V M DAWARA, Jaipur V. DCIT, Jaipur

ITA 376/JPR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1920 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 1995-1996
• Appeal Filed On: 15-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA JCIT DHK
• Keywords: Unexplained cash credit; Gift; Opportunity of being heard; Block assessment; Onus to prove; Reassessment proceedings
• Section: 143(3); 147; 131; 68

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 FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 600/JP/2018 & 376/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 1994-95 & 95-96. SHRI V.M. DAWARA, C/O JAIPUR TEXTILE INDUSTRIES, BEHIND ARUN OIL MILL, NEAR JAIPUR GLASS FACTORY, TONK ROAD, JAIPUR. CUKE VS. THE DCIT, CIRCLE-5, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AFFPD 3731 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. SEEMA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03.07.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/09/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST TWO SEPARATE ORDERS OF LD. CIT (A) DATED 23 RD FEBRUARY, 2018 AND 3 RD JANUARY, 2017 FOR THE ASSESSMENT YEARS 1994-95 & 95-96 RESPECTIVELY. THIS IS THE TH IRD ROUND OF APPEALS FOR BOTH THE ASSESSMENT YEARS AS IN THE EARLIER PROCEEDINGS THE MATTER WAS TWICE REMANDED BY THE TRIBUNAL, ONCE TO THE RECORD OF THE AO AND ON T HE SECOND ROUND IT WAS SET ASIDE TO THE RECORD OF THE LD. CIT (A). THE COMMON ISSUE RAISED BY THE ASSESSEE IN THESE APPEALS IS REGARDING ADDITION SUSTAINED BY THE LD. CIT (A) UNDER SECTION 68 OF THE IT ACT TREATING THE LOANS RECEIVED FROM VARIOUS PERSON S AS UNEXPLAINED CASH CREDIT. FIRST, WE TAKE UP THE APPEAL FOR THE ASSESSMENT YEA R 1994-95 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 2 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. 1. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN CO NFIRMING THE ADDITION OF RS. 1,30,35,000/- U/S 68 BY TREATING TH E LOAN RECEIVED FROM THE FOLLOWING PERSONS AS NON-GENUINE :- S.NO. PARTICULARS AMOUNT (IN RS.) 1. SMT. ANUPRIYA JOHARI 15,00,000/ - 2. M/S. TRIMURTI ENTERPRISES 25,00,000/ - 3. SMT. SITA DEVI JOHARI 15,00,000/ - 4. SMT. KANAK PRABHA JOHARI 10,00,000/ - 5. SMT. SHASHI JOHARI 10,00,000/ - 6. M/S. JOHARI JEWELLERS (P) LTD. 25,00,000/ - 7. SHRI ASHOK AKAR 1,40,000/ - 8. SHRI ASHOK KUMAR 35,000/ - 9. SHRI GIRISH PALIWAL 1,80,000/ - 10. SHRI K.D. PATEL 1,60,000/ - 11. SMT. KAMLA PATEL 1,30,000/ - 12. SHRI NAND LAL VERMA 1,00,000/ - 13. SMT. REKHA SINGH 85,000/ - 14. SHRI SUDHIR PATEL 1,35,000/ - 15. SMT. VIMLA SHARMA 50,000/ - 16. M/S. SHRI KRISHNA BUILDERS 70,000/ - 17. M/S. WESTERN TEXTILES 3,40,000/ - 18. M/S. JEWER JEWELLERS 2,00,000/ - 19. SH. RAMJI LAL BITTAN LAL PANWALA 10,00,000/ - 20. SHRI DAYAL DAS 1,50,000/ - 21. SMT. KALAWATI 1,50,000/ - 22. SHRI LAXMAN DAS 60,000/ - 23. SHRI SURESH KUMAR SHARMA 50,000/ - TOTAL RS.1,30,35,000/ - 2. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN NO T FOLLOWING THE DIRECTIONS GIVEN BY THE HONBLE ITAT IN CORRECT PRO SPECTIVE AND ALSO MAKING IRRELEVANT OBSERVATIONS IN CONFIRMING T HE ABOVE ADDITION. 3. THE ASSESSEE CRAVES TO ALTER, AMEND AND MODIFY ANY OF THE GROUNDS OF APPEAL. 4. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 2. THE ASSESSEE IS A PROPRIETOR OF M/S. TERRY TEX O VERSEAS, M/S. V.R. TEXTILES AND PARTNER IN M/S. SIKAR MARINO TRADER. THE ASSES SEE DERIVED INCOME FROM HOUSE 3 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. PROPERTY AND INTEREST INCOME. THE ASSESSEE FILED HI S RETURN OF INCOME ON 16.12.1994 DECLARING INCOME OF RS. 1,18,400/-. IN THE ASSESSM ENT COMPLETED UNDER SECTION 147 READ WITH SECTION 143(3) DATED 28 TH MARCH, 2002 THE AO ASSESSED THE TOTAL INCOME AT RS. 1,55,30,542/- BY MAKING THE ADDITION ON ACCO UNT OF UNEXPLAINED LOANS/GIFTS OF RS. 1,48,10,000/- AND DISALLOWANCE OF CLAIM OF INTE REST OF RS. 5,92,142/-. THUS BOTH THE DISALLOWANCES WERE INTER-CONNECTED AND RATHER T HE DISALLOWANCE OF INTEREST IS CONSEQUENTIAL TO THE DISALLOWANCE OF CLAIM OF LOAN. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BY FILING AN APPEAL BEFORE THE LD. CIT (A) AND VIDE ORDER DATED 3 RD SEPTEMBER, 2004 THE LD. CIT (A) ALLOWED THE RELIEF OF RS. 1,24,90,000/- OUT OF THE TOTAL ADDITION ON ACCOUNT OF UNEXPLAINED LOANS OF R S. 1,48,10,000/-. THUS THE LD. CIT (A) SUSTAINED THE ADDITION OF RS. 23,20,000/- IN RE SPECT OF CASH CREDITS. AS REGARDS THE DISALLOWANCE OF INTEREST, THE LD. CIT (A) DIREC TED THE AO TO DRAW BREAK-UP OF INTEREST ON LOANS WHICH ARE FOUND EXPLAINED AND HEN CE THE CONSEQUENTIAL RELIEF WAS ALSO GRANTED IN RESPECT OF DISALLOWANCE OF INTEREST . AGAINST THE SAID ORDER, THE DEPARTMENT AND THE ASSESSEE HAD FILED APPEAL AND CR OSS OBJECTION RESPECTIVELY BEFORE THE TRIBUNAL. THE TRIBUNAL VIDE ITS ORDER DA TED 28 TH FEBRUARY, 2007 IN ITA NO. 692/JP/2004 AND C.O. NO. 113/JP/2004 SET ASIDE THE ISSUE OF ADDITION MADE UNDER SECTION 68 TO THE EXTENT OF RS. 1,39,35,000/-. THUS THE TRIBUNAL IN THE FIRST ROUND UPHELD THE RELIEF GRANTED BY THE LD. CIT (A) TO THE EXTENT OF ABOUT RS. 8,75,000/-. IN THE SET ASIDE ASSESSMENT PROCEEDINGS, THE AO ISSUED SUMMONS UNDER SECTION 131 TO THE CREDITORS WHICH WERE SERVED IN RESPECT OF 10 CR EDITORS BUT THE SUMMONS SENT TO 14 CREDITORS WERE RECEIVED BACK UNSERVED, OUT OF WH ICH 3 CREDITORS REFUSED TO ACCEPT THE SUMMON AND REMAINING 11 WERE NOT FOUND AT THE G IVEN ADDRESS. IN THE SET 4 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. ASIDE PROCEEDINGS, THE AO PASSED THE ORDER DATED 14 .12.2007 WHEREBY REPEATED THE ADDITIONS TO THE EXTENT OF RS. 1,30,35,000/- AFTER ACCEPTING THE CLAIM OF RS. 9,00,000/- IN THE NAME OF M/S. RAJASTHAN TEXTILE FI NANCING WORKS. AGAINST THE SAID ORDER OF THE AO, THE ASSESSEE AGAIN FILED AN APPEAL BEFORE THE LD. CIT (A) WHICH WAS DECIDED VIDE ORDER DATED 25.08.2009 WHEREBY THE LD. CIT (A) CONFIRMED THE ADDITION MADE BY THE AO ON THE GROUND THAT THE ASSESSEE HAS FAILED TO PRODUCE THE CREDITORS/PERSONS. THE ASSESSEE FURTHER CARRIED TH E MATTER TO THIS TRIBUNAL AND VIDE ORDER DATED 5 TH MARCH, 2014 IN ITA NO. 827/JP/2009 THE TRIBUNAL AG AIN SET ASIDE THE ISSUE TO THE RECORD OF THE LD. CIT (A) BY GIVING TH E DIRECTIONS IN PARA 10 AS UNDER :- 10. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH TH E PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT APPEARS THAT THE SUBMISSIONS OF THE ASSESS EE ALONG WITH VARIOUS EVIDENCES FURNISHED TO THE LD. CIT (A) WAS NOT APPRECIATED IN RIGHT PERSPECTIVE. THE LD. CIT (A) EVEN DID NOT CO NSIDER THIS VITAL FACT THAT AN ADDITION TO THE EXTENT OF RS. 14.25 LAC WAS ALREADY MADE IN THE BLOCK ASSESSMENT AND THAT THERE WAS A DISPUTE BETWE EN THE ASSESSEE AND JOHARI GROUP TO WHICH CREDITORS OF ABOUT RS. 1 CRORE BELONGED AND THEY HAD FILED A FIR, BUT THE LD. CIT (A) NEITHER C ONSIDERED THE AMOUNT MENTIONED IN THE FIR NOT AMOUNT ASSESSED IN THE BLO CK ASSESSMENT. HE SIMPLY CONFIRMED THE ADDITION MADE BY THE ASSESS ING OFFICER ON THIS BASIS THAT THE LETTERS ISSUED TO CERTAIN PERSONS RE TURNED BACK AND FEW OF THE CREDITORS DID NOT COMPLY THE SUMMONS. HOWEVE R, HE IGNORED THIS CONTENTION OF THE ASSESSEE THAT NEW ADDRESSES OF FE W CREDITORS WERE GIVEN TO WHOM NO LETTER WAS WRITTEN BY THE ASSESSIN G OFFICER. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS, D EEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF LD. CIT (A ) TO BE ADJUDICATED 5 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. AFRESH IN ACCORDANCE WITH LAW AFTER CONSIDERING THE VARIOUS DETAILS WHICH WERE CLAIMED TO HAVE BEEN FILED BEFORE HIM BY THE ASSESSEE. ACCORDINGLY, THE ISSUE IS REMANDED BACK TO THE FILE OF LD. CIT (A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE LD. CIT (A) HAS PASSED THE IMPUGNED ORDER AS RE MANDED BY THIS TRIBUNAL AND CONFIRMED THE ADDITION MADE BY THE AO OF RS. 1,30,3 5,000/-. 3. AGGRIEVED BY THE ORDER OF LD. CIT (A), THE ASSES SEE HAS AGAIN APPROACHED THE TRIBUNAL THIRD TIME. THE LD. A/R OF THE ASSESSEE HA S SUBMITTED THAT OUT OF THIS ADDITION OF RS. 1,30,35,000/-, A SUM OF RS. 1 CRORE PERTAINS TO JOHARI GROUP. THE LD. A/R HAS POINTED OUT THAT THE JOHARI GROUP HAS FILED AN FIR IN RESPECT OF THE LOANS OF RS. 50,00,000/- THROUGH VARIOUS PERSONS, NAMELY, SM T. ANUPRIYA JOHARI, SMT. SITA DEVI JOHARI, SMT. KANAK PRABHA JOHARI AND SMT. SHAS HI JOHARI. THUS THIS AMOUNT OF RS. 50 LACS WAS PART OF THE FIR WHEREIN THEY HAVE C LAIMED THE LOANS GIVEN TO THE ASSESSEE AND THE ASSESSEE HAS DEFAULTED THE REPAYME NT OF THE SAID AMOUNT. THE LD. A/R HAS FURTHER SUBMITTED THAT THE ASSESSEE PRODUCE D ALL THE DETAILS OF THE LOANS RECEIVED FROM THE JOHARI GROUP BY GIVING THE CHEQUE NUMBERS AND SUBSEQUENT REPAYMENT OF THE SAID LOANS BY THE ASSESSEE. ALL T HESE LOAN CREDITORS ARE REGULAR INCOME TAX ASSESSES AND, THEREFORE, THEIR IDENTITY AND CREDITWORTHINESS CANNOT BE DOUBTED BY THE DEPARTMENT. AS REGARDS THE REMAININ G RS. 50,00,000/- OF LOAN FROM M/S. TRIMURTI ENTERPRISES AND M/S. JOHARI JEWELLERS PVT. LTD. OF RS. 25,00,000/- EACH, THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE PRODUCE D THE DETAILS OF THE CHEQUES THROUGH WHICH THE LOANS WERE RECEIVED AS WELL AS TH E DETAILS OF THE CHEQUES OF 6 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. REPAYMENTS OF THE SAID LOANS. FURTHER, THE ASSESSE E ALSO PRODUCED THE CONFIRMATIONS FROM THESE TWO LOAN CREDITORS, NAMELY M/S. TRIMURTI ENTERPRISES AND M/S. JOHARI JEWELLERS PVT. LTD. THEREFORE, THE ASSESSEE DISCHA RGED HIS ONUS TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE T RANSACTIONS WHEN ALL THE RELEVANT EVIDENCES WERE PRODUCED OF RECEIPT OF THE LOANS AND REPAYMENT OF THE LOANS AS WELL AS CONFIRMATIONS FROM THE LOAN CREDITORS. AS REGA RDS THE OTHER LOAN AMOUNTS OF RS. 50,00,000/- RECEIVED FROM 4 CREDITORS OF JOHARI GRO UP, SINCE THERE WAS A FIR WHICH CONTAINS THE DETAILS OF THE LOANS GIVEN BY THESE CR EDITORS TO THE ASSESSEE, APART FROM THE CONFIRMATIONS FILED BY THE ASSESSEE THE SAID TR ANSACTIONS CANNOT BE DOUBTED AS IT IS VERIFIABLE FROM INDEPENDENT EVIDENCES. THE LD. A/R HAS SUBMITTED THAT ALL THESE DOCUMENTS WERE TURNED DOWN BY THE LD. CIT (A) ON TH E GROUND THAT THE NAMES OF THE OTHER TWO LOAN CREDITORS NAMELY M/S. TRIMURTI E NTERPRISES AND M/S. JOHARI JEWELLERS PVT. LTD. ARE NOT MENTIONED IN THE FIR. THE LD. A/R HAS POINTED OUT THAT THE TRANSACTIONS OF LOANS GIVEN BY SMT. ANUPRIYA JO HARI, SMT. SITA DEVI JOHARI, SMT. KANAK PRABHA JOHARI AND SMT. SHASHI JOHARI AMOUNTIN G TO RS. 50 LACS HAS BEEN STATED IN THE FIR AND, THEREFORE, THE SAID TRANSACT ION OF LOAN IS OTHERWISE PROVED FROM INDEPENDENT SOURCES. 3.1. AS REGARDS THE CREDITORS TO THE EXTENT OF RS. 14,25,000/-, THE LD. A/R HAS SUBMITTED THAT THE SAID AMOUNT WAS ALREADY ASSESSED TO TAX IN THE BLOCK ASSESSMENT. HE HAS REFERRED TO THE DETAILS OF THE A MOUNT ASSESSED TO TAX IN THE BLOCK ASSESSMENT AND SUBMITTED THAT THE 4 LOAN CRED ITORS HAVING TOTAL LOAN OF RS. 14,25,000/- WAS PART OF THE BLOCK ASSESSMENT UNDER SECTION 158BC. THE LD. A/R HAS POINTED OUT THAT THE AO MADE AN ADDITION OF RS. 1,1 9,73,000/- IN THE BLOCK 7 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. ASSESSMENT WHICH INCLUDES THIS AMOUNT OF RS. 14,25, 000/- IN RESPECT OF THE 4 CREDITORS WHICH IS MANIFEST FROM THE RECORD AS PER THE DETAILS OF ADDITIONS MADE IN THE BLOCK ASSESSMENT AS WELL AS THE DETAILS OF THE CREDITORS WHICH ARE PART OF THE ADDITIONS MADE BY THE AO IN THE REGULAR ASSESSMENT YEARS. HE HAS FURTHER SUBMITTED THAT THE SAID ADDITION OF RS. 1,19,73,000 /- MADE IN THE BLOCK ASSESSMENT WAS SUSTAINED BY THE TRIBUNAL VIDE ORDER DATED 1 ST DECEMBER, 2007 IN ITSSA NO. 21/JP/1997. HENCE THE LD. A/R HAS SUBMITTED THAT T HE AMOUNT WHICH IS ALREADY ADDED IN THE BLOCK ASSESSMENT CANNOT BE ADDED AGAIN IN THE REOPENED ASSESSMENT. 3.2. THE REMAINING AMOUNT OF RS. 16,10,000/- CONSIS TS OF 4 CREDITORS, NAMELY, M/S. WESTERN TEXTILE RS. 3,40,000/-, M/S. JEWER JE WELLERS RS. 2,00,000/-, M/S. RAMJI LAL BITTAN LAL PATNAWALA RS. 10,00,000/- AND SHRI KRISHNA BUILDERS RS. 70,000/-. THE LD. A/R HAS SUBMITTED THAT THE AO HA S CONFIRMED THE ADDITION ON THE GROUND THAT POSTAL AUTHORITIES HAVE REMARKED ON THE SUMMONS ISSUED UNDER SECTION 131 THAT THE PERSONS HAD LEFT WITHOUT ADDRESS WHERE AS SHRI VIMAL CHOUDHARY WAS THE PROPRIETOR OF M/S. WESTERN TEXTILE WHO WAS ALSO SUBJECTED TO SEARCH IN BLOCK ASSESSMENT. THE LD. A/R HAS FURTHER SUBMITTED THAT IN THE BLOCK ASSESSMENT, THE AO ASSESSED THE INCOME OF SHRI VIMAL CHOUDHARY AT RS. 1,01,70,053/-, THEREFORE, THE IDENTITY AND CREDITWORTHINESS OF THE CREDITOR STAND ESTABLISHED FROM THE RECORD OF THE REVENUE ITSELF. THE ASSESSEE PRODUCED THE RECORD O F RECEIPTS OF THE AMOUNT OF LOAN THROUGH CHEQUE AS WELL AS CONFIRMATION. THEREFORE, THE GENUINENESS OF THE TRANSACTION IS ALSO ESTABLISHED WHEN THE ASSESSEE H AS PRODUCED THE EVIDENCE OF RECEIPT OF LOAN THROUGH CHEQUE AND CONFIRMATION OF THE CREDITOR. AS REGARDS THE LOAN OF RS. 2,00,000/- FROM M/S. JEWER JEWELLERS, THE SA ID CONCERN BELONGS TO M/S. JOHARI 8 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. GROUP AND THE AMOUNT IS RECEIVED BY CHEQUE ON 4 TH DECEMBER, 1993 WHICH WAS REPAID ON 30 TH DECEMBER, 1994 THROUGH CHEQUE. ALL THESE EVIDENCE S WERE PRODUCED BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW. THE AO MADE THE ADDITION IN THE SET ASIDE PROCEEDINGS ONLY ON THE GROUND THAT SUMMON IS SUED UNDER SECTION 131 COULD NOT BE SERVED DUE TO INCOMPLETE ADDRESS. THE LD. A /R HAS SUBMITTED THAT SUMMONS ISSUED BY THE AO AT THE SAME ADDRESS OF THE CREDITO RS OF JOHARI GROUP HAVE BEEN DULY SERVED AND, THEREFORE, IT CANNOT BE SAID THAT THE ADDRESS GIVEN BY THE ASSESSEE WAS INCOMPLETE. SINCE THE ASSESSEE HAS DISPUTE WIT H THE JOHARI GROUP AND A FIR WAS ALSO LODGED AGAINST THE ASSESSEE, THEREFORE, TH E ASSESSEE COULD NOT PRODUCE THE CONFIRMATION OR THE PARTY BEFORE THE AO FOR EXAMINA TION. THUS THE LD. A/R HAS SUBMITTED THAT IN VIEW OF THE EVIDENCE PRODUCED BY THE ASSESSEE REGARDING THE RECEIPT OF THE LOAN AND REPAYMENT OF THE LOAN THROU GH CHEQUE, THE ADDITION IS NOT JUSTIFIED AND MAY BE DELETED. 3.3. THE NEXT ADDITION IS OF RS. 10,00,000/- OF LOA N FROM RAMJI LAL BITTAN LAL PATNAWALA. THE LD. A/R HAS SUBMITTED THAT THIS CON CERN IS ALSO OF JOHARI GROUP AND THE AMOUNT WAS RECEIVED BY CHEQUE. THE ASSESSEE PRO DUCED THE CHEQUE DETAILS AND COPY OF ACCOUNT OF THE CREDITOR IN SUPPORT OF THE C LAIM. HOWEVER, THE AO MADE THE ADDITION ON THE GROUND THAT SUMMON ISSUED UNDER SEC TION 131 WAS REFUSED TO ACCEPT BY THIS CREDITOR. THE LD. A/R HAS SUBMITTED THAT S INCE THE ASSESSEE HAS DISPUTE WITH THE JOHARI GROUP AND A FIR WAS LODGED AGAINST THE A SSESSEE, THEREFORE, DUE TO HOSTILE BUSINESS TERMS THE ASSESSEE COULD NOT PRODU CE THE CREDITOR BEFORE THE AO. HOWEVER, WHEN THE ASSESSEE IS NOT HAVING GOOD TERMS WITH THE CREDITOR, AND 9 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. PRODUCED THE EVIDENCE OF RECEIPT OF THE AMOUNT THRO UGH CHEQUE, THEN THE ADDITION IS NOT JUSTIFIED. 3.4. SHRI KRISHNA BUILDERS RS. 70,000/-. THE LD. A/R HAS SUBMITTED THAT THIS AMOUNT WAS RECEIVED BY CHEQUE AND WAS ALSO REPAID B Y THE ASSESSEE THROUGH CHEQUE. HOWEVER, THE AO MADE THE ADDITION ON THE G ROUND THAT SUMMON ISSUED UNDER SECTION 131 TO THE CREDITOR WAS NOT RESPONDED AND, THEREFORE, WHEN THE CREDITOR HAS NOT APPEARED BEFORE THE AO THE LOAN WA S TREATED AS UNEXPLAINED. HE HAS SUBMITTED THAT WHEN THE ASSESSEE PRODUCED ALL O THER EVIDENCES OF RECEIPT AND REPAYMENT OF THE LOAN THROUGH CHEQUES THEN THE SAID LOAN CANNOT BE TREATED AS UNEXPLAINED MERELY BECAUSE THE CREDITOR HAS NOT APP EARED BEFORE THE AO. HENCE THE LD. A/R HAS PLEADED THAT THE ADDITION MADE BY T HE AO MAY BE DELETED. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE F OLLOWING DECISIONS :- CIT VS. ORISSA CORPORATION PVT. LTD. 159 ITR 78 (SC) ITO VS. UMRAO CONSTRUCTION PVT. LTD. 2 SOT 837 (JP) HARISH KUMAR VS. DCIT 85 ITD 366 (HYD.) 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T DESPITE REPEATED OPPORTUNITIES GIVEN TO THE ASSESSEE, THE ASSESSEE H AS FAILED TO DISCHARGE HIS ONUS OF PROVING THE IDENTITY, CREDITWORTHINESS OF THE CREDI TOR AND GENUINENESS OF THE TRANSACTIONS. THE ASSESSEE FAILED TO PRODUCE THE C REDITORS FOR VERIFICATION OF THE GENUINENESS OF THE TRANSACTION AND EVEN SUMMONS ISS UED BY THE AO UNDER SECTION 131 OF THE IT ACT WERE NOT RESPONDED BY THESE CREDI TORS. THEREFORE, IT IS A CLEAR 10 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. CASE OF FAILURE ON THE PART OF THE ASSESSEE TO DISC HARGE THE PRIMARY ONUS OF PROVING THE IDENTITY AND CREDITWORTHINESS OF THE CREDITORS AS WELL AS GENUINENESS OF THE TRANSACTIONS. THE SUMMONS WERE ISSUED BY THE AO TO ALL THE PARTIES AT THE ADDRESSES PROVIDED BY THE ASSESSEE. NONE OF THESE CREDITORS HAD EITHER RESPONDED OR APPEARED BEFORE THE AO IN RESPONSE TO THE SUMMON S ISSUED UNDER SECTION 131. THE ASSESSEE ALSO EXPRESSED HIS INABILITY TO PRODUC E ANY CREDITOR EXCEPT ONE SMT. KANTA RANI DAWRA, PROP. OF M/S. RAJASTHAN TEXTILE F INISHING WORKS AND RELIEF OF RS. 9 LACS WAS GRANTED BY THE AO IN RESPECT OF THE SAID CREDITOR. FOR REMAINING 14 CREDITORS, SUMMONS WERE RECEIVED UNSERVED AND IN 9 CASES THE SUMMONS WERE SERVED BUT THE PARTIES CHOOSE NOT TO ATTEND OR RESP OND TO THE SUMMONS OR FILED ANY DOCUMENTARY EVIDENCE. HENCE IN THE ABSENCE OF ANY EVIDENCE OR DETAILS IN SUPPORT OF THE CLAIM TO THE TUNE OF RS. 1,30,35,000/- IN TH E NAME OF 23 CREDITORS IT REMAINED UNEXPLAINED AND CONSEQUENTLY THE ADDITION WAS MADE UNDER SECTION 68 OF THE ACT WHICH IS AS PER LAW AND JUSTIFIED. THE LD. D/R H AS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. AS IT IS MANIFEST FROM THE GROUND ITSELF T HAT THERE ARE 23 CREDITORS AMOUNTING TO RS. 1,30,35,000/- TREATED AS UNEXPLAIN ED CASH CREDIT BY THE AO AND CONFIRMED BY THE LD. CIT (A) DESPITE HAVING TWO ROU NDS OF APPEALS. ONE OF THE CONTENTIONS AND OBJECTIONS OF THE ASSESSEE AGAINST THE ADDITIONS MADE BY THE AO AND CONFIRMED BY THE LD. CIT (A) IS REGARDING RS. 1 4,25,000/- WHICH WAS PART OF THE ADDITIONS MADE BY THE AO IN THE BLOCK ASSESSMENT FO R THE ASSESSMENT YEAR 1995-96. OUR ATTENTION WAS DRAWN TO THE BLOCK ASSESSMENT ORD ER AT PAGES 101 TO 111 OF THE 11 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. PAPER BOOK WHEREIN WE FIND THAT OUT OF THE TOTAL AD DITION OF RS. 1,19,73,000/-, AN AMOUNT OF RS. 14,25,000/- PERTAINS TO 13 CREDITORS WHICH ARE COMMON AS IN THE BLOCK ASSESSMENT AS WELL AS PART OF THE ADDITIONS M ADE BY THE AO UNDER SECTION 68 OF THE IT ACT. THIS FACT HAS BEEN POINTED OUT BY T HE ASSESSEE BEFORE THE AUTHORITIES BELOW, HOWEVER, NEITHER THE AO NOR THE LD. CIT (A) HAS TAKEN THE PAIN TO VERIFY THE RELEVANT RECORD ON THIS ISSUE. ACCORDINGLY, IN VIEW OF THE FACT THAT THIS AMOUNT OF RS. 14,25,000/- WAS ALREADY TAXED BY THE AO WHILE PASSI NG THE BLOCK ASSESSMENT ORDER AND THE DETAILS OF THE CREDITORS WHICH WERE PART OF THE ADDITIONS MADE IN THE BLOCK ASSESSMENT ARE PLACED AT PAGES 88 TO 94 OF THE PAPE R BOOK. ACCORDINGLY, THE ADDITION TO THE EXTENT OF RS. 14,25,000/- IS DELETE D. 5.1. AS REGARDS THE LOAN OF RS. 1 CRORE FROM JOHARI GROUP, THE ASSESSEE HAS CLAIMED TO HAVE RECEIVED THE SAID AMOUNT THROUGH CH EQUES AND ALSO REPAID THE ENTIRE LOAN ON VARIOUS DATES THROUGH CHEQUES. THE A SSESSEE HAS SPECIFICALLY CONTENDED BEFORE THE AO AND THE LD. CIT (APPEALS) T HAT A LOAN OF RS. 50,00,000/- BY 4 PERSONS, NAMELY, SMT. ANUPRIYA JOHARI, SMT. SITA DEVI JOHARI, SMT. KANAK PRABHA JOHARI AND SMT. SHASHI JOHARI IS PART OF THE AMOUNT MENTIONED IN THE FIR LODGED BY THE JOHARI GROUP AGAINST THE ASSESSEE. THE DETAILS OF THE FIR WERE ALSO FURNISHED BY THE ASSESSEE. FOR READY REFERENCE, WE REPRODUCE TH E DETAILS OF LOANS AND FIR AS WELL AS THE LOANS FROM OTHER TWO CONCERNS OF JOHARI GROUP TOTAL AMOUNTING TO RS. 1 CRORE ARE AS UNDER :- NAME & ADDRESS AMOUNT ANU PRIYA JOHARI C/O JOHARI BHAWAN, GOVIND NAGAR (E), OPP. KAPOOR CARPET FACTORY, AMER ROAD, 15,00,000/ - 12 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. JAIPUR GIR: A 893/2(8) SITA DEVI JOHARI C/O JOHARI BHAWAN, GOVIND NAGAR (E), OPP. KAPOOR CARPET FACTORY, AMER ROAD, JAIPUR. GIR : S-1677/2(1) 10,00,000/ - KANAK PRABHA JOHARI C/O JOHARI BHAWAN, GOVIND NAGAR (E), OPP. KAPOOR CARPET FACTORY, AMER ROAD, JAIPUR. GIR: 30-031-Q4-5632/2(1) 10,00,000/ - SASHI JOHARI C/O JOHARI BHAWAN, GOVIND NAGAR (E), OPP. KAPOOR CARPET FACTORY, AMER ROAD, JAIPUR. GIR : S-1909/2(8) 15,00,000/ - TRIMURTI ENTERPRISES C/O JOHARI BHAWAN, GOVIND NAGAR (E), OPP. KAPOOR CARPET FACTORY, AMER ROAD, JAIPUR. GIR : 30-031-PC-5925/2(1) 25,00,000/ - JOHARI JEWELLERS (P) LTD. 1180, PARTANIYON KA RASTA, JOHARI BAZAR, JAIPUR. GIR : 30-044-CQ-3211 25,00,000/ - ON VERIFICATION OF THE RECORD, WE FIND THAT RS. 50 LACS AS RECEIVED FROM THE 4 PERSONS FIND PLACE IN THE FIR AND THE AMOUNT OF CHEQUES AS WELL AS THE NAMES OF THE CREDITORS ARE MATCHING WITH THE DETAILS RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THEREFORE, TO THE EXTENT OF RS. 50 LACS, THE SAID AMOUNT HAS BEEN PART OF THE FIR LODGED BY THESE PERSONS AGAINST THE ASSESSE E ESTABLISHED THE FACT THAT THE ASSESSEE HAD TAKEN THE LOANS OF SAID RS. 50 LACS FR OM THE 4 PERSONS OF JOHARI GROUP. ACCORDINGLY WHEN THE LOAN AMOUNT CAN BE VERIFIED FR OM THE INDEPENDENT DOCUMENT AND EVIDENCE AND THE CREDITORS HAVE ALREADY LODGED FIR AGAINST THE ASSESSEE, THEN TO THAT EXTENT THE ASSESSEE HAS PRODUCED THE CHEQUE DETAILS OF RECEIPT OF LOANS AND 13 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. REPAYMENT OF THE SAID LOANS, THE SOURCE OF THE SAID AMOUNT STAND DULY EXPLAINED AND THE ADDITION MADE BY THE AO TO THE EXTENT OF RS. 50 LACS WHICH IS PART OF THE FIR IS NOT JUSTIFIED. HENCE WE DELETE THE ADDITION OF RS. 50 LACS PERTAINING TO THE FIRST 4 CREDITORS AS PER THE ABOVE DETAILS. 5.2. AS AGAINST THE BALANCE AMOUNT OF RS. 50 LACS C OMPRISING OF RS. 25 LACS EACH OF M/S. TRIMURTI ENTERPRISES AND M/S. JOHARI JEWELL ERS PVT LTD., THOUGH THE ASSESSEE FILED THE CONFIRMATIONS BUT DESPITE VARIOUS OPPORTU NITIES AND THE MATTER WAS REMANDED TWICE TO THE RECORD OF THE AUTHORITIES BEL OW, THE ASSESSEE FAILED TO PRODUCE THE CREDITORS FOR CONFIRMATION OF THE DETAI LS FILED BY THE ASSESSEE. EVEN THE FIR FILED BY THE JOHARI GROUP MENTIONED ABOUT THE L OAN OF RS. 50 LACS ONLY. THEREFORE, WHEN THE FIR IS ACCEPTED AS EXPLANATION OF THE TRANSACTIONS THEN THE REMAINING AMOUNT OF RS. 50 LACS WHICH IS NOT FOUND MENTIONED IN THE FIR IS REQUIRED TO BE ESTABLISHED BY PRODUCING THE INDEPENDENT EVID ENCE. THE ASSESSEE HAS CLAIMED TO HAVE REPAID THE SAID AMOUNT BUT RIGHT FROM THE B EGINNING THE ASSESSEE IS CONTESTING THE OUTSTANDING TO THE CREDITORS AND THE RE WAS A DISPUTE BETWEEN THE PARTIES ABOUT THE OUTSTANDING OF THE LOANS TO THE A SSESSEE. HENCE IN THE ABSENCE OF THE CONFIRMATIONS FROM THE PARTIES DESPITE VARIOUS OPPORTUNITIES GRANTED TO THE ASSESSEE, WE FIND THAT THE ASSESSEE HAS FAILED TO D ISCHARGE HIS ONUS IN RESPECT OF THE BALANCE AMOUNT OF RS. 50 LACS. SINCE A CONSIDERABL E TIME HAS LAPSED AND THE ASSESSEE HAS ALREADY AVAILED THREE OPPORTUNITIES, T HEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY REASO N TO INTERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW REGARDING THE ADDITION OF RS. 50 LACS PERTAINING TO THE CREDITOR TRIMURTI ENTERPRISES AND JOHARI JEWELLERS PVT. LTD. 14 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. 5.3. IN THE RESULT, A PART ADDITION IS DELETED AMOU NTING TO RS. 14,25,000/- BEING ALREADY SUFFERED TAX IN THE BLOCK ASSESSMENT AND RS . 50 LACS AS IT WAS PART OF THE FIR AND THE DETAILS IN THE FIR AND CREDITORS IN THE BOOKS OF ACCOUNTS ARE MATCHING. ASSESSMENT YEAR 1995-96 : 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN CO NFIRMING THE ADDITION OF RS. 38,27,913/- U/S 68 BY TREATING THE LOAN RECEIVED FROM THE FOLLOWING PERSONS AS NON-GENUINE :- S.NO. PARTICULARS AMOUNT 1. M/S. SHEETAL SUITINGS PVT. LTD. 8,00,000/ - 2. SMT. SURAJ DEVI MODI 1,00,000/ - 3. BANSAL EXPORTS 10,00,667/ - 4. SHRI GANPAT LAL SARDA 75,000/ - 5. M/S. ITALIN JEWELLERY MFG. CO. 10,08,000/ - 6. M/S. M.E.P. ENGINEERING 5,00,000/ - 7. M/S. R.K. FINE EXPORT 2,74,246/ - 8. SHRI SHANKAR LAL MAROO 70,000/ - TOTAL 38,27,913/ - 2. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN SU STAINING THE DISALLOWANCE OF RS. 18,09,798/- (2,58,092 + 15,51,7 06) OUT OF INTEREST EXPENSES. HE HAS FURTHER ERRED IN SUSTAINI NG THE DISALLOWANCE IGNORING THAT HIS PREDECESSOR CIT (A) VIDE ITS ORDER DT. 25.08.2009 HAS ALREADY DELETED DISALLOWANCE OF RS. 2,56,711/- AND TO THIS EXTENT THE ORDER OF LD. CIT (A) HAS ATTAINED FINALITY. 3. THE LD. CIT (A) HAS ERRED IN FACTS AND IN LAW IN NO T FOLLOWING THE DIRECTIONS GIVEN BY THE HONBLE ITAT IN CORRECT PRO SPECTIVE IN CONFIRMING THE ABOVE ADDITION. 4. THE ASSESSEE CRAVES TO ALTER, AMEND, AND MODIFY ANY OF THE GROUNDS OF APPEAL. 5. NECESSARY COST BE ALLOWED TO THE ASSESSEE. 15 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. GROUND NO. 1 IS REGARDING ADDITION ON ACCOUNT OF UN EXPLAINED LOAN CREDITORS UNDER SECTION 68 OF THE IT ACT. 7. IN THE REASSESSMENT PROCEEDINGS, THE AO MADE ADDITI ON OF RS. 63,37,766/- AS UNEXPLAINED CASH CREDIT UNDER SECTIO N 68 OF THE IT ACT. IN THE FIRST ROUND OF APPEAL, THE LD. CIT (A) DELETED THE ADDITION TO THE EXTENT OF RS. 25,09,853/- OUT OF RS. 54,37,766/- AND SUSTAINED TH E ADDITIONS OF RS. 9,00,000/- AND RS. 29,27,913/-. ON FURTHER APPEAL BY THE ASSESSEE, THIS TRIBUNAL VIDE ORDER DATED 31 ST MAY, 2007 SET ASIDE THE MATTER TO THE RECORD OF THE AO FOR ADJUDICATING THE ISSUE AFRESH. IN THE S ET ASIDE PROCEEDINGS, THE AO AGAIN REPEATED THE ADDITION OF RS. 38,27,913/-. THE INTEREST OF RS. 18,09,798/- WAS ALSO DISALLOWED IN CONSEQUENTIAL TO THE ADDITION MADE ON ACCOUNT OF LOAN CREDITORS. IN THE SECOND ROUND, TH E LD. CIT (A) CONFIRMED THE ADDITION UNDER SECTION 68 AND RESTRICTED THE DISALL OWANCE OF INTEREST TO RS. 15,51,781/- VIDE ORDER DATED 25.08.2009. ON FURTHE R APPEAL, THE TRIBUNAL VIDE ORDER DATED 5 TH MARCH, 2014 AGAIN SET ASIDE THE MATTER TO THE RECO RD OF THE LD. CIT (A) ON THE SAME TERMS AS THE MATTER WAS SET ASIDE FOR THE ASSESSMENT YEAR 1994-95 BY COMPOSITE ORDER. THE LD . CIT (A) IN THE SET ASIDE PROCEEDINGS, VIDE IMPUGNED ORDER SUSTAINED TH E ADDITION MADE BY THE AO IN THE SECOND ROUND OF LITIGATION. 8. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT IN THE SET ASIDE PROCEEDINGS BEFORE THE AO, THE ASSESSEE VIDE LETTER DATED 17.11.2008 FILED ALL THE DETAILS AND ALSO REQUESTED TO ISSUE S UMMONS AND TO MAKE DIRECT ENQUIRY FROM THE BANKERS TO VERIFY THE GENUINENESS OF THE CREDITORS. HOWEVER, 16 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. THE AO REPEATED THE ADDITION OF RS. 38,27,913/- IN RESPECT OF THE 8 PERSONS ON THE GROUND THAT THE ASSESSEE HAS NOT FURNISHED A NY SPECIFIC POSITIVE EVIDENCE PROVING THE GENUINENESS OF THE CREDIT. THU S THE AO WITHOUT CONDUCTING ANY ENQUIRY HAS CONFIRMED THE ADDITION I GNORING THE EVIDENCE PRODUCED BY THE ASSESSEE. HE HAS FURTHER SUBMITTED THAT THERE ARE 8 CREDITORS IN RESPECT OF WHICH THE ADDITION WAS MADE AND ASSESSEE HAS PRODUCED COMPLETE ADDRESS, DETAILS OF THE AMOUNT RE CEIVED THROUGH CHEQUES AND REPAYMENT OF THE SAME BY THE ASSESSEE. THE PAR TIES ACCOUNTS IN THE BOOKS OF THE ASSESSEES PROPRIETORSHIP CONCERN WAS PRODUCED TO SHOW THE RECEIPT AND PAYMENT OF THE SAID AMOUNT. THE ASSESSE E HAS ALSO EXPLAINED THE CREDITWORTHINESS OF EACH OF THE PARTIES AS ALL THES E PARTIES ARE ASSESSED TO TAX AND THEIR INCOME WAS ASSESSED BY THE DEPARTMENT WHI CH IS MANY TIMES THAN THE AMOUNT OF LOAN GIVEN BY THE PARTIES TO THE ASSE SSEE. THUS THE LD. A/R HAS SUBMITTED THAT THE ASSESSEE HAS BROUGHT ON RECORD T HE FACT THAT THE AMOUNTS FROM ALL THE CREDITORS WERE RECEIVED BY CHEQUES AND THE REPAYMENT OF THE LOANS TO THESE PARTIES EXCEPT TWO AT SL. NO. 4 & 5 HAS BEEN MADE THROUGH BANKING CHANNEL. AS REGARDS THE CREDITORS M/S. ITA LIAN JEWELLERY MFG. CO. AT SL. NO. 5 OF THE LIST OF THE CREDITORS, A LEGAL NOT ICE WAS SERVED THROUGH ITS ADVOCATE FOR RECOVERY OF THE LOAN AMOUNT OF RS. 10 LACS WHICH ESTABLISHED THE FACT THAT THE TRANSACTION IS GENUINE. THUS THE LD. A/R HAS SUBMITTED THAT THE AO AND LD. CIT (A) HAS MADE THE ADDITION ONLY FOR W ANT OF PRODUCTION OF THE CREDITOR BY THE ASSESSEE WHICH WAS NOT POSSIBLE FOR THE ASSESSEE AFTER THE LAPSE OF A PERIOD OF 22 YEARS. THE LD. A/R HAS SUB MITTED THAT HAVING REGARD 17 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASS ESSEE AT THE FIRST STAGE REQUESTED THE AO TO SUMMON THE PARTIES FOR ENQUIRY AND ALSO TO CONDUCT ENQUIRY FROM THE BANKERS OF THE CREDITORS TO ASCERT AIN THE GENUINENESS AND CREDITWORTHINESS OF THE PARTIES. HE HAS POINTED OU T THAT THE IDENTITIES OF THE PARTIES ARE NOT IN DISPUTE. THE AO HAS DOUBTED THE CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS. HOWEVER, ONCE THE ASSESSEE REQUESTED FOR CONDUCTING THE ENQUIRY FROM THE BANKERS OF THE CRED ITORS, IT WOULD HAVE BEEN ESTABLISHED WHETHER THE CREDITORS WERE HAVING CREDI TWORTHINESS OR NOT. HE HAS RELIED UPON THE DECISIONS AS RELIED FOR THE ASSESSM ENT YEAR 1994-95. 9. ON THE OTHER HAND, THE LD. D/R REITERATED THE SU BMISSIONS AS MADE FOR THE ASSESSMENT YEAR 1994-95. HE HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THE AO IN THE SECOND ROUND OF LITIGATION HAS CONFIRMED THE ADDITION OF RS. 38,27,913/- AS UNDER :- S.NO. PARTICULARS AMOUNT 1. M/S. SHEETAL SUITINGS PVT. LTD. 8,00,000/ - 2. SMT. SURAJ DEVI MODI 1,00,000/ - 3. BANSAL EXPORTS 10,00,667/ - 4. SHRI GANPAT LAL SARDA 75,000/ - 5. M/S. ITALIN JEWELLERY MFG. CO. 10,08,000/ - 6. M/S. M.E.P. ENGINEERING 5,00,000/ - 7. M/S. R.K. FINE EXPORT 2,74,246/ - 8. SHRI SHANKAR LAL MAROO 70,000/ - TOTAL 38,27,913/ - AS REGARDS THE FIRST CREDITOR M/S. SHEETAL SUITINGS PVT. LTD., THE ASSESSEE HAS EXPLAINED BEFORE THE AUTHORITIES BELOW THAT THIS AM OUNT OF RS. 8,00,000/- WAS PART 18 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. OF THE BLOCK ASSESSMENT WHERE THE AO MADE ADDITION OF RS. 119.73 LACS AND, THEREFORE, ONCE THE SAID AMOUNT WAS SUBJECTED TO TA X IN THE BLOCK ASSESSMENT, THE SAME CANNOT BE TAXED AGAIN IN THE REOPENED ASSESSME NT. THE LD. A/R HAS REFERRED TO THE DETAILS OF THE AMOUNTS WHICH WERE PART OF TH E BLOCK ASSESSMENT AT PAGES 8 & 9 OF THE PAPER BOOK. WE FIND THAT THIS AMOUNT OF R S. 8,00,000/- IN THE NAME OF M/S. SHEETAL SUITINGS PVT. LTD. WAS PART OF THE ADDITION OF RS. 119.73 LACS MADE BY THE AO IN THE BLOCK ASSESSMENT WHICH WAS CONFIRMED BY THIS TRIBUNAL. ACCORDINGLY, WHEN THIS AMOUNT WAS ALREADY SUBJECTED TO TAX BEING PART OF THE ADDITION MADE BY THE AO THEN THE SAME CANNOT BE ADDED IN THE REOPENED ASSES SMENT. ACCORDINGLY, WE DELETE THIS AMOUNT OF RS. 8,00,000/- IN RESPECT OF M/S. SHEETAL SUITINGS PVT. LTD. 10.1. THE OTHER LOAN CREDITORS DID NOT RESPOND TO T HE SUMMONS ISSUED UNDER SECTION 131 BY THE AO. THIS TRIBUNAL IN THE FIRST ROUND OF APPEAL HAD SPECIFICALLY DIRECTED THE ASSESSEE AS WELL AS THE AO TO BRING TH E POSITIVE EVIDENCE ON RECORD IN RESPECT OF THE CLAIMS OF LOAN CREDITS. WE FURTHER NOTE THAT THE ASSESSEE HAS CLAIMED TO HAVE REPAID THE AMOUNTS OF LOANS FOR THE ASSESSM ENT YEAR 1994-95 IN THE SUBSEQUENT ASSESSMENT YEAR. THEREFORE, THE REPAYME NT WHICH IS PRIOR TO THE INTRODUCTION OF NEW CASH CREDITS WOULD BE AVAILABLE FOR SET OFF AGAINST THE ADDITIONS OF THIS ASSESSMENT YEAR. SINCE THE AO HAS NOT GIVE N THE BENEFIT OF REPAYMENT OF THE AMOUNT TO THE ASSESSEE BUT THE FACT REMAINS THAT TH E ASSESSEE HAS REPAID SOME OF THE CREDITORS APPEARING IN THE BOOKS FOR THE ASSESS MENT YEAR 1994-95 DURING THE ASSESSMENT YEAR 1995-96, THEREFORE, TO THE EXTENT O F REPAYMENT AS PER THE RECORD AND BANK ACCOUNT OF THE ASSESSEE WHICH IS PRIOR TO THE INTRODUCTION OF NEW CREDITORS DURING THE ASSESSMENT YEAR 1995-96, THE ASSESSEE WO ULD GET THE BENEFIT OF THE SAID 19 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. AMOUNT