The ACIT, Bhopal V. Shri Dinesh Moolchandani, Bhopal

ITA 314/IND/2011

• Counselvise Citation: 31422714 RSA 2011
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 28-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: SSH H P VERMA; GIRISH AGRAWAL
• Keywords: Unexplained cash credit; Additional evidence; Corroborative evidences; Assessment record; Onus to prove
• Section: 143(3); 131; 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 314/IND/2011 A.Y. 2006-07 ASSISTANT COMMISSIONER OF INCOME TAX 2(1), BHOPAL ... APPELLANT VS. DINESH MOOLCHANDANI, BHOPAL PAN AADPM 2800 P ... RESPONDENT APPELLANT BY : SHRI ARUN DEWAN, SR. DR RESPONDENT BY : S/SH. H.P. VERMA & GIRISH AGRAWAL DATE OF HEARING : 21.2.2012 DATE OF PRONOUNCEMENT : 21.2.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 26.9.2011 PASSED BY THE LD. FIRST APPELLATE AUTHORI TY, BHOPAL. 2 THE ONLY GROUND RAISED IS THAT THE LD. FIRST APPELL ATE AUTHORITY ERRED IN LAW AND ON FACT IN DELETING THE ADDITION O F RS.31,55,000/- MADE ON ACCOUNT OF UNEXPLAINED UNSEC URED LOAN, AS THE ASSESSEE HAS FAILED TO DISCHARGE ITS P RIMARY ONUS TO PROVE GENUINENESS OF THE TRANSACTION. 2. DURING HEARING, THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE IS IN SUPPORT TO THE ASSESSMENT ORDER BY FU RTHER SUBMITTING THAT THERE IS VIOLATION OF RULE 46A OF T HE I.T. RULES, 1962 AS THE RELEVANT RECORD WAS NOT PRODUCED BEFORE THE ASSESSING OFFICER. ON THE OTHER HAND, THE LEARNED C OUNSEL FOR THE ASSESSEE STRONGLY DEFENDED THE IMPUGNED ORDER B Y SUBMITTING THAT THE REMAND REPORT WAS SOUGHT FROM T HE ASSESSING OFFICER AND THE SAME WAS DULY CONSIDERED, THEREFORE, THERE IS NO VIOLATION OF RULE 46A OF THE I.T. RULES AS HAS BEEN CANVASSED BY THE LD. SR. DR. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON FILE. THE FACTS, IN BRIEF , ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALA RY, LONG 3 TERM CAPITAL GAIN ON SALE OF LAND & BUILDING ALONG WITH INTEREST INCOME. DURING SCRUTINY, THE LD. ASSESSING OFFICER NOTICED THAT THE ASSESSEE TOOK UNSECURED LOANS OF RS.2,84,25,000 /-. AS PER THE ASSESSING OFFICER, THE ASSESSEE WAS NOT IN THE POSSESSION OF CORRECT ADDRESSES OF THE LENDERS. THE CLAIM OF T HE ASSESSEE IS THAT MAJORITY OF THE LOANS WERE TAKEN THROUGH ME DIATORS. HOWEVER, ON 19.9.2008, THE ASSESSEE FURNISHED THE N AMES AND THE COMPLETE ADDRESSES OF THE LENDERS TO WHOM SUMMO NS U/S 131 OF THE ACT WERE ISSUED FOR MAKING A DETAILED IN QUIRY. AS PER THE ASSESSING OFFICER, SOME OF THE ADDRESSES WERE N OT FOUND CORRECT. THE ASSESSING OFFICER BY FOLLOWING THE DEC ISIONS IN STELLER INVESTMENT LTD. (192 ITR 287) (DEL), 251 IT R 263 (SC), SOPHIYA FINANCE LTD. (205 ITR 98) (DEL) (FB), KORLE Y TRADING CO. LTD. (232 ITR 820) (CAL) AND THE DECISION FROM THE HONBLE CALCUTTA HIGH COURT IN RUBY TRADERS & EXPORTERS LTD . (263 ITR 300) FOUND THE GENUINENESS OF LOAN OF RS.31,55,000/ - AS UNSATISFACTORY, CONSEQUENTLY, HE TREATED THE AMOUNT S AS UNEXPLAINED CREDIT U/S 68 OF THE ACT AND ADDED TO T HE INCOME OF THE ASSESSEE BY TREATING THE SAME AS INCOME FROM UN DISCLOSED 4 SOURCES. ON APPEAL, THE LD. CIT(A) SOUGHT THE REMAN D REPORT FROM THE ASSESSING OFFICER AND BY FOLLOWING VARIOUS JUDICIAL PRONOUNCEMENTS AS CONTAINED IN THE IMPUGNED ORDER F OUND THE ADDITION AS EXPLAINED, AND THEREFORE, HE DELETED TH E SAME. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS T RIBUNAL. 3.1 WE HAVE PERUSED THE IMPUGNED ORDER AND FOUND TH AT THE ASSESSING OFFICER TREATED THE AMOUNT OF RS.31,55,00 0/- AS NOT GENUINE AND INVOKED THE PROVISIONS OF SECTION 68 OF THE ACT. WE FURTHER FIND THAT THE LD. CIT(A) HAS DIFFERENTIA TED THE JUDICIAL PRONOUNCEMENTS, RELIED UPON BY THE ASSESSING OFFICE R, WITH THE FACTS OF THE PRESENT APPEAL AND SOUGHT REMAND REPOR T BEFORE THE ASSESSING OFFICER AND ULTIMATELY FOUND THE ADDI TION UNSUSTAINABLE. WE FURTHER FIND THAT THE ASSESSEE VI DE APPLICATION DATED 25.11.2009 REQUESTED FOR ADMISSIO N OF ADDITIONAL EVIDENCES UNDER RULE 46A OF THE I.T. RUL ES. SINCE THE ADDITIONAL EVIDENCES WERE VERY MUCH NECESSARY A ND WERE GOING TO THE ROOT OF THE MATTER FOR DETERMINING THE CORRECT INCOME VIZ-A-VIZ LIABILITY OF THE ASSESSEE, THE APP LICATION WAS RIGHTLY ADMITTED. MORESO, THE LD. CIT(A) SENT THE A DDITIONAL 5 EVIDENCES ALONG WITH ENCLOSURES TO THE ASSESSING OF FICER FOR VERIFICATION AND THE REMAND REPORT WAS DULY CONSIDE RED. THE RELEVANT PORTION OF THE IMPUGNED ORDER AS AVAILABLE AT PAGE 8 IS REPRODUCED HEREUNDER FOR READY REFERENCE: (III) I HAVE CAREFULLY CONSIDERED THE SUBMISSION O F THE APPELLANT AS REGARDS THE ACCEPTANCE OF ADDITIONAL E VIDENCE. I HAVE ALSO PERUSED THE ASSESSMENT ORDER, GONE THROUG H THE ASSESSMENT RECORD AS ALSO CONSIDERED THE REMAND REP ORT OF THE ASSESSING OFFICER ON ACCEPTANCE OF ADDITIONAL EVIDE NCE U/S 46A OF I.T. ACT. IT IS NOTICED THAT THE APPELLANT HAS R EQUESTED FOR ACCEPTANCE OF ADDITIONAL EVIDENCE IN RESPECT OF UNS ECURED LOANS RAISED FROM SMT SHANTA BAI, SMT SHAKUNTALA JODHANI AND SHRI RAJESH BAJAJ. IT IS NOTICED THAT IN THE CASE OF SMT SHANTA BAI ADDITION OF RS.8,00,000/- HAS BEEN MADE ON ACCOUNT OF THE REASON THAT SUMMONS ISSUED TO HER WAS RETURNED. SIM ILARLY IN THE CASE OF SMT SHAKUNTALA/PURANLAL JODHANI ADDITIO N OF RS.5,00,000/- WAS MADE ON ACCOUNT OF THE REASON THA T RS.5,00,000/- WAS DEPOSITED IN HER BANK ACCOUNT JUS T BEFORE ONE DAY. IN THE CASE OF SHRI RAJESH BAJAJ ADDITION OF RS.7,00,000/- WAS MADE ON ACCOUNT OF THE REASON THA T RS.7,00,000/- WAS DEPOSITED JUST BEFORE ONE DAY. DU RING THE ASSESSMENT PROCEEDINGS THE APPELLANT HAS FILED WHER E PAN, CONFIRMATION AND COPY OF THEIR BANK ACCOUNT OF THE RELEVANT PERIOD. IT IS NOTICED THAT BEFORE MAKING SUCH ADDIT IONS THE ASSESSING OFFICER HAS NOT ASKED THE APPELLANT TO FU RNISH FURTHER EXPLANATION WITH REGARD TO DEPOSIT OF CASH IN BANK ACCOUNT. SIMILARLY IN THE CASE OF SMT SHANTA BAI, WHEN THE S UMMON WAS RETURNED BACK UN-SERVED THE ASSESSING OFFICER DREW AN ADVERSE INFERENCE BUT DID NOT CONFRONT THE APPELLANT. IN TH IS BACKGROUND THE APPELLANT HAS FILED SUCH FURTHER EVIDENCES WHIC H ARE ESSENTIALLY IN SUPPORT OF PRECEDING CREDIT ENTRIES APPEARING IN THE BANK ACCOUNT OF THE CASH CREDITORS. IN THE CASE OF SHRI RAJESH KUMAR BAJAJ THE APPELLANT HAS FILED COPY OF ASSESSMENT ORDER PASSED U/S 143(3) OF I.T. ACT AND THIS BEING A PUBLIC DOCUMENT, MAY EVEN NOT STRICTLY BE TERMED AS AN ADD ITIONAL EVIDENCE. IN THIS BACKGROUND IT IS BELIEVED THAT TH ESE EVIDENCES GO TO THE VERY ROOT OF THE MATTER AND ALSO THAT APP ELLANT WAS PREVENT BY SUFFICIENT CAUSE FROM PRODUCING THESE EV IDENCES FROM THE ASSESSING OFFICER. IN THESE CIRCUMSTANCES THE ADDITIONAL EVIDENCES U/S 46A ARE HEREBY ACCEPTED. R ELIANCE IS ALSO PLACED ON THE DECISION OF HON'BLE HIGH COURT O F GUHAWATI IN THE CASE OF CIT VS. PODDAR SWADESH UDYOG PVT. LT D. REPORTED IN (2007) 295 ITR 52 WHEREIN IT HAS BEEN HELD THAT CIT (APPEAL) 6 CAN ACCEPT ADDITIONAL EVIDENCES FOR FACILITATING FU RTHER ENQUIRY. RELIANCE IS ALSO PLACED ON THE DECISION OF HON'BLE HIGH COURT, BOMBAY IN THE CASE OF SMT. PRABHAWATIS SHAH VS. CI T REPORTED 231 ITR 1 WHEREIN IT WAS HELD THAT RULE 46A IS INTE NDED TO PUT FETTERS ON THE RIGHT OF THE APPELLANT TO PRODUCE BE FORE AAC ANY ADDITIONAL EVIDENCE EXCEPT IN THE CIRCUMSTANCES SET OUT THEREIN AND THAT IT DOES NOT DEAL WITH POWERS OF THE AAC TO MAKE FURTHER ENQUIRIES AND THE APPELLATE AUTHORITY CAN MAKE FURT HER ENQUIRY U/R 46A AS ALSO U/S 250(4) OF THE I.T. ACT. 6.8 NOW THE ISSUE OF MAKING OF ADDITION U/S 68 IN E ACH CASE IS DISCUSSED. FIRST OF ALL IT MAY BE MENTIONED THAT TH E ASSESSING OFFICER HAS RELIED ON CERTAIN CASE LAWS AS MENTIONE D IN THE ASSESSMENT ORDER. HOWEVER IT IS NOTICED THAT THE FA CTS AND CIRCUMSTANCES OF THE CASE LAW REFERRED AND RELIED U PON BY THE ASSESSING OFFICER PRIMA-FACIE DO NOT APPLY TO THE F ACTS OF THE APPELLANT CASE. THEREFORE AS SUBMITTED BY THE LD.AR AND ALREADY DISCUSSED IN PARA NO. 6.6, THE CASE LAWS R ELIED UPON BY THE ASSESSING OFFICER ARE CLEARLY DISTINGUISHABLE. (I) ADDITION OF RS.5,00,000/- ON ACCOUNT OF CASH CR EDIT IN THE NAME OF MS.SHAKUNTALA JODHANI/SHRI PURANLAL JODHANI /-. IN THIS CASE THE ASSESSING OFFICER HAS MADE THE ADD ITION MAINLY ON THE ACCOUNT OF REASON THE CASH CREDITOR HAS DEPO SITED CASH OF RS.5,00,000/- JUST BEFORE ONE DAY IN HIS BANK AC COUNT. DURING THE ASSESSMENT PROCEEDINGS THE APPELLANT HAS FILED CONFIRMATION FROM MS. SHAKUNTALA JODHANI /PURANLAL JODHANI, HIS PAN WAS ALSO INTIMATED, HIS BANK ACCOUNT SHOWING THE RELEVA NT TRANSACTIONS WAS ALSO FILED. THE PAYMENT WAS MADE V IDE CHEQUE NO.277391 DATED 23.01.2006 DRAWN ON HIS VIJA YA BANK ACCOUNT. THE APPELLANT HAS ALSO FILED COPY OF INCOM E TAX RETURN OF THE CASH CREDITOR AND IT IS NOTICED THAT MS. SHA KUNTALA JODHANI /SHRI PURANLAL JODHANI IS REGULARLY ASSESSE D TO TAX WITH ITO-WARD-3(2), BHOPAL. THE ASSESSING OFFICER NOTICE D THAT CASH OF RS.5,00,000/- WAS DEPOSITED ON 23.01.2006 AND TH EREFORE THE AO DISBELIEVED THE LOAN TRANSACTION AND ADDED THE A MOUNT IN THE INCOME OF THE APPELLANT U/S68 OF IT ACT. THE ON LY REASON GIVEN BY THE ASSESSING OFFICER FOR MAKING THIS ADDI TION IS THAT CASH HAS BEEN DEPOSITED JUST BEFORE ONE DAY. THE AS SESSING OFFICER ALSO ENCLOSED BANK STATEMENT AS ANNEXURE-B WITH THE ASSESSMENT ORDER. THE ASSESSING OFFICER EVEN DID NO T CONFRONT THE APPELLANT AS REGARDS, THE TRANSACTION OF CASH D EPOSIT OF RS.5,00,000/- IN THE BANK ACCOUNT OF THE CREDITS. THE APPELLANT IN HIS APPLICATION U/S 46A WHICH HAS BEEN DISCUSSED IN THE ABOVE PARAS FILED FURTHER DOCUMENT S IN THE FORM OF COPY OF IT RETURN BALANCE SHEET, P & L ACCOUNT A ND CAPITAL ACCOUNT OF MS. SHAKUNTALA JODHANI FOR A.Y.2006-07 I N RESPECT OF PRECEDING CREDIT ENTRIES IN THE BANK ACCOUNT OF SMT. SHAKUNTALA JODHANI. AS PER THESE DOCUMENTS, THE CRE DITOR 7 NAMELY MS SHAKUNTALA JODHANI DEPOSITED CASH OF RS.5 ,00,000/- ON 23.01.2006 FROM THE CASH WITHDRAWAL FROM THE BAN K ACCOUNT ON THE FOLLOWING DATES. 04.01.2006 RS.175000/- 09.01.2006 RS.100000/- 10.01.2006 RS. 25000/- 10.01.2006 RS.150000/- 12.01.2006 RS.100000/- 14.01.2006 RS.200000/- TOTAL RS.750000/- THE APPELLANT HAS STATED THAT THE CREDITORS MS. SHA KUNTALA JODHANI HAS WITHDRAWN THE ABOVE MENTIONED CASH OUT OF LOAN RETURNED BY M/S TARANG ELECTRONICS TO WHOM THE CRED ITOR HAS ADVANCED THIS LOAN DURING F.Y. 2004-05. THE APPELLA NT HAS FILED COPY OF P&L ACCOUNT, BALANCE SHEET OF MS. SHAKUNTAL A JODHANI WHICH INDICATE THAT AS ON 31.03.2005 LOAN OF RS. 85 0000/- WAS OUTSTANDING IN THE BOOKS OF ACCOUNTS OF CREDITOR IN THE NAME OF M/S TARANG ELECTRONICS. IN FACT LOAN OF RS.850000/- TO M/S TARANG ELECTRONICS FORMED PART OF TOTAL LOANS AND A DVANCES OF RS.20,50,000/- ADVANCED BY MS. SHAKUNTALA JODHANI A S ON 31.03.2005 AS REGARDS THESE TRANSACTIONS PARTICULARLY CASH DEP OSIT OF RS.5,00,000/- IN THE BANK ACCOUNT OF MS. SHAKUNTALA JODHANI, THE ASSESSING OFFICER IN HIS REMAND REPORT HAS STAT ED THAT THE CREDITOR HAS SHOWN CASH WITHDRAWAL FROM THE BANK AC COUNT OUT OF REFUND OF LOAN EARLIER GIVEN TO M/S TARANG ELECT RONICS AND THAT THE CREDITOR HAS NOT FURNISHED THE BANK ACCOUNT IN SUPPORT OF ABOVE CASH WITHDRAWAL AMOUNTING TO RS.7,50,000/-. T HE ASSESSING OFFICER HAS ALSO STATED THAT THE APPELLAN T HAS NOT FURNISHED DOCUMENTS SUBSTANTIATING THE REFUND OF LO ANS TO THE LENDERS BY M/S TARANG ELECTRONICS. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A R OF THE APPELLANT, RELEVANT FACTS AS AVAILABLE IN THE ASSES SMENT RECORD, IN THE ORDER OF THE ASSESSING OFFICER AS ALSO IN TH E REMAND REPORT OF THE ASSESSING OFFICER. IT IS NOTICED THAT MS. SHAKUNTALA JODHANI IS REGULARLY ASSESSED TO TAX, HER PAN IS AA DPM2800P. SHE HAS FILED HER CONFIRMATION AS REGARDS LOAN OF R S.5,00,000/-. EVEN DURING THE APPELLANT PROCEEDINGS VIDE LETTER D ATED 12.11.2009 SHE HAS AGAIN CONFIRMED HAVING ADVANCED A LOAN OF RS.5,00,000/- TO THE APPELLANT. IT IS NOTICED THAT THE ASSESSING OFFICER ADDED THIS AMOUNT IN THE INCOME OF THE APPE LLANT SIMPLY BY OBSERVING THAT CASH OF RS.5,00,000/- WAS DEPOSIT ED JUST BEFORE ONE DAY, WHEN THE CHEQUE OF SUCH WAS DEBITED IN THE ACCOUNT THE CREDITOR. DURING THE ASSESSMENT PROCEED ING, THE ASSESSING OFFICER DID NOT CONFRONT THE APPELLANT RE GARDING THE IMMEDIATE SOURCE OF THE CASH. THE APPELLANT HAS SUB SEQUENTLY DURING THE APPELLATE PROCEEDING HAS FURNISHED FURTH ER EVIDENCES 8 REGARDING THE SOURCE OF RS.5,00,000/- DEPOSITED IN BANK ACCOUNT. IT IS NOTICED THAT THE BANK ACCOUNT OF MS SHAKUNTALA JODHANI WITH VIJAYA BANK, BERASIA ROAD, BHOPAL IS A REGULAR ACCOUNT AND IT IS NOT A CASE THAT SUCH CASH HAS BEE N DEPOSITED OR WITHDRAWAL FOR THE FIRST TIME. IT IS ALSO NOT A CASE WHERE THE BANK ACCOUNT MAY HAD BEEN OPENED JUST TO JUSTIFY TH E LOAN TRANSACTIONS. THE WITHDRAWAL OF RS.750,000/- ON DIF FERENT DATES DURING THE MONTH OF JANUARY 2006 IS ALSO EVIDENCED FROM THIS BANK ACCOUNT. EVEN THE WITHDRAWAL OF RS.750000/- ON DIFFERENT DATES DURING THE MONTH OF JANUARY 2006 IS PRIMA FAC IE EXPLAINED BY THE CREDITOR AS WELL AS THE APPELLANT IN AS MUCH AS SUCH WITHDRAWALS WERE MADE ON ACCOUNT OF REFUND OF LOAN AMOUNT WHICH THE CREDITOR HAS EARLIER ADVANCED TO M/S TARA NG ELECTRONICS. THE ASSESSING OFFICER HAS NOT PROVED A NY WHERE DURING THE ASSESSMENT PROCEEDINGS OR APPELLANT PROC EEDING THAT THESE BANK TRANSACTIONS/ LOAN TRANSACTIONS ARE FALS E OR FICTITIOUS. THE AVAILABILITY OF CASH BEFORE DEPOSIT IN THE BANK ACCOUNT ON 23.01.2006 IS WELL PROVED. THE OBSERVATION OF THE A SSESSING OFFICER IN REMAND REPORT THAT COPY OF BANK ACCOUNT OF CREDITOR WAS NOT GIVEN IS ALSO FACTUALLY NOT CORRECT AS THE SAME WAS GIVEN DURING ASSESSMENT PROCEEDINGS ITSELF. IN THIS BACKGROUND I AM OF THE OPINION THAT THE IDENTITY, THE CREDIT WOR THINESS AND THE GENUINENESS OF THE THIS UNSECURED LOAN AMOUNTING TO RS.5,00,000/-, IS PROVED BEYOND ANY DOUBT. THEREFOR E THE ADDITION OF RS.5,00,000/- IS HEREBY DELETED. (II) ADDITION OF RS.7,00,000/- ON ACCOUNT OF UNSEC URED LOAN FROM SHRI RAJESH BAJAJ: THE ASSESSING OFFICER HAS MADE THIS ADDITION BY OBS ERVING THAT IN THE BANK ACCOUNT OF THE CREDITOR, CASH OF RS.7 L AKHS HAS BEEN DEPOSITED JUST BEFORE ONE DAY. IN THIS CASE DURING ASSESSMENT PROCEEDINGS THE APPELLANT HAS FILED COPY OF CONFIRM ATION, PAN, XEROX COPY OF INCOME TAX RETURN AS ALSO COPY OF BAN K ACCOUNT OF THE CREDITOR, SHRI RAJESH BAJAJ. THE ASSESSING O FFICER OBSERVED THAT CASH OF RS.7 LAKHS WAS DEPOSITED BY S HRI RAJESH BAJAJ IN HIS BANK ACCOUNT ON 20.12.2005 JUST BEFORE ONE DAY WHEN THE CHEQUE OF LOAN WAS DEBITED IN HIS ACCOUNT ON 21.12.2005. THE ASSESSING OFFICER ACCORDINGLY ADDED THIS AMOUNT IN THE TOTAL INCOME OF THE APPELLANT. DURING THE APPELLATE PROCEEDINGS THE APPELLANT HAS FILED A COPY OF ORDER U/S 143(3) DATED 29.08.2008 PASSED BY ITO-1(2), INDORE IN THE CASE OF SHRI RAJESH BAJAJJ WHEREIN CASH DEPOSIT OF RS.7 LAKHS WA S ALSO DISCUSSED. AS REGARDS THE LOAN TRANSACTION OF RS.7 LAKHS, THE ASSESSING OFFICER IN HIS REMAND REPORT SUBMITTED TH AT THE APPELLANT OBTAINED A LOAN OF RS.7 LAKHS FROM SHRI R AJESH BAJAJ ON 21.12.2005 AND THAT CASH WAS DEPOSITED AMOUNTING TO RS.7 LAKHS ON 20.12.2005. AS REGARDS THE COPY OF ASSESSM ENT ORDER U/S 143(3) OF IT ACT DATED26.12.2008 THE ASSESSING OFFICER CONTENDED THAT THE CREDITOR BEING IN THE MONEY LEND ING BUSINESS MAY ITSELF NOT A SUFFICIENT EXPLANATION FOR THE CAS H DEPOSIT OF 9 RS.7 LAKHS A DAY BEFORE ADVANCING OF SUCH LOAN. IT IS FURTHER CONTENDED THAT THE SOURCE OF THE SAID DEPOSIT WAS N EITHER SATISFACTORY EXPLAINED BEFORE THE ASSESSING OFFICER NOR THE APPELLANT SUBSTANTIATED HIS STAND DURING THE APPELL ATE PROCEEDING. IT IS ALSO STATED THAT THE PERSON WHO I S ENGAGED IN THE BUSINESS OF MONEY LENDING WOULD NOT WITHDRAW CA SH THROUGH BANK ACCOUNT AND KEEP IT IN HAND WITHOUT ANY VALID REASON. IT WAS THEREFORE CONTENDED THAT ADDITION OF RS. 7 LAKH S WAS RIGHTLY MADE. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A R, THE REMAND REPORT OF THE ASSESSING OFFICER AND OTHER RE LEVANT FACTS RELATING TO THIS ISSUE. IT IS NOTICED THAT THE APPE LLANT HAS TAKEN UNSECURED LOAN OF RS.7 LAKHS FROM SHRI RAJESH BAJAJ WHO IS RESIDENT OF 316 GUMASTA NAGAR, INDORE. HE IS REGULA RLY ASSESSED TO TAX WITH ITO-1(2), INDORE AND HIS PAN N O. IS AAZPB7862J. THE APPELLANT DURING THE ASSESSMENT PROCEEDINGS ALSO FILED CONFIRMATION FROM THE CREDIT ORS AS REGARDS LOAN OF RS.7 LAKHS. IT IS NOTICED THAT SHRI RAJESH BAJAJ IS MAINTAIN BANK ACCOUNT WITH JHARNESHWAR NAGRIK SAHAK ARI BANK PERUSAL OF THIS BANK ACCOUNT IT IS NOTICED THAT CAS H OF RS. 7 LAKHS WAS DEPOSITED ON 20.12.2005 AND THE CHEQUE OF RS.700000/- ON LOAN AMOUNT WAS ENCASHED AGAINST THI S CASH DEPOSIT. IT IS NOTICED THAT THIS BANK ACCOUNT IS A REGULAR ACCOUNT AND CASH DEPOSIT. IT IS NOTICED THAT THIS BANK ACCO UNT IS A REGULAR ACCOUNT AND CASH DEPOSIT AND WITHDRAWAL OF CASH HAV E ALSO BEEN MADE ON EARLIER OCCASIONS. IT IS ALSO NOTICED THAT THE CASE OF SHRI RAJESJ BAJAJ FOR A.Y.2006-07 WAS SELECTED F OR SCRUTINY UNDER CASS AND ACCORDINGLY THE ASSESSMENT WAS COMPL ETED U/S 143(3) OF IT ACT BY ITO-WARD-1(2), INDORE ON 29 .08.2008. ON PERUSAL OF THIS ASSESSMENT ORDER IT IS NOTICED T HAT THE CASE WAS SELECTED FOR SCRUTINY ON THE BASIS OF AIR INFOR MATION REGARDING CASH DEPOSITS IN THE BANK ACCOUNT. THE AS SESSING OFFICER HAS SPECIFICALLY EXAMINED THE ISSUE OF CASH DEPOSIT OF RS.7 LAKHS IN THE BANK ACCOUNT. DURING THE ASSESSME NT PROCEEDINGS BEFORE THE ASSESSING OFFICER THE AR OF RAJESH BAJAJ HAS CONTENDED THAT THE ASSESSEE IS ENGAGED IN THE MONEY LENDING BUSINESS AND THAT IN SUCH BUSINESS THERE AR E ALWAYS CASH DEPOSITS AND CASH RECEIPTS. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER APP EAR TO HAVE ACCEPTED THE CASH DEPOSIT OF RS.7 LAKHS IN THE BANK ACCOUNT. IN THE ORDER OF SHRI RAJESH BAJAJ THE ASSESSING OFFICE R APPEAR TO HAVE WRONGLY MENTIONED THE DATE OF CASH DEPOSIT AT 07.12.2005, THE CORRECT DATE IS 20.12.2005. THIS FACT IS CORROB ORATED BY OTHER OBSERVATION OF THE ASSESSING OFFICER REGARDING DEPO SITS IN SAME ACCOUNT. IN THIS BACKGROUND WHEN THE CASE OF THE CR EDITOR WAS SELECTED FOR SCRUTINY MAINLY TO EXAMINE THE CASE DE POSIT IN THE BANK ACCOUNT OF THE CREDITOR, THE ASSESSING OFFICER OF THE CREDITOR ACCORDINGLY EXAMINED THE ISSUE IN THE SCRU TINY ASSESSMENT U/S 143(3) OF THE IT ACT AND DID NOT DRA W ANY 10 ADVERSE INFERENCE AGAINST THE CREDITOR THEN AT THIS STAGE, IT CANNOT BE SAID THAT THE CASH OF RS.7 LAKHS DEPOSITE D BY SHRI RAJESH BAJAJ WAS NOT PROPERLY EXPLAINED AND THAT CREDITWORTHINESS OF CREDITOR IS NOT PROVED. IN THIS BACKGROUND I AM OF THE OPINION THAT THE APPELLANT HAS PROPERLY D ISCHARGED HIS ONUS AS REGARDS THIS LOAN TRANSACTION AND PRIMA FAC IE THE IDENTITY, CREDIT WORTHINESS, GENUINENESS OF THE LOA N TRANSACTIONS IS EXPLAINED. THEREFORE THE ADDITION MADE BY THE AS SESSING OFFICER AMOUNTING TO RS.7 LAKHS CANNOT BE SUSTAINED AND THE SAME IS HEREBY DELETED. (III) ADDITION OF RS.8,00,000/- ON ACCOUNT OF UNSEC URED LOAN FROM SMT. SHANTI BAI.: THE ASSESSING OFFICER HAS ISSUED SUMMONS TO THE CRE DITOR AND AS PER THE ASSESSING OFFICER THE SUMMONS WAS RETURN ED UNSERVED. THEREFORE THE ASSESSING OFFICER HELD THAT THE LOAN TRANSACTION OF RS.8 LAKHS WAS NOT GENUINE AND THE S AME WAS ADDED IN THE INCOME OF THE APPELLANT. DURING THE AS SESSMENT PROCEEDINGS THE ASSESSING OFFICER HAS FILED CONFIRM ATION, PAN AND COPY OF BANK ACCOUNT OF THE CREDITOR. SMT. SHAN TI BAI IS ASSESSED TO TAX UNDER PAN ACBPM3882D WITH ITO-WARD- 1(1), UJJAIN. LOAN OF RS.8 LAKHS WAS ADVANCED ON DIFFEREN T DATES VIDE CHEQUE NO 930999, 931000 AND 982101 FOR RS.1 LAKH, RS.2 LAKHS & RS.5 LAKHS RESPECTIVELY DRAWN ON PUNJAB NAT IONAL BANK, MARWARI ROAD, BHOPAL. DURING THE APPELLATE PROCEEDI NGS THE APPELLANT HAS FURTHER FILED COPY OF BANK ACCOUNT OF PNB OF SMT. SHANTA BAI FOR THE PERIOD 09.10.2003 TO 26.03.2007 IN SUPPORT OF PROCEEDINGS CREDIT ENTRIES APPEARING IN HER BANK ACCOUNT. THESE DOCUMENTS WERE FILED AS AN ADDITIONAL EVIDENC E TO AND TO PROVE THE SOURCE OF CREDIT IN THE BANK ACCOUNT OF S MT SHANTA BAI. AS REGARDS THESE ADDITIONAL DOCUMENTS THE ASSESSING OFFICER IN HIS REMAND REPORT CONTENDED THAT NO FURTHER DOCUMEN TS SUBSTANTIATING THE FACT THAT THESE CREDIT ENTRIES P ERTAIN TO REFUND OF LOAN WAS FILED BY THE APPELLANT. THE ASSESSING O FFICER HAS ACCORDINGLY CONTENDED THAT EVEN THE IDENTITY OF THE LENDER WAS NOT KNOWN TO THE APPELLANT AND COULD NOT BE ESTABLI SHED DURING THE ASSESSMENT PROCEEDINGS. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF AR, R EMAND REPORT OF THE ASSESSING OFFICER AND ALSO RELEVANT FACTS OF THE CASE. IT IS NOTICED THAT SMT. SHANTA BAI IS REGULARLY ASSESSED TO TAX, FILING HER INCOME TAX RETURN REGULARLY. THE APPELLANT HAS FILED COPY OF HER BANK ACCOUNT FROM WHERE IT IS GATHERED THAT THE SE TRANSACTIONS ARE NORMAL BANKING TRANSACTIONS. THE A PPELLANT HAS ALSO FURTHER FILED DETAILS AS REGARDS THE CREDIT TR ANSACTIONS FROM THE BANK OF THE CREDITORS AGAINST WHICH LOAN OF RS. 8 LAKHS WAS RAISED. THE APPELLANT HAS RECEIVED RS.1 LAKH ON 25. 08.2005 VIDE CHEQUE NO.930999 AND ON THIS DATE THE CREDITOR APART FROM 11 HAVING CREDIT BALACE OF RS.68821/-, FURTHER RECEIVE D CREDIT OF RS.34000/- VIDE CHEQUE RECEIVED FROM M/S SOHANLAL M EHTA. SIMILARLY THE APPELLANT FURTHER RECEIVED RS.2 LAKHS ON 29.05.2005 AND THE CREDITOR ADVANCED THESE AMOUNTS FROM THE LOAN RETURNED FROM M/S SHIV SHAKTI DAL MILL, BHOPAL . SIMILARLY REMAINING LOAN OF RS.5 LAKHS DATED 07.01.2006 WAS A LSO FINANCED BY THE CREDITOR FRO THE LOAN RETURNED FROM MAC ELECTRONICS, BHOPAL TO WHOM THE CREDITOR HAS GIVEN LOAN ON 15.10.2003. THE CONFIRMATION THE PAN, THE BANK ACCO UNT, TRANSACTION THROUGH NORMAL BANKING CHANNELS ALL IND ICATE THAT IDENTITY, CREDIT WORTHINESS, GENUINENESS OF LOAN TR ANSACTION FROM SMT. SHANTA BAI ARE PROPERLY EXPLAINED. IN THIS BA CKGROUND, ADDITION OF RS.8,00,000/- IS HEREBY DELETED. (IV) UNSECURED LOAN OF RS.5,55,000/- FROM SHRI SOHA NLAL MEHTA HUF: THE ASSESSING OFFICER HAS MADE ANOTHER ADDITION OF RS.5,55,000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT OF SHRI SOHANLAL MEHTA, HUF. AS REGARDS THIS CASH CREDITOR THE APPELLANT DURING THE ASSESSMENT PROCEEDING HAS FILE D CONFIRMATION OF SHRI SOHANLAL MEHTA, HUF WHOSE PAN IS AKMPN7400J AND ASSESSED TO TAX WITH ITO-WARD-1(1) U JJAIN. THE APPELLANT HAS ACCEPTED UNSECURED LOAN FROM SHRI SOHANLAL MEHTA HUF ON FOLLOWING DATES 01.04.2005 RS.3,75,000/- 12.01.2006 RS.1,50,000/- 04.02.2006 RS.4,05,000/- THE APPELLANT HAS REPAID RS.375000/- ON 01.02.2006. AS ON 31.03.2006 THE CREDIT BALANCE IN THE NAME OF SHRI S OHANLAL MEHTA HUF WAS RS.5,55,000/-. IT IS NOTICED THAT THE SUMMONS ISSUED TO SHRI SOHANLAL MEHTA HUF WAS RECEIVED UNSE RVED AND THEREFORE THIS WAS THE ONLY BASIS FOR MAKING ADDITI ON OF RS.5,55,000/-. IT IS ALSO NOTICED THAT WHEN THE SUM MONS ISSUED TO SHRI SOHANLAL MEHTA HUF WAS RECEIVED BACK UNSERV ED, THE ASSESSING OFFICER DIDN,T CONFRONT THE APPELLANT REG ARDING THE SAME AND ADDED THE AMOUNT IN HIS INCOME. ON VERIFIC ATION OF ASSESSMENT RECORD IT WAS NOTICED THAT THE ASSESSING OFFICER HAS ISSUED SUMMONS TO SHRI SOHANLAL MEHTA HUF VIDE DATE D 10.10.2008 AND HE WAS REQUIRED TO ATTEND THE PROCEE DING ON 13.10.2008. THE SUMMONS RETURNED UNSERVED WITH THE REMARKS OF THE POSTAL AUTHORITIES DATED 14.10.2008 IN COM PLETE ADDRESS. DURING THE APPELLATE PROCEEDINGS THE AR OF THE APPE LLANT HAS AGAIN CONTENDED THAT THE CONFIRMATION, BANK ACCOUNT , BALANCE SHEET ETC. WERE FILED IN THE CASE OF SHRI SOHANLAL MEHTA HUF AND THAT THE TRANSACTIONS OF UNSECURED LOANS ARE VE RY GENUINE 12 ONE. IT WAS FURTHER SUBMITTED THAT LOAN OF RS.3,75, 000/- WAS ADVANCED OUT OF LOAN RETURNED FROM M/S SHIV SHAKTI DALL MILL. FURTHER LOAN OF RS. 1,50,000/- WAS ADVANCED FROM AV AILABLE BANK BALANCE AS ALSO CHEQUE RECEIVED FROM SHANTA BA I MEHTA AMOUNTING TO RS.60000/-. LOAN OF RS.4,05,000/- WAS ADVANCED BY THE CREDITOR OUT OF LOAN RETURNED BY THE APPELLA NT HIMSELF AS ALSO PART RECEIPT OF RS.24,000/- FROM SHRI RAJESH M EHTA. IT WAS CONTENDED THAT SOHANLAL MEHTA HUF IS REGULARLY ASSE SSED TO TAX AND LOAN GIVEN TO THE APPELLANT IS APPEARING IN THE BALANCE SHEET TO THE CREDITORS AND THAT AS ON 31.03.2006. S HRI SOHANLAL MEHTA HUF WAS HAVING BANK BALANCE OF RS.8,00,934/- WITH PUNJAB NATIONAL BANK. IT WAS CONTENDED THAT THE IDE NTITY CREDIT WORTHINESS AND GENUINENESS OF SHRI SOHANLAL MEHTA H UF IS PROPERLY PROVED AND THEREFORE THERE WAS NO BASIS FO R MAKING ADDITION OF RS.5,55,000/- IN THE INCOME OF THE APPE LLANT. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A PPELLANT AND ALSO THE RELEVANT FACTS OF THIS ISSUE AVAILABLE IN ASSESSMENT ORDER AND IN ASSESSMENT RECORDS. IT IS NOTICED THAT THE ASSESSING OFFICER MADE THE ADDITION BECAUSE THE SUM MONS WAS RECEIVED UN-SERVED. IT IS ALSO NOTICED THAT THE SUM MONS REMAINED UN-SERVED AND RECEIVED BACK ACCORDINGLY BE CAUSE THE ADDRESS MENTIONED ON THE ENVELOP WAS INCOMPLETE. IT IS ALSO NOTICED THAT THE APPELLANT HAS FILED ALL SUPPORTING EVIDENCES BY WAY OF CONFIRMATION OF CREDITORS, PAN BANK ACCOUNT AND EVEN EXPLAINED SOURCE OF CREDIT ENTRIES IN THE CREDITORS ACCOUNT. IN THIS BACKGROUND, I AM OF THE OPINION THAT THE APPEL LANT HAS DISCHARGED HIS ONUS AS CONTEMPLATED U/S 68 OF IT AC T. THEREFORE, I FIND NO BASIS IN SUSTAINING THIS ADDIT ION AND ACCORDINGLY, THE SAME IS DELETED. (V) UNSECURED LOAN OF RS.6,00,000/- FROM M/S SOHANL AL RAJESH KUMAR: THE ASSESSING OFFICER HAS MADE ADDITION OF RS.6,00, 000/- ON ACCOUNT LOAN FROM M/S SOHANLAL RAJESH KUMAR. IT IS NOTICED THAT THE APPELLANT HAS TAKEN UNSECURED LOAN OF RS.6,00,0 00/- ON 12.01.2006. DURING THE ASSESSMENT PROCEEDINGS THE A PPELLANT HAS FILED CONFIRMATION OF THIS LOAN FROM M/S SOHANL AL RAJESH KUMAR, XEROX COPY OF HIS INCOME TAX RETURN AS ALSO HIS BANK ACCOUNT WAS ALSO FILED BY THE APPELLANT. IT IS NOTI CED THAT THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS HAD ISSUED SUMMONS TO M/S SOHANLAL RAJESH KUMAR AND THE SUMMONS REMAINED UNSERVED/RETUNED UNSERVED. THEREFO RE THE ASSESSING OFFICER ADDED RS.6,00,000/- IN THE INCOME OF THE APPELLANT. THE MAIN REASONS FOR MAKING OF THIS ADDI TION WAS THAT THE SUMMONS HAS RETURNED UN-SERVED. IT APPEARS THAT AS REGARD THE UN-SERVED SUMMONS, THE ASSESSING OFFICER HAD NO T CONFRONTED THE APPELLANT BEFORE MAKING THIS ADDITIO N. DURING THE APPELLATE PROCEEDINGS THE APPELLANT SUBMITTED THAT M/S SOHANLAL RAJESH KUMAR IS REGULARLY ASSESSED TO INCOME TAX AN D THAT LOAN 13 GIVEN TO THE APPELLANT ALSO APPEARING IN THE BALANC E SHEET OF THE CREDITORS AS ON 31.03.2006. THE APPELLANT HAS FURTH ER STATED THAT M/S SOHANLAL RAJESH KUMAR IS MAINTAINING A BALANCE AMOUNT OF RS.417579/- IN PNB AS ON 31.03.2006. IT IS FURTHER STATED THAT LOAN OF RS.6,00,000/- WAS ADVANCED BY THE CREDITOR OUT OF LOAN RETURNED BY M/S PATH ENTERPRISES, M.P.NAGAR, BHOAL WHOM THE CREDITOR HAS ADVANCED THIS LOAN AS 13.10.2005. THE APPELLANT HAS ALSO SUBMITTED THAT ALL THESE FACTS AND ENTIRE PORTION WAS EXPLAINED TO THE ASSESSING OFFICER DURING THE ASSES SMENT PROCEEDINGS. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A R AND ALSO THE RELEVANT MATERIAL FACTS RELATING TO THIS ISSUE. I HAVE ALSO GONE THROUGH THE ASSESSMENT REPORT AND IT WAS NOTICED TH AT SUMMONS U/S 131 WAS ISSUED TO M/S SOHANLAL RAJESH KUMAR, CH OWK BAZAR, BHOPAL ON 10.10.2008 AND THE CREDITOR WAS RE QUIRED TO ATTEND THE PROCEEDINGS PERSONALLY BEFORE THE ASSESS ING OFFICER ON 15.10.2008. THE ENVELOPE CONTAINING THE SUMMONS RETURNED BACK ON 14.10.2008 WITH THE REMARKS OF THE POSTAL A UTHORITY INCOMPLETE ADDRES. IT IS SEEN THAT M/S SOHANLAL R AJESH KUMAR IS REGULARLY ASSESSED TO TAX UNDER PAN AANHS9704G. M/S. SOHANLAL RAJESH KUMAR HAS ALSO SHOWN RS.6,00,000/- IN HIS BALANCE SHEET AS ON 31.03.2006 AGAINST THE APPELLAN T. IT IS ALSO NOTICED THAT M/S SOHANLAL RAJESH KUMAR IS MAINTAINI NG A REGULAR BANK ACCOUNT WITH PNB, MARWARI ROAD BRANCH, BHOPAL AND PERUSAL OF THIS BANK ACCOUNT INDICATE THAT LOAN OF RS.6,00,000/- WAS ADVANCED ON 13.01.2006 VIDE CHEQUE NO.175950. T HE APPELLANT HAS ALSO EXPLAINED AS TO HOW THE CREDITOR ADVANCED THIS LOAN OF RS.6,00,000/- FROM THE LOAN AMOUNT REC EIVED BACK FROM M/S PATH ENTERPRISES FROM THIS BANK ACCOUNT, T HE EARLIER TRANSACTION WITH M/S PATH ENTERPRISES ARE ALSO EVID ENCED. THE BANK ACCOUNT IS A REGULAR RUNNING ACCOUNT AND THE T RANSACTIONS ARE ALSO OR REGULAR NATURE. IN THIS BACKGROUND PRIM A-FACIE THE IDENTITY, WORTHINESS AND GENUINENESS OF THE LOAN TR ANSACTIONS OF M/S. SOHANLAL RAJESH KUMAR IS PROVED. KEEPING IN VI EW THE FACTS AND CIRCUMSTANCES, DISALLOWANCE THE ADDITION OF RS.6,00,000/- MADE BY ASSESSING OFFICER CANNOT BE S USTAINED AND THE SAME IS DELETED. THE TOTAL ADDITION OF RS.31,55,000/- ON ACCOUNT OF UNEXPLAINED CREDIT IS ACCORDINGLY DELETED. THIS GROUND OF APPEA L IS ALLOWED. 3.2 IF THE LANGUAGE USED IN SECTION 68 OF THE ACT I S KEPT IN JUXTAPOSITION WITH THE FACTS OF THE PRESENT APPEAL ALONG WITH HARMONIOUS CONSTRUCTION WITH SECTION 106 OF THE EVI DENCE ACT, 14 IT CAN BE SAID THAT THE ASSESSEE IS SUPPOSED TO EST ABLISH THE IDENTITY OF THE CREDITORS, GENUINENESS OF THE TRANS ACTION AS WELL AS CREDITWORTHINESS OF THE CREDITOR. IN THE PRESENT APPEAL, THE ASSESSEE HAS DULY DISCHARGED HIS ONUS BY FURNISHING ADDITIONAL EVIDENCES WHICH WERE DULY CONSIDERED ALONG WITH THE REMAND REPORT FROM THE ASSESSING OFFICER. IT IS NOT THE CA SE OF A PUBLIC ISSUE WHERE A COMPANY IS NOT EXPECTED TO KNOW EACH AND EVERY DETAIL PERTAINING TO THE IDENTITY AS WELL AS FINANCIAL WORTH OF EACH OF ITS SUBSCRIBERS. THE COMPANY MUST, HOWEV ER, MAINTAIN AND MAKE AVAILABLE TO THE ASSESSING OFFICE R, FOR HIS PERUSAL, ALL INFORMATION CONTAINED IN THE STATUTORY SHARE APPLICATION DOCUMENTS. IN THE CASE OF A PRIVATE PLA CEMENT, THE LEGAL REGIME WOULD NOT BE THE SAME. A DELICATE BALA NCE MUST BE MAINTAINED WHILE WALKING THE TIGHTROPE OF SECTIO N 68 & 69. IN THE CASE OF A PRIVATE COMPANY, THE SHARE SUBSCRIPTI ONS ARE NORMALLY FROM KNOWN PERSONS LIKE RELATIVES AND FRIE NDS BUT THAT IS NOT SO IN THE CASE OF PUBLIC ISSUE. IF THE SHARE APPLICATION MONEY IS RECEIVED FROM ALLEGED BOGUS SHAREHOLDERS ( IN CASE OF PUBLIC ISSUE), WHOSE NAMES ARE GIVEN TO THE ASSESSI NG OFFICER, 15 THEN THE DEPARTMENT IS FREE TO PROCEED TO REOPEN TH EIR INDIVIDUAL ASSESSMENTS IN ACCORDANCE WITH LAW BUT SUCH SHARE A PPLICATION MONEY CANNOT BE REGARDED AS UNDISCLOSED INCOME OF T HE ASSESSEE U/S 68 OF THE ACT [LOVELY EXPORT PVT. LTD. -216 CTR (SC) 195]. HOWEVER, IN THE PRESENT APPEAL, THE ASSE SSEE HAS DULY DISCHARGED HIS ONUS AND THE LD. CIT(A) HAS IND IVIDUALLY EXAMINED THE FACTS IN RESPECT OF WHOM ADDITION WAS MADE BY THE ASSESSING OFFICER BY FURTHER CONSIDERING THE RE MAND REPORT FROM THE LD. ASSESSING OFFICER AND ULTIMATELY FOUND THE TRANSACTIONS TO BE GENUINE. THE EXPRESSION THE ASS ESSEE OFFERS NO EXPLANATION MEANS WHERE THE ASSESSEE OFF ERS NO PROPER, REASONABLE AND ACCEPTABLE EXPLANATION WITH REGARDS TO THE SUM FOUND CREDITED IN THE BOOKS MAINTAINED BY T HE ASSESSEE. IT IS TRUE THAT THE OPINION OF THE ASSESS ING OFFICER FOR NOT ACCEPTING THE EXPLANATION, OFFERED BY THE ASSES SEE, AS NOT SATISFACTORY, IS REQUIRED TO BE BASED ON PROPER APP RECIATION OF MATERIAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABL E ON RECORD, MEANING THEREBY, THE OPINION OF THE ASSESSING OFFIC ER IS REQUIRED TO BE FORMED OBJECTIVELY WITH REFERENCE TO THE MATERIAL 16 AVAILABLE ON RECORD AND NOT SUBJECTIVELY. IN VIEW O F THESE FACTS, WE FIND NO INFIRMITY IN THE STAND OF THE LD. CIT(A) , THEREFORE, WE AFFIRM THE STAND OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS). FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRES ENCE OF LEARNED REPRESENTATIVES FROM BOTH THE SIDES AT T HE CONCLUSION OF THE HEARING ON 21.2.2012. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21.2.2012 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE