Shirish J Runwal, Pune V. ITO, Pune

ITA 323/PUN/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5240 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 01-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Assessee Lawyers: V L JAIN
• Keywords: Unexplained cash credit; Business income
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 323/PN/2013 (ASSTT.YEAR : 2009-10) SHIRISH J. RUNWAL, 440/5, GOKHALE, CROSS ROAD, SHIVAJINAGAR, PUNE-411016 .. APPELLANT PAN NO. AAPPR5817F VS. ITO, WARD-3(2), PUNE .. RESPONDENT APPELLANT BY : SHRI V.L. JAIN RESPONDENT BY : SHRI P.L.PATHADE DATE OF HEARING : 12-11-2013 DATE OF PRONOUNCEMENT : 27-11-2013 ORDER PER R.K. PANDA, AM : THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER DATED 28-09-2012 OF THE CIT(A)-II, PUNE RELATING TO ASSES SMENT YEAR 2009-10. 2. GROUND OF APPEAL NO.1 BY THE ASSESSEE READS AS U NDER : THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONF IRMING AN ADDITION OF RS.13,95,000/- U/S. 68 OF THE INCOME TAX ACT, 1961 ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM BUSINESS, CAPITAL GAIN AND INCO ME FROM OTHER SOURCES. HE FILED HIS RETURN OF INCOME ON 31-10-2009 DECLARI NG TOTAL INCOME OF RS.2,14,190/-. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS THE ASSESSING OFFICER OBSERVED THAT AS PER THE AIR INFORMATION/IT S DETAILS THE ASSESSEE HAS DEPOSITED CASH AMOUNTING TO RS.23,96,000/- IN S AVINGS BANK ACCOUNT OF KOTAK MAHENDRA BANK LTD. ON BEING QUESTIONED BY THE ASSESSING 2 OFFICER, IT WAS EXPLAINED THAT THE CASH DEPOSITED I N THE BANK IS BACKED BY CASH IN HAND AND EVERY CASH RECEIPT IN THE CASH BOO K IS FROM THE CASH WITHDRAWN FROM BANK OR BUSINESS RECEIPT AND HENCE S ELF-EXPLANATORY. IT WAS EXPLAINED THAT CASH HAS BEEN WITHDRAWN FROM BAN K DURING THE YEAR FROM TIME TO TIME WHICH CANNOT BE RECOLLECTED. THE ASSESSEE FILED CASH DEPOSIT SUMMARY IN SAVINGS BANK ACCOUNT NO.1882 OF KOTAK MAHENDRA BANK WHICH THE ASSESSING OFFICER REPRODUCED IN THE BODY OF THE ASSESSMENT ORDER AT PAGES 2 AND 3. ACCORDING TO THE ASSESSING OFFICER, WITHDRAWALS FROM THE BANK AS SUGGESTED BY THE ASSESSEE CANNOT B E RE-DEPOSITED AND THE ASSESSEE HAS CERTAINLY WITHDRAWN THE AMOUNT TO MEET SOME OTHER EXPENDITURE FOR HIS PERSONAL USE OR BUSINESS. HE A CCORDINGLY MADE ADDITION OF RS.13,95,000/- BEING THE CASH DEPOSITS ON THE FO LLOWING DATES WHICH ACCORDING TO HIM REMAIN UNEXPLAINED AND NOT SUBSTAN TIATED. DATE PARTICULARS AMOUNT (RS.) 07-07-2008 CASH 60,000/- 08-10-2008 CASH 90,000/- 08-10-2008 CASH 1,20,000/- 16-10-2008 CASH 20,000/- 07-11-2008 CASH 50,000/- 26-12-2008 CASH 25,000/- 01-01-2009 CASH 4,00,000/- 10-01-2009 CASH 1,40,000/- 04-02-2009 CASH 90,000/- 01-03-2009 CASH 4,00,000/- TOTAL 13,95,000/- 4. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE ASSE SSING OFFICER HAS NOT POINTED OUT ANY DEFECTS OR DEFICIENCIES IN THE CASH BOOK PRODUCED BY THE ASSESSEE. THEREFORE, THE OBSERVATIONS OF THE ASSES SING OFFICER THAT THE WITHDRAWALS FROM THE BANK HAVE BEEN RE-DEPOSITED CA NNOT BE ACCEPTED AS WITHDRAWALS AND CANNOT BE RE-DEPOSITED AND THAT THE ASSESSEE HAS WITHDRAWN THE AMOUNTS TO MEET SOME OTHER EXPENDITUR E FOR HIS PERSONAL USE OR BUSINESS IS A FIGMENT OF IMAGINATION WITHOUT ANY BASIS IN REALITY. 3 RELYING ON VARIOUS DECISIONS IT WAS SUBMITTED THAT NO ADDITION CAN BE MADE ON GUESS WORK OR SURMISES AND CONJECTURES. 5. HOWEVER, THE LD.CIT(A) WAS ALSO NOT SATISFIED WI TH THE EXPLANATION GIVEN BY THE ASSESSEE. HE OBSERVED THAT THE ASSESS EE WAS UNABLE TO SUBSTANTIATE THE CASH DEPOSITS WITH KOTAK MAHENDRA BANK ON THE VARIOUS DATES AS MENTIONED BY THE ASSESSING OFFICER. THE A SSESSEE WAS UNABLE TO PROVE THE NEXUS BETWEEN THE WITHDRAWALS AND DEPOSIT S. RELYING ON VARIOUS DECISIONS THE LD.CIT(A) HELD THAT THE ASSESSING OFF ICER WAS JUSTIFIED IN MAKING THE ADDITION U/S.68 OF THE I.T. ACT. 5.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLE NGED THE ORDER OF THE LD.CIT(A). HE SUBMITTED THAT THE ASSESSEE HAS PRODU CED THE CASH BOOK BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFI CER HAS NOT DOUBTED THE AVAILABILITY OF CASH BALANCE IN THE BOOKS OF ACCOUN T. WHEN THE AMOUNT WAS AVAILABLE IN THE CASH BOOK ON THE DATES WHEN DEPOSI TS WERE MADE, THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN HOLDING THAT THE MONEY WITHDRAWN EARLIER FROM THE BANK WAS FOR SOME OTHER PURPOSE. HE SUBMITTED THAT THERE IS NO MATERIAL BEFORE THE ASSESSING OFFI CER THAT THE ASSESSEE HAS UTILISED THE CASH FOR SOME OTHER PURPOSES. THEREFO RE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS PURELY ON PRESUMPTIONS, S URMISES AND CONJECTURES. HE SUBMITTED THAT THE VARIOUS DECISION S RELIED ON BY THE LD. CIT(A) ARE NOT APPLICABLE TO THE FACTS OF THE PRESE NT CASE SINCE THE ASSESSEE HAS ADEQUATE CASH BALANCE AVAILABLE ON THE VARIOUS DAYS ON WHICH DEPOSITS WERE MADE IN THE BANK ACCOUNT. HE ACCORDINGLY SUBM ITTED THAT THE ADDITION 4 MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) SHOULD BE DELETED. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS RELIED ON BY BOTH THE SIDES. THERE IS NO DISPUTE TO THE FACT THAT AS PER AIR INFORMATION THE ASSESSEE HAS MADE CASH DEPO SIT OF RS.23,96,000/- IN HIS SAVINGS ACCOUNT MAINTAINED WITH KOTAK MAHEND RA BANK LTD. OUT OF THE ABOVE, WE FIND THE ASSESSING OFFICER WAS NOT SA TISFIED WITH THE SOURCE OF CASH DEPOSIT OF RS.13,95,000/- FOR WHICH HE MADE ADDITION U/S.68 OF THE I.T. ACT AND THE BALANCE CASH WAS ACCEPTED BY HIM A S GENUINE. WE FIND THE LD.CIT(A) UPHELD THE ABOVE ADDITION ON THE GROUND T HAT THE ASSESSEE WAS NOT ABLE TO PROVE THE SOURCE OF THE ABOVE DEPOSIT. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE CASH BOOK PRO DUCED BEFORE THE ASSESSING OFFICER WAS NOT DOUBTED BY HIM AND HE HAS ACCEPTED THE VARIOUS OTHER ENTRIES IN THE CASH BOOK. THEREFORE, WHEN SU FFICIENT CASH WAS AVAILABLE ON THE DAYS ON WHICH CASH WAS DEPOSITED I N THE BANK ACCOUNT, NO ADDITION SHOULD HAVE BEEN MADE U/S.68 ESPECIALLY WH EN THE ASSESSING OFFICER HAD NO INFORMATION THAT THE ASSESSEE HAS WI THDRAWN THE MONEY FROM THE BANK ON EARLIER DAYS TO MEET SOME OTHER EXPENDI TURE FOR HIS PERSONAL USE OR BUSINESS. 8.1 WE FIND MERIT IN THE ABOVE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE. ADMITTEDLY, THE ASSESSING OFFICER HAS NO T DOUBTED THE CASH BOOK 5 PRODUCED BEFORE HIM NOR HAS HE DOUBTED OR DISTURBED ANY OF THE ENTRIES IN THE CASH BOOK. THEREFORE, WHEN CASH WAS AVAILABLE ON THE DATES WHEN DEPOSITS WERE MADE IN THE BANK ACCOUNT, THE SAME SH OULD NOT HAVE BEEN DOUBTED. FOR EXAMPLE, WHEN RS.60,000/- WAS DEPOSIT ED IN THE BANK ACCOUNT ON 07-07-2008 THE CASH BALANCE IN THE BOOKS AS ON THAT DATE WAS RS.1,70,020.38. SIMILARLY, WHEN CASH OF RS. 4 LAKH S WAS DEPOSITED ON 01- 01-2009 THE CASH BALANCE WITH THE ASSESSEE ON THAT DATE WAS RS.15,20,880.38. SIMILARLY, WHEN CASH OF RS.4 LAKH S WAS DEPOSITED ON 01- 03-2009 THE CASH BALANCE ON THAT DATE WAS RS.10,66, 580.38. WHEN SUFFICIENT CASH WAS AVAILABLE IN THE BOOKS, THEREFO RE, WE FIND NO REASON TO DISBELIEVE THE SAME IN ABSENCE OF ANY CONTRARY MATE RIAL WITH THE REVENUE TO SHOW THAT SUCH CASH WAS NOT AVAILABLE IN THE BOOKS AND THE ASSESSEE HAS WITHDRAWN THE AMOUNTS EARLIER TO MEET SOME OTHER EX PENDITURE FOR HIS PERSONAL USE OR BUSINESS. IN THIS VIEW OF THE MATT ER, WE HOLD THAT THE LD.CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITI ON MADE BY THE ASSESSING OFFICER U/S.68 OF THE I.T. ACT. WE ACCOR DINGLY SET-ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSIN G OFFICER TO DELETE THE ADDITION. 9. GROUND OF APPEAL NO.2 BY THE ASSESSEE READS AS U NDER : THE LD. ASSESSING OFFICER HAS FURTHER ERRED IN LAW AND IN FACTS IN MAKING AN ADDITION OF RS.10,00,000/- U/S.68 OF THE INCOME TAX A CT, 1961 ON ACCOUNT OF UNEXPLAINED CASH CREDIT. 9.1 FACTS OF THE CASE, IN BRIEF, ARE THAT DURING TH E COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NOTED THAT THE AS SESSEE HAS TAKEN SEVERAL LOANS FROM FAMILY MEMBERS AND OUTSIDERS AMOUNTING T O RS.70,64,000/-. IN ORDER TO VERIFY THE GENUINENESS OF THE LOAN HE ISSU ED SUMMONS TO ALL THE PARTIES FOR VERIFICATION REGARDING THE IDENTITY AND CAPACITY OF THE LOAN CREDITORS AND GENUINENESS OF THE PERSONS. FROM THE VARIOUS DETAILS 6 FURNISHED BY THE ASSESSEE, HE NOTED THAT THE PERSON S FILED THE REQUISITE DETAILS ALONG WITH COPY OF BANK PASSBOOK AND DETAIL S OF INTEREST EARNED ON LOAN WHICH HE ACCEPTED AS GENUINE EXCEPT IN THE CAS E OF SHRI MILIND PATIL. THE ASSESSING OFFICER NOTED THAT SHRI MILIND PATIL ATTENDED BEFORE HIM ON 21-12-2011 AND FILED A COPY OF HIS BANK ACCOUNT STA TEMENT WITH KOTAK MAHENDRA BANK, BHANDARKAR ROAD BRANCH AND SARASWAT COOPERATIVE BANK LTD. F.C.ROAD BRANCH. HE ASKED THE PERSON TO ATTEN D THE NEXT DAY FOR VERIFICATION OF THE DETAILS FILED. THE AR WHO APPE ARED BEFORE HIM ALSO AGREED TO BRING SHRI MILIND PATIL FOR VERIFICATION OF THE LOAN TO THE ASSESSEE. HOWEVER, NEITHER THE PERSON ATTENDED BEFORE THE ASS ESSING OFFICER NOR THE ASSESSEE PRODUCED THE LOAN CREDITOR BEFORE THE ASSE SSING OFFICER. 10. FROM THE BANK ACCOUNT AND THE CONFIRMATIONS FIL ED THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS RECEIVED RS. 12 LAKHS FROM SHRI MILIND PATIL OUT OF WHICH HE HAS REPAID RS.2 LAKHS DURING THE YEAR. THE AO ANALYSED THE BANK ACCOUNT OF SHRI MILIND PATIL AND NOTED THAT HE HAS GIVEN A LOAN OF RS.02 LAKHS ON 16-08-2008 OUT OF A CHEQUE C REDITED IN HIS BANK ACCOUNT ON 13-08-2008. HOWEVER, FOR THE REMAINING LOANS ON VARIOUS DATES CASH WAS DEPOSITED IN THE BANK ON THE SAME DAY ON W HICH LOANS WERE GIVEN. THEREFORE, HE DOUBTED THE CREDIT WORTHINESS OF SHRI MILIND PATIL. RELYING ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN T HE CASE OF CIT VS. PRECISION FINANCE PVT. LTD. REPORTED IN 208 ITR 465 HE MADE ADDITION OF RS. 10 LAKHS U/S.68 OF THE I.T. ACT. 11. BEFORE THE CIT(A) IT WAS ARGUED THAT THE ASSESS ING OFFICER HAS ONLY DOUBTED THE CREDIT WORTHINESS OF SHRI MILIND PATIL AS THERE IS A CREDIT ENTRY ON THE SAME DAY IN THE BANK ACCOUNT OF THE LENDER O F SHRI MILIND PATIL. IT WAS SUBMITTED THAT ASSESSEE HAD FILED THE LOAN CONF IRMATION AND BANK 7 STATEMENT OF SHRI MILIND PATIL AND THE BANK STATEME NT REFLECT AND CONFIRM THE EVIDENCE OF THE LOAN GIVEN TO THE ASSESSEE BY S HRI MILIND PATIL. THUS, THE ASSESSEE HAS DISCHARGED THE ONUS CAST ON HIM AN D HE WAS NOT EXPECTED TO PROVE THE SOURCE OF THE SOURCE. RELYING ON VARI OUS DECISIONS IT WAS ARGUED THAT NO ADDITION U/S.68 IS CALLED FOR. THE ASSESSEE ALSO TRIED TO DISTINGUISH THE CASE RELIED ON BY THE ASSESSING OFF ICER ON THE GROUND THAT IN THAT CASE NEITHER THE CREDITOR WAS FOUND NOR HIS ID ENTITY WAS ESTABLISHED. IT WAS ACCORDINGLY ARGUED THAT NO ADDITION IS CALLED F OR. 12. HOWEVER, THE LD.CIT(A) WAS ALSO NOT SATISFIED W ITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE OBSERVED THAT THE CREDIT WORTHINESS OF THE PERSON WHO HAD ADVANCED THE LOAN WAS NEVER PROVED BY THE A SSESSEE. ACCORDING TO HIM, MERE FILING OF A CONFIRMATION LETTER AND TH E BANK STATEMENT WOULD NOT AMOUNT TO SUFFICIENT DISCHARGE