ACIT, Circle-2(1), Cuttack V. M/s. Krishna Coke (India) Pvt. Ltd., Cuttack

ITA 300/CTK/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7620 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 06-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: A LETTER DATED
• Keywords: Additional evidence
• Section: 68; 133(6); 195; 48; 22

Judgement Text

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER ITA No.300/CTK/2018 (नििाारण वषा / Asses s m ent Year :2013-2014) Asstt. Com m iss ion er of Incom e T ax, Ci rc le-2 (1) , Cutta c k ... ......... ...... R evenue Versus M/s K ri shna Co ke ( India) P vt. Ltd. Prof essor Pa ra,Cut tack-753003 P AN No. AAC C K 3 728 N ... ......... ..... A ssessee Shri M.K.Gautam, CIT-DR for the Revenue Shri Prakash Chandra Sethi, AR for the assessee Date of Hearing : 14/06/2022 Date of Pronouncement : 14/06/2022 आदेश / O R D E R Per Bench : This is an appeal filed by the revenue against the order of the ld. CIT(A), Cuttack, dated 08.05.2018 passed in I.T.Appeal No.0077/2016-17 for the assessment year 2013-2014, on the following grounds :- Ground No. 1 : On the facts and in the circumstances of the case, the CIT(Appeals) has erred in deleting the addition of Rs.4,00,00,000/- made by the AO on account of unexplained cash credit allegedly received from M/s TIF(Castings) Ltd, Kolkata by the assessee company u/s 68 of the IT Act based on wrong findings of fact and improper application of law. Ground No. 2 : On the facts and in the circumstances of the case, the CIT(Appeals) has violated the terms of Rule 46A of the IT Rules, 1962 in not granting an opportunity to the Assessing Officer to rebut the additional evidence admitted by him such as the financial statements (Profit and Loss account, balance sheet, tax ITA No.300/CTK/2018 2 audit report) of M/s TIF(Castings) Ltd., Kolkata and copies of the bank accounts of the assessee company and the alleged loan creditor i.e. M/s TIF(Castings) Ltd., Kolkata and, therefore, in the interest of justice, the case may be remitted back to the Aa for fresh adjudication. Ground No. 3 : On the facts and in the circumstances of the case, the CIT(Appeals) is not correct in allowing relief to the assessee even though it did not produce all the details asked for by the Assessing Officer in the process of verification of the claim of the assessee in regard to the genuineness of transaction and creditworthiness of M/s TIF(Castings) Ltd., Kolkata and even though the assessee company did not produce the Director of M/s TIF(Castings) Ltd., Kolkata for examination as sought for by the AO and, therefore, in the interest of justice, the case may be remitted back to the AO for fresh adjudication. Ground No. 4 : On the facts and in the circumstances of the case, the CIT(Appeals) has erred in accepting the interest free credit of Rs. 4 Crore appearing in the name of M/s TIF(Castings) Ltd., Kolkata even though it has been established through circumstantial evidence and also on preponderance of probabilities that the transaction was not genuine, ignoring the ratio of Hon'ble Supreme Court's decisions in the cases of CIT vs. Durga Prasad More [1971] 82 ITR 540 (SC); Sumati Devi vs. CIT [1955] 214 ITR 801/80 Taxmann 89 (SC) in accepting the apparent as real. Ground No. 5 : The appellant craves leave to add, alter, amend one or more grounds of appeal before the appeal is heard. 2. It was submitted by the ld. CIT-DR that the issue was only one being against the action of the ld. CIT(A) in deleting the addition of Rs.4 crores made by the AO on account of unsecured cash credits allegedly received from M/s TIF(Castings) Ltd., Kolkata. It was the submission that in the course of assessment the AO had noticed an amount of Rs. 4 crores received from M/s TIF (Castings) Ltd., Kolkata. The same was shown as unsecured loan in part B of the Form 3CD of the audit report. It was the submission that consequently the AO had issued notice u/s.133(6) of the Act on the said M/s TIF (Castings) Ltd., Kolkata at its address in Vishwakarma, Topsia Road, South Kolkata-700046. As the ITA No.300/CTK/2018 3 notice issued was not served on the M/s TIF (Castings) Ltd., the AO had requested the assessee for proper address to which the assessee had produced the form No.23AC under the Companies Act, which showed the address of M/s TIF (Castings) Ltd., 8, Bentinck Street, Kolkata, West Bengal-700001. The AO had consequently issued the fresh notice u/s.133(6) of the Act on the said address to which M/s TIF (Castings) Ltd., Kolkata had furnished a reply signed by the Accountant whose name was also not mentioned enclosing the ledger copy of the assessee for the financial year 2012-2013 relevant to the assessment year 2013-2014. It was the submission that in the said letter PAN Number of M/s TIF (Castings) Ltd., Kolkata had been wrongly mentioned. The ld. CIT-DR drew our attention to pages 5 & 6 of the department’s paper book, which were the copies of the notice issued u/s.133(6) of the Act and the same is extracted hereinbelow :- GOVERNMENT OF INDIA OFFICE OF THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE-2(1), AAYAKAR BHAWAN, SHELTER SQUARE, TULSIPUR, CUTTACK - 753 008. No: ACIT/Circle-2(1)/CTC/KCIPL/133(6)/2015-16/ Dated, Cuttack the 29th February, 2016. 13087 To The Managing Director, M/s. Tif Casting Ltd., Viswakarma, 86-C, Topsia Road, South Kolkata - 700 046. Madam/Sir, Sub: Information called for u/s.133(6) of the Income Tax Act, 1961 in the case of M/s. Krishna Coke (India) Pvt. Ltd., Professorpara, Cuttack - 753 003, Orissa, PAN: AACCK-3728-N - matter regarding. ITA No.300/CTK/2018 4 1. In connection with tile assessment proceedings pending for the Assessment Year 2013-14 in the case of M/s. Krishna Coke (India) Pvt. Ltd., Professorpara, Cuttack - 753 003, the following details are required to be furnished at the earliest, not latter than 7 days from the date of receipt of this notice. (i) Receipt of share application money of Rs.4,60,00,000/- has been declared in the books of M/s. Krishna Coke (India) Pvt. Ltd. against your company. In this connection, Ledger Account copies of M/s. Krishna Coke (India) Pvt. Ltd. in the books of the company are to be furnished for the Financial Year 2012-13. (ii) What are the immediate sources of the fund claimed to have been invested as unsecured loan? Evidences are to be furnished in support of the explanation (copies of the bank statements). (iii) How directors of the company are related to the Director or interested persons related to M/s. Krishna Coke (India) Pvt. Ltd.? Details of the relationship are to be stated with evidences. (iv) Evidence of filing of return of income for the Asst. Year 2012-13 & 2013-14, copy of the statements of income and audited accounts of the company for the said years are to be produced. (v) Whether the shares of the company have ever been transferred-to any of the directors or to their relatives (of the loanee company) since the loan has been advanced? Details of transfer of shares during the period 2013- 14 and 2014-15 are to be produced. Copies of Form 2 submitted for the Financial Year 2011-12 & 2012-13 are to be produced. (vi) A copy of the Article of association of the company is to be furnished. (vii) Income Tax Assessment details of the directors, their sources of income and statement of income for the Asst. Years 2011-12, 2012~13 & 2013-14 are to be furnished. (viii) Copies of Bank account statements through which the funds have been transferred specifying the A/e. Number and name and detailed address of the bank. (ix) Whether the company had been subjected to any Income Tax proceedings like scrutiny, surveyor search & seizure operation through which the arrangement of such accommodative entries had been adversely commented? (in your case or in other cases having similar transactions with your company) (x) Who has approached for the loan on which conditions? What are the securities offered and who were the securities? Why the fund has been advanced without interest? (xi) ,Going by the nature of the financial transaction of the assessee with your company the fund provided appears to be an accommodative entries impliedly recirculation of the fund of the assessee or its sister concerns or relatives of the assessee as a matter of the tax planning without paying due tax on the amount. Going by the general trend of transactions in ITA No.300/CTK/2018 5 similar types of situations, no sane person in this existing society would advance such funds without any security, that to (mostly), after availing the fund either as share application/deposit or unsecured loans/advances from other similar companies of different strata. Thus without having sufficient income in the hand of the company how creditworthiness could be established for the said amount? 2. It may be noted here that the aforesaid information are called for vide express power conferred u/s. 133(6) of the I.T. Act, 1961. Failure to comply with the provision will attract levy of penalty u/s. 272A(2)(c) of the I.T. Act, 1961 which amounts to Rs.100/- for everyday during which the failure continues. Yours faithfully Sd/- (Kishore Chandra Mohanty) Asst. Commissioner of Income Tax, Circle-2(1), Cuttack. 3. It was the submission that out of the 11 details called for M/s TIF (Castings) Ltd., Kolkata, it sent only the ledger account being the reply to the first question raised. The rest of 10 questions remained unanswered. It was the submission that this was also brought to the attention of the assessee by a letter dated 18 th March, 2016, wherein he was informed that the reply was incomplete and that the assessee was required to establish the genuineness of the transactions and creditworthiness of M/s TIF (Castings) Ltd., Kolkata with the production of the relevant verifiable details. It was the submission that the assessee had responded vide a letter dated 23.03.2016, which is extracted hereinbelow :- To, 23.03.2016 The Asst. Commissioner of Income Tax Circle 2(1) Aayakar Bhawan,3 Floor Shelter Chhak, Cuttack Ref .: Your Letter No.ACIT/Circle-2(1)/CTC/2015-16/14371 Dated,18 th March, 2016 Dear Sir, In connection with the assessment proceedings pending for the Assessment Year 2013-14 we are hereby providing the information as per the details provided by M/s. TIF Castings Ltd. The Address & pan Card Provided by M/s. Tif Castings Ltd. in their previous letter was wrong (typing Mistakes) for the same they have given Apology ITA No.300/CTK/2018 6 letters (attached herewith) for your kind perusal. we would also like to furnish the following details for your kind perusal. (i) Account Ledger copies TIF Casting Limited for the Financial Year 2012-13. (ii) We would like to inform your good authority that TIF Castings Ltd. is manufacturer & exporter of ail kind of Cast lron Articles having their manufacturing unit at P217/2, Banaras Road Howrah. Their Main Source of Income is Business of manufacturing /Export/Trading. We are giving the copy of their Bank Statement. (iii) We are Enclosing the ITR V copy of M/s. TIF Castings Limited for the Asst. Year 2012-13 & 2013-14, duly filed in time. (iv) The fund has been transferred from M/s, TIF Castings Ltd. through Allahabad Bank, Kolkata Main Branch,14 Indian Exchange place vide account no. 50030053523. (v) Apologize letter of M/s. Tit Casting Ltd duly signed by their Directors for typing mistake. (vi) Photo Copy of Pan Card of M/s. Tif Castings Ltd. We are committed to cooperate with the Department in respect of furnishing true information in connection with the our business transactions relating to the assessment year 2013-14. In view of the above particular facts and circumstances of the case neither there ,s any concealment on the part of the assessee nor the assessee has furnished an/'jnarcl1rate particular leading to concealment for the assessment year 20·!3-14. Hence you are requested not to take it otherwise for delay in submission of our compliance. However if your Honour feels proper to take any contrary view then the assessee request that an opportunity of nearing be given so as to furnish his explanation on any of the findings of your honour requiring imposition of any kind of action. This is for your Kind information & necessary action. Thanking you. Yours faithfully, Sd/- (Director) 4. It was the submission that in the reply the details called for in the notice u/s.133(6) of the Act have not been answered nor the evidence has been produced to prove with verifiable details that the transaction with M/s TIF (Castings) Ltd., Kolkata was genuine. It was the submission that the ITA No.300/CTK/2018 7 assessee had also produced an illegible copy of the bank statement of M/s TIF (Castings) Ltd., Kolkata to show that the details of the payments received by the assessee through RTGS. It was the submission that an amount of Rs.9 crores was received by TIF (Castings) Ltd., Kolkata on 27.09.2012 and transferred of Rs.2 crores each in two transactions was done by RTGS on 27.09.2012. It was the further submission that thus, no details had been produced by the assessee to prove the creditworthiness of TIF (Castings) Ltd., Kolkata nor genuineness of the transaction. It was the submission that consequently the AO had added the amount of Rs.4 crores as unsecured cash credits in the hands of the assessee. It was his further submission that as per the ITR-5 being the return of income, copy of which was produced in respect of M/s TIF (Castings) Ltd., Kolkata by the assessee, the income of M/s TIF (Castings) Ltd., disclosed for A.Y.2013-2014 was only about Rs.12,91,326/-. It was the submission that it was highly questionable for a company which was having a disclosed income of about Rs.12 lakhs was in a position to give a loan of Rs.4 crores unsecured and interest free towards a totally unknown person being the assessee. It was further submission that on appeal before the ld. CIT(A), the ld. CIT(A) had taken a stand that the AO has built up his case on the basis of preponderance of probabilities. It was his further submission that the ld. CIT(A) had taken into consideration fresh evidence in the form of the audited profit and loss account and balance sheet of M/s TIF (Castings) Ltd., for the assessment year 2013-2014 along with the names and addresses of its director and auditors. It was the submission ITA No.300/CTK/2018 8 that the replies to the notice issued u/s.133(6) of the Act by the AO was one signed by the accountant without name and second was also by the director without mentioning a name. It was the submission that the ld. CIT(A) had taken into consideration the additional evidence in total violation of the provisions of Rule 46A of I.T.Rules, 1962 and without granting the AO an opportunity to rebut the same. It was his submission that either the issue should be decided without considering the said additional evidence or the issue should be restored to the file of AO for readjudication afresh after considering all the evidence. 5. At this juncture, a specific query was asked to the ld. AR by the Bench as to on what basis the loan has been taken by the assessee from M/s TIF (Castings) Ltd., Kolkata. Whether there was any correspondence or any security has been put in place. In this regard, ld. AR submitted that there was no communication or correspondence between the assessee and M/s TIF (Castings) Ltd., Kolkata. It was the submission that the assessee and the Director of M/s TIF (Castings) Ltd., Kolkata knew each other and the loan request was made over the phone call and on account of good relationship between the director of the assessee and that of M/s TIF (Castings) Ltd., Kolkata, the loans had been taken. On an earlier occasion also loan had been taken from M/s TIF (Castings) Ltd., Kolkata of Rs.4 crores, which has already been repaid. It was the submission that the loan had been taken in A.Y.2010-2011 and repaid in the assessment year 2011-2012. It was the submission that M/s TIF (Castings) Ltd., Kolkata has not given loan to any other company and only of the good ITA No.300/CTK/2018 9 relationship between the assessee and M/s TIF (Castings) Ltd., Kolkata, the loan had been granted to the assessee. It was the submission that the loan of Rs.4 crores in the assessment year 2013-2014 is still outstanding and is due to be paid. 6. The ld. CIT-DR further submitted that the documents relied upon by the ld. CIT(A), which were fresh evidences were not given to the AO for his rebuttal. It was the submission that the AO was called to the office of ld. CIT(A). He was shown the said documents but no remand report was called for. He placed reliance upon the objections filed by the AO to the Joint Commissioner for the purpose of filing the appeal in Annexure-A at page 25 of the Department’s Paper Book, which reads as under :- ITA No.300/CTK/2018 10 7. The ld. CIT-DR then drew our attention to the provisions of Rule 46A(2) of I.T.Rules, 1962 to submit that no evidence is to be admitted under sub-rule 1 unless the AO had been given reasonable opportunity to rebut such evidence. It was the submission that showing the evidence to the AO did not tantamount to giving the reasonable opportunity to the AO to rebut the evidence. He further submitted that under rule 46A(1), conditions have been specified on the basis of which fresh evidence could be considered by the ld. CIT(A). It was the submission that none of the conditions were met in respect of the additional evidence produced before the ld. CIT(A). It was the further submission that the order of the ld. CIT(A) did not record any reason for admission of the same nor such evidence was given to the AO for his rebuttal. He relied on the decision of the Hon’ble Gauhati High Court in the case of CIT Vs.Ranjit Kumar Choudhury, reported [2007] 162 TAXMAN 257 (GAU), and drew our attention to para 11, wherein the Hon’ble High Court has held as under :- 11. In view of the above legal position, there is no doubt that the procedure of rule 46A(1) as regards the production of additional evidence needs to be guided and controlled by sub-rules (2) and (3) of rule 46A. In other words, if additional evidence is permitted to be produced, then firstly there must be reasons to be recorded in writing and secondly reasonable opportunity has to be given to the assessing authority to refute and reject such production. 8. To the same principle, he also relied on the decision of the Hon’ble Kerala High Court in the case of C.Unnikrishnan Vs. CIT [1998] 233 ITR 485 (KER.) and the decision of the Hon’ble High Court of Himachal Pradesh in the case of CIT Vs. Shri Kangra Steel (P) Ltd., reported in [2010] 188 Taxman 392 (Himachal Pradesh). It was also submitted by the ITA No.300/CTK/2018 11 ld. CIT-DR that the fact that the director of M/s TIF Castings Ltd. mentions that he has used the Accountant of M/s Ranisati Group of Companies for replying to the notice u/s.133(6) of the Act by providing the ledger copy of the assessee through letter dated Nil shows that M/s TIF Castings Ltd. did not even have adequate employees. 9. In regard to the merits, it was the submission that the assessee has not proved the transaction of obtaining the loan from M/s TIF Casting Ltd. insofar as the creditworthiness and genuineness of the transactions remained unproved. For this proposition, he placed reliance on the decision of the Hon’ble Delhi High Court in the case of Bikram Singh [2017] 85 taxmann.com 104 (Delhi) as also the decision of the Hon’ble Supreme Court in the case of NRA Iron & Steel (P.) Ltd., reported in [2019] 103 taxmann.com 48 (SC), wherein it has been held that the assessee was under a legal obligation to prove receipt of share capital/premium to satisfaction of Assessing Officer, failure of which would justify the addition of said amount to the income of the assessee. 10. In reply, ld. AR submitted that a perusal of the ground Nos.1 & 2 of the grounds of appeal filed by the revenue shows contradictory stand. It was the submission that in the ground No.1, the revenue is challenging the action of the ld. CIT(A) in deleting the addition and in ground No.2, the revenue is not challenging the availability of the evidence but just only questioning the non-production of the same before the AO. It was the submission that the notice u/s.133(6) of the Act had been issued for the first time on 29.02.2016. The second notice u/s.133(6) of the Act had ITA No.300/CTK/2018 12 been issued only on 03.03.2016. It was his submission that the notice u/s.142(1) of the Act has been issued as early as in the year 2015 and issuance of notice u/s.133(6) of the Act so late was to limit the scope of the assessee to produce the evidence required for proving its case. It was the submission that the AO had deliberately delayed the assessment proceedings in respect of this addition to the prejudice of the assessee. It was the submission that the AO was, at the outset, on an impression that the amount of Rs.4 crores was of share application money. The ld. AR drew our attention to the notice issued u/s.133(6) of the Act wherein the issue raised is in respect of share application money. It was the submission that the notice issued u/s.133(6) of the Act had been issued in the high handed manner. Ld. AR also drew our attention to the clause (xi) of the notice issued u/s.133(6) of the Act to submit that the AO was threatening M/s TIF (Castings) Ltd.. Ld. AR further drew our attention to page 22 of the department’s paper book to submit that all the details which have been called for by the AO had been submitted vide letter dated 23.03.2016. It was the submission that the director of M/s TIF (Castings) Ltd. had to use the services of the Accountant of M/s Ranisati Group of Companies (supra) to reply to the notice issued u/s.1333(6) of the Act as short time had been granted and the reply was given in a hurried manner. It was the further submission that the AO has not mentioned anywhere in his assessment order regarding non-production of the details. It was the further submission that no director of M/s TIF (Castings) Ltd. had been called for or requisitioned by the AO while ITA No.300/CTK/2018 13 issuing the notice u/s.133(6) of the Act, nor the assessee has been intimated to produce the director of M/s TIF (Castings) Ltd.. It was the submission that the decisions relied on by the AO and the ld. CIT-DR were related to the share application money and none of them is related to the cash credit much less a genuine loan. 11. In regard to the violation of the Rule 46A of I.T.Rules, 1962, it was submitted by the ld. AR that the appeal is disposed off by the ld. CIT(A) u/s.250(4) of the Act under which the ld. CIT(A) has the power to make enquiry. It was the submission that before the ld. CIT(A) the AO had appeared on 27.03.2018 and he had not raised any objection at that point of time. He further submitted that the turnover of M/s TIF (Castings) Ltd. itself was nearly Rs.4.28 crores and the said company was financially strong enough to give the loan to the assessee. It was the submission that no additional evidence had been produce before the ld. CIT(A) and all the evidences were before the AO. 12. It was also the submission that the assessee had also categorically mentioned in his letter that if any other details were required the assessee could be willing to provide the same but the AO without considering the same proceeded to make the addition. 13. In reply, the ld. CIT-DR submitted that the share application money mentioned in the notice issued u/s.133(6) of the Act was a typographical error and this was corrected in the letter of the AO to the assessee on 17.03.2016. This was found at page 16 of the paper book which is extracted as under :- ITA No.300/CTK/2018 14 No.ACIT/circle-2(1)/CTC/2015-16/1437/ Dated, Cuttack the 17 th /18 March, 2016 To The Managing Director M/s. Krishna Coke (India) Pvt. Ltd., (PAN - AACCK-3728-N) Professor Para, Cuttack - 753003. Sir, Sub:- Assessment proceedings for the A/Y- 2013-14- Matter regarding. In order to cross verify the claim of receipt. of unsecured loan for Rs.4,60,00,000/-, information were called for from M/s. TIF ( CASTINGS) LTD., Kolkata and the notice was sent in the address produced by your A/R. The notice so issued was returned with the comment "Not Known". This fact was intimated to your A/R who submitted a copy of Form No 23AC -XBRL and address given in that Form was stated to be the changed address of the loan creditor. Accordingly, another letter was issued on 02.03.2016 which was sent through Speed Post. As the reply received is incomplete, you are required to establish the genuineness of transaction and creditworthiness of the payer for this amount with the production of relevant verifiable details. A copy of the letter written to the so called loan creditor is enclosed herewith so also the reply. The details asked for are to examine the genuineness of the transactions and creditworthiness of the so called loan creditor for said amount on that date. At clause (i) of the letter, it has been wrongly mentioned as "Share application money" which should be read as "unsecured loan". It is required that said details are to be obtained from the so called loan creditor and to be produced. It may please be noted that no interest has been allowed to the so called loan creditor . Therefore, in absence of details as asked for, it is not possible to be satisfied regarding creditworthiness of the so called loan creditor and also the genuineness of the transactions. Compliance is to be made on 23.03.2016 at 4.00PM. Yours faithfully, Sd/- (Kishore Chandra Mohanty) Asst. Commissioner of Income Tax, Circle-2(1), Cuttack 14. It was the submission that in the said letter it was categorically stated that the reply received was incomplete and the assessee had to establish the genuineness of the transaction and creditworthiness of the payer of the said amount with the production of relevant verifiable details. Ld. CIT-DR placed reliance upon the decision in the case of Manish Build ITA No.300/CTK/2018 15 Well (P.) Ltd., reported in [2011] 16 taxmann.com 27 (Delhi), wherein it has been held that even when an enquiry has been done by the ld. CIT(A) u/s.250(4) of the Act, the provisions of Rule 46A cannot be overlooked and had to be complied with. It was further submission that loans taken in the earlier years which have not been examined by the AO, does not lead to res judicata in respect of payer of the transactions. 15. Ld. AR submitted that the decision in the case of N.R. Port Folio (P.) Ltd., reported as [2013] 29 taxmann.com 2941 (Delhi) referred to by the AO in its assessment order and the decision in the case of Lovely Exports (P) Ltd., reported in 216 ITR 195 referred to by the CIT(A) are in favour of the assessee. Ld. AR also placed reliance on the decision of the Hon’ble Jurisdictional High Court in the case of CIT Vs. Baishnab Charan Mohanty, reported in 212 ITR 199, wherein the Hon’ble High Court has held that if the assessee establishes the identity of the creditor and the genuineness of the transaction then onus shifted to the department to disprove the same. 16. We have considered rival submissions. 17. A perusal of the facts of the present case shows that the assessee has received a loan of Rs.4 crores from TIF (Castings) Ltd.. The stand of the revenue is that the assessee has not proved the creditworthiness of M/s TIF (Castings) Ltd. nor the genuineness of the transaction. It is an admitted fact that the notice u/s.133(6) of the Act was issued to M/s TIF (Castings) Ltd. have not been replied in its entirety. A perusal of the letter sent by the AO to the assessee clearly shows that all the details called for ITA No.300/CTK/2018 16 have not been furnished to prove the transaction much less the creditworthiness of the alleged creditor. A perusal of the assessment order also clearly shows that the AO has categorically mentioned that the assessee company has not done anything for production of information nor was the Managing Director of the unsecured loan creditors produced for examination in person. A perusal of the order of the ld. CIT(A) categorically shows that the ld. CIT(A) has taken into consideration the audited profit and loss account and balance sheet of M/s TIF (Castings) Ltd. Admittedly this is not referred to in any of the letters filed by the assessee or M/s TIF (Castings) Ltd. to the AO. Thus, clearly this is a fresh evidence. Once it is a fresh evidence, the rule of 46A of I.T. Rules, 1962 would come into play and admittedly it would incumbent on the CIT(A) to record his reasons for admitting such additional evidence and granting the AO the opportunity to rebut the same. This would, in fact, call for getting a remand report from the AO. We are also alive to the fact that the assessee has made categorical statement that the notices u/s.133(6) of the Act have been issued at the fag end of the proceedings thereby depriving the assessee an opportunity to prove the loan transaction before the AO. This being so, as both the parties before us have alleged for lack of opportunities, in the interest of justice and to grant the assessee a full opportunity to prove its case before the AO, the issue involved in this appeal is restored to the file of AO for readjudication after granting the assessee adequate opportunities to substantiate its case. The assessee shall produce the Director of TIF (Castings) Ltd. before the ITA No.300/CTK/2018 17 AO along with the necessary records so as to assist the AO to arrive at the correct conclusion in respect of the loan transactions. Thus, the appeal of the revenue is allowed for statistical purposes. 18. In the result, appeal of the revenue is allowed for statistical purposes. Order dictated and pronounced in the open court on 14/06/2022. Sd/- (अरुण खोड़पऩया) (ARUN KHODPIA) Sd/- (जाजज माथन) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 14/06/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : आदेशाि ु सार/ BY ORDER, (Assistant Registrar) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack 1. अऩीऱाथी / The Appellant- 2. प्रत्यथी / The Respondent- 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. पिभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ज पाईऱ / Guard file. सत्यापऩत प्रयत //True Copy//