PRATAP SINGH TANWAR, Jaipur V. ITO, Alwar

ITA 371/JPR/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2142 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 09-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Keywords: Unexplained cash credit; Rejection of books of accounts; Business income; Peak credit; Source of fund; Corroborative evidences; Onus to prove
• Section: 143(3); 133(6); 147; 131; 68; 145; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 371JP/14 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SH. PRATAP SINGH TANWAR 132, KAV SUB STATION, NEELAM CHOWK, BHIWADI, ALWAR. CUKE VS. THE INCOME TAX OFFICER, WARD-2(2), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADAPT0047M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 423/JP/14 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER, WARD-2(2), ALWAR. CUKE VS. SH. PRATAP SINGH TANWAR 132, KAV SUB STATION, NEELAM CHOWK, BHIWADI, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ADAPT0047M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRHDH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R. A VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/05/2017 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT: 11/08/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THESE ARE THE CROSS APPEALS FILED BY THE ASSESSEE A ND THE REVENUE AGAINST THE ORDER OF LD. CIT(A), ALWAR DATED 14.03. 2014 FOR A.Y. 2009-10. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 2 BOTH THE APPEALS WERE TAKEN UP TOGETHER AND BEING D ISPOSED OFF BY THIS CONSOLIDATED ORDER. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- GROUND OF ASSESSEES APPEAL:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N CONFIRMING TRADING ADDITION OF RS. 2,85,181/- BY APPLYING G.P. RATE OF 7% ON DECLARED SALES AS AGAINST G.P. RATE OF 6.04% DECLARED BY THE ASSESSEE. HE HAS FURTHER ERRED IN CONFIRMING THE ADDITION EVEN WHEN PURCHASED AND SALES ARE ACCEPTED BY HIM. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 85,49,700/- BY TREATING THE FOLLO WING CASH CREDITORS AS UNEXPLAINED: S.NO. NAME OF CREDITOR AMOUNT 1. RAVI KANT RS. 1,00,000/- 2. BISHAN SINGH/ASHOK KUMAR RS. 28,10,000/- 3. RAJU/SATPAL TANWAR RS. 16,74,700/- 4. RAKESH CHIWA/ BHUKAR RS. 5,00,000/- 5. VINITA DEVI RS. 34,65,000/- TOTAL RS. 85,49,700/- 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN NOT ALLOWING THE SET OFF OF TRADING ADDITION AGAINST THE ADDITION OF CAS H CREDIT CONFIRMED BY HIM. GROUND OF REVENUES APPEAL:- 1. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS), A LWAR HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF TH E CASE IN REDUCING THE TRADING ADDITION OF RS. 23,49,472/- TO RS. 2,85 ,181/- MADE BY THE AO ON A/C OF LOW G.P. RATE DECLARED. 2. THAT THE COMMISSIONER OF INCOME-TAX (APPEALS), A LWAR HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF TH E CASE IN REDUCING THE ADDITION OF RS. 2,03,16,200/- TO RS. 85,49,700/ - MADE BY THE AO ON A/C OF UNEXPLAINED CASH CREDITORS U/S 68 OF THE I.T. ACT, 1961 WITHOUT APPRECIATING MATERIAL FACTS OF THE CASE. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 3 2. REGARDING GROUND NO. 1 OF ASSESSEES AS WELL AS REVENUES APPEAL, THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS EN GAGED IN THE BUSINESS OF TRADING IN LIQUOR. DURING THE YEAR, HE DECLARED GRO SS PROFIT OF RS. 18,02,976/- ON TURNOVER OF RS. 2,98,30,810/- GIVING A GROSS PRO FIT RATE OF 6.04% AS AGAINST GROSS PROFIT OF RS. 5,56,678/- ON TURNOVER OF RS. 76,27,050/- GIVING A GROSS PROFIT RATE OF 7.29% IN THE IMMEDIATELY PRECE DING YEAR. 2.1 THE AO OBSERVED THAT THERE IS A DECLINE IN GROS S PROFIT RATE AS COMPARED TO THE PRECEDING YEAR. THE BOOKS OF ACCOUN TS MAINTAINED BY THE ASSESSEE CANNOT BE SAID TO BE RELIABLE AND IS SUBJE CT TO VERIFICATION IN AS MUCH ASSESSEE HAS NOT PRODUCED THE BOOKS OF ACCOUNT S AND PURCHASE/SALE BILLS TO VERIFY THE CORRECTNESS OF THE TRADING RESU LTS DECLARED. ACCORDINGLY, THE AO REJECTED THE BOOKS OF ACCOUNTS OF THE ASSESSEE B Y APPLYING PROVISIONS OF SECTION 145(3) AND MADE TRADING ADDITION OF RS. 23, 49,473/- BY APPLYING GROSS PROFIT RATE OF 13.92% ON DECLARED TURNOVER. F OR APPLYING GROSS PROFIT RATE OF 13.92%, THE AO RELIED UPON THE CASE OF SH. PRAHALAD SINGH (WINE CONTRACTOR), BHIWADI WHO HAS DECLARED THIS GROSS PR OFIT RATE ON TURNOVER OF RS. 85,53,932/-. 3. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED TH AT HE IS MAINTAINING REGULAR BOOKS OF ACCOUNTS CONSISTING OF CASH BOOK, LEDGER, BANK BOOK, JOURNAL ETC, ALL THE PURCHASES ARE MADE FROM THE GOVERNMENT DEPARTMENT I.E. RSBCL AND IT IS NOT PRACTICABLE TO MAINTAIN THE SALE BILL S BEING SALES MADE TO THE CONSUMERS ON RETAIL BASIS HAVING PETTY VALUE. THE A SSESSEE FURTHER SUBMITTED THAT THERE IS NO COMPARISON OF THE CASE OF SH. PRAH ALAD SINGH RELIED BY THE AO WITH THAT OF THE ASSESSEES CASE IN AS MUCH AS T HE TURNOVER DECLARED BY THE ASSESSEE IS ALMOST THREE TIMES THAN THAT DECLAR ED BY SH. PRAHALAD SINGH AND THERE ARE NUMBER OF CASES AS MENTIONED AT PAGE 4-6 OF THE CIT(A) ORDER ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 4 WHEREIN GROSS PROFIT RATE OF 5% OR EVEN LESSER IS C ONFIRMED IN SIMILAR NATURE OF BUSINESS. 3.1 IN THE COURSE OF REMAND PROCEEDINGS, THE ASSESS EE PRODUCED THE COMPUTERIZED CASH BOOK, LEDGER AND PURCHASE BILLS A ND CLAIMED THAT BILLS/VOUCHERS FOR EXPENSES DEBITED IN THE PROFIT & LOSS A/C ARE NOT MAINTAINED OWING TO THE SAME BEING PETTY IN NATURE. THE AO, HOWEVER, HELD THAT THE ASSESSEE HAS FAILED TO DISCHARGE ITS ONUS REGARDING THE REJECTION OF BOOKS OF ACCOUNTS IN AS MUCH AS NO DETAILS OF STOCK , SALE SUMMARY AND BILLS/VOUCHERS OF EXPENSES CLAIMED IN THE PROFIT & LOSS A/C WERE PRODUCED FOR VERIFICATION. IN RESPONSE TO THE SAME, THE ASSESSEE PRODUCED THE SALES SUMMARY AND SUBMITTED THAT THE STOCK DETAILS ARE NO T REQUIRED BEING NO OPENING AND CLOSING STOCK AND BILLS FOR EXPENSES CL AIMED IN THE PROFIT & LOSS ARE NOT MAINTAINED BEING SOME PETTY IN NATURE AND S OME FIXED IN NATURE. THE ASSESSEE THUS PLEADED THAT APPLICATION OF SECTION 1 45(3) IS UNLAWFUL AND UNJUSTIFIED. THE ASSESSEE ALSO QUESTIONED THE APPLI CATION OF GROSS PROFIT RATE OF 13.92% BY SUBMITTING THAT THE SAME CANNOT BE ALT ERED/CHANGED IN AS MUCH AS ALL THE BILLS/VOUCHERS FOR PURCHASE A/C AND EXPENSES TOWARDS THE TRADING A/C ARE VOUCHED AND SALES VALUE IS CONFIRME D. FURTHER, DECLINE IN GROSS PROFIT RATE BY 1.25% IN COMPARISON TO THE PRE CEDING YEAR IS VERY NEGLIGIBLE IN COMPARISON TO INCREASE IN SALE BY 3.9 1 TIMES. 3.2 THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO I N INVOKING THE PROVISIONS OF SEC. 145(3) OF THE IT ACT. HOWEVER, H E RESTRICTED THE TRADING ADDITION TO RS. 2,85,181/- BY APPLYING GROSS PROFIT RATE OF 7% ON THE DECLARED TURNOVER. THE RELEVANT FINDING OF THE LD CIT(A) IS AS UNDER: 4.5 I HAVE PERUSED THE ASSESSMENT ORDER, REMAND RE PORT AS WELL AS SUBMISSIONS MADE BY THE AR OF THE APPELLANT ALONG-W ITH JUDICIAL CITATION GIVEN THEREIN AND FIND THAT AO HAS MADE THE TRADING ADDITION OF RS. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 5 23,49,472/- BY ENHANCING THE GP RATE FROM 6.04% TO 13.92% ON THE DECLARED TURNOVER OF THE APPELLANT OF RS. 2,98,30,8 10 FOR PERIOD UNDER CONSIDERATION. THE AO HAS INVOKED THE PROVISIONS OF SECTION 145 OF THE IT ACT AS THE APPELLANT COULD NOT PRODUCE COMPLETE BOOKS O F ACCOUNTS ALONG-WITH SUPPORTING VOUCHERS, COPY OF PURCHASE AND SALE BILL S BEFORE THE AO. AO HAS ALSO STATED THAT GP RATE DECLARED BY THE ASSESSEE A T 6.04% IS LESS THAN THE GP RATE OF 13.92% DECLARED IN THE CASE OF SH. PRAHA LAD SINGH (WINE CONTRACTOR) AT BHIWADI ON GROSS SALES OF RS. 85.53 LACS. FURTHER, THE APPELLANT HAD DECLARED A GP RATE OF 7.29% ON A TURN OVER OF RS. 76.27 LACS IN THE PRECEDING YEAR. THEREFORE, AO HAS INVOKED THE P ROVISIONS OF SECTION 145 OF THE IT ACT AND APPLIED THE ESTIMATED GP RATE. 4.6 THE APPELLANT HAS STATED THAT IT IS ENGAGED IN THE BUSINESS OF TRADING OF LIQUOR AND SALES MADE TO CONSUMER ARE ON A RETAIL B ASIS HAVING PETTY VALUE AND THEREFORE IT IS NOT POSSIBLE TO MAINTAIN ALL TH E SALES BILLS. ALL THE GOODS TRADED BY THE ASSESSEE ARE DULY CONTROLLED BY THE G OVERNMENT, QUANTITY OF STOCK IS MAINTAINED AS PER THE NORMS OF THE EXCISE DEPARTMENT. THE PURCHASES OF LIQUOR ARE MADE FROM THE STATE GOVT. D EPTT. AND THE PRICES ARE ALSO FIXED BY THE STATE GOVT. FURTHER, ALL THE PURC HASE BILLS AND LEDGER ACCOUNTS WERE PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS. THE FACTS OF THE CASE RELIED UPON BY THE AO ARE NOT COMPARABLE AS THE TURNOVER OF THE ASSESSEE IS RS. 2.98 CRORES AS COMP ARED TO THE TURNOVER OF RS. 85.53 LACS OF THE WINE CONTRACTOR AT BHIWADI. T HE TURNOVER HAS INCREASED FROM RS. 76.27 LACS IN THE PRECEDING YEAR TO RS. 2. 98 CRORES AS A RESULT OF SELLING GOODS AT A LESSER MARGIN OF PROFIT. THE GRO SS PROFIT DECLARED HAS HOWEVER INCREASED FROM RS. 5.56 LACS IN THE PRECEDI NG YEAR TO RS. 18.02 LACS IN THE PERIOD UNDER CONSIDERATION. 4.7 IT IS FURTHER STATED BY THE APPELLANT THAT THE AO HAS ACCEPTED THE GP RATE 3.77% DECLARED IN A.Y. 2010-11 UNDER AN ORDER PASSE D U/S 143(3) OF THE IT ACT. IT IS STATED THAT COMPLETE BOOKS OF ACCOUNTS H AVE BEEN MAINTAINED AND WERE PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS ALSO. 4.8 I HAVE EXAMINED THE CONTENTIONS AND JUDICIAL DE CISIONS CITED BY THE APPELLANT AND MATERIAL AVAILABLE ON RECORD AND FIND THAT THE APPELLANT HAS NOT BEEN ABLE TO CONTROVERT THE FACT THAT COMPLETE SALE S RECORDS IN THE FORM OF SUPPORTING VOUCHERS WERE NOT MAINTAINED AND THUS CO ULD NOT BE PRODUCED BEFORE THE AO IN THE COURSE OF APPELLATE PROCEEDING S. THEREFORE, I HOLD THAT ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 6 THE PROVISIONS OF SECTION 145 OF THE IT ACT HAVE BE EN RIGHTLY INVOKED BY THE AO IN VIEW OF THE DEFICIENCIES NOTICED. HOWEVER, AS REGARDS THE ESTIMATION OF GP RATE IS CONCERNED, VARIOUS COURTS HAVE HELD THAT THE BEST GUIDE FOR MAKING THE BEST JUDGMENT ASSESSMENT WOULD BE THE HISTORY O F THE APPELLANT AND THEREFORE IT WOULD BE JUST AND FAIR TO ADOPT A GP R ATE OF 7% ON THE DECLARED TURNOVER. THIS WOULD TAKE CARE OF LEAKAGE OF REVENU E ON ACCOUNT OF INCOMPLETENESS OF THE VOUCHERS, BILLS ETC. AND ALSO IT TAKE INTO CONSIDERATION THE INCREASE IN TURNOVER DURING THE PERIOD UNDER CO NSIDERATION. 4.9 IN VIEW OF THE ABOVE DISCUSSION, GROSS PROFIT O F THE APPELLANT WOULD WORK OUT RS. 20,88,157 (AFTER APPLYING 7% ON TURNOVER OF RS. 2,98,30,810) AS AGAINST DECLARED GROSS PROFIT OF RS. 18,02,976. IT WOULD RESULT IN CONFIRMING A TRADING ADDITION OF RS. 2,85,181 AND THE APPELLANT WOULD GET A RELIES OF RS. 20,64,291 ON THIS ACCOUNT. 4. DURING THE COURSE OF HEARING, THE LD AR SUBMITTE D THAT THE ASSESSEE MAINTAINS REGULAR BOOKS OF ACCOUNTS, WHICH IS SUBJE CT TO AUDIT. IN THE COURSE OF REMAND PROCEEDINGS, THE ASSESSEE PRODUCED THE CO MPUTERISED CASH BOOK, LEDGER, PURCHASE BILLS AND SALES SUMMARY. ALL THE P URCHASES ARE MADE FROM THE GOVERNMENT DEPARTMENT I.E. RSBCL. THE PURCHASES HAVE BEEN ACCEPTED BY THE LOWER AUTHORITIES. THE LOWER AUTHORITIES HAV E ALSO NOT QUESTIONED ABOUT THE EXPENSES DEBITED IN THE TRADING A/C. THE ONLY DISPUTE IS ABOUT VERIFICATION OF SALES. IN RESPECT OF SALES, ASSESSE E HAS FURNISHED THE SALES SUMMARY. THERE WAS NO OPENING OR CLOSING STOCK. THU S, ALL THE PURCHASES MADE DURING THE YEAR ARE SOLD. THE LOWER AUTHORITIE S HAVE NOT BROUGHT ANY EVIDENCE ON RECORD THAT THE SALES ARE UNDER INVOICE D. IN THESE CIRCUMSTANCES, APPLICATION OF GROSS PROFIT RATE OF 7% IS UNJUSTIFI ED. 4.1 IT MAY BE NOTED THAT IN AY 2008-09, THE GROSS P ROFIT RATE IS 7.30% ON TURNOVER OF RS. 76,27,050/-AND THE NET PROFIT RATE WAS 2.54%. IN THE YEAR UNDER CONSIDERATION, THE GROSS PROFIT RATE IS 6.04% ON TURNOVER OF RS. 2,98,30,810/- AND NET PROFIT RATE IS 3.15%. IN AY 2 010-11, THE GROSS PROFIT RATE IS 3.61% ON TURNOVER OF RS. 6,38,41,000/- AND NET PROFIT RATE IS 1.59%. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 7 IN THE SUBSEQUENT YEAR, AO MADE LUMP SUM TRADING AD DITION OF RS. 1 LAKHS VIDE ORDER DATED 28.03.2013 U/S 143(3) OF THE IT AC T, 1961, THEREBY DETERMINING THE GROSS PROFIT RATE AT 3.77%. THUS, W HEN IN THE SUBSEQUENT YEAR, ON SIMILAR FACTS, GROSS PROFIT RATE IS DETERM INED AT 3.77% (CONSIDERING THE ADDITION OF RS. 1 LAKHS), THERE IS NO JUSTIFICA TION TO APPLY GROSS PROFIT RATE OF 13.92% APPLIED BY THE AO AND 7% APPLIED BY THE L D. CIT(A) BY IGNORING THAT NET PROFIT RATE OF 3.15% IS BETTER AS COMPARED TO PREVIOUS YEAR AND THE SUBSEQUENT YEAR. HENCE, THE GROSS PROFIT RATE OF 6. 04% DECLARED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION BE ACCEPTE D. 4.2 IT IS A SETTLED LAW THAT EVEN IF BOOKS OF ACCOU NTS ARE REJECTED IT IS NOT NECESSARY THAT THERE SHOULD BE A TRADING ADDITION. AFTER REJECTION OF BOOKS OF ACCOUNTS, ASSESSMENT IS TO BE MADE IN THE MANNER PR OVIDED U/S 144. THIS WOULD REQUIRE TAKING INTO CONSIDERATION ALL THE CIR CUMSTANTIAL FACTS AND THE PAST HISTORY. IT IS TO BE NOTED THAT OVERALL GROSS PROFIT HAS BEE N INCREASED FROM RS. 5,56,678/- TO RS.18,02,976/- AS COMPARED T O LAST YEAR. THE SLIGHT DECLINE IN THE GROSS PROFIT RATE OF 1.25% IS ON ACC OUNT OF INCREASE IN THE TURNOVER, WHICH HAS INCREASED BY 3.91 TIMES AS COMP ARED TO THE LAST YEAR. THE ASSESSEE IS INTERESTED IN THE VOLUME OF PROFIT AND NOT IN THE RATE OF PROFIT. THUS, WHEN THE AMOUNT OF PROFIT DECLARED BY THE ASSESSEE IS BETTER AS COMPARED TO THE RESULTS DECLARED IN EARLIER YEARS, APPLICATION OF GROSS PROFIT RATE OF 7% BY THE LD. CIT(A) AS AGAINST GROSS PROFI T RATE OF 6.04% DECLARED BY THE ASSESSEE IS UNWARRANTED MORE SO WHEN THE PUR CHASES AND SALES ARE ACCEPTED BY HIM. 4.3 THE AO HAS APPLIED THE GROSS PROFIT RATE OF 13. 92% ON DECLARED TURNOVER BY RELYING UPON THE CASE OF SH. PRAHALAD S INGH (WINE CONTRACTOR), BHIWADI WHO HAS DECLARED THIS GROSS PROFIT RATE ON TURNOVER OF RS. 85,53,932/. IT MAY BE NOTED THAT THIS CASE CANNOT B E COMPARED WITH THAT OF ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 8 THE ASSESSEES CASE IN AS MUCH AS THE TURNOVER DECL ARED BY THE ASSESSEE IS ALMOST THREE TIMES THAN THAT DECLARED BY SH. PRAHAL AD SINGH AND THERE ARE NUMBER OF CASES [AS MENTIONED AT PAGE 4-6 OF THE CI T(A) ORDER] WHEREIN GROSS PROFIT RATE OF 5% OR EVEN LESSER IS CONFIRMED IN SIMILAR NATURE OF BUSINESS. 5. THE LD DR IS HEARD WHO HAS VEHEMENTLY ARGUED THE MATTER AND RELIED ON THE ORDER OF THE AO. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. UNDISPUTEDLY, THE BOOKS OF ACCOUNTS HAVE BE EN REJECTED U/S 145(3) AND THE ASSESSEE HAS NOT CHALLENGED SUCH REJECTION OF BOOKS OF ACCOUNTS. REGARDING ESTIMATION OF GROSS PROFIT RATE, THE ASSE SSEE HAS NOT SATISFACTORILY EXPLAINED THE REASON FOR THE FALL IN THE G.P RATE F ROM 7.3% LAST YEAR TO 6.04% THIS YEAR EXCEPT FOR THE FACT THAT THE TURNOVER HAS INCREASED OVER THE LAST YEAR WHICH HAS PUT PRESSURE ON THE GROSS MARGINS IN THE BUSINESS. THE AO HAS COMPARED THE RESULTS WITH ANOTHER LIQUOR CONTRA CTOR WHO HAS DECLARED A G.P OF 13.92% AND HAS APPLIED THE SAME IN THE INSTA NT CASE WITHOUT HIGHLIGHTING THE COMPARABILITY PARAMETERS. THE LD CIT(A) HAS ACCEPTED THE ASSEESSEES CONTENTION REGARDING PRESSURE ON THE G ROSS MARGINS IN VIEW OF INCREASE IN THE TURNOVER AND AT THE SAME TIME, LOOK ING AT THE PAST HISTORY, ESTIMATED THE GROSS PROFIT RATE OF 7%. IN THE PECU LIAR FACTS AND CIRCUMSTANCES OF THE CASE WHERE THERE IS NO SATISFA CTORY EXPLANATION TO SUBSTANTIATE THE FALL IN THE G.P RATE, WE FIND THE APPROACH OF THE LD CIT(A) AS REASONABLE WHERE HE HAS FOLLOWED THE PAST HISTORY O F THE ASSESSEE. IN THE RESULT, THE GROUNDS TAKEN BY BOTH THE ASSESSEE AND THE REVENUE ARE DISMISSED. 7. GROUND NO. 2 OF THE ASSESSEES APPEAL AS WELL AS GROUND NO. 2 OF THE REVENUES APPEAL ARE RELATING TO ADDITIONS UNDER SE CTION 68 OF THE ACT. THE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 9 AO HAS MADE AN ADDITION OF 2,03,16,200/- WHICH HAS BEEN REDUCED TO RS. 84,49,700/- BY THE LD CIT(A). THE ASSESSEE IS CHAL LENGING THE SUSTENANCE OF ADDITION OF RS 84,49,700 AND REVENUE IS CHALLENGING THE REDUCTION IN ADDITION U/S 68 OF THE ACT FROM RS 2,03,16,200/- TO RS. 84,4 9,700/-. 7.1 BEFORE WE EXAMINE THE FACTS OF THE CASE, IT WOULD B E RELEVANT TO REFER TO THE LEGAL PROPOSITIONS IN THE CONTEXT OF SECTION 68 WHICH HAS EMERGED AFTER EXAMINING VARIOUS LEGAL AUTHORITIES INCLUDING THOSE QUOTED BY THE LD AR ON THE SUBJECT AS UNDER: A) WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS MAINTA INED BY THE ASSESSEE, SECTION 68 REQUIRES THAT THE ASSESSEE SHO ULD OFFER AN EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH SUM FOUND CREDI TED IN ITS BOOKS OF ACCOUNTS TO THE SATISFACTION OF THE ASSESSING OFFIC ER. IN ABSENCE OF EXPLANATION, OR IN THE EVENT OF EXPLANATION BEING N OT FOUND SATISFACTORY, THE SUM SO CREDITED WOULD BE INCLUDED IN THE INCOME OF THE ASSESSEE. B) THE PRIMARY REQUIREMENTS, WHICH SHOULD BE SATISFIED CUMULATIVELY BY THE ASSESSEE IN SUCH CASES IS IDENTIFICATION OF THE CREDITOR/SHAREHOLDER, CREDITWORTHINESS OF CREDITOR/SHAREHOLDER AND THE GE NUINENESS OF THE TRANSACTION. C) THE EXPLANATION OFFERED AND MATERIAL SUBMITTED BY T HE ASSESSEE IN SUPPORT OF ITS EXPLANATION SHOULD BE WHOLESOME, CRE DIBLE AND VERIFIABLE. THESE THREE REQUIREMENTS THEREAFTER HAVE TO BE TEST ED BY THE ASSESSING OFFICER NOT SUPERFICIALLY BUT IN DEPTH HAVING REGAR D TO THE HUMAN PROBABILITIES AND NORMAL COURSE OF HUMAN CONDUCT. IT IS ONLY WHEN THE EXPLANATION AND THE MATERIAL OFFERED BY THE ASSESSEE AT THIS STAGE PASSES THIS MUSTER THAT THE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 10 INITIAL ONUS PLACED ON IT WOULD SHIFT LEAVING IT TO THE ASSESSING OFFICER TO START INQUIRING INTO THE AFFAIRS OF THE THIRD PARTY. D) WHILST IT IS TRUE THAT THE ASSESSEE CANNOT BE CALLE D UPON TO ADDUCE CONCLUSIVE PROOF ON ALL THESE THREE REQUIREMENTS, I T IS NONETHELESS LEGITIMATE EXPECTATION OF THE PROCESS THAT HE WOULD BRING IN S UFFICIENT PROOF, WHICH IS CREDIBLE AND AT THE SAME TIME VERIFIABLE, SO AS TO DISCHARGE THE INITIAL BURDEN PLACED ON HIM. WHETHER INITIAL ONUS STANDS DISCHARG ED WOULD DEPEND UPON FACTS AND CIRCUMSTANCES OF EACH CASE. E) THE DEGREE OF BURDEN OF PROOF ON THE ASSESSEE WILL VARY FROM ASSESSEE TO ASSESSEE. IN CASE OF PRIVATE LIMITED COMPANIES, WHERE AMOUNTS ARE BORROWED FROM OR SHARES ARE ALLOTTED THROUGH PRIVAT E PLACEMENT, TO PERSONS GENERALLY KNOWN TO DIRECTORS OR SHAREHOLDERS, DIREC TLY OR INDIRECTLY, BURDEN OF PROOF IS ON HIGHER PEDESTAL AS COMPARED TO PUBLIC L IMITED COMPANIES. IN CASE OF PRIVATE LIMITED COMPANIES, THE COURTS HAVE LAID DOWN A STRICT APPROACH IN TERMS OF SATISFYING SUCH BURDEN OF PROOF. F) IN CASE OF PRIVATE LIMITED COMPANIES, GENERALLY PER SONS KNOWN TO DIRECTORS OR SHAREHOLDERS, DIRECTLY OR INDIRECTLY B UY OR SUBSCRIBE TO SHARES OR LEND MONEY TO THE COMPANY. UPON RECEIPT OF MONEY, T HE SHARE SUBSCRIBERS/LENDERS DO NOT LOSE TOUCH AND BECOME IN COMMUNICADO. CALL MONEY, DIVIDENDS WARRANTS, INTEREST PAYOUT ETC. HAV E TO BE SENT/MADE AND THE RELATIONSHIP REMAINS A CONTINUING ONE. THEREFOR E, AN ASSESSEE CANNOT SIMPLY FURNISH SOME DETAILS AND REMAIN QUIET WHEN S UMMONS/NOTICES ISSUED TO SHAREHOLDERS/LENDERS REMAIN UN-SERVED AND UNCOMP LIED. AS A GENERAL PROPOSITION, IT WOULD BE IMPROPER TO UNIVERSALLY HO LD THAT THE ASSESSEE CAN PLEAD THAT THEY HAD RECEIVED MONEY, BUT COULD DO NO THING MORE AND IT WAS FOR THE ASSESSING OFFICER TO ENFORCE SHAREHOLDERS'/ LENDERS ATTENDANCE IN SPITE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 11 OF THE FACT THAT THE SHAREHOLDERS/LENDERS WERE MISS ING AND NOT AVAILABLE. THEIR RELUCTANCE AND HIDING MAY REFLECT ON THE GENU INENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE SHAREHOLDER /LENDER. IT WOULD BE ALSO INCORRECT TO UNIVERSALLY STATE THAT AN INSPECTOR MU ST BE SENT TO VERIFY THE SHAREHOLDERS/LENDERS AT THE AVAILABLE ADDRESSES, TH OUGH THIS MIGHT BE REQUIRED IN SOME CASES. SIMILARLY, IT WOULD BE INCO RRECT TO STATE THAT THE ASSESSING OFFICER SHOULD ASCERTAIN AND GET ADDRESSE S FROM THE REGISTRAR OF COMPANIES' WEBSITE OR SEARCH FOR THE ADDRESSES OF S HAREHOLDERS/LENDERS THEMSELVES. G) UNLIKE THE CASE OF PRIVATE LIMITED COMPANIES, IN TH E CASE OF PUBLIC LIMITED COMPANY WHICH HAS GONE FOR A PUBLIC ISSUE A ND GOT SHARE SUBSCRIPTIONS FROM PROSPECTIVE SHAREHOLDERS ACROSS THE LENGTH AND BREADTH OF THE COUNTRY, THE LEGAL REGIME MAY NOT BE THE SAME. IN SUCH CASES, THE COMPANY CONCERNED CANNOT BE EXPECTED TO KNOW EVERY DETAIL PERTAINING TO THE IDENTITY AS WELL AS FINANCIAL WORTH OF EACH OF ITS SUBSCRIBERS. THE COMPANY MUST, HOWEVER, MAINTAIN AND MAKE AVAILABLE TO THE ASSESSING OFFICER FOR HIS PERUSAL, ALL THE INFORMATION CONTAI NED IN THE STATUTORY SHARE APPLICATION DOCUMENTS, BANK TRANSACTIONS DETAILS AN D OTHER RELATED KYC DOCUMENTS SUBMITTED ALONG WITH THE SHARE APPLICATIO N. H) THE WORD 'IDENTITY' MEANS THE CONDITION OR FACT OF A PERSON OR THING BEING THAT SPECIFIED UNIQUE PERSON OR THING. THE ID ENTIFICATION OF THE PERSON WOULD INCLUDE THE PLACE OF WORK, THE STAFF, THE FAC T THAT IT WAS ACTUALLY CARRYING ON BUSINESS AND RECOGNITION OF THE SAID CO MPANY IN THE EYES OF PUBLIC. MERELY PRODUCING CERTIFICATE OF INCORPORATI ON, PAN NUMBER OR ASSESSMENT PARTICULARS DID NOT ESTABLISH THE IDENTI TY OF THE PERSON. PAN NUMBERS ARE ALLOTTED ON THE BASIS OF APPLICATIONS W ITHOUT ACTUAL DE FACTO VERIFICATION OF THE IDENTITY OR ASCERTAINING ACTIVE NATURE OF BUSINESS ACTIVITY. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 12 THE ACTUAL AND TRUE IDENTITY OF THE PERSON OR A COM PANY WAS THE BUSINESS UNDERTAKEN BY THEM. FURTHER, THESE DOCUMENTS HAVE T HEIR LIMITATION AND CANNOT BE RELIED UPON BLINDLY WHEN THERE ARE SURROU NDING CIRCUMSTANCES TO SHOW THAT THE SUBSCRIBER WAS A PAPER COMPANY AND NO T A GENUINE INVESTOR. I) IN RESPECT OF THE GENUINENESS OF THE TRANSACTION AN D CREDITWORTHINESS OF THE SHAREHOLDER/LENDER, IT WOULD BE INCORRECT TO STATE THAT THE ONUS TO PROVE THE SAME STANDS DISCHARGED IN ALL CASES IF PA YMENT IS MADE THROUGH BANKING CHANNELS AND THE FACT THAT THE MONEY ORIGIN ALLY LENT HAS BEEN RETURNED THROUGH BANKING CHANNELS. WHETHER OR NOT O NUS IS DISCHARGED DEPENDS UPON FACTS OF EACH CASE. IT DEPENDS ON WHET HER THE TWO PARTIES ARE RELATED OR KNOWN TO EACH OTHER; THE MANNER OR MODE BY WHICH THE PARTIES APPROACHED EACH OTHER, WHETHER THE TRANSACTION WAS ENTERED INTO THROUGH WRITTEN DOCUMENTATION AND DUE DILIGENCE TO PROTECT THE INVESTMENT AND THE PAY BACK ON SUCH INVESTMENT, WHETHER THE INVESTOR P ROFESSES AND WAS AN ANGEL INVESTOR, THE OBJECT AND PURPOSE (PROFIT MOTI VE) BEHIND THE INVESTMENT AND WHETHER ANY DIVIDEND DECLARED AND DISTRIBUTED I N THE PAST OR NOT. WHETHER SHARE SUBSCRIBERS HAVE THEIR OWN PROFIT MAK ING APPARATUS AND WERE INVOLVED IN ANY TANGIBLE BUSINESS ACTIVITY OR WERE THEY MERELY ROTATED MONEY, WHICH WAS COMING THROUGH THE BANK ACCOUNTS, WHICH M EANS DEPOSITS BY WAY OF CASH AND ISSUE OF CHEQUES. CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION IS THEREFORE NOT PROVED BY SHOWING MERE LY ISSUE AND RECEIPT OF A CHEQUE OR BY FURNISHING A COPY OF STATEMENT OF BANK ACCOUNT OF SHARE SUBSCRIBER, WHEN CIRCUMSTANCES REQUIRES THAT THERE SHOULD BE SOME MORE EVIDENCE OF POSITIVE NATURE TO SHOW THAT THE SUBSCR IBERS HAD MADE GENUINE INVESTMENT. SIMILAR ANALOGY WILL APPLY IN RESPECT OF ANY LOAN TRANSACTION. J) THE ENTIRE EVIDENCE AVAILABLE ON RECORD HAS TO BE C ONSIDERED AND A REASONABLE APPROACH HAS TO BE ADOPTED. THE FINAL CO NCLUSION MUST BE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 13 PRAGMATIC AND PRACTICAL, WHICH TAKES INTO ACCOUNT H OLISTIC VIEW OF THE ENTIRE EVIDENCE INCLUDING THE DIFFICULTIES, WHICH THE ASSE SSEE MAY FACE TO UNIMPEACHABLY ESTABLISH IDENTITY, CREDITWORTHINESS OF THE SHAREHOLDERS AND THE GENUINENESS OF THE TRANSACTION. K) WHERE THE ASSESSEE HAS DISCHARGED THE INITIAL BURDE N PLACED UPON HIM UNDER SEC. 68 TO PROVE AND ESTABLISH THE IDENTITY A ND CREDITWORTHINESS OF THE SHARE APPLICANT/LENDER AND THE GENUINENESS OF THE T RANSACTION, THE BURDEN OF PROOF SHIFTS ON THE ASSESSING OFFICER. IN SUCH A CA SE, THE ASSESSING OFFICER CANNOT SIT BACK WITH FOLDED HANDS TILL THE ASSESSEE EXHAUSTS ALL THE EVIDENCE OR MATERIAL IN HIS POSSESSION AND THEN COME FORWARD TO MERELY REJECT THE SAME, WITHOUT CARRYING OUT ANY VERIFICATION OR ENQU IRY INTO THE MATERIAL PLACED BEFORE HIM. IF THE ASSESSING OFFICER HARBOUR S ANY DOUBTS OF THE LEGITIMACY OF ANY SUBSCRIPTION, HE IS EMPOWERED, NA Y DUTY-BOUND, TO CARRY OUT THOROUGH INVESTIGATIONS. BUT IF THE ASSESSING O FFICER FAILS TO UNEARTH ANY WRONG OR ILLEGAL DEALINGS OR HAS NO MATERIAL IN HIS POSSESSION, HE CANNOT OBDURATELY ADHERE TO HIS SUSPICIONS AND TREAT THE S UBSCRIBED CAPITAL AS THE UNDISCLOSED INCOME OF THE COMPANY. L) THE CASE OF CIT V. ORISSA CORPORATION (P.) LTD. [19 86] 159 ITR 78 /25 TAXMAN 80 (SC) EXEMPLIFIES THE CATEGORY OF CASES WH ERE NO ACTION IS TAKEN BY THE ASSESSING OFFICER TO VERIFY OR CONDUCT AN EN QUIRY INTO THE PARTICULARS ABOUT THE CREDITORS FURNISHED BY THE ASSESSEE, INCL UDING THEIR INCOME-TAX FILE NUMBERS. IN THESE CASES, THE DECISION WAS BASED ON THE FUNDAMENTAL RULE OF LAW THAT EVIDENCE OR MATERIAL ADDUCED BY THE ASSESS EE CANNOT BE THROWN OUT WITHOUT ANY ENQUIRY. THE RATIO DOES NOT EXTEND BEYO ND THAT. THE BOUNDARIES OF THE RATIO CANNOT BE, AND SHOULD NOT BE, WIDENED TO INCLUDE THEREIN CASES WHERE THERE EXISTS MATERIAL TO IMPLICATE THE ASSESS EE IN A COLLUSIVE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 14 ARRANGEMENT WITH PERSONS WHO ARE SELF-CONFESSED 'AC COMMODATION ENTRY PROVIDERS'. 8. IN LIGHT OF ABOVE LEGAL PROPOSITIONS, WE NO W REFER TO THE RELEVANT FACTS IN TERMS OF EACH OF 13 CASH CREDITORS WHERE BOTH A SSESSEE AND REVENUE ARE IN CROSS APPEAL, THE AOS OBSERVATION, ASSESSEES S UBMISSION IN APPELLATE AND REMAND PROCEEDINGS AND AOS OBSERVATION THEREON, FI NDINGS OF CIT(A) AND ASSESSEES CONTENTIONS BEFORE US. EACH OF THE TRAN SACTIONS HEREINAFTER SHALL BE TESTED IN LIGHT OF ABOVE LEGAL PROPOSITIONS IN O RDER TO DETERMINE WHETHER NECESSARY ONUS HAS BEEN SATISFIED BY THE ASSESSEE I N TERMS OF SECTION 68. EACH OF THESE 13 CASES ARE DISCUSSED IN DETAIL IN T HE FOLLOWING PARAGRAPHS: 8.1 RAVI KANT - RS. 1 LAKHS (ASSESSEES APPEAL): AOS OBSERVATION APPELLATE & REMAND PROCEEDINGS CIT(A) S FINDINGS AO PAGE 6 - NO CONFIRMATION FILED - NO IDENTITY PROOF FILED - ADDRESS NOT PROVIDED AT PRIMARY STAGE OF SCRUTINY PROCEEDINGS AND SAME WAS PROVIDED ON 27.12.2011 - NO PAN - NO REGULAR SOURCE OF INCOME TO GIVE LOAN - NO EXPLANATION ABOUT SOURCE OF CASH CREDITOR APPELLATE PROCEEDINGS - PAN IS AAIPC2761N - AMOUNT RECEIVED ON 28.03.09 THROUGH DEMAND DRAFT - COMPLETE ADDRESS GIVEN IN ASSESSMENT PROCEEDINGS AS RAVI KANT S/O RAM CHANDER, CHANDNA BUS STAND, NEAR NATRAJ HOTEL, REWARI, HARYANA REMAND PROCEEDINGS CONFIRMATION FILED ON 26.12.13 (PB 8) AOS OBSERVATION - NO DETAILS FILED BY CREDITOR IN RESPONSE TO NOTICE CIT(A) PAGE 31 - 33 - ASSESSEE HAS MERELY FILED A CONFIRMATION ALONG WITH PAN OF THE CREDITOR - ASSESSEE FAILED TO PRODUCE THE CREDITOR - NO REPLY RECEIVED FROM CREDITOR IN RESPONSE TO NOTICE U/S 133(6) - NOTICE ISSUED U/S 131 CAME BACK WITH THE REMARK REFUSED SERVICE - COPY OF BANK STATEMENT NOT FILED - COPY OF ITR NOT FILED - DETAILS REGARDING SOURCE OF INCOME NOT FILED ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 15 DT.08.02.13 U/S 133(6) - NOTICE DT.17.04.13 U/S 131 RETURNED UNDELIVERED - NOTICE DT.05.12.13 U/S 131 RETURNED WITH REMARKS REFUSED - COPY OF BANK A/C NOT FILED 8.2 IN THIS REGARD, THE LD AR SUBMITTED THAT IT CA N BE NOTED THAT THE IDENTITY OF THE CREDITOR IS ESTABLISHED. THE CREDIT OR HAS DIRECTLY DEPOSITED THIS AMOUNT TO THE EXCISE DEPARTMENT FOR OBTAINING ADVAN CE LICENSE OF LIQUOR. THE AMOUNT WAS GIVEN BY HIM BY DD. THIS PROVES THE GENU INENESS OF THE TRANSACTION. THE NOTICE DATED 08.02.13 U/S 133(6) W AS SERVED ON HIM. THE AMOUNT IS SUBSEQUENTLY REPAID TO HIM ON 16.06.2012. HE IS ASSESSED TO TAX. IN THE REMAND PROCEEDINGS, ASSESSEE HAS CATEGORICAL LY STATED THAT BANK A/C DETAILS IS GIVEN IN THE INCOME TAX RETURN OF THE CA SH CREDITOR. ALL THESE FACTS PROVE HIS CREDITWORTHINESS. THE LD. CIT(A) HAS CONF IRMED THE ADDITION FOR THE REASON THAT NOTICE ISSUED U/S 131 TO THE CREDITOR H AS COME BACK WITH THE REMARK REFUSED SERVICE IGNORING THAT NOTICE ISSUE D U/S 133(6) HAS BEEN SERVED ON THE CREDITOR. ONLY BECAUSE THE CREDITOR C OULD NOT BE PRODUCED, CANNOT BE A REASON FOR MAKING AN ADDITION U/S 68 MO RE PARTICULARLY WHEN THE AO DID NOT PURSUE THE MATTER FURTHER INSPITE OF PRO VIDING HIS ADDRESS AND THE PAN. IN THESE FACTS, THE ADDITION CONFIRMED BY THE LD. CIT(A) IS UNJUSTIFIED AND THE SAME BE DELETED. 8.3 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: CONSIDERING THE FACTS STATED ABOVE, I FIND THAT TH E APPELLANT HAS MERELY FILED A CONFIRMATION ALONG-WITH THE PAN OF THE CREDITOR. THE APPELLANT FAILED TO PRODUCE THE CREDITOR BEFORE THE AO. THE AO HAS ISSU ED NOTICE U/S 133(6) OF THE IT ACT AND IN RESPONSE TO WHICH NO REPLY WAS RE CEIVED FROM THE CREDITOR. FURTHER, NOTICE U/S 131 OF THE IT ACT WAS ISSUED BY THE AO, WHICH CAME BACK WITH THE REMARK REFUSED SERVICE. WHEN THESE FACTS WERE CONFRONTED TO THE APPELLANT IN THE COURSE OF REMAND PROCEEDINGS, THE APPELLANT HAS STATED THAT AMOUNT WAS RECEIVED THROUGH BANKING CHANNEL AND BEY OND THIS HE FAILED TO ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 16 SUBSTANTIATE THE TRANSACTION OF LOAN HAVING BEEN RE CEIVED. NO COPY OF THE BANK STATEMENT OF THE CREDITOR WAS FILED. NO DETAIL S REGARDING THE SOURCES OF INCOME SO AS TO ESTABLISH THE CREDITWORTHINESS OF T HE CREDITOR WERE FILED, NO COPY OF THE ITR FILED BY THE CREDITOR WAS PRODUCED BEFORE THE AO. IN VIEW OF THE ABOVE FACTS, I FIND THAT THE APPELLA NT HAS NOT BEEN ABLE TO DISCHARGE THE ONUS U/S 68 OF THE IT ACT - IDENTITY & CREDITWORTHINESS OF CREDITOR, GENUINENESS OF THE TRANSACTION HAVE NOT B EEN PROVED. THUS, I CONFIRM THE ADDITION OF RS. 1,00,000 MADE BY THE AO ON THIS ACCOUNT. 8.4 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURUSE D THE MATERIAL AVAILABLE ON RECORD. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD CIT(A). THE ASSESSEE HAS FAILED TO SATISFY THE INITIAL ONUS CAST ON HIM IN TERMS OF IDENTITY & CREDITWORTHINESS OF CREDITOR, GENUINENES S OF THE TRANSACTION. HENCE, THE ADDITION OF RS 1 LACS IS CONFIRMED AND T O THIS EXTENT, THE GROUND OF APPEALS ASSESSEE IS DISMISSED. 9. ANIL KUMAR - RS.33,48,500/- (DEPARTMENTS APPEAL ) AOS FINDINGS - NO CONFIRMATION FILED - NO IDENTITY PROOF FILED - PROPER ADDRESS NOT PROVIDED DURING SCRUTINY PROCEEDINGS AND SAME WAS PROVIDED ON 27.12.2011 AT LAST STAGE - NO PAN - NO REGULAR SOURCE OF INCOME TO GIVE LOAN - NO EXPLANATION ABOUT SOURCE OF CASH CREDITOR APPELLATE PROCEEDINGS -PAN IS ADTPT4408C (PB 11) -ADDRESS IS HOUSE NO. 1, SECTOR NO. 7, RAJASTHAN HOUSING BOARD, BHIWADI -COPY OF CONFIRMATION IS AT PB 12 -COPY OF IDENTITY CARD IS AT PB 10 REMAND PROCEEDINGS -LETTER FILED BY SH. ANIL KUMAR ADDRESSED TO THE AO IN REPLY TO NOTICE U/S 131 IS CIT(A)S FINDINGS - APPELLANT HAS FILED CONFIRMATION, AFFIDAVIT OF CREDITOR, COPY OF ITR, COPY OF BANK A/C AND SOURCES OF CASH DEPOSIT IN THE BANK ACCOUNT HAS BEEN EXPLAINED TO BE A RECEIPT FROM RIICO AND SUPPORTING EVIDENCE FOR SUCH RECEIPT FROM RIICO AGAINST CANCELLATION OF PLOT HAS ALSO BEEN FILED. -THE CASH CREDITOR HAS CONFIRMED THE TRANSACTION AND SUBMITTED SUPPORTING ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 17 AT PB 17 -ITR FOR A.Y. 10-11 FILED -AFFIDAVIT DT.9.12.13 OF ANIL KUMAR FILED (PB 13) -COPY OF DDS FILED (PB 14- 16) -A LETTER ISSUED BY RIICO FOR CANCELLATION OF AUCTION OF PLOT NO. HT-61, INDUSTRIAL AREA, BHIWADI FILED (PB 18-21) -BANK STATEMENT OF CORPORATION BANK AND ICICI BANK FILED AOS OBSERVATION -ALL THE ABOVE DOCUMENTS FILED WITH REPLY DT. 26.12.2013 BY THE ASSESSEE THROUGH HIS AR AND NOT BY THE CASH CREDITOR -ONLY ONE DD OF RS.16,74,000/- HAS BEEN ISSUED FROM ICICI BANK ON 23.07.08 AND NO DETAILS OF THE MANNER OF OTHER DD OF RS.16,74,000/- ARE AVAILABLE AS PER COPIES OF BANK A/C FILED -ON 22.07.08 AND 23.07.08, THERE ARE CASH DEPOSITS IN BANK A/C OF CASH CREDITOR WHICH ULTIMATELY HAS BEEN UTILIZED IN DD ISSUED FOR RS.16,74,000/- FROM THIS BANK A/C -NO ITR OF A.Y. 09-10 SEEMS TO HAVE BEEN FILED BY SH. ANIL EVIDENCE IN RESPONSE TO NOTICE ISSUED BY AO U/S 131 OF THE IT ACT IN COURSE OF REMAND PROCEEDINGS -THUS, THE APPELLANT HAS DISCHARGED THE ONUS U/S 68 OF THE IT ACT. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 18 KUMAR 9.1 IN THIS REGARD, THE LD AR SUBMITS THAT HE RELIE D ON THE FINDING OF CIT(A). IT WAS FURTHER SUBMITTED THAT THE AO WRONGL Y STATED THAT ONLY ONE DD OF RS. 16,74,000/- WAS FILED WHEREAS ASSESSEE HA S FILED THREE DDS, TWO OF RS. 16,74,000/- EACH AND ONE OF RS. 500/-. INFAC T, ASSESSEE HAS DEPOSITED RS. 8,37,200/- BY DD AT THE TIME OF PARTICIPATION I N AUCTION FOR ALLOTMENT OF A PLOT WITH RIICO LTD . THEREAFTER, RS. 50.23 LAKHS W AS FURTHER DEPOSITED. OUT OF IT, RS. 33,48,500/- (RS. 16,74,000 + RS. 16,74,0 00 + RS. 500) WAS DEPOSITED BY SH. ANIL KUMAR ON BEHALF OF THE ASSESS EE. ACCORDINGLY, THIS AMOUNT WAS CREDITED TO THE A/C OF SH. ANIL KUMAR IN THE BOOKS OF THE ASSESSEE. IN SUPPORT OF THE AMOUNT OF RS. 33,48,500 /- PAID BY SH. ANIL KUMAR TO RIICO LTD. ON BEHALF OF THE ASSESSEE, COPY OF THE BANK A/C WAS SUBMITTED AS NOTED BY THE AO DURING THE REMAND PROC EEDINGS. FURTHER, AO ON THIS BASIS HAS REOPENED THE CASE OF THE CREDITOR U/S 148 AND VIDE ORDER DATED 22.02.2016 MADE ADDITION OF RS. 33,48,500/- ( COPY OF ASSESSMENT ORDER OF SHRI ANIL KUMAR IS AT PB 22-23). THUS, WHE N THE AO HAS ALREADY ADDED THIS AMOUNT IN THE HANDS OF THE CREDITOR, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. ALSO, WHEN THE ASSESSEE HAS DISCHARGED THE ONUS U/S 68, NO ADDITION CAN BE MADE. THUS, THE ORDER OF THE LD. CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 9.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: IN VIEW OF THE ABOVE FACTS, I FIND THAT THE APPELL ANT HAS FILED CONFIRMATION, AFFIDAVIT OF THE CREDITOR, COPY OF THE ITR, COPY OF THE BANK ACCOUNT AND SOURCES OF CASH DEPOSIT IN THE ACCOUNT HAS BEEN EXP LAINED TO BE A RECEIPT FROM RIICO AND SUPPORTING EVIDENCE FOR SUCH RECEIPT FROM RIICO AGAINST CANCELLATION OF PLOT HAS ALSO BEEN FILED. THE CASH CREDITOR HAS CONFIRMED THE TRANSACTION AND SUBMITTED THE SUPPORTING EVIDENCE I N HIS RESPONSE FILED IN PURSUANCE TO THE NOTICE ISSUED BY THE AO U/S 131 OF THE IT ACT IN THE COURSE OF REMAND PROCEEDINGS. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 19 THUS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DI SCHARGE THE ONUS U/S 68 OF THE IT ACT-IDENTITY & CREDITWORTHINESS OF CREDITOR, GENUINENESS OF THE TRANSACTION HAVE BEEN PROVED. THE CREDITOR HAS FILE D THESE DETAILS IN RESPONSE TO THE NOTICES ISSUED BY THE AO AND THEREF ORE NO ADVERSE INFERENCE CAN BE DRAWN. THE AO MAY IF HE SO DESIRES PASS THE INFORMATION TO THE AO WITH WHOM THE CREDITOR IS ASSESSED TO TAX. ACCORDIN GLY I DELETE THE ADDITION OF RS. 33,48,500 MADE BY THE AO ON THIS ACCOUNT. 9.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUE D THE MATERIAL AVAILABLE ON RECORD. THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT HAS BEEN EXPLAINED TO BE RECEIPT FROM RIICO PURSUANT TO CANCELLATION OF PLOT. WE ACCORDINGLY CONFIRM THE ABOVE FINDINGS OF THE LD CIT(A) WHERE HE HAS HELD THAT THE ASSESSEE HAS DISCHARGED THE ONUS PLAC ED ON HIM UNDER SECTION 68. THE FINDINGS OF LD CIT(A) REMAIN UNCONTROVERTED BEFORE US. WE HEREBY CONFIRM THE DELETION OF ADDITION OF RS 33,48,500. THE GROUND OF REVENUES APPEAL TO THIS EXTENT IS HEREBY DISMISSED. 10. BHISHAN SINGH - RS.28,10,000/- (ASSESSEES APP EAL) AO S FIND INGS - NO CONFIRMATION FILED - NO IDENTITY PROOF FILED - PROPER ADDRESS NOT PROVIDED DURING FIRST REPLY OF SCRUTINY PROCEEDINGS - PERUSAL OF BANK STATEMENT OF SH. BHISHAN SINGH REVEALED THAT HE DEPOSITED CASH OF RS. 10,000 & RS.28 LAKHS ON 12.03.2009 IN HIS BANK OF BARODA, SAVING A/C AND ON THE SAME DATE ISSUED DD OF RS.28.10 LAKHS IN FAVOUR OF ASSESSEE. BESIDES THIS, NO SUCH CASH TRANSACTION WAS ROUTED DURING THE YEAR BY SH. BHISHAN SINGH. - NO PAN - NO REGULAR SOURCE OF INCOME TO GIVE LOAN - CREDITWORTHINESS NOT GENUINE APPELLATE PROCEEDINGS - COMPLETE ADDRESS GIVEN IN ASSESSMENT PROCEEDINGS AS VPO SANTHLAKA, 278 VASAI- 401202 - AMOUNT OF RS. 28.10 LAKHS HAS BEEN RECEIVED FROM BHISHAN SINGH BY A/C PAYEE CHEQUE NO. 55682 OF BANK OF BARODA REMAND PROCEEDINGS -AMT. OF RS. 28.10 LAKHS HAS BEEN RECEIVED BY A/C PAYEE CHEQUE NO. 55682 OF BANK OF BARODA FROM JOINT A/C WITH SON ASHOK CIT(A)S FINDINGS -APPELLANT HAS FILED CONFIRMATION, A CERTIFICATE FROM BANK AND AFFIDAVIT OF THE CREDITOR. -APPELLANT FAILED TO PRODUCE THE CREDITOR AND ALSO FAILED TO FURNISH ANY EVIDENCE REGARDING SOURCES OF CREDITS AND INCOME OF CREDITOR -NO REPLY RECEIVED IN RESPONSE TO NOTICE ISSUED BY AO U/S 133(6) -INITIALLY APPELLANT HAD STATED THAT LOAN HAS BEEN GIVEN BY BHISHAN ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 20 KUMAR. SINCE BHISHAN SINGH IS THE 1 ST HOLDER OF THE A/C, ASSESSEE CREDITED THE MONEY IN HIS NAME WHILE HIS SON ASHOK KUMAR HAS CONFIRMED THE LOAN GIVEN BY HIM BY FILING AFFIDAVIT, CONFIRMATION OF ACCOUNT AND LETTER IN RESPONSE TO NOTICE U/S 131 . -THE NAME AND THE AMT. ADVANCED BY THE CREDITOR HAS ALSO BEEN CONFIRMED BY A LETTER OR CERTIFICATE ISSUED BY BANK OF BARODA DT. 09.12.13 BUT THE AO HAS OVERLOOKED THE CERTIFICATE. AOS OBSERVATION - NOTICE DT.08.02.13 ISSUED U/S 133(6) RETURNED UNDELIVERED -NO COMPLIANCE MADE OF NOTICE ISSUED U/S 131 DT. 17.4.13 & 05.12.13 -A NEW STORY HAS BEEN EVOLVED THAT BHISHAN SINGH IS THE 1 ST HOLDER OF A/C, ASSESSEE CREDITED THE MONEY IN HIS NAME WHILE HIS SON ASHOK KUMAR HAS CONFIRMED THE LOAN. HOW THE ASSESSEE HAD KNOWN AT THE TIME OF ACCEPTANCE OF LOAN THAT THE 1 ST HOLDER IS BHISHAN SINGH. SINGH BUT IN REMAND PROCEEDINGS THE NAME OF THE CREDITOR HAS BEEN CHANGED TO SH. ASHOK KUMAR -CASH DEPOSITS WERE FOUND BY AO IN ACCOUNT BEFORE THE ISSUE OF CHEQUE/DD IN FAVOUR OF APPELLANT -APPELLANT HAS FAILED TO FURNISH ANY DETAILS REGARDING THE SOURCES OF INCOME OF CREDITOR SO AS TO ESTABLISH CREDITWORTHINESS -COPY OF ITR FILED BY THE CREDITOR WAS NOT PRODUCED BEFORE THE AO ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 21 IT IS MERELY AN AFTERTHOUGHT. EVEN AFTER SUBSTITUTION OF NAME OF CREDITOR, CREDITWORTHINESS REMAINS UNEXPLAINED. 10.1 THE LD AR SUBMITTED THAT FROM THE ABOVE, IT C AN BE NOTED THAT THE IDENTITY OF THE CREDITOR IS ESTABLISHED. HE HAS GIV EN THE AMOUNT BY DIRECTLY DEPOSITING TO THE EXCISE DEPARTMENT FOR OBTAINING A DVANCE LICENSE OF LIQUOR. THE AMOUNT WAS GIVEN BY HIM BY DD. THIS PROVES THE GENUINENESS OF THE TRANSACTION. HE IS ASSESSED TO TAX. HE HAS REPLIED U/S 131 TO THE AO. ALL THESE FACTS PROVE HIS CREDITWORTHINESS. THE REASON FOR GIVING THE CONFIRMATION BY SHRI ASHOK KUMAR WAS EXPLAINED IN AS MUCH AS THE SAME WAS GIVEN OUT OF THE BANK ACCOUNT WHICH IS JOINTLY HELD BY BHISHAN S INGH AND ASHOK KUMAR. THE ASSESSEE IS NOT REQUIRED TO PROVE THE SOURCE OF THE SOURCE MORE PARTICULARLY WHEN HIS PAN IS PROVIDED. ONLY BECAUSE NOTICE ISSUED U/S 131 TO THE CREDITOR HAS COME BACK WITH THE REMARK REFUSED SERVICE AND THE CREDITOR COULD NOT BE PRODUCED, CANNOT BE A REASON TO MAKE T HE ADDITION IGNORING THAT NOTICE ISSUED U/S 133(6) HAS BEEN SERVED ON TH E CREDITOR AND THE AO DID NOT PURSUE THE MATTER FURTHER. IN THESE FACTS, THE ADDITION CONFIRMED BY THE LD. CIT(A) IS UNJUSTIFIED AND THE SAME BE DELETED. 10.2 THE FINDINGS OF LD CIT(A) ARE AS UNDER: IN VIEW OF THE ABOVE FACTS, I FIND THAT THE APPELL ANT HAS FILED A CONFIRMATION OF THE CREDITOR, A CERTIFICATE FROM THE BANK AND AF FIDAVIT OF THE CREDITOR-SH. BISHAN SINGH. THE APPELLANT FAILED TO PRODUCE THE C REDITOR BEFORE THE AO AND ALSO FAILED TO FURNISH ANY EVIDENCE REGARDING THE S OURCES OF CREDITS AND INCOME OF THE CREDITOR. THE AO HAS ISSUED NOTICE U/ S 133(6) OF THE IT ACT AND IN RESPONSE TO WHICH NO REPLY WAS RECEIVED FROM THE CREDITOR. INITIALLY THE APPELLANT HAD STATED THAT THE LOAN HAS BEEN GIV EN BY SH. BISHAN SINGH BUT IN THE COURSE OF REMAND PROCEEDINGS THE NAME OF THE CREDITOR HAS BEEN CHANGED TO SH. ASHOK KUMAR. IN THE COURSE OF REMAND PROCEEDINGS, AO HAS ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 22 ALSO RAISED DOUBTS ABOUT THE NAME OF THE CREDITOR A S THE CONFIRMATION FILED WAS STATED TO HAVE BEEN SIGNED BY ANOTHER PERSON IN THE NAME OF ASHOK KUMAR. THE APPELLANT HAS STATED THAT THE MONEY WAS GIVEN OUT OF THE JOINT ACCOUNT AND THE CREDITOR IS THE FIRST ACCOUNT HOLDE R AND THEREFORE, HIS NAME HAS BEEN SHOWN AS THAT OF CREDITOR IN THE ACCOUNT B OOKS OF THE APPELLANT. HOWEVER, CASH DEPOSITS WERE FOUND BY THE AO IN THE ACCOUNT BEFORE THE ISSUE OF CHEQUE/DD IN FAVOUR OF THE APPELLANT. THE APPELLANT HAS FAILED TO FURNISH ANY DETAILS REGARDING THE SOURCES OF INCOME OF THE CREDITOR SO AS TO ESTABLISH THE CREDITWORTHINESS. FURTHER, NO COPY OF THE ITR FILED BY THE CREDITOR WAS PRODUCED BEFORE THE AO. THE APPELLANT HAS ALSO FAILED TO PRODUCE THE CASH CREDITOR FOR EXAMINATION IN RESPON SE TO THE NOTICES ISSUED TO VERIFY THE VERACITY OF THE CONTENTIONS MADE IN THE AFFIDAVIT. THEREFORE, I HOLD THAT THE APPELLANT HAS NOT BEEN A BLE TO DISCHARGE THE ONUS U/S 68 OF THE IT ACT-IDENTITY & CREDITWORTHINESS OF CREDITOR, GENUINENESS OF THE TRANSACTION HAVE NOT BEEN PROVED BEYOND DOUBT. ACCORDINGLY I CONFIRM THE ADDITION OF RS. 28,10,000/- MADE BY THE AO ON T HIS ACCOUNT. 10.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUE D THE MATERIAL AVAILABLE ON RECORD. THE AO HAS GIVEN A FINDING THAT CASH WA S DEPOSITED IN THE CREDITORS BANK ACCOUNT AND ON THE SAME DATE, DEMAN D DRAFT WAS ISSUED. NOTHING HAS BEEN SUBMITTED TO EXPLAIN THE SOURCE OF SUCH CASH DEPOSITS. IT IS NOT A QUESTION OF DETERMINING SOURCE OF SOURCE R ATHER IT IS A QUESTION OF SATISFYING THE TEST OF CREDITWORTHINESS. THE SAID FINDING OF THE AO WHICH HAS BEEN CONFIRMED BY THE LD CIT(A) REMAIN UNREBUTTED B EFORE US. THE ASSESSEE HAS THUS FAILED TO SATISFY THE INITIAL ONUS PLACED ON HIM ESPECIALLY IN TERMS OF CREDITWORTHINESS OF THE CREDITOR. IN THE RESULT, WE CONFIRM THE FINDINGS OF THE LD CIT(A) AND THE ADDITION OF RS 28,10,000 IS HEREB Y CONFIRMED. THE GROUND OF ASSESSEES APPEAL TO THIS EXTENT IS THUS DISMISS ED. 11. MANGAL SINGH - RS.7,20,000/-(DEPARTMENTS APP EAL) AOS FINDINGS -ASSESSEE PRODUCED SH. MANGAL SINGH AND HIS STATEMENT WAS RECORDED ON 16.12.2011 WHEREIN HE APPELLATE PROCEEDINGS -SH. MANGAL SINGH IS AN INCOME TAX ASSESSEE HOLDING PAN ADYPT7676E, RESIDING AT CIT(A)S FINDINGS -THE APPELLANT HAS FILED CONFIRMATION, COPY OF ITR, PAN, COPY OF BANK ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 23 STATED THAT HE IS FILING REGULAR RETURN OF INCOME SINCE 2006-07 AND IS HAVING PAN ADYPT7676E -ON PERUSAL OF BANK STATEMENT OF SH. MANGAL SINGH, IT IS REVEALED THAT HE DEPOSITED CASH OF RS.8,82,240/- ON 04.03.2009 AND ON THE SAME DAY ISSUED DDS ON BEHALF OF THE ASSESSEE FOR THE PURPOSE OF LIQUOR LICENSE OF THE ASSESSEE -SH. MANGAL SINGH ADMITTED IN HIS STATEMENT THAT HE RECEIVED RS.4.50 LAKHS ON MATURITY OF FDR AFTER DEATH OF HIS UNCLE BUT DID NOT FILE ANY CORROBORATIVE EVIDENCE OF SUCH FDR. - NO REGULAR SOURCE OF INCOME TO GIVE LOAN - CREDITWORTHINESS NOT GENUINE MAIN VILLAGE GALI, NEELAM CHOWK, BHIWADI. -ASSESSEE RECEIVED RS.5,20,000 BY DDS AND RS.2,00,000/- BY A/C PAYEE CHEQUES -CONFIRMATION IS AT PB 30, ITR IS AT PB 31 AND PASSBOOK IS AT PB 32-33 -THE ASSESSEE CANNOT BE REQUIRED TO EXPLAIN THE SOURCE OF SOURCE OF CASH CREDIT IN THE BOOKS OF ACCOUNTS OF THE CREDITOR THOUGH SH. MANGAL SINGH HAS HIMSELF ADMITTED DURING THE PROCEEDINGS THAT HE HAS RECEIVED THE AMOUNT ON MATURITY OF FDR AFTER THE DEATH OF HIS UNCLE A/C ETC. BEFORE THE AO. -CASH CREDITOR WAS ALSO PRODUCED BEFORE THE AO AND STATEMENT WAS RECORDED -THUS, APPELLANT HAS DISCHARGED THE ONUS U/S 68 OF THE IT ACT AND ADDITION MADE BY THE AO ON THIS ACCOUNT IS DELETED. 11.1 THE LD AR RELIED ON THE FINDING OF CIT(A). IT WAS FURTHER SUBMITTED THAT THE AO IN CASE OF SHRI MANGAL SINGH HAS INITIATED P ROCEEDINGS U/S 148 AND VIDE ORDER DATED 22.02.2016 MADE ADDITION OF RS. 8, 82,240/- BEING THE AMOUNT OF CASH DEPOSIT IN HIS BANK ACCOUNT (COPY OF ASSESSMENT ORDER OF SHRI MANGAL SINGH IS AT PB 34-35). THUS, WHEN THE A O HAS ALREADY ADDED THE CASH DEPOSITED IN THE BANK ACCOUNT OF THE CREDITOR IN HIS HAND, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE. FURTHER, WHEN THE CREDITOR HAS APPEARED BEFORE THE AO AND ACCEPTED THE TRANSACTION IN HIS STATEMENT, THE ONUS OF THE ASSESSEE U/S 68 STOOD DISCHARGED. THUS, THE ORDER OF THE LD. CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DE PARTMENT. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 24 11.2 THE FINDINGS OF LD CIT(A) ARE AS UNDER: IN VIEW OF THE ABOVE FACTS, I FIND THAT THE APPELL ANT HAS FILED CONFIRMATION, COPY OF THE ITR, PAN, COPY OF THE BANK ACCOUNT ETC. BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, THE CASH CRE DITOR WAS ALSO PRODUCED BEFORE THE AO AND STATEMENT WAS RECORDED IN THE COU RSE OF REMAND PROCEEDINGS. THIS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DI SCHARGE THE ONUS U/S 68 OF THE IT ACT- IDENTITY & CREDITWORTHINESS OF CREDITOR , GENUINENESS OF THE TRANSACTION HAVE BEEN PROVED. ACCORDINGLY, I DELETE THE ADDITION OF RS. 7,20,000 MADE BY THE AO ON THIS ACCOUNT. 11.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE HAS F AILED TO DISCHARGE THE ONUS PLACED ON HIM UNDER SECTION 68 IN TERMS OF SATISFYI NG THE TEST OF CREDITWORTHINESS OF SHRI MANGAL SINGH. REGARDING A SSESSEES CONTENTION THAT AN AMOUNT OF RS 8,82,240 HAS ALREADY BEEN BROUGHT T O TAX IN THE HANDS OF SHRI MANGAL SINGH AND THE SAME CANNOT BE BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE AGAIN, WE ARE UNABLE TO ACCEPT THE SAM E. THE REASON FOR THE SAME IS THAT IT IS UNCLEAR AT THIS STAGE WHETHER TH E PROCEEDINGS IN CASE OF SHRI MANGAL SINGH HAS ATTAINED FINALITY OR NOT. THE REFORE, IT CANNOT BE SAID THAT THE SAME AMOUNT HAS BEEN SUBJECTED TO TAX TWIC E. WE FURTHER DONOT AGREE WITH THE FINDINGS OF THE LD CIT(A) AS THE TES T OF CREDITWORTHINESS HAS NOT BEEN SATISFIED IN THE INSTANT CASE AND THUS, TH E INITIAL ONUS PLACED ON THE ASSESSEE REMAIN UNSATISFIED. WE CONFIRM THE ADDITI ON OF RS 7,20,000 U/S 68 OF THE ACT. THE GROUND OF REVENUES APPEAL TO THIS EXTENT IS HEREBY CONFIRMED. 12. SH. RAJU - RS.16,74,700/-(ASSESSEES APPEAL) AOS FINDINGS - NO CONFIRMATION FILED - NO IDENTITY PROOF FILED - NO SOURCE OF CASH CREDITOR FILED APPELLATE PROCEEDINGS -SH. RAJU, S/O BUDHA SINGH IS RESIDING AT GRAM BHIWADI, TIJARA, ALWAR CIT(A) S FINDINGS -TWO CONFIRMATIONS HAVE BEEN FILED FOR THE SAME AMOUNT. ONE IN THE NAME OF RAJU AND ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 25 - ASSESSEE DID NOT CONSIDERED FIT TO PROVIDE ADDRESS AT PRIMARY STAGE OF PROCEEDINGS - NO PAN - NO ROI FILED - NO BANK STATEMENT FILED - COPY OF CONFIRMATION IS AT PB 36-37 -RAJU IS THE NICK NAME OF SH. SATPAL TANWAR REMAND PROCEEDINGS -PAN IS ADRPT3356L -LETTER FILED BY RAJU ADDRESSED TO THE AO IN REPLY TO NOTICE U/S 131 IS AT PB 38 -CONFIRMATION OF ACCOUNT IS AT PB 36-37 -BANK STATEMENT IS AT PB 39 - SATPAL TANWAR IS BROTHER OF RAJU TANWAR AND HE HAS CONFIRMED IN HIS OWN SIGNATURE THE TRANSACTION OF HIS BROTHER RAJU TANWAR -AO HAS OVERLOOKED THE ITR OF THE CREDITOR FOR A.Y. 08-09 AND 09-10 EVEN WHEN THE SAME IS FILED IN HIS JURISDICTION WARD ONLY AOS OBSERVATION -ONE CONFIRMATION BEARS THE SIGNATURE WHICH CAN BE CLEARLY READ AS SATPAL TANWAR AND ANOTHER CONFIRMATION BEARS THE NAME RAJU TANWAR AND HAS BEEN SIGNED AS RAJU. THUS, HOW THE CASH ANOTHER IN THE NAME OF SATPAL TANWAR -THERE IS CASH DEPOSIT OF RS. 16.50 LAKHS IN THE A/C OF RAJU TANWAR ON 22.07.2008, A DAY BEFORE THE CHEQUE IS ISSUED TO THE APPELLANT -THE APPELLANT HAS FAILED TO PRODUCE THE CREDITOR BEFORE THE AO -IN REMAND PROCEEDINGS, THE APPELLANT STATED THAT SH. RAJU TANWAR AND SATPAL TANWAR ARE BROTHERS AND THEREFORE THE CONFIRMATION WAS SIGNED EARLIER BY SATPAL TANWAR. NONE THE LESS, THE EXPLANATION GIVEN BY THE APPELLANT REMAINS UNSUBSTANTIATED AS IT WAS STATED EARLIER THAT RAJU IS THE NICK NAME OF SATPAL TANWAR. THERFORE, WHAT ARE THE REAL FACTS STILL REMAINS UNCLEAR. -APPELLANT HAS FAILED TO FURNISH ANY DETAILS REGARDING THE SOURCES OF INCOME OF THE CREDITOR SO AS TO ESTABLISH THE CREDITWORTHINESS ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 26 CREDITOR IS CHANGING NAMES AND EVEN HIS SIGNATURES WITH THE PASSAGE OF TIME IS NOT CLEAR WHICH IMPLIES THAT ASSESSEE HAS MADE ENTRY IN HIS BOOKS AS PER HIS OWN SWEET. -AS PER A/C STATEMENT FILED IN RESPECT OF SH. RAJU TANWAR FOR A/C NO. 20441668239 WITH ALLAHABAD BANK, BHIWADI, IT IS EVIDENT THAT THERE WAS CASH DEPOSIT IN THE BANK A/C FOR RS. 16.50 LAKHS WHICH WAS SUBSEQUENTLY UTILIZED IN ISSUANCE OF DDS. AS PER CONFIRMATION OF A/C FILED, IT IS STATED THAT RS.16,74,700/- HAS BEEN RECEIVED IN A/C OF SH. PRATAP SINGH TANWAR ON A/C OF PAYMENT RECEIVED FROM RIICO. THUS, IF DDS WERE ISSUED FROM A/C OF SH. RAJU TANWAR WHY THE ENCASHMENT HAS BEEN MADE IN A/C OF SH. PRATAP SINGH TANWAR IS NOT CLEAR -THOUGH SH. RAJU IS A PAN HOLDER BUT NO ITRS ARE BEING FILED BY HIM EXCEPT FOR A.Y. 06-07 AND 07-08 AT RETURNED INCOME OF RS.81,456/- AND RS.98,630/- I.E. BELOW THE TAXABLE LIMIT. 12.1 THE LD AR SUBMITTED THAT FROM THE ABOVE, IT C AN BE NOTED THAT THE IDENTITY OF THE CREDITOR IS ESTABLISHED. HE HAS GIV EN THE AMOUNT BY DIRECTLY ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 27 DEPOSITING TO THE EXCISE DEPARTMENT FOR OBTAINING A DVANCE LICENSE OF LIQUOR. THE AMOUNT WAS GIVEN BY HIM BY DD. THIS PROVES THE GENUINENESS OF THE TRANSACTION. HE IS ASSESSED TO TAX. HE HAS REPLIED U/S 131 TO THE AO. ALL THESE FACTS PROVE HIS CREDITWORTHINESS. THE LD. CIT (A) HAS CONFIRMED THE ADDITION FOR THE REASON THAT THE ASSESSEE HAS FAILE D TO PROVE THE SOURCE OF INCOME OF THE CREDITOR AND FAILED TO PRODUCE HIM. O NLY BECAUSE THE CREDITOR COULD NOT BE PRODUCED, WHEN HE HAS RESPONDED TO THE NOTICE ISSUED U/S 131, CANNOT BE A REASON FOR MAKING AN ADDITION U/S 68. F URTHER, ASSESSEE IS NOT REQUIRED TO PROVE THE SOURCE OF THE SOURCE. IN THES E FACTS, THE ADDITION CONFIRMED BY THE LD. CIT(A) IS UNJUSTIFIED AND THE SAME BE DELETED. 12.2 THE FINDINGS OF LD CIT(A) ARE AS UNDER: IN VIEW OF THE ABOVE FACTS, I FIND THAT THE APPELL ANT HAS FILED A CONFIRMATION OF THE CREDITOR-IN-FACT ON EXAMINATION OF RECORDS I COULD FOUND TWO CONFIRMATIONS HAVE BEEN FILED FOR THE SAME AMOUNT I .E. ONE IN THE NAME OF RAJU AND ANOTHER IN THE NAME OF SATPAL TANWAR. THE APPELLANT HAS ENCLOSED A COPY OF THE BANK STATEMENT OF RAJU TANWAR BUT THE RE IS CASH DEPOSIT OF RS. 16.50 LACS ON 22-07-2008, A DAY BEFORE THE CHEQUES WERE ISSUED TO THE APPELLANT. THE APPELLANT FAILED TO PRODUCE THE CRED ITOR BEFORE THE AO. THE AO HAS ISSUED NOTICE U/S 131 OF THE IT ACT AND IN RESP ONSE TO WHICH A WRITTEN COMMUNICATION WAS RECEIVED FROM THE CREDITOR STATIN G THAT- ESUS JHDKS FYFEVSM VYOJ DS UKE LS FUEU MHMH CUOKBZ FKHA ;G MHMH ESUS F HKOKMH DS IYKV LA0 ,P VH& 61 DKS FUYKEH GSRQ JH IZRKI FLAG TH DS UKE LS YXKBZ FK HA MUDKS NH FKHA FDURQ ;G JKFK FUYKEH FUJLR GKS TKUS DS DKJ.K JHDKS FY0 FHKOKM+H } KJK ;G JKFK IZRKI FLAG TH DKS OKFIL DJ NH XBZA ACCORDINGLY, AO HAS RAISED DOUBTS ABOUT THE NAME OF THE CREDITOR AS THE CONFIRMATION FILED WAS STATED TO HA VE BEEN SIGNED BY ANOTHER PERSONS IN THE NAME OF SATPAL TANWAR AND ALSO THE A BOVE COMMUNICATION REFLECTS THAT FUNDS HAVE BEEN ROTATED BY THE APPELL ANT BY MAKING DEPOSITS IN CASH IN THE NAME OF THE CASH CREDITOR. IN THE COURS E OF REMAND PROCEEDINGS, THE APPELLANT HAS STATED THAT SH. RAJU TANWAR AND S ATPAL TANWAR ARE BROTHERS AND THEREFORE, THE CONFIRMATION WAS SIGNED EARLIER BY SATPAL TANWAR. NONE THE LESS, THE EXPLANATION GIVEN BY THE APPELLANT REMAINS UNSUBSTANTIATED AS IT WAS STATED EARLIER THAT RAJU IS THE NICK NAME OF SATPAL TANWAR. THEREFORE, WHAT IS THE REAL FACT STILL REMA INS UNCLEAR. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 28 THE APPELLANT HAS FAILED TO FURNISH ANY DETAILS REG ARDING THE SOURCES OF INCOME OF THE CREDITOR SO AS TO ESTABLISH THE CREDI TWORTHINESS. FURTHER, NO COPY OF THE ITR FILED BY THE CREDITOR WAS PRODUCED BEFORE THE AO. THE APPELLANT HAS ALSO FAILED TO PRODUCE THE CASH CREDI TOR FOR EXAMINATION IN RESPONSE TO THE NOTICES ISSUED TO VERIFY THE VERACI TY OF THE CONTENTIONS MADE BY HIM IN THE LETTER. IT IS ALSO WORTHWHILE TO NOTE THAT A NUMBER OF OPPORTUNITIES WERE AFFORDED TO THE APPELLANT IN THE COURSE OF ASSESSMENT AND IN THE COURSE OF REMAND PROCEEDINGS BUT THE RESULT REMAINED THE SAME. IN FACT THE REMAND REPORT HAS ALSO TO BE CALLED TWICE FROM THE AO SO THAT DUE OPPORTUNITY COULD BE GIVEN TO THE APPELLANT. THEREFORE, I HOLD THAT THE APPELLANT HAS NOT BEEN A BLE TO DISCHARGE THE ONUS U/S 68 OF THE IT ACT-IDENTITY & CREDITWORTHINESS OF CREDITOR, GENUINENESS OF THE TRANSACTION HAVE NOT BEEN PROVED BEYOND DOUBT. ACCORDINGLY I CONFIRM THE ADDITION OF RS. 16,74,700 MADE BY THE AO ON THI S ACCOUNT. 12.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURS UED THE MATERIAL AVAILABLE ON RECORD. THE LD CIT(A) HAS GIVEN A FIN DING THAT CASH WAS DEPOSITED IN THE CREDITORS BANK ACCOUNT AND ON THE NEXT DATE, CHEQUE WAS ISSUED. NOTHING HAS BEEN SUBMITTED TO EXPLAIN THE SOURCE OF SUCH CASH DEPOSITS. IT IS NOT A QUESTION OF DETERMINING SOURC E OF SOURCE RATHER IT IS A QUESTION OF SATISFYING THE TEST OF CREDITWORTHINESS . IN OTHER WORDS, WHETHER THE CASH CREDITOR HAS THE NECESSARY FINANCIAL STAND ING OF HIS OWN TO LEND TO THE ASSESSEE AND WHAT ARE THE SOURCES THEREOF. THE ITR FILED OF THE CASH CREDITOR DOESNT INSPIRE ANY CONFIDENCE IN OUR MIND . THERE IS NOTHING FURTHER ON RECORD TO SATISFY THE TEST OF CREDITWORTHINESS O F THE CREDITOR. THE FINDING OF THE LD CIT(A), REMAIN UNREBUTTED BEFORE US. THE ASSESSEE HAS THUS FAILED TO SATISFY THE INITIAL ONUS PLACED ON HIM ESPECIALL Y IN TERMS OF CREDITWORTHINESS OF THE CREDITOR. IN THE RESULT, WE CONFIRM THE FINDINGS OF THE LD CIT(A) AND THE ADDITION OF RS 16,74,700 IS HEREB Y CONFIRMED. THE GROUND OF ASSESSEES APPEAL TO THIS EXTENT IS THUS DISMISS ED. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 29 13. RAKESH CHIWA - RS.5,00,000/-(ASSESSEES APPEA L) AOS FINDING -NO CONFIRMATION -NO IDENTITY PROOF -INCOMPLETE ADDRESS PROVIDED AS VILLAGE BHIWADI, TEHSIL TIJARA, DISTRICT ALWAR TO AVOID FURTHER VERIFICATION -NO PAN -NO REGULAR SOURCE OF INCOME TO GIVE SUCH LOAN -NO EXPLANATION ABOUT THE SOURCE OF CASH CREDITOR APPELLATE PROCEEDINGS -SH. RAKESH THANKAR S/O DOONGAR MAL IS RESIDING AT CHIDAWA, VILLAGE BHIWADI, TEHSIL TIJARA, ALWAR. HIS NAME IS MISTAKENLY WRITTEN AS CHIWA INSTEAD OF THANKAR. -AMT. HAS BEEN RECEIVED BY A/C PAYEE CHEQUE - THE ASSESSEE CANNOT BE REQUIRED TO EXPLAIN THE SOURCE OF SOURCE OF CASH CREDIT REMAND PROCEEDINGS - THE CORRECT NAME OF THE CASH CREDITOR IS RAKESH BHUKAR S/O DOONGAR MAL BHUKAR. COPY OF PAN CARD IS AT PB 40. -ADDRESS AS PER DRIVING LICENSE IS WN-19, CHIRAWA, JHUNJHUNU. COPY OF DRIVING LICENSE IS AT PB 41. AOS OBSERVATION -NOTICE ISSUED U/S 133(6) RETURNED UNDELIVERED WITH THE POSTAL REMARKS INCOMPLETE ADDRESS -NOTICE ISSUED U/S 131 AT THE ADDRESS AS PER DRIVING LICENSE SERVED BUT NO COMPLIANCE MADE BY SH. CIT(A) S FINDINGS -APPELLANT HAS MERELY FILED A CONFIRMATION ALONG WITH PAN OF THE CREDITOR -THE APPELLANT FAILED TO PRODUCE THE CREDITOR BEFORE THE AO -NOTICE ISSUED U/S 133(6) RECEIVED BACK WITH REMARK INCOMPLETE ADDRESS. FURTHER, NOTICE U/S 131 WAS ISSUED BY THE AO AT THE OTHER ADDRESS PROVIDED BY THE AR WHICH WAS SERVED BUT NO COMPLIANCE WAS MADE BY THE CREDITOR. -COPY OF BANK STATEMENT OF THE CREDITOR NOT FILED -DETAILS REGARDING SOURCES OF INCOME SO AS TO ESTABLISH THE CREDITWORTHINESS OF THE CREDITOR NOT FILED -COPY OF ITR FILED BY THE CREDITOR NOT PRODUCED BEFORE THE AO -THE NAME OF THE CREDITOR AND ADDRESS HAS BEEN CHANGED THRICE IN THE COURSE OF REMAND PROCEEDINGS. FIRST THE NAME OF THE CREDITOR WAS GIVEN AS RAKESH CHIWA, THEN CHANGED TO RAKESH THANKAR AND FINALLY TO RAKESH BHUKAR ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 30 RAKESH CHIWA OR THANKAR OR LATER RENAMED AS BHUKAR -HOW THE CASH CREDITOR IS CHANGING NAMES AND CITIES I.E. EARLIER REPORTED AS BHIWADI TO LATER REPORTED AS CHIDAWA WITH THE PASSAGE OF TIME IS NOT CLEAR WHICH IMPLIES THAT ASSESSEE HAS MADE ENTRY IN HIS BOOKS AS PER HIS OWN SWEET. 13.1 THE LD AR SUBMITTED THAT FROM THE ABOVE, IT CA N BE NOTED THAT THE IDENTITY OF THE CREDITOR IS ESTABLISHED. THE LD. CI T(A) HAS CONFIRMED THE ADDITION FOR THE REASON THAT THE ASSESSEE HAS FAILE D TO PRODUCE THE CREDITOR. THIS CANNOT BE A REASON FOR MAKING AN ADDITION U/S 68. IN THESE FACTS, THE ADDITION CONFIRMED BY THE LD. CIT(A) IS UNJUSTIFIED AND THE SAME BE DELETED. 13.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: IN VIEW OF THE ABOVE FACTS, I FIND THAT APPELLANT HAS MERELY FILED A CONFIRMATION ALONG-WITH THE PAN OF THE CREDITOR. TH E APPELLANT FAILED TO PRODUCE THE CREDITOR BEFORE THE AO. THE AO HAS ISSU ED NOTICE U/S 133(6) OF THE IT ACT AND IT WAS RECEIVED BACK WITH THE REMARK INCOMPLETE ADDRESS. FURTHER, NOTICE U/S 131 OF THE ACT WAS ISSUED BY TH E AO AT THE OTHER ADDRESS PROVIDED BY THE AR, WHICH WAS SERVED BUT NO COMPLIA NCE WAS MADE BY THE CREDITOR. WHEN THESE FACTS WERE CONFRONTED TO THE A PPELLANT IN THE COURSE OF REMAND PROCEEDINGS, THE APPELLANT HAS STATED THAT A MOUNT WAS RECEIVED THROUGH BANKING CHANNEL AND BEYOND THIS HE FAILED T O SUBSTANTIATE THE TRANSACTION OF LOAN HAVING BEEN RECEIVED. NO COPY O F THE BANK STATEMENT OF THE CREDITOR WAS FILED. NO DETAILS REGARDING THE SO URCES OF INCOME SO AS TO ESTABLISH THE CREDITWORTHINESS OF THE CREDITOR WERE FILED, NO COPY OF THE ITR FILED BY THE CREDITOR WAS PRODUCED BEFORE THE AO. FURTHER, ANOTHER INTERESTING FACT IN THIS CASE IS T HAT THE NAME OF THE CREDITOR AND ADDRESS HAS BEEN CHANGED THRICE IN THE COURSE O F REMAND PROCEEDINGS. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 31 FIRST THE NAME OF THE CREDITOR WAS GIVEN AS RAKESH CHIWA, THAN CHANGED TO RAKESH THANKAR AND FINALLY TO RAKESH BHUKAR. THUS, THERE IS NO DOUBT LEFT THAT THE APPELLANT HAS NOT BEEN ABLE TO DISCHARGE THE ONUS U/S 68 OF THE IT ACT-IDENTITY & CREDITWORT HINESS OF CREDITOR, GENUINENESS OF THE TRANSACTION HAVE NOT BEEN PROVED BEYOND DOUBT. THUS, I CONFIRM THE ADDITION OF RS. 5,00,000 MADE BY THE AO ON THIS ACCOUNT. 13.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. THE APPELLANT HAS NOT BEEN ABL E TO DISCHARGE THE INITIAL ONUS PLACED ON HIM U/S 68 OF THE IT ACT. THE IDENTI TY, CREDITWORTHINESS OF CREDITOR, AND GENUINENESS OF THE TRANSACTION HAVE N OT BEEN PROVED THE FINDINGS OF THE LD CIT(A) REMAIN UNREBUTTED BEFORE US AND THE SAME ARE HEREBY CONFIRMED. IN THE RESULT, THE ADDITION OF R S 5,00,000 IS CONFIRMED AND APPEAL OF THE ASSESSEE TO THIS EXTENT IS DISMIS SED. 14. BHAGIRATH SINGH SHEKHAWAT - RS.7.20 LAKHS ( DEPARTMENTS APPEAL) AOS FINDINGS -NO CONFIRMATION -NO IDENTITY PROOF -INCOMPLETE ADDRESS PROVIDED AS R/O BASANT VIHAR, SIKAR, RAJASTHAN TO AVOID FURTHER VERIFICATION -NO PAN -NO REGULAR SOURCE OF INCOME TO GIVE SUCH LOAN -NO EXPLANATION ABOUT THE SOURCE OF CASH CREDITOR APPELLATE PROCEEDINGS -PAN IS ASVPS3578E -ADDRESS IS VIJAY DEEP HOUSE, TRANSPORT NAGAR, JAIPUR ROAD, SIKAR 332001 -THE ASSESSEE RECEIVED THE AMOUNT THROUGH A/C PAYEE CHEQUES -BANK STATEMENT IS AT PB 47 -ITR IS AT PB 44-46 - THE ASSESSEE CANNOT BE REQUIRED TO EXPLAIN THE SOURCE OF SOURCE OF CASH CREDIT REMAND PROCEEDINGS CIT(A) S FINDINGS -APPELLANT HAS FILED CONFIRMATION, COPY OF ITR, PAN, COPY OF BANK A/C ETC. BEFORE THE AO IN COURSE OF REMAND PROCEEDINGS. FURTHER, THE CASH CREDITOR HAS ALSO FURNISHED THESE DOCUMENTS BEFORE THE AO IN RESPONSE TO NOTICE ISSUED U/S 133(6) OF THE IT ACT IN COURSE OF REMAND PROCEEDINGS. -BOOKS OF A/C OF THE CREDITOR ARE AUDITED U/S 44AB OF THE IT ACT AND THE CREDITOR IS REGULARLY ASSESSED TO TAX -LOAN HAS BEEN RETURNED BACK BY A/C PAYEE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 32 - IN RESPONSE TO NOTICE ISSUED U/S 133(6) OF THE IT ACT (PB 42) , CONFIRMATION OF A/C OF THE CREDITOR (PB 43) , COPY OF ITR AND COMPUTATION OF TOTAL INCOME FOR A.Y. 09- 10 (PB 44-46) AND BANK STATEMENT WAS FILED. -THE ACCOUNTS OF THE CREDITOR ARE AUDITED U/S 44AB OF THE IT ACT, 1961 -THE LOAN HAS BEEN RETURNED BACK TO THE CASH CREDITOR THROUGH A/C PAYEE CHEQUE IN MARCH 2012. THE SAME HAS BEEN CONFIRMED BY THE CASH CREDITOR IN LETTER DT. 05.03.2013 FILED IN RESPONSE TO NOTICE ISSUED U/S 133(6) OF THE IT ACT (PB 42) AOS OBSERVATION PERUSAL OF BANK A/C STATEMENT OF THE CASH CREDITOR REVEALS THAT THERE ARE CASH DEPOSITS IN THE BANK A/C BEFORE ADVANCEMENT OF LOAN TO ASSESSEE TOWARDS THE SOURCE OF WHICH NO EXPLANATION HAS BEEN FILED BY THE CASH CREDITOR CHEQUE IN MARCH 2012 -THE APPELLANT HAS THUS DISCHARGED THE ONUS U/S 68 OF THE IT ACT AND ADDITION MADE BY AO ON THIS A/C IS DELETED. 14.1 IN THIS REGARD, THE LD AR SUBMITTED THAT HE R ELIED ON THE FINDING OF CIT(A). IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED THE CONFIRMATION, RETURN OF INCOME, PAN, BANK ACCOUNT STATEMENT. ALSO , THE BOOKS OF ACCOUNTS ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 33 OF THE CREDITOR ARE AUDITED U/S 44AB AS CONFIRMED B Y THE AO AND THE CREDITOR IS REGULARLY ASSESSED TO TAX. THE CREDITOR HAS FURT HER REPLIED TO THE AO U/S 133(6). THE AMOUNT HAS BEEN SUBSEQUENTLY REPAID ON 29.03.20 12. THUS, WHEN THE ASSESSEE HAS DISCHARGED THE ONUS U/S 68, N O ADDITION CAN BE MADE. THEREFORE, THE ORDER OF THE LD. CIT(A) BE UPH ELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 14.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: FROM EXAMINATION OF THE ABOVE FACTS, I FIND THAT TH E APPELLANT HAS FILED CONFIRMATION, COPY OF THE ITR, PAN, COPY OF THE BAN K ACCOUNT ETC. BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, TH E CASH CREDITOR HAS ALSO FURNISHED THESE DOCUMENTS BEFORE THE AO IN RESPONSE TO THE NOTICE ISSUED U/S 133(6) OF THE IT ACT IN THE COURSE OF REMAND PR OCEEDINGS. FURTHER, IT IS SUBMITTED BY THE APPELLANT THAT BOOKS OF ACCOUNTS O F THE CREDITOR ARE AUDITED U/S 44AB OF THE IT ACT AND IS REGULARLY ASSESSED TO TAX. IT IS ALSO STATED THAT THE LOAN HAS ALSO BEEN RETURNED BACK BY ACCOUNT PAY EE CHEQUE IN MARCH 2012. THUS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DI SCHARGE THE ONUS U/S 68 OF THE IT ACT-IDENTITY & CREDITWORTHINESS OF CREDITOR, GENUINENESS OF THE TRANSACTION HAVE BEEN PROVED. ACCORDINGLY, I DELETE THE ADDITION OF RS. 7,20,000 MADE BY THE AO ON THIS ACCOUNT. 14.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. THE AO HAS GIVEN A FINDING TH AT CASH WAS DEPOSITED IN THE CREDITORS BANK ACCOUNT BEFORE ADVANCEMENT OF L OAN TO THE ASSESSEE. NOTHING HAS BEEN SUBMITTED TO EXPLAIN THE SOURCE OF SUCH CASH DEPOSITS. IT IS NOT A QUESTION OF DETERMINING SOURCE OF SOURCE RATH ER IT IS A QUESTION OF SATISFYING THE TEST OF CREDITWORTHINESS. IN OTHER WORDS, WHETHER THE CASH CREDITOR HAS THE NECESSARY FINANCIAL STANDING OF HI S OWN TO LEND TO THE ASSESSEE AND WHAT ARE THE SOURCES THEREOF. THE ITR FILED OF THE CASH CREDITOR DOESNT INSPIRE ANY CONFIDENCE IN OUR MIND TO SATISFY THE TEST OF CREDITWORTHINESS OF THE CREDITOR. THE ASSESSEE HAS THUS FAILED TO SATISFY THE INITIAL ONUS PLACED ON HIM ESPECIALLY IN TERMS OF C REDITWORTHINESS OF THE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 34 CREDITOR. THE FACT THAT THE LOAN AMOUNT HAS SUBSEQU ENTLY BEEN RETURNED TO THE CASH CREDITOR IS AN EVENT WHICH AT BEST, SATISF Y THE LINKAGE BETWEEN LENDING AND REPAYMENT. BUT THE SAME IS NOT A BASIS TO HOLD THAT THE MONEY INITIALLY BELONGS TO THE CASH CREDITOR WHEN THERE A RE FACTS ON RECORD TO SUGGEST THAT CASH WAS DEPOSITED IN THE BANK ACCOUNT IMMEDIATELY BEFORE THE EVENT OF LENDING. THE QUESTION THAT REMAINS IS WHA TS THE SOURCE OF SUCH CASH DEPOSITS AND WHETHER CASH BELONGS TO CASH CRED ITOR OR TO THE ASSESSEE. AS WE HAVE HELD ABOVE, IT IS NOT A QUESTION OF DETE RMINING THE SOURCE OF SOURCE RATHER IT IS A FUNDAMENTAL TEST TO BE SATISF IED TO ESTABLISH THE CREDITWORTHINESS OF THE CASH CREDITOR. IN THE RESU LT, WE REVERSE THE FINDINGS OF THE LD CIT(A) AND THE ADDITION OF RS 7,20,000 IS HEREBY CONFIRMED. THE GROUND OF DEPARTMENTS APPEAL TO THIS EXTENT IS THU S UPHELD. 15. VIKRAM SINGH - RS.2,30,000/- (DEPARTMENTS AP PEAL) AOS FINDINGS -NO CONFIRMATION -NO IDENTITY PROOF -THE ASSESSEE DID NOT CONSIDERED FIT TO PROVIDE PROPER AND COMPLETE ADDRESS AT STAGE OF SCRUTINY PROCEEDINGS -PERUSAL OF BANK STATEMENT OF SH. VIKRAM SINGH (PB 51-52) FILED BY THE ASSESSEE REVEALED THAT HE DEPOSITED CASH OF RS.1.50 LAKHS ON 13.03.2009 AND CREDITED RS.80,000/- OUT OF DD CANCELLATION APPELLATE PROCEEDINGS -SH. VIKRAM SINGH S/O SH. SHREE BAJRANG SINGH RESIDES AT BEHIND KRISHI UPAJ MANDI, W-18, SIKAR 3320011 - THE ASSESSEE CANNOT BE REQUIRED TO EXPLAIN THE SOURCE OF SOURCE OF CASH CREDIT REMAND PROCEEDINGS -PAN IS AZZPS8187J - IN RESPONSE TO NOTICE ISSUED U/S 133(6) OF THE IT ACT (PB 50) , COPY OF ITR AND COMPUTATION OF TOTAL INCOME FOR A.Y. 09-10 (PB 53-54) AND BANK STATEMENT FILED (PB 51-52) . -SH. VIKRAM SINGH HAS DEPOSITED CASH OF RS.1.50 LAKHS IN HIS BANK A/C OUT OF CASH IN HIS CASH BOOK CIT(A) S FINDINGS -APPELLANT HAS FILED CONFIRMATION, COPY OF ITR, PAN, COPY OF BANK A/C ETC. BEFORE THE AO IN COURSE OF REMAND PROCEEDINGS. -THE CREDITOR IS REGULARLY ASSESSED TO TAX -IT IS SUBMITTED BY THE APPELLANT THAT IN REGULAR BOOKS OF ACCOUNTS OF THE CREDITOR, THERE IS SUFFICIENT CASH BALANCE WHICH WAS DEPOSITED IN THE BANK ACCOUNT BEFORE THE ISSUE OF CHEQUE TO THE APPELLANT. -THE APPELLANT HAS THUS DISCHARGED THE ONUS U/S 68 OF THE IT ACT AND ADDITION MADE BY AO ON THIS A/C IS DELETED. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 35 ON 13.03.2009 AND ON THE SAME DAY WITHDRAWN IT BY PAY ORDER ISSUED ON BEHALF OF ASSESSEE FOR THE PURPOSE OF OBTAINING LIQUOR LICENSE IN THE NAME OF THE ASSESSEE - NO PAN -NO REGULAR SOURCE OF INCOME TO GIVE SUCH LOAN -NO EXPLANATION ABOUT THE SOURCE OF CASH CREDITOR AND RS.91,239/ - WAS LYING IN HIS BANK A/C. OUT OF TOTAL RS.2,41,239/-, HE HAS ISSUED CHEQUE NO. 244382 OF RS.2.30 LAKHS TO THE ASSESSEE AOS OBSERVATION THERE ARE CASH DEPOSITS IN THE BANK A/C OF THE CASH CREDITOR TOWARDS THE SOURCE OF WHICH NO EXPLANATION HAS BEEN FILED BY THE CASH CREDITOR IN RESPONSE TO NOTICE ISSUED U/S 133(6) OF THE ACT. 15.1 THE LD AR RELIED ON THE FINDING OF CIT(A). IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED THE CONFIRMATION, RETUR N OF INCOME, PAN, BANK ACCOUNT STATEMENT. THE CREDITOR IS REGULARLY ASSESS ED TO TAX. THE CREDITOR HAS FURTHER REPLIED TO THE AO U/S 133(6). THE AMOUNT HA S BEEN SUBSEQUENTLY REPAID. THE AO HAS MADE THE ADDITION AS THE ASSESSE E HAS NOT BEEN ABLE TO PROVE THE SOURCE OF CASH DEPOSIT IN THE ACCOUNT OF THE CREDITOR. THE ASSESSEE IS NOT REQUIRED TO PROVIDE THE SOURCE OF CASH DEPOS IT IN THE ACCOUNT OF THE CREDITOR. THE ONUS U/S 68 IS TO PROVE THE IDENTITY, GENUINENESS AND THE CREDIT WORTHINESS OF THE CREDITOR. THUS, WHEN THE ASSESSEE HAS DISCHARGED THE ONUS U/S 68, NO ADDITION CAN BE MADE. THEREFORE, THE ORD ER OF THE LD. CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 15.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: A CAREFUL EXAMINATION OF THE ABOVE FACTS REVEAL THA T APPELLANT HAS FILED CONFIRMATION, COPY OF THE ITR, PAN, COPY OF THE BAN K ACCOUNT ETC. BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, TH E CASH CREDITOR HAS ALSO ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 36 FURNISHED THESE DOCUMENTS BEFORE THE AO IN THE COUR SE OF REMAND PROCEEDINGS. FURTHER, IT IS SUBMITTED BY THE APPELL ANT THAT IN THE REGULAR BOOKS OF ACCOUNTS OF THE CREDITOR THERE IS SUFFICIE NT CASH BALANCE, WHICH WAS DEPOSITED IN THE BANK ACCOUNT BEFORE THE ISSUE OF C HEQUE TO THE APPELLANT. IT IS STATED THAT THE CREDITOR IS REGULARLY ASSESSED T O TAX. THE AO MAY IF HE SO DESIRES PASS THE INFORMATION TO THE AO WITH WHOM TH E CREDITOR IS ASSESSED TO TAX. THUS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DI SCHARGE THE ONUS U/S 68 OF THE IT ACT- IDENTITY & CREDITWORTHINESS OF CREDITOR , GENUINENESS OF THE TRANSACTION HAVE BEEN PROVED. ACCORDINGLY, I DELETE THE ADDITION OF RS. 2,30,000 MADE BY THE AO ON THIS ACCOUNT. 15.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. THE LD CIT(A) HAS GIVEN A FIN DING THAT IN THE REGULAR BOOKS OF ACCOUNTS OF THE CREDITOR, THERE WAS SUFFIC IENT CASH BALANCE, WHICH WAS DEPOSITED IN THE BANK ACCOUNT BEFORE THE ISSUE OF CHEQUE TO THE APPELLANT. THE SAID FINDING OF THE LD CIT(A) REMAIN UNREBUTTED BEFORE US AND THE SAME IS HEREBY CONFIRMED. IN THE RESULT, THE A PPEAL OF THE DEPARTMENT TO THIS EXTENT IS DISMISSED. 16. JAGDISH SINGH - RS.2,00,000/-(DEPARTMENTS AP PEAL) AOS FINDINGS -NO CONFIRMATION -NO IDENTITY PROOF -THE ASSESSEE DID NOT CONSIDERED FIT TO PROVIDE PROPER ADDRESS AT STAGE OF SCRUTINY PROCEEDINGS -PERUSAL OF BANK STATEMENT OF SH. JAGDISH SINGH (PB 60) FILED BY THE ASSESSEE REVEALED THAT HE DEPOSITED CASH OF RS.1.55 LAKHS ON APPELLATE PROCEEDINGS -SH. JAGDISH SINGH S/O SH. GANGA SINGH SHEKHAWAT IS AN INCOME TAX ASSESSEE HAVING PAN AJTPS9203M. -HE RESIDES AT 201, VPO JHERTHI, SUBHASH NAGAR, TEHSIL AND DISTRICT, SIKAR 320011. -COPY OF ITR IS AT PB 58-59 -THE ASSESSEE CANNOT BE REQUIRED TO EXPLAIN THE SOURCE OF SOURCE OF CASH CREDIT CIT(A) S FINDINGS -APPELLANT HAS FILED CONFIRMATION, COPY OF ITR, PAN, COPY OF BANK A/C ETC. BEFORE THE AO IN COURSE OF REMAND PROCEEDINGS. -THE CREDITOR IS REGULARLY ASSESSED TO TAX AND BOOKS OF ACCOUNTS ARE AUDITED U/S 44AB OF THE IT ACT. -IT IS SUBMITTED BY THE APPELLANT THAT REGULAR BOOKS OF ACCOUNTS OF THE CREDITOR HAVE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 37 14.02.2009 AND RS.1,95,000/- ON 16.02.2009 AND THEREAFTER WITHDRAWN RS.2 LAKHS BY PAY ORDER ISSUED ON BEHALF OF ASSESSEE FOR THE PURPOSE OF OBTAINING LIQUOR LICENSE IN THE NAME OF THE ASSESSEE - NO PAN -NO REGULAR SOURCE OF INCOME TO GIVE SUCH LOAN -NO EXPLANATION ABOUT THE SOURCE OF CASH CREDITOR REMAND PROCEEDINGS - IN RESPONSE TO NOTICE ISSUED U/S 133(6) OF THE IT ACT (PB 56) , COPY OF CONFIRMATION (PB 57) , COPY OF ITR AND COMPUTATION OF TOTAL INCOME FOR A.Y. 09-10 (PB 58-59) AND BANK STATEMENT FILED (PB 60) . - THE ACCOUNTS OF THE CREDITOR ARE AUDITED U/S 44AB OF THE IT ACT, 1961 -THE BANK BALANCE AS ON 04.03.2009 I.E. BEFORE THE ISSUE OF CHEQUE OF RS.2 LAKHS TO THE ASSESSEE IS RS.2,29,683/- WHILE THE LD. AO IS ASKING FOR EXPLANATION OF CREDIT ENTRY DT. 14.02.09 AND 16.02.09 SUFFICIENT CASH BALANCE WHICH WAS DEPOSITED IN THE BANK ACCOUNT. -THE APPELLANT HAS THUS DISCHARGED THE ONUS U/S 68 OF THE IT ACT AND ADDITION MADE BY AO ON THIS A/C IS DELETED. 16.1 THE LD AR RELIED ON THE FINDING OF LD CIT(A). IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED THE CONFIRMATION, RETUR N OF INCOME, PAN, BANK ACCOUNT STATEMENT. THE CREDITOR IS REGULARLY ASSESS ED TO TAX AND THE BOOKS OF ACCOUNTS ARE AUDITED U/S 44AB. THE CREDITOR HAS FUR THER REPLIED TO THE AO U/S 133(6). THE AMOUNT HAS BEEN SUBSEQUENTLY REPAID. THE AO HAS MADE THE ADDITION AS NO EXPLANATION HAS BEEN FILED BY THE CR EDITOR REGARDING THE SOURCE OF CASH DEPOSIT IN THE ACCOUNT OF THE CREDIT OR. THE ONUS ON THE ASSESSEE U/S 68 IS TO PROVE THE IDENTITY, GENUINENE SS AND THE CREDIT WORTHINESS OF THE CREDITOR. THUS, WHEN THE ASSESSEE HAS DISCHARGED THE ONUS U/S 68, NO ADDITION CAN BE MADE. THEREFORE, THE ORD ER OF THE LD. CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 16.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: A CAREFUL EXAMINATION OF THE ABOVE FACTS REVEAL TH AT APPELLANT HAS FILED CONFIRMATION, COPY OF THE ITR, PAN, COPY OF THE BAN K ACCOUNT ETC. BEFORE THE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 38 AO IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, TH E CASH CREDITOR HAS ALSO FURNISHED THESE DOCUMENTS BEFORE THE AO IN THE COUR SE OF REMAND PROCEEDINGS. FURTHER, IT IS SUBMITTED BY THE APPELL ANT THAT REGULAR BOOKS OF ACCOUNTS OF THE CREDITOR HAVE SUFFICIENT CASH BALAN CE, WHICH WAS DEPOSITED IN THE BANK ACCOUNT. IT IS STATED THAT THE CREDITOR IS REGULARLY ASSESSED TO TAX AND BOOKS OF ACCOUNTS ARE AUDITED U/S 44AB OF THE I T ACT. THE AO MAY IF HE SO DESIRES PASS THE INFORMATION TO THE AO WITH WHOM THE CREDITOR IS ASSESSED TO TAX. THUS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DI SCHARGE THE ONUS U/S 68 OF THE IT ACT-IDENTITY & CREDITWORTHINESS OF CREDITOR, GENUINENESS OF THE TRANSACTION HAVE BEEN PROVED. ACCORDINGLY, I DELETE THE ADDITION OF RS. 2,00,000 MADE BY THE AO ON THIS ACCOUNT. 16.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. THE LD CIT(A) HAS GIVEN A FIN DING THAT IN THE REGULAR BOOKS OF ACCOUNTS OF THE CREDITOR, THERE IS SUFFICI ENT CASH BALANCE, WHICH WAS DEPOSITED IN THE BANK ACCOUNT BEFORE THE ISSUE OF C HEQUE TO THE APPELLANT. THE SAID FINDING OF THE LD CIT(A) REMAIN UNREBUTTED BEFORE US AND THE SAME IS HEREBY CONFIRMED. IN THE RESULT, THE APPEAL OF THE DEPARTMENT TO THIS EXTENT IS DISMISSED. 17. SH. THAWARIA - RS.1,00,000/- (DEPARTMENTS AP PEAL) AOS FINDINGS -NO CONFIRMATION -NO IDENTITY PROOF -THE ASSESSEE DID NOT CONSIDERED FIT TO PROVIDE PROPER ADDRESS AT STAGE OF SCRUTINY PROCEEDINGS -PERUSAL OF BANK STATEMENT OF SH. THAWARIA FILED BY THE ASSESSEE REVEALED THAT CASH OF RS.4,51,660/- WAS DEPOSITED ON APPELLATE PROCEEDINGS -SH. THAWARIA SINGH S/O SH. RAM IS AN INCOME TAX ASSESSEE HAVING PAN ADMPT7955J. -HE RESIDES AT OPP. 132 KV POWER STATION, NEELAM CHOWK, BHIWADI. -COPY OF CONFIRMATION EVIDENCING REPAYMENT OF LOAN IS AT PB 64 -COPY OF ITR IS AT PB 68 -THE ASSESSEE CANNOT BE CIT(A) S FINDINGS -APPELLANT HAS FILED CONFIRMATION, COPY OF ITR, PAN, COPY OF BANK A/C ETC. BEFORE THE AO IN COURSE OF REMAND PROCEEDINGS. -THE CASH CREDITOR WAS ALSO PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS AND HIS STATEMENT WAS RECORDED ON OATH ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 39 17.03.2009 OUT OF WHICH DD OF RS.1 LAKHS WAS ISSUED ON SAME DAY ON BEHALF OF THE ASSESSEE TO OBTAIN LIQUOR LICENSE - NO PAN -NO REGULAR SOURCE OF INCOME TO GIVE SUCH LOAN -NO EXPLANATION ABOUT THE SOURCE OF CASH CREDITOR REQUIRED TO EXPLAIN TH E SOURCE OF SOURCE OF CASH CREDIT REMAND PROCEEDINGS -THE CREDITOR WAS PRODUCED FOR VERIFICATION ON 01.02.2013 WHOSE STATEMENT WAS RECORDED ON OATH (PB 65-67) -THE LOAN IS RETURNED BACK TO THE CREDITOR THROUGH A/C PAYEE CHEQUE IN F.Y. 11-12 AND THE SAME IS ALSO CONFIRMED BY THE CREDITOR IN REPLY TO Q.NO.3 OF THE STATEMENT RECORDED -THE SOURCE OF INCOME OF THE CREDITOR IS RENTING OF CRANE ON DAILY OR HOURLY BASIS. THE CREDITOR IS 52 YEARS OLD AND DOING BUSINESS SINCE A LONG PERIOD OF TIME. THE CREDITOR HAS DEPOSITED CASH FROM HIS BUSINESS RECEIPTS AS STATED IN REPLY TO Q.NO. 8 OF STATEMENT RECORDED AOS OBSERVATION AS PER Q.NO. 8 AND 9 OF THE STATEMENT RECORDED, THE CREDITOR WAS APPRAISED OF THE FACT THAT JUST BEFORE THE ISSUANCE OF DDS FROM HIS BANK A/C, THERE WAS CASH DEPOSIT OF RS.4,51,660/- IN HIS BANK A/C FOR WHICH HE WAS REQUIRED TO EXPLAIN THE SOURCE OF CASH DEPOSIT. HOWEVER, NO SATISFACTORY - THE CREDITOR IS REGULARLY ASSESSED TO TAX AND IS FILING RETURN OF INCOME -THE APPELLANT HAS THUS DISCHARGED THE ONUS U/S 68 OF THE IT ACT AND ADDITION MADE BY AO ON THIS A/C IS DELETED . ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 40 REPLY COULD BE OFFERED AND HE CANNOT PRODUCE ANY DOCUMENTARY EVIDENCE TOWARDS THE CASH DEPOSIT IN HIS BANK A/C. 17.1 THE FINDING OF CIT(A) IS RELIED UPON. THE ASSE SSEE HAS FILED THE CONFIRMATION, RETURN OF INCOME, PAN, BANK ACCOUNT S TATEMENT. THE CREDITOR IS REGULARLY ASSESSED TO TAX. THE CREDITOR WAS PRODUCE D BEFORE THE AO AND HIS STATEMENT WAS RECORDED UNDER OATH. THE AO HAS MADE THE ADDITION AS NO EXPLANATION HAS BEEN FILED BY THE CREDITOR REGARDIN G THE SOURCE OF CASH DEPOSIT IN THE ACCOUNT OF THE CREDITOR. IN ORDER TO EXAMINE THE SOURCE OF CREDIT IN THE BANK ACCOUNT OF THE CREDITOR, THE AO ISSUED NOTICE U/S 148 TO THE CREDITOR AND AFTER CONSIDERING HIS EXPLANATION ACCEPTED THE SOURCE OF DEPOSIT IN HIS BANK ACCOUNT VIDE ORDER DATED 23.02. 2016 (COPY OF ASSESSMENT ORDER OF SHRI THAWARIA IS AT PB 69). THU S, ASSESSEE HAS DISCHARGED HIS ONUS U/S 68. THEREFORE, THE ORDER OF THE LD. CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 17.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: AN EXAMINATION OF THE ABOVE FACTS REVEAL THAT APPEL LANT HAS FILED CONFIRMATION, COPY OF THE ITR, PAN, COPY OF THE BAN K ACCOUNT ETC. BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, CA SH CREDITOR WAS ALSO PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROC EEDINGS AND A STATEMENT WAS RECORDED ON OATH. IT IS SUBMITTED BY THE APPELLANT THAT REGULAR BOOKS OF ACCOUNTS OF THE CREDITOR ARE MAINTAINED AN D IT HAS SUFFICIENT CASH BALANCE, WHICH WAS DEPOSITED IN THE BANK ACCOUNT. I T IS STATED THAT THE CREDITOR IS REGULARLY ASSESSED TO TAX AND IS FILING RETURN OF INCOME. THE AO MAY IF HE SO DESIRES PASS THE INFORMATION TO THE AO WITH WHOM THE CREDITOR IS ASSESSED TO TAX THUS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DI SCHARGE THE ONUS U/S 68 OF THE IT ACT IDENTITY & CREDITWORTHINESS OF CREDITO R, GENUINENESS OF THE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 41 TRANSACTION HAVE BEEN PROVED. ACCORDINGLY, I DELETE THE ADDITION OF RS. 1,00,000 MADE BY THE AO ON THIS ACCOUNT. 17.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURS UED THE MATERIAL AVAILABLE ON RECORD. THE CASH DEPOSIT IN THE BANK ACCOUNT OF SHRI THAWARIA HAS BEEN EXAMINED BY HIS JURISDICTIONAL AO AND THE SAME HAS BEEN ACCEPTED AS DULY EXPLAINED AS EVIDENCED FROM THE ORDER PASSE D UNDER SECTION 143(3) READ WITH SECTION 147 OF THE ACT DATED 23.02.2016 W HICH IS AVAILABLE ON RECORD. APPARENTLY, THE SAID ORDER HAS BEEN PASSED SUBSEQUENT TO THE ORDER OF THE LD CIT(A) BUT FACTS REMAIN THAT THE CASH DEP OSITED HAS BEEN FOUND DULY EXPLAINED IN CASH CREDITORS OWN ASSESSMENT PR OCEEDINGS. IN LIGHT OF THE SAME, THERE CANNOT BE ANY BASIS TO ADD THE SAME AMO UNT IN THE HANDS OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. IN THE RESUL T, THE DEPARTMENTS APPEAL TO THIS EXTENT IS DISMISSED. 18. NISHA DEVI - RS.6,00,000/- (DEPARTMENTS APPEAL ) AOS FINDINGS -SMT. NISHA DEVI IS THE WIFE OF THE ASSESSEE. -NO CONFIRMATION -NO IDENTITY PROOF -COPY OF BANK A/C FILED (PB 71) REVEALED THAT SMT. NISHA HAS NO REGULAR SOURCE OF INCOME TO GIVE LOAN -NO PAN -NO EXPLANATION ABOUT THE SOURCE OF CASH CREDITOR APPELLATE PROCEEDINGS -MRS. NISHA DEVI W/O PRATAP SINGH IS AN INCOME TAX ASSESSEE HAVING PAN AIGPN9752L - SHE RESIDES AT NEAR SHIV MANDIR, NEELAM CHOWK, BHIWADI -THE ASSESSEE HAS RECEIVED RS.6 LAKHS FROM HER THROUGH A/C PAYEE CHEQUE -CONFIRMATION IS AT PB 70 -THE ASSESSEE CANNOT BE REQUIRED TO EXPLAIN THE SOURCE OF SOURCE OF CASH CREDIT REMAND PROCEEDINGS CIT(A)S FINDINGS -APPELLANT HAS FILED CONFIRMATION, COPY OF ITR, PAN, COPY OF BANK A/C ETC. BEFORE THE AO IN COURSE OF REMAND PROCEEDINGS. -THE CASH CREDITOR WAS ALSO PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS AND HER STATEMENT WAS RECORDED ON OATH -THE CREDITOR IS REGULARLY ASSESSED TO TAX AND IS FILING RETURN OF INCOME -THE LOAN IS STATED TO HAVE BEEN RETURNED BACK BY ACCOUNT PAYEE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 42 - THE CREDITOR WAS PRODUCED FOR VERIFICATION ON 01.02.2013 WHOSE STATEMENT WAS RECORDED ON OATH (PB 72-73) - THE LOAN IS RETURNED BACK TO THE CREDITOR THROUGH A/C PAYEE CHEQUE IN F.Y. 10-11 AND THE SAME IS ALSO CONFIRMED BY THE CREDITOR IN REPLY TO Q.NO.3 OF THE STATEMENT RECORDED - IN REPLY TO Q.NO. 4 OF THE STATEMENT RECORDED, THE CREDITOR CLAIMED THAT SHE HAS TAKEN A LOAN OF RS.33 LAKHS FROM SH. MAHENDRA SINGH, S/O KISHAN LAL, VPO, BHIWADI THROUGH CHEQUE IN ITS BANK A/C OUT OF WHICH A SUM OF RS. 6 LAKHS WAS ADVANCED TO ASSESSEE. CHEQUE IN F.Y. 10 - 11 -IT IS SUBMITTED BY THE APPELLANT THAT CREDITOR HAS EXPLAINED THE SOURCES OF CREDITS IN THE BANK ACCOUNT -THE APPELLANT HAS THUS DISCHARGED THE ONUS U/S 68 OF THE IT ACT AND ADDITION MADE BY AO ON THIS A/C IS DELETED. 18.1 THE FINDING OF CIT(A) IS RELIED UPON. THE ASSE SSEE HAS FILED THE CONFIRMATION, RETURN OF INCOME, PAN, BANK ACCOUNT S TATEMENT. THE CREDITOR IS REGULARLY ASSESSED TO TAX. THE CREDITOR WAS PRODUCE D BEFORE THE AO AND HIS STATEMENT WAS RECORDED UNDER OATH. THE AMOUNT HAS B EEN SUBSEQUENTLY REPAID. ALSO, THE CREDITOR HAS EXPLAINED THE SOURCE OF CASH DEPOSIT IN HER ACCOUNT. THUS, WHEN THE ASSESSEE HAS DISCHARGED THE ONUS U/S 68, NO ADDITION CAN BE MADE. THEREFORE, THE ORDER OF THE L D. CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 18.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: AN EXAMINATION OF THE ABOVE FACTS REVEAL THAT APPE LLANT HAS FILED CONFIRMATION, COPY OF THE ITR, PAN, COPY OF THE BAN K ACCOUNT ETC. BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, TH E CASH CREDITOR WAS ALSO PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROC EEDINGS AND A STATEMENT WAS RECORDED ON OATH. IT IS SUBMITTED BY THE APPELLANT THAT ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 43 CREDITOR HAS EXPLAINED THE SOURCES OF CREDITS IN TH E BANK ACCOUNT. IT IS STATED THAT THE CREDITOR IS REGULARLY ASSESSED TO TAX AND IS FILING RETURN OF INCOME. THE LOAN IS STATED TO HAVE BEEN RETURNED BACK BY AC COUNT PAYEE CHEQUE IN F.Y. 2010-11. THUS, I FIND THAT THE APPELLANT HAS BEEN ABLE TO DI SCHARGE THE ONUS U/S 68 OF THE IT ACT IDENTITY & CREDITWORTHINESS OF CREDITO R, GENUINENESS OF THE TRANSACTION HAVE BEEN PROVED. ACCORDINGLY, I DELETE THE ADDITION OF RS. 6,00,000 MADE BY THE AO ON THIS ACCOUNT. 18.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. THE FINDINGS OF THE LD CIT(A) REMAIN UNREBUTTED BEFORE US AND THE SAME ARE HEREBY CONFIRMED. IN THE RESUL T, THE APPEAL OF THE DEPARTMENT TO THIS EXTENT IS DISMISSED. 19. VINITA DEVI - RS.34,65,000/- (ASSESSEES APPEA L) AOS FINDINGS -NO CONFIRMATION -NO IDENTITY PROOF -NO PAN -NO ROI -PERUSAL OF PASS BOOK (PB 76) OF VINITA DEVI FILED BY THE ASSESSEE REVEALED THAT CASH OF RS.34,65,000/- WAS DEPOSITED ON 25.02.2009 AND ON THE SAME DAY WITHDRAWN BY ISSUE OF DD IN FAVOUR OF THE ASSESSEE - NO REGULAR SOURCE OF INCOME TO GIVE SUCH LOAN -NO EXPLANATION APPELLATE PROCEEDINGS -MRS. VINITA DEVI W/O SATVEER SINGH RESIDES AT NEELAM CHOWK, BHIWADI -THE AMOUNT HAS BEEN RECEIVED THROUGH A/C PAYEE CHEQUE REMAND PROCEEDINGS - THE CREDITOR WAS PRODUCED FOR VERIFICATION ON 02.05.2013 WHOSE STATEMENT WAS RECORDED ON OATH. -THE CREDITOR SUBMITTED THAT THE SOURCE OF ADVANCEMENT OF LOAN TO ASSESSEE IS COMPENSATION RECEIVED FROM RIICO. -THE LOAN HAS BEEN REPAID TO THE CREDITOR THROUGH A/C PAYEE CHEQUE IN F.Y. 11-12 AND THE CIT(A)S FINDINGS -IT IS APPARENT FROM THE BANK A/C STATEMENT OF THE CREDITOR THAT THE ACCOUNT HAS BEEN PRIMARILY USED FOR DEPOSITION OF CASH AND SUBSEQUENT ISSUE OF CHEQUES AND THIS PATTERN HAS BEEN REPEATED A NUMBER OF TIMES IN THE YEAR. -THE FACT THAT LOAN HAS BEEN REPAID BY THE APPELLANT DOES NOT CARRY MUCH CONVICTION AS THE SAME AMOUNT STANDS WITHDRAWN NEXT DAY WHICH AGAIN SUBSTANTIATES THE VERSION OF THE AO THAT THE TRANSACTION OF LOAN IS SHAM -APPELLANT THOUGH HAS ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 44 ABOUT THE SOURCE OF CASH CREDITOR SAME IS ALSO CONFIRMED BY THE CREDITOR IN HER STATEMENT. THE ASSESSEE IS LEAST BOTHERED/NOT CONCERNED ABOUT THE USAGE OF FUNDS RETURNED BACK TO THE CREDITOR -THERE ARE MISTAKES IN THE PEAK CREDIT WORKING CARRIED OUT BY THE AO AOS OBSERVATION -PERUSAL OF BANK A/C FILED BY THE CREDITOR REVEALS THAT IMMEDIATELY BEFORE THE ADVANCEMENT OF LOAN OF RS.34.65 LAKHS TO THE ASSESSEE THERE WAS EQUIVALENT CASH DEPOSIT IN THE BANK A/C. -REGARDING THE REPAYMENT OF LOAN, IT IS OBSERVED THAT CASH CREDITOR HAS RECEIVED RS.30 LAKHS ON 27.03.2012 AND RS.RS.4.65 LAKHS ON 28.03.2012 IN ITS BANK A/C. HOWEVER, THESE AMOUNTS WERE IMMEDIATELY WITHDRAWN FROM BANK FOR PURCHASE OF PROPERTY BUT SINCE THE DEAL DID NOT MATERIALIZED, THE CASH REMAINED WITH THE CREDITOR ONLY. -THE CLAIM OF THE AR THAT CASH CREDITOR HAS PAN AQOPV3722A DOES NOT HOLD GOOD IN VIEW OF THE FACT THAT PAN GENERATION IS 10.09.2012 AND NO ROI FOR A.Y. 09-10 HAS BEEN FILED BY THE CREDITOR PROVED THE IDENTITY OF THE CREDITOR BUT FAILED TO ADDUCE ENOUGH EVIDENCE TO SATISFY ABOUT THE CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION. -THE AO MAY, IF HE SO DESIRES PASS ON THE INFORMATION ABOUT THE PEAK WORKING OF CASH DEPOSITS IN THE ACCOUNT OF THE CREDITOR TO THE AO HAVING JURISDICTION OVER THE CASE OF THE CASH CREDITOR -THE APPELLANT HAS IN THE COUNTER COMMENTS POINTED OUT CERTAIN MISTAKES IN THE WORKING OF THE PEAK CREDIT WHICH MAY ALSO BE CONSIDERED WHILE ASSESSING THE INCOME IN THE HANDS OF THE CASH CREDITOR. ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 45 19.1 THE ASSESSEE HAS FILED THE EVIDENCE REGARDING THE IDENTITY OF THE CREDITOR AND HER BANK ACCOUNT STATEMENT. THE CREDIT OR WAS PRODUCED BEFORE THE AO AND HER STATEMENT WAS RECORDED UNDER OATH. T HE AO HAS MADE THE ADDITION ON THE BASIS THAT CASH HAS BEEN DEPOSITED JUST BEFORE THE WITHDRAWAL. TO EXAMINE THE SOURCE OF SUCH CASH, AO ISSUED NOTICE U/S 148 TO THE CREDITOR AND PASSED THE ORDER DATED 26.02.2016 WHERE THE CASH DEPOSIT IN HER BANK ACCOUNT HAS BEEN ACCEPTED (COPY OF ASSE SSMENT ORDER OF SMT. VINITA DEVI IS AT PB 78). THUS, WHEN THE ASSESSEE H AS DISCHARGED THE ONUS U/S 68, NO ADDITION CAN BE MADE. THEREFORE, THE ORD ER OF THE LD. CIT(A) IS UNJUSTIFIED. 19.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: CONSIDERING THE MATERIAL AVAILABLE ON RECORD, I FI ND THAT THE APPELLANT HAS BEEN ABLE TO FILE EVIDENCE REGARDING IDENTITY AND B ANK STATEMENT OF THE CREDITOR. THE CASH CREDITOR IS NOT ASSESSED TO TAX AND THE PAN HAS ALSO BEEN APPLIED IN 2012-13 (SEPTEMBER, 2012). THE CREDITOR SMT. VINITA DEVI WAS PRODUCED FOR VERIFICATION ON 02.05.2013, WHOSE STAT EMENT WAS RECORDED ON OATH WHEREIN IT HAS BEEN CLAIMED THAT SHE HAS ADVAN CED LOAN OF RS. 34,65,000 TO SH. PRATAP SINGH TANWAR WHICH HAS BEEN REPAID IN LATER YEARS FOR WHICH COPY OF BANK A/C HAS BEEN FILED. THE AO H AS OBSERVED THAT ON PERUSAL OF BANK A/C FILED BY THE CASH CREDITOR, IT IS REVEALED THAT IMMEDIATELY BEFORE ADVANCEMENT OF LOAN OF RS. 34,65,000 TO THE ASSESSEE THERE WAS EQUIVALENT CASH DEPOSIT IN BANK A/C. IT WAS ALSO SU BMITTED BY THE CASH CREDITOR THAT DURING THE YEAR UNDER CONSIDERATION C OMPENSATION FROM RIICO WAS RECEIVED AND THE SAME FUNDS WERE UTILIZED FOR A DVANCING OF LOANS TO SH. PRATAP SINGH TANWAR. REGARDING THE REPAYMENT OF LOA N AS CLAIMED BY THE CASH CREDITOR IT IS OBSERVED BY THE AO THAT THE CAS H CREDITOR HAS RECEIVED TWO CHEQUES OF RS. 30,00,000 ON 27.03.2012 AND RS. 4,65 ,000 ON 28.03.2012 IN HER BANK A/C, HOWEVER, THESE AMOUNTS WERE IMMEDIATE LY WITHDRAWN IN CASH. IT WAS FURTHER CLAIMED THAT THE AMOUNT WITHDRAWN FR OM BANK A/C WAS WITHDRAWN FOR PURCHASE OF PROPERTY BUT SINCE THE DE AL DID NOT MATERIALIZE, THE CASH REMAINED WITH THE CASH CREDITOR ONLY. FURTHER, AO HAS OBSERVED THAT THE CLAIM THAT THE CA SH CREDITOR HAS PAN: AQOPV3722A, AS CLAIMED BY THE A/R DOES NOT HOLD GOO D IN VIEW OF THE FACT ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 46 THAT PAN GENERATION IS ON 10.09.2012 AND THAT NO RE TURN OF INCOME FOR THE AY 2009-10 HAS BEEN FILED BY SMT. VINITA DEVI. THIS FA CT WAS ALSO CONFIRMED BY HER IN THE STATEMENT RECORDED ON 02.05.2013. AO HAS METICULOUSLY EXAMINED THE BANK ACCOUNT OF THE CASH CREDITOR WHICH WAS ENC LOSED TO SUBSTANTIATE THE TRANSACTION OF HAVING ADVANCE THE MONEY TO THE APPE LLANT THROUGH CHEQUE AND FOUND THAT THERE ARE FREQUENT CASH DEPOSITS IN THE SAME. THE AO HAS ACCORDINGLY WORKED OUT A PEAK CREDIT IN THE CASE OF THE CASH CREDITOR (SMT. VINITA) WHICH IS REPRODUCED ABOVE. THE PEAK OF UNEX PLAINED CASH DEPOSITS IN (HER) BANK ACCOUNT OF CASH CREDITOR HAS BEEN WORKED OUT AT RS. 65,60,000. IT IS APPARENT FROM THE BANK ACCOUNT STATEMENT OF T HE CREDITOR THAT THE ACCOUNT HAS BEEN PRIMARILY USED FOR DEPOSITION OF C ASH AND SUBSEQUENT ISSUE OF CHEQUES AND THIS PATTERN HAS BEEN REPEATED A NUM BER OF TIMES IN THE YEAR. EVEN THE FACT THAT THE LOAN HAS BEEN REPAID B Y THE APPELLANT DOES NOT CARRY MUCH CONVICTION AS THE SAME AMOUNT STANDS WIT HDRAWN NEXT DAY, WHICH AGAIN SUBSTANTIATES THE VERSION OF THE AO THA T THE TRANSACTION OF LOAN IS A SHAM. THEREFORE, I FIND THAT THE APPELLANT THOUGH HAS PRO VED THE IDENTITY OF THE CREDITOR BUT HAS FAILED TO ADDUCE ENOUGH EVIDENCE O F SATISFY ABOUT THE CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTIONS. THE AO MAY, IF HE SO DESIRES PASS ON THE INFORMATION ABOUT THE PEAK WORKING OF THE CASH DEPOSITS IN THE ACCOUNT OF THE CREDITOR, TO TH E AO HAVE JURISDICTION OVER THE CASE OF THE CASH CREDITOR. THE APPELLANT HAS IN THE COUNTER COMMENTS POINTED OUT CERTAIN MISTAKES IN THE WORKING OF THE PEAK CREDIT WHICH MAY ALSO BE CONSIDERED WHILE ASSESSING THE INCOME IN TH E HANDS OF THE CASH CREDITOR. THUS, I CONFIRM THE ADDITION OF RS. 34,65,000 MADE BY THE AO U/S 68 OF THE IT ACT. 19.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. THE CASH DEPOSITS IN THE BANK ACCOUNT HAS BEEN EXAMINED BY THE JURISDICTIONAL AO OF SMT. VINITA DE VI AND THE SAME HAS BEEN ACCEPTED AS EVIDENCED BY THE ORDER PASSED UNDER SEC TION 143(3) READ WITH SECTION 147 OF THE ACT DATED 26.02.2016 WHICH IS AV AILABLE ON RECORD. APPARENTLY, THE SAID ORDER HAS BEEN PASSED SUBSEQUE NT TO THE ORDER OF THE LD CIT(A) BUT FACTS REMAIN THAT THE CASH DEPOSITED HAS BEEN FOUND DULY ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 47 EXPLAINED IN HER OWN ASSESSMENT PROCEEDINGS. IN LI GHT OF THE SAME, THERE CANNOT BE ANY BASIS TO ADD THE SAME AMOUNT IN THE H ANDS OF THE ASSESSEE UNDER SECTION 68 OF THE ACT. IN THE RESULT, THE AS SESSEES APPEAL TO THIS EXTENT IS ALLOWED. 20. SH. MAHENDRA- RS.58,48,000/- (DEPARTMENTS APPE AL) AOS FINDINGS -NO CONFIRMATION -NO IDENTITY PROOF -THE ASSESSEE DID NOT CONSIDERED FIT TO PROVIDE PROPER AND COMPLETE ADDRESS AT STAGE OF SCRUTINY PROCEEDINGS -PERUSAL OF BANK STATEMENT OF MAHENDRA SINGH (PB 81) FILED BY THE ASSESSEE REVEALED THAT HE DEPOSITED CASH OF RS.16 LAKHS ON 10.02.09, RS.9.78 LAKHS ON 11.02.09, RS.20.20 LAKHS ON 12.02.09 AND RS.12.50 LAKHS ON 16.02.09 AND THEREAFTER WITHDRAWN ON THE RESPECTIVE SAME DAYS FOR MAKING DDS/PAY ORDERS IN FAVOUR OF THE ASSESSEE FOR THE PURPOSE OF OBTAINING LIQUOR LICENSE IN THE NAME OF THE ASSESSEE -NO PAN -NO REGULAR SOURCE OF INCOME TO GIVE SUCH LOAN -NO EXPLANATION ABOUT THE SOURCE OF CASH CREDITOR APPELLATE PR OCEEDINGS -SH. MAHENDRA SINGH S/O KISHAN LAL RESIDES AT VILLAGE SANTHALAKA, BHIWADI, ALWAR -THE AMOUNT HAS BEEN RECEIVED THROUGH A/C PAYEE CHEQUE -CONFIRMATION IS AT PB 79 -THE AGRICULTURAL LAND OF SH. MAHENDRA SINGH IS ACQUIRED BY RIICO, BHIWADI AGAINST WHICH HE RECEIVED COMPENSATION OUT OF WHICH HE ADVANCED RS.58.48 LAKHS TO THE ASSESSEE. REMAND PROCEEDINGS - THE CREDITOR WAS PRODUCED FOR VERIFICATION ON 02.05.2013 WHOSE STATEMENT WAS RECORDED ON OATH WHEREIN IT HAS BEEN CLAIMED THAT HE ADVANCED LOAN OF RS.58.48 LAKHS TO ASSESSEE WHICH HAS BEEN REPAID IN LATER YEARS. CIT(A)S FINDINGS -APPELLANT HAS FILED CONFIRMATION, COPY OF PAN, COPY OF BANK A/C ETC. BEFORE THE AO IN COURSE OF REMAND PROCEEDINGS. -THE CASH CREDITOR WAS ALSO PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS AND HIS STATEMENT WAS RECORDED ON OATH ON 02.05.2013 -THE CREDITOR HAS EXPLAINED THE SOURCES OF CASH CREDITS IN THE BANK A/C AS HAVING RECEIVED AN AMOUNT OF RS.1,24,54,137/- AS COMPENSATION FROM RIICO FOR ACQUISITION OF AGRICULTURAL LAND. A COPY OF CERTIFICATE FROM THE BANK IN SUPPORT OF THE SAID RECEIPT WAS ALSO FILED BEFORE THE AO (PB 82) -THE CREDITOR HAS STATED THAT LOAN WAS RECEIVED BACK BY CHEQUE IN F.Y. 11-12 - THE APPELLANT HAS THUS ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 48 DISCHARGED THE ON US U/S 68 OF THE IT ACT AND ADDITION MADE BY AO ON THIS A/C IS DELETED. 20.1 THE FINDING OF CIT(A) IS RELIED UPON. THE ASSE SSEE HAS FILED THE CONFIRMATION, PAN, BANK STATEMENT OF THE CREDITOR. THE CREDITOR WAS PRODUCED BEFORE THE AO AND HIS STATEMENT WAS RECORD ED UNDER OATH ON 02.05.2013. THE CREDITOR HAS EXPLAINED THE SOURCE O F CASH DEPOSIT IN HIS BANK ACCOUNT. A CERTIFICATE FROM THE BANK MANAGER, ORIENTAL BANK OF COMMERCE REGARDING THE SAME HAS ALSO BEEN SUBMITTED (PB 82). THE LOAN HAS BEEN SUBSEQUENTLY REPAID. FURTHER, THE AO OF TH E CREDITOR VIDE ORDER U/S 143(3)/147 DATED 23.02.2016 HAS ACCEPTED THE SOURCE OF CASH DEPOSIT IN THE ACCOUNT OF THE CREDITOR AND HAS MADE NO ADDITION FO R THE SAME (COPY OF ASSESSMENT ORDER OF SHRI MAHENDRA SINGH IS AT PB 83 ). THUS, WHEN THE ASSESSEE HAS DISCHARGED THE ONUS U/S 68, NO ADDITIO N CAN BE MADE. THEREFORE, THE ORDER OF THE LD. CIT(A) BE UPHELD BY DISMISSING THE GROUND OF THE DEPARTMENT. 20.2 THE FINDINGS OF THE LD CIT(A) ARE AS UNDER: ON EXAMINATION OF THE ABOVE FACTS, IT IS FOUND THA T APPELLANT HAS FILED CONFIRMATION COPY OF THE PAN, COPY OF THE BANK ACCO UNT ETC. BEFORE THE AO IN THE COURSE OF REMAND PROCEEDINGS. FURTHER, THE CASH CREDITOR WAS ALSO PRODUCED BEFORE THE AO IN THE COURSE OF REMAND PROC EEDINGS AND A STATEMENT WAS RECORDED ON OATH ON 02.05.2013. FURTH ER, IT IS SUBMITTED BY THE APPELLANT CREDITOR HAS EXPLAINED THE SOURCES OF CASH CREDITS IN THE BANK ACCOUNT AS HAVING RECEIVED AN AMOUNT OF RS. 1,24,54 ,137 AS COMPENSATION FROM RIICO FOR ACQUISITION OF AGRICULTURAL LAND. A COPY OF THE CERTIFICATE FROM THE BANK IN SUPPORT OF THE SAID RECEIPT WAS ALSO FI LED BEFORE THE AO. THE CREDITOR HAS STATED THAT THE LOAN WAS RECEIVED BACK BY CHEQUE IN F.Y. 2011- 12. THUS, I FIND THAT HE APPELLANT HAS BEEN ABLE TO DIS CHARGE THE ONUS U/S 68 OF THE IT ACT IDENTITY & CREDITWORTHINESS OF CREDITO R, GENUINENESS OF THE ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 49 TRANSACTION HAVE BEEN PROVED. ACCORDINGLY, I DELETE THE ADDITION OF RS. 58,48,000 MADE BY THE AO ON THE THIS ACCOUNT. 20.3 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSU ED THE MATERIAL AVAILABLE ON RECORD. THE CASH DEPOSITS IN THE BANK ACCOUNT HAS BEEN EXAMINED BY THE JURISDICTIONAL AO OF SHRI MAHENDRA SINGH AND THE SAME HAS BEEN ACCEPTED AS EVIDENCED BY ORDER PASSED UNDER SE CTION 143(3) READ WITH SECTION 147 OF THE ACT DATED 23.02.2016 WHICH IS AV AILABLE ON RECORD. APPARENTLY, THE SAID ORDER U/S 143(3) READ WITH SEC TION 147 HAS BEEN PASSED SUBSEQUENT TO THE ORDER OF THE LD CIT(A) BUT FACTS REMAIN THAT THE CASH DEPOSITED HAS BEEN FOUND DULY EXPLAINED IN HIS OWN ASSESSMENT PROCEEDINGS. IN LIGHT OF THE SAME, THERE CANNOT BE ANY BASIS TO ADD THE SAME AMOUNT IN THE HANDS OF THE ASSESSEE UNDER SECTION 68 OF THE A CT. IN THE RESULT, THE DEPARTMENTS APPEAL TO THIS EXTENT IS DISMISSED. 21. IN RESPECT OF GROUND NO. 3 OF THE ASSESSEES A PPEAL, THE ASSESSEE HAS CHALLENGED THE ACTION OF LD CIT(A) IN ALLOWING SET OFF OF TRADING ADDITIONS AGAINST THE ADDITION OF CASH CREDIT CONFIRMED BY HI M. WE HAVE GONE THROUGH THE ORDER OF THE LD CIT(A) AND THE ASSESSEES SUBMI SSION. WE DONT FIND ANY INFIRMITY IN THE ORDER OF LD CIT(A) AND THE SAME IS HEREBY CONFIRMED. IN THE RESULT, GROUND NO. 3 OF ASSESSEES APPEAL IS DISMIS SED. IN THE RESULT, THE APPEAL OF THE ASSESSEE AND THE REVENUE ARE PARTLY ALLOWED AS PER ABOVE DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 11/08/2017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 11/08/2017 ITA NO. 371&423/JP/14 SH. PRATAP SINGH TANWAR VS. ITO,ALWAR 50 SANTOSH* VKNS'K DH IZFRFYFI VXZSF'KR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. PRATAP SINGH TANWAR 132, KAV SUB STATION, NEELAM CHOWK, BHIWADI, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- ITO,WARD-2(2), ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 371& 423/JP/2014 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.