OF THE BURDEN PL ACED UPON THE ASSESSEE U/S.68 OF THE I.T. ACT. RELYING ON THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CHAND PARKASH VIJ VS. CIT REPORTED IN 315 ITR 251, THE DECISION OF THE HONBLE MADRAS HIG H COURT IN THE CASE OF MANGILAL JAIN VS. ITO REPORTED IN 215 ITR 105, TH E DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. PHOOL MATI DEVI REPORTED IN 314 ITR (AT) 1 AND VARIOUS OTHER DECISIONS THE LD.C IT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER. 12.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE AS SESSEE IS IN APPEAL BEFORE US. 13. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SAME ARGUMENTS AS MADE BEFORE THE ASSESSING OFFICER AND THE CIT(A). HE SUBMITTED THAT THE LOAN CREDITOR HAS APPEARED BEFORE THE ASSESSING OFF ICER ON 21-12-2011 AND 8 FILED HIS BANK STATEMENT. HE SUBMITTED THAT THE AS SESSEE HAS PROVED THE IDENTITY AND CREDIT WORTHINESS OF THE LOAN CREDITOR AND THE GENUINENESS OF THE TRANSACTION AND THUS HAS DISCHARGED THE INITIAL BURDEN CAST ON HIM. IT WAS FOR THE REVENUE TO DISPROVE THE INGREDIENTS OF SECTION 68 IN THE CASE OF THE LOAN CREDITOR. HE SUBMITTED THAT NOTHING HAS C OME TO THE NOTICE OF THE ASSESSING OFFICER BETWEEN 21-12-2011 AND 22-12-2011 SO AS TO TAKE A CONTRARY VIEW AND DOUBT THE GENUINENESS OF THE LOAN CREDITOR. REFERRING TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. TANIA INVESTMENTS PVT. LTD. REPORTED IN 322 ITR 394 HE SU BMITTED THAT BOOKS OF ACCOUNT ITSELF WOULD INDICATE THE CAPACITY OF THE P ARTY TO ADVANCE LOAN AND THERE WAS NO FURTHER NEED ON THE PART OF THE ASSESS EE TO PROVE THE CAPACITY OF THE CREDITORS. ACCORDINGLY, THE ADDITION MADE U /S.68 WHICH WAS DELETED BY THE TRIBUNAL WAS UPHELD BY THE HONBLE HIGH COUR T. HE ALSO RELIED ON THE FOLLOWING DECISIONS AND SUBMITTED THAT UNDER TH E FACTS AND CIRCUMSTANCES OF THE CASE NO ADDITION U/S.68 IS CAL LED FOR IN THE INSTANT CASE: I. ANIL RICE MILLS VS. CIT REPORTED IN 199 CTR 69 II. CIT VS. DATAWARE PVT. LTD. VIDE GA NO.2856 OF 20 11 HONBLE CALCUTTA HIGH COURT. III. ZAFA AHMED & CO. VS. CIT VIDE ITA NO.71 OF 2 002 IV. VISHNU JAISWAL VS. CIT REPORTED IN 76 DTR 265 14. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND HEAVILY RELIED ON THE ORDER OF THE CIT(A). 15. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS TAKEN LOAN OF RS.12 LAKHS ON VARIOUS DATES FROM SHRI MILIND PATIL OUT OF WHICH AN AMOUNT OF RS.2 LAKHS HAS BEEN REPAID DURIN G THE YEAR ITSELF AND 9 THE NET AMOUNT OF RS.10 LAKHS IS OUTSTANDING. WE F IND THE ASSESSING OFFICER MADE ADDITION OF RS.10LAKHS AFTER EXCLUDING THE PAYMENT OF RS.2 LAKHS. FROM THE COPY OF THE ASSESSMENT ORDER WE FI ND ALTHOUGH THE LOAN CREDITOR HAD APPEARED BEFORE THE ASSESSING OFFICER AND FILED CERTAIN DETAILS, THE ASSESSING OFFICER ASKED THE LOAN CREDITOR TO AT TEND THE NEXT DAY FOR VERIFICATION OF THE DETAILS SO FILED. THE AR OF TH E ASSESSEE WHO APPEARED BEFORE THE ASSESSING OFFICER ALSO AGREED TO BRING S HRI MILIND PATIL FOR VERIFICATION. HOWEVER, NEITHER THE LOAN CREDITOR A PPEARED BEFORE THE ASSESSING OFFICER ON THE NEXT DAY NOR THE ASSESSEE WAS ABLE TO BRING THE LOAN CREDITOR BEFORE THE ASSESSING OFFICER FOR HIS EXAMINATION. IT IS ALSO MENTIONED IN THE BODY OF THE ASSESSMENT ORDER THAT EQUIVALENT AMOUNTS WERE DEPOSITED IN THE BANK ACCOUNT ON THE VERY DAY OR THE PREVIOUS DAY ON WHICH THE LOANS WERE GIVEN TO THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE CREDIT WORTHINESS OF THE LOAN CREDITOR REMAINS DOUB TFUL ESPECIALLY WHEN THE ASSESSING OFFICER WAS NOT HAVING ANY OPPORTUNITY TO EXAMINE THE LOAN CREDITOR. IT HAS BEEN HELD IN VARIOUS DECISIONS TH AT MERE FILING OF CONFIRMATION AND BANK STATEMENT OF THE CREDITOR IS NOT SUFFICIENT TO PROVE THE CREDIT WORTHINESS OF THE LOAN CREDITOR. THE DE CISION OF THE HONBLE BOMBAY HIGH COURT RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN TH AT CASE, THE BOOKS OF ACCOUNT OF THE LOAN CREDITORS WERE PRODUCED WHICH I NDICATED THE CAPACITY OF THE PARTY TO ADVANCE THE LOAN. HOWEVER, IN THE INS TANT CASE, THE LOAN CREDITOR HAS NOT PRODUCED HIS BOOKS OF ACCOUNT SO A S TO SHOW THE AVAILABILITY OF CASH DEPOSIT IN HIS BANK ACCOUNT ON THE VERY SAME DAY ON WHICH THE LOAN WAS GRANTED TO THE ASSESSEE. MOREOV ER, WHEN THE ASSESSING OFFICER ASKED THE LOAN CREDITOR TO APPEAR ON THE VE RY NEXT DAY TO EXAMINE THE DETAILS FILED BY HIM THE LOAN CREDITOR DID NOT APPEAR BEFORE HIM. THE 10 ASSESSEE ALSO FAILED TO BRING THE LOAN CREDITOR ALT HOUGH HE HAD AGREED BEFORE THE ASSESSING OFFICER TO BRING THE LOAN CREDITOR. THEREFORE, THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT INGREDIENTS O F SECTION 68 WERE PROVED AND THAT THE ASSESSEE IS NOT REQUIRED TO PROVE THE SOURCE OF THE SOURCE IS NOT ACCEPTABLE IN THE FACTS OF THE INSTANT CASE. HOWEV ER, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUS TICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFI CER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIAT E WITH EVIDENCE TO HIS SATISFACTION REGARDING THE CREDIT WORTHINESS OF THE LOAN CREDITOR. WE HOLD AND DIRECT ACCORDINGLY. THE GROUND RAISED BY THE A SSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 16. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 27-11-2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K . PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED : 27 TH NOVEMBER, 2013 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-II, PUNE 4. THE CIT-II, PUNE 5. D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE