. 2. (III) CREDITWORTHINESS OF LONER OR LENDER THE APPELLANT FURNISHED THE COPY OF RETURN OF APPEL LANT, PAN NO, A DECLARATION FROM LENDER OF SOURCE OF FUND GIVEN, COPY OF BANK S TATEMENT. IT WAS ALSO STATED AND FURNISHED THAT LENDERS ARE REGULAR APPELLANT AN D ASSESSED TO INCOME TAX REGULARLY AND LOOKING TO THE RETURN OF LENDER AND T HEIR REGULARLY FILLING STATUS THEY ARE CAPABLE FOR LENDING THEY AFORESAID THE AMO UNT THE APPELLANT AND FURTHER IT WAS STATED THAT BOTH THE LENDER HAS SHOW N THE LOAN GIVEN THEIR RETURN OF INCOME HENCE THERE IS NO QUESTION ABOUT THE CRED ITWORTHINESS OF LENDER. THE ID AO QUESTIONED THE CASH DEPOSIT IN BANK ACCOU NT BY LENDER AND DURING THE COURSE OF ASSESSMENTS , APPELLANT REQUIRED TO I SSUE THE NOTICE TO THE LENDER FOR FURNISHING THE SOURCE OF CASE DEPOSIT BY LENDER AND IN RESPONSE TO AO LETTER LENDER HAS FURNISHED THE REPLY BY ELABORATING THE S OURCE OF CASH DEPOSIT IN THE BANK . (A) RIYAZUDDIN QUERSHI LOAN TAKEN OF RS. 248000.00 PAN-AAGPQ6840C ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 8 THAT RIYAZUDDIN QUERSHI IS PROPRIETOR OF M/S R.K. T RADERS A REGISTERED FIRM UNDER VAT. THAT DURING THE YEAR 2011-12 A.Y. 2012-13 HE FILLED THE RETURN OF INCOME BY DECLARING A TOTAL TURNOVER OF RS. 3188963.00 AND FILLED THE RETURN OF INCOME U/S 44 AD AND DECLARED HIS INCOME FROM BUSIN ESS OF RS.255117.00 THAT RIYAZUDDIN QUERSHI IS A REGULAR APPELLANT AND FILLING HIS RETURN OF INCOME SINCE MANY YEARS THAT RIYAZUDDIN QUERSHI HAS REPLIED TO LD AO VIDE H IS DECLARATION SUBMITTED ON 13.03.2015 THAT CASH DEPOSIT IN BANK O UT OF INCOME EARNED DURING THE YEAR, CASH WITHDRWAL FROM BANK, OUT OF A CCUMULATED SAVING AND PETTY LOAN FROM TWO PERSON .(COPY ENCLOSED) (B) ASMUDDIN QUERSHI LOAN TAKEN OF RS. 563600.00 PAN- BGRPK6405P THAT ASMUDDIN QUERSHI WAS PREVIOUSLY RUNNING A SMAL L FIRM BUT DURING THE YEAR 2011-12 HE WAS DOING SERVICE THAT DURING THE YEAR 2011-12 A.Y. 2012-13 HE FILLED THE RETURN OF INCOME BY DECLARED A INCOME OF RS. 195917.00 THAT ASMUDDIN QUERSHI IS A REGULAR APPELLANT AND FI LLING HIS RETURN OF INCOME SINCE MANY YEARS. THAT ASMUDDIN QUERSHI HAD REPLIED TO LD AO VIDE HIS DECLARATION SUBMITTED ON 13.03.2015 THAT CASH DEPOSIT IN BANK O UT OF INCOME EARNED DURING THE YEAR , CASH WITHDRWAL FROM BANK OUT OF ACCUMULATED SAVING AND PETTY LOAN FROM TWO PERSON .(COPY ENCLOSED.) THE APPELLANT HAS ALSO FILED COPY OF BANK STATEMENT OF THE COMPANY WHICH SHOWS REGULAR NUMBER OF TRANSACTIONS WHICH SHOWS BUSINESS BONDING BETWEEN THE A APPELLANT AND LONER . THERE IS NO ONUS OF THE APPELLANT TO PR OVE SOURCE OF SOURCE. ONCE THE APPELLANT ABLE TO ESTABLISH THAT HE HAS IN FACT REC EIVED MONEY FROM THIRD PARTY, IT CAN'T BE BURDENED WITH A FURTHER ONUS OF ESTABLISHING THE SOURCE FROM WHICH SUCH THIRD PARTY HAD BEEN ABLE TO OBTAIN THE MONEY. AS PER ABOVE SITUATION AND FACTS, APPELLANT FURNISH ED ABOUT IDENTITY CREDITWORTHINESS AND GENUINENESS OF TRANSACTION HENCE DISCHARGED HIS LIABILITY AS PER VARIOUS COURTS DECISION AND PRINCIPAL. AS PER THE DECISION OF HONABLE SUPREME COURT IN MAT TER OF LOVELY EXPORTS 216 ITR 195 THAT IT WAS SUBMITTED THAT HE IDENTITY AND GENUIN ENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF THE CONCERNED PARTIES HAS BEEN ESTABLISHED AND THAT IN THESE CIRCUMSTANCES, THE AO COULD NOT HAVE INCLUDED THESE AMOUNT UNDER SECTION 68 ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 9 ALL THE RELEVANT MATERIALS IN THE FROM OF CONFIRMAT ION WITH RESPECT TO EACH TRANSACTION PERTAINING TO THE APPELLANTS BUSINESS ACTIVITIES A S WELL AS THE SALE/PURCHASE DEEDS WAS DISCLOSED AND GIVEN THA FACT THAT THE AMOUNT WERE R EFLECT IN THE BANK ACCOUNT THERE WAS NO QUESTION OF DUBIOUS CREDIT ENTRIES THE VERDI CT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS LOVELY EXPORTS (P) LTD. 216 CTR 195 WHICH HELD AS UNDER: - CAN THE AMOUNT OF SHARE MONEY BE REGARDED AS UNDIS CLOSED INCOME UNDER SECTION 68 OF THE INCOME TAX ACT, 1961? WE FIND NO MERIT IN TH IS SPECIAL LEAVE PETITION FOR THE SIMPLE REASON THAT IF THE SHARE APPLICATION MONEY I S RECEIVED BY THE APPELLANT COMPANY FROM ALLEGED BOGUS SHAREHOLDERS, WHOSE NAME S ARE GIVEN TO THE ASSESSING OFFICER, THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN THEIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW. HENCE, WE FIND NO INFIRMITY WITH THE IMPUGNED JUDGEMENT. AS PER SUCH DECISION OF LOVELY EXPORT 216 CTR 195 G UIDES THE AUTHORITIES FOR THE PROPER CONDUCT OF PROCEEDING OF ADDING AMOUNTS UNDER SECTION 68. THE INITIAL ONUS TO SHOW THE GENUINENESS AND IDENTI TY OF TRANSACTION AND THE CREDIT WORTHINESS OF THE PARTY IS NO DOUBT UPON THE APPELLANT. ONCE THAT IS DONE IN THE FORM OF PRIMA FACIE CREDIBLE MATERIAL, THE A O HAS TO THEN EXERT HIMSELF /HER SELF TO QUOTE RELEVANT MATERIAL TO DISPROVE TH AT ONUS AND DISCHARGE THE BURDEN PLACED UPON THE REVENUE. THE ABOVE HELD PROPOSITION OF THE HONBLE SUPREME C OURT WAS FOLLOWED VARIOUS HIGH COURTS AND THE MATTER WAS MOSTLY DECIDED IN FAVOR O F APPELLANT. THOSE INCLUDE: A) CIT VS K.C.FIBRES (2010) 187 TAXMAN 53 (DEL) B) CIT VS KAMDHENU ALLOYS AND STEEL LTD. & ORS (2012) 248 CTR (DEL) 33 C) CIT VS MISHRA PRESERVERS (P) LTD. (2013) 350 ITR 22 2 (ALL) D) CIT VS PEOPLE GENERAL HOSPITAL LTD. (2013) 356 ITR 65 (MP) E) DCIT VS RANA GIRDERS LTD. (2013) 84 CCH 128 ALL HC F) SOURCES OF SOURCE CAN NOT BE ASKED THAT MANY APEX AUTHORITY HELD THAT SOURCE OF SOURCE CANNOT BE ASKED. I. IN THE RECENT JUDGMENT HELD BY ITAT NO. 1542/2012 D ATE OF ORDER 15.01.2016 THAT APPELLANT NOT OBLIGED TO PROVE SOU RCE OF SOURCE OF THE UNSECURED LOAN CREDITOR. THE BURDEN IS TO PROVE SOURCE OF THE CREDIT ONLY- ITIAT. II. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS ORISSA CORPORATION (P) LTD. 159 ITR 78 (SC) HELD AS FOLLOWS:- ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 10 13. IN THIS CASE, THE APPELLANT HAD GIVEN THE NAM ES AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE K NOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME-TAX APP ELLANTS. THEIR INDEX NUMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM ISSUING NOTICES UNDER S. 131 AT THE INSTANCE O F THE APPELLANT, DID NOT PURSUE THE MATTER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CREDITORS TO FIND OUT WHETHER THEY WERE CREDITWORTHY OR WERE SUCH WHO COULD ADVANCE THE ALL EGED LOANS. THERE WAS NO EFFORT MADE TO PURSUE THE SO-CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE APPELLANT COULD NOT DO ANYTHING FURTHER. ALSO, IT IS PRESUMED SUBJECT TO REBUTTAL THAT TRANS ACTION CANNOT BE CONSIDERED AS BOGUS WHEN THE FUNDS ARE ROUTED THROU GH BANK ACCOUNTS AS THEY CANNOT BE CONSIDERED AS UNACCOUNTED MONIES BEING TH E PURPOSE FOR WHICH THE PROVISION WAS INTRODUCED AND ALSO THE BANK STATEMEN TS ARE VERY MUCH SUBJECT TO SCRUTINY OF THE DEPARTMENT. I THE HONBLE AGRA TRIBUNAL IN THE CASE OF S.K.JAIN VS ITO (2004) 2 SOT 579 (AGRA) OBSERVED AS UNDER: - THE CREDITORS HAVE CONFIRMED THAT THEY HAVE ADVANCE D LOAN TO THE APPELLANT. IN MOST OF THE CASES, TRANSACTIONS HAVE BEEN ROUTED THROUGH BANK ACCOUNT. THEREFORE, ASKING SOURCE OF SUCH DEPOSITS WILL AMOUNT TO ASKING SOURCE OF THE SOURCE WHICH IS NOT PERMITTED UNDER T HE LAW AS HELD BY THE HONBLE HIGH COURT OF PATNA IN THE CASE OF SAROGI C REDIT CORPN. VS. CIT 1975 CTR (PAT) 1 : (1976) 103 ITR 344 (PAT) AND THE DECI SION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF ROHINI BUILDER S VS. DY. CIT (2002) 76 TTJ (AHD) 521 : (2001) 117 TAXMAN 25 (AHD)(MAG). ONCE IT IS ESTABLISHED THAT THE AMOUNT HAS BEEN INV ESTED BY A PARTICULAR PERSON, BE HE IS A FAMILY MEMBER OR CLOSE RELATIVE THEN THE RESPONSIBILITY OF THE APPELLANT IS OVER. THE APPELLANT CANNOT ASK THAT PE RSON, WHO ADVANCED THE LOAN, WHETHER MONEY ADVANCED IS PROPERLY TAXED OR N OT. THUS, IT HAD BECOME FAIRLY SETTLED LAW THAT APPELLA NT IS NOT REQUIRED TO SATISFY THE ASSESSING AUTHORITY OF THE SOURCE OF SO URCE. THUS THE ADDITION U/S 68 MADE BY LD. ITO AND LD. CO MMISSIONER OF INCOME TAX (APPEALS-3) IS TOTALLY ILLEGAL AND ARBIT RARY AND LIABLE TO BE DELETED. ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 11 G) THAT IN THE CONTEXT OF THE SECTION 68, WE SUBMIT TH AT THE INTENTION OF THE LAW MAKER IS TO EXPOSE UNDISCLOSED INVESTMENT OR CREDIT OR IDENTIFY THE INVESTOR/CREDITORS. IT IS ALSO GENERAL ECONOMIC PRI NCIPLE THAT THE INVESTMENTS MADE TO A COUNTRY PROMOTE THE GROWTH IN THE COUNTRY . HOWEVER, WHEN THE INVESTMENTS ARE NOT GENUINE IN NATURE, IT WILL HAVE A COUNTER-EFFECT ON THE ECONOMY OF THE COUNTRY. HENCE, IT IS VERY ESSENTIAL TO HAVE STRINGENT PROVISIONS IN ORDER TO PROTECT THE ECONOMY OF THE COUNTRY. SEC TION 68 OF THE INCOME TAX ACT, 1961 DOES WELL IN THIS REGARD. WITH THE CONSIDERATION OF THE ABOVE FACTS, GROUND A ND SUBMITTED DOCUMENTS & PROOF, IT IS CLEARLY IDENTIFIABLE PERSO N AS CREDITORS, CLEAR PAYMENT VIA TRANSFER FROM BANKING CHANNEL HENCE THE APPLICABILITY OF SECTION 68 SHOULD BE DROPPED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE HONORABLE COMMISSIONER OF INCOMETAX (APPEALS) WHER E AN APPEAL IS FILED BEFORE THE TRIBUNAL AGAINST THE ORDER OF COMMISSION ER (APPEALS)) ERRED IN FINALIZATION OF CREDIT WORTHINESS OF THE CREDITORS ONLY ON BEHALF OF THE PAYING OF LIFE INSURANCE HOUSEHOLD EXPENSES WITHOUT CONS IDERING THIS FACTS THAT BOTH THESE PERSONS ARE BROTHER AND THEY ARE LIVING WITH HIM PARENTS AND NO BURDEN OF HOUSEHOLD EXPENSES COMES ON THESE BROTHERS. IN T HIS CONNECTION, WE SUBMIT THAT- A. ASMUDDIN KURESHI AND RIYAZUDDIN KURESHI ARE BOTHER S AND THEY ARE LIVING WITH HIS FATHER IN JOINT FAMILY, ALL THE EXP ENSES OF HOUSEHOLD ARE BORNE BY HIS FATHER AND MOTHER. THE FATHER AND MOTH ER ARE IN THE BUSINESS AND THEY ARE FILLING REGULAR RETURNS. WHEREAS MR. ASMUDDIN KURESHI AND RIYAZUDDIN KURESH I ARE IN WORKING AS SMALL BUSINESSMAN OF TRADING. THE NET IN COME AFTER PAYING THE INSURANCE RECEIPTS GOES INTO OWN FUND/CORPUS TO FURTHER PROMOTE THE BUSINESS. THE NATURE OF BUSINESS OF MR. ASMUDDIN KURESHI AND RIYAZUDDIN KURESHI IS MOSTLY IN CASH AS SMALL TRADING OR SMALL PAYMENT/RECEIPTS. HENCE THEY KEEP AND USE THE CASH FOR BUSINESS TRADI NG. IF THE ADDITIONAL FUND CREATE, THEY PAY THIS AMOUNT AS LOAN TO APPELLANT WHO IS THE BROTHER OF ASMUDDIN KURESHI AND RIYAZUD DIN KURESHI WITHOUT INTEREST TO A BOOST THE BUSINESS OF BROTHER . WITH THE CONSIDERATION OF THE ABOVE FACTS, THE AMOU NT WAS GIVEN BY ASMUDDIN KURESHI AND RIYAZUDDIN KURESHI AS LOAN IN PARTS WITH SMALL TICKET SIZE LOAN AS FOLLOWS ON DIFFERENT DATES AS P ER THE REQUIREMENTS OF THE BUSINESS OF APPELLANT AS FOLLOWS ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 12 PAID BY ASMUDDIN KURESHI TO APPELLANT S.NO. PARTICULARS DATE OF PAYMENT AMOUNT THROUGH BANK/CASH 1. LOAN 05/05/2011 49,000 THROUGH BANK OF BARODA 2. LOAN 11/05/2011 49,000 THROUGH BANK OF BARODA 3. LOAN 18/05/2011 49,000 THROUGH BANK OF BARODA 4. LOAN 13/06/2011 1,00,000 THROUGH BANK OF BARODA 5. LOAN 06/09/2011 2,18,500 THROUGH BANK OF BARODA 6. LOAN 12/10/2011 50,0000 THROUGH BANK OF BARODA 7. 28/01/2012 49,000 THROUGH BANK OF BARODA PAID BY MR. RIYAZUDDIN KURESHI TO APPELLANT S.NO. PARTICUALRS DATE OF PAYMENT AMOUNT THROUGH BANK/CASH 1. LOAN 19/05/2011 49,000 THROUGH BANK OF BARODA 2. LOAN 13/06/2011 1,00,000 THROUGH BANK OF BARODA 3. LOAN 12/10/2011 50,000 THROUGH BANK OF BARODA 4. LOAN 28/01/2012 49,000 THROUGH BANK OF BARODA 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW THE HONORABLE COMMISSIONER OF INCOMETAX (APPEALS) WHER E AN APPEAL IS FILED BEFORE THE TRIBUNAL AGAINST THE ORDER OF COMMISSION ER (APPEALS)) ERRED IN FINALIZATION OF CREDIT WORTHINESS OF THE CREDITORS ONLY ON BEHALF OF THE PAYING OF LIFE INSURANCE HOUSEHOLD EXPENSES WITHOUT CONS IDERING THE PAPERS SUBMITTED BY THE CREDITORS OF SOURCES OF LOANS. 4. THAT THE APPELLANT PRAYS THAT THE ADDITION/ DISALLO WANCE OF RS. 8,11,600 MADE IN RESPECT OF UNSECURED LOAN BE DELETED. IN THIS RE LATION WE SUBMIT THAT - A. THE VIEW OF THE ABOVE FACT THE AMOUNT RS. 8,11,600 /- RECEIVED AS LOAN IS EASILY VERIFIABLE, GENUINENESS CREDITWORTHY TRANS ACTIONS. THE APPELLANT DID NOT MAKE ANY CONCEALMENT AND DOES NOT HAVE ANY UNEXPLAINED INCOME OR UNDISCLOSED SOURCE UNDER SECTION 68 OF INCOME TAX ACT, 1961. THE ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 13 APPELLANT DOSES NOT VIOLATE THE PROVISIONS OF THE INCOME TAX ACT, 1961. THEREFORE RS. 8,11,600/- IS NOT COVERED UNDER SECTI ON 68 OF INCOME TAX ACT, 1961. THEREFORE THE ADDITION OF RS. 8,11,600 MADE THE LD. ASSESSING OFFICER AS UNSECURED LOAN IS WRONG AND SHOULD BE DELETED. 5. THE APPELLANT DOES NOT HAVE GOOD FINANCIAL CONDITIO NS. THEREFORE THE ADDITION MADE DURING THE ASSESSMENT PROCEEDING THE APPELLA NT IS NOT IN POSITION TO PAY THE UNREALISTIC DEMAND. PLEASE DELETE THE DEM AND OTHERWISE APPELLANT LIFE SPOIL. 6. THAT THE LD. ASSESSING OFFICER HAS FURTHER ERRED IS NOT CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND HAS TOTALLY BRUSHED ASIDE T HE CONCEPT OF THE SUBSTANCE OVER FORM AND NATURAL JUSTICE AND CONCLUDED THE MA TTER BASED ON ASSUMPTIONS AND PRESUMPTIONS. 7. THE APPELLANT DID NOT MAKE ANY CONCEALMENT OF INCO ME AND DOES NOT HAVE ANY UNEXPLAINED INCOME OR UNDISCLOSED SOURCE OF INCOME UNDER SECTION 68, CAPITAL GAIN AND UNEXPLAINED INVESTMENTS UNDER THE PROVISIONS OF INCOME TAX ACT, 1961. THE APPELLANT DID NOT HAVE VIOLATE THE PROVISIONS OF THE INCOME TAX ACT, 1961. THEREFORE ALL THE WRONGLY ADDITION MAKE BY THE LD. ASSESSING OFFICER SHOULD DELETED. 8. THAT THE APPELLANTE HAVE REASONABLE GROUNDS OF DELA Y FILING OF APPEAL. THE APPELLANT IS ALREADY SUBMITTED AFFIDAVIT IN REGARD FOR CONDONE OF DELAY OF FILING OF APPEAL WITH THE FORM 35. THERE WAS NO MY INTENTION FOR DELAY FILING THE APPEAL. SO YOU ARE REQUESTED TO CONDONE THE DE LAY. THE CONDENSATION OF DELAY HELD BY THE HONORABLE HIGH COURT OF ALLAHABA D, [2013] 35 TAXMANN.COM 520 (ALLAHABAD), RAGHUBAR AUTOMOBILE & GENERAL FI NANCE (P.) LTD. VS. COMMISSIONER OF INCOME-TAX. CONCLUSION: THERE ARE VARIOUS CASE LAWS WHICH CONCLUDE THE FACT S THAT ONCE THE ASSESSE DISCHARGED ITS PRMARY ONUS BY PLACING MATER IAL AND DOCUMENT ON RECORD BEFORE AO THEN IT IS ASSUMED THAT THE UNEXPL AINED AMOUNT REFLECTED IN BOOKS OF APPELLANT STANDS EXPLAINED. HENCE THE ADDITION U/S 68 MADE BY LD. ITO IS TOTALLY ILLEGAL AND ARBITRARY AN D LIABLE TO BE DELETED. SO WE ARE REQUESTED TO YOU, PLEASE DELETE THE ADDIT IONS MADE DURING THE ASSESSMENT PROCEEDING FOR THE ASSESSMENT YEAR 2010- 11 AND GIVE TO RELIEF TO THE APPELLANT. 3.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A) AND RELIED ON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 14 BLESSING CONSTRUCTION VS ITO (2013), 32 TAXMANN.COM 366 (GUJ) AND UMESH KRISHNANI VS ITO (2013) 35 TAXMANN. COM 598 ( GUJ). 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEF FACTS OF THE CASE ARE TH AT THE AO MADE THE ADDITION OF RS. 8,11,600/- HOLDING THAT THE ASSESSE E ROUTED HIS INCOME THROUGH THE BANK ACCOUNT OF THE UNSECURED LOANERS B ECAUSE NEITHER THE UNSECURED LOANERS NOR THE ASSESSEE COULD EXPLAIN TH E SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNTS OF THE CONCERNED UNS ECURED LOANERS DURING THE YEAR UNDER CONSIDERATION. THE AO DURING THE ASS ESSMENT PROCEEDING DID NOT FIND THE REPLY OF THE ASSESSEE AS WELL AS U NSECURED LOANERS ACCEPTABLE. THEREFORE, THE AO ADDED THE AMOUNT OF R S. 8,11,600/- TO THE INCOME OF THE ASSESSEE AND THUS MADE THE ADDITION. IN FIRST APPEAL, THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE AO BY HOLDIN G AS UNDER:- I AM OF THE VIEW THAT CREDITWORTHINESS IS NOT PR OVED OF THE SO CALLED CASH CREDITOR OF SHRI ASMUDDIN QURESHI AN D SHRI RIYAZUDDIN QURESHI. THEREFORE, I TREAT THAT THE APPELLANT USED HIS UNDISCLOSED MONEY TO DEPOSIT IN THEIR ACCOUNT AD MADE THE ENTRI ES IN THE BOOKS OF ACCOUNTS. HENCE, I CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER OF RS. 8,11,600/- U/S 68 OF THE I.T. ACT, 1961. THI S GROUND IS NOT ALLOWED. DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSE SSEE FILED THE DETAILED WRITTEN SUBMISSION MENTIONING THAT THE ASSESSEE HAS FILED THE COMPLETE PAPERS CONCERNING THE LOAN AMOUNT OF RS. 8,11,600/- TAKEN FROM SHRI ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 15 ASHMUDDIN QURSHI AMOUNTING TO RS. 5,63,600/- AND FR OM SHRI RIYAZUDDIN QURESHI AMOUNTING TO RS. 2,48,600/-. THE LD.AR OF THE ASSESSEE FURTHER SUBMITTED THAT ASSESSEE HAS FILED CONFIRMATION, BANK ACCOUNT, DECLARATION AND REPLY LETTER ABOUT SOURCE OF AMOUNT GIVEN, ITR COPIES OF LOANERS AND IDENTITY OF LOANERS. THE ASSE SSEE HAD TAKEN THE LOAN THROUGH BANK CHEQUE ONLY AND ASSESSEE PROVIDED BANK STATEMENT OF LOANERS. THE LD.AR FURTHER SUBMITTED THAT THE ASSES SEE SUBMITTED PROFIT AND LOSS ACCOUNT, BALANCE SHEET FOR THE ABOVE ASSES SMENT YEAR AND PROVIDED PROPER CLARIFICATION WITH EVIDENCE AND PRO OF OF REGARDING RECEIVING THE LOAN TAKEN FROM CREDITORS. THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE LENDERS HAD FURNISHED THE REPLY BY ELABORATING THE SOURCE OF CASH DEPOSIT IN THE BANK WHICH ARE MENTIO NED IN THE WRITTEN SUBMISSION OF THE ASSESSEE. THE ASSESSEE HAS FILED THE CHART WHEREBY DETAILS OF THE LOANS ARE MENTIONED THEREIN. IT IS N OTED SHRI ASMUDDIN KURESHI AND RIYAJUDDIN ARE BROTHER OF THE ASSESSEE . SHRI ASMUDDIN KURSHI S/O SHRI KAMRUDDIN KURESHI BEARING PAN BGRP K 6450P IS ASSESSED TO INCOME TAX AND RETURN OF INCOME HAS BE EN FILED IN THE OFFICE OF ITO, WARD 1(3), JAIPUR ON 19-03-2013. HE HAS DEC LARED THE INCOME FROM SALARY FROM M/S. M.S. STEELS AND INCOME FROM O THER SOURCES. FURTHER SHRI RIYAJUDDIN QURESHI S/O SHRI KAMRUDDIN QURESHI BEARING ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 16 PAN AAGPQ 6840 C IS ASSESSED TO INCOME AND RETURN O F INCOME FOR THE YEAR UNDER CONSIDERATION I.E. 2012-13 HAS BEEN FIL ED IN THE OFFICE OF WARD 7(3), JAIPUR ON 01-02-2013. WHILE ASSESSEE WAS ASSE SSED TO TAX WITH ITO, WARD 7(2), THUS SHRI RIYAJUDDIN KURESHI WAS FILING THE RETURNED INCOME IN THE SAME RANGE. HE HAS SHOWN INCOME FROM BUSINE SS AND PROFESSION U/S 44AD OF THE I.T. ACT, 1961 AT RS. 2,55,117/-. F ROM THE AVAILABLE RECORDS, IT IS NOTED THAT CONFIRMATIONS HAVE BEEN F ILED BY THESE TWO CREDITORS PLACED AT PBP 16 AND 28. SHRI ASMUDDIN KU RESHI HAS CONFIRMED REGARDING GIVE LOAN / ADVANCE OF RS. 5,64,500/- DU RING THE FINANCIAL YEAR 2011-12. THE LOAN WAS THROUGH BANK CHEQUES. SOURC ES OF THE ADVANCE HAS ALSO BEEN ENUMERATED THEREIN. SIMILARLY SHRI RI YAZUDDIN KURESHI HAS ALSO SUBMITTED THE CONFIRMATIONS ALONGWITH DETAILS OF SOURCE OF THE LOAN GIVEN TO THE ASSESSEE THROUGH CHEQUE (PBP PAGE 28). THESE FACTS ESTABLISH THAT THESE TWO PERSONS HAD ADVANCED LOANS TO THE AS SESSEE WHO ARE ALSO CLOSE RELATIVE (I.E. BROTHER). IT IS ALSO NOTED TH AT THEY WERE ASSESSED TO TAX AND THEY WERE HAVING TAXABLE INCOME. IF ANY DOUBT I S RAISED REGARDING THE SOURCE OF CREDIT IN THEIR ACCOUNT TO DOUBT THE CRED ITWORTHINESS OF THESE TWO PERSONS (SUPRA) THEN THE NECESSARY ACTION NEED S TO BE TAKEN IN THEIR HANDS. THE ASSESSEE SHOULD NOT HAVE BEEN ASKED TO E XPLAIN SOURCE OF ITA NO.290/JP/2018 SHRI MUJAFFAR HUSSEN VS ITO, WARD- 7(2) JAIPUR 17 SOURCE. IN VIEW OF ALL THE ABOVE FACTS AND CIRCUMS TANCES OF THE CASE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 -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:- 05 /07/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI MUJAFFAR HUSSEN, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 7(2), 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.290 /JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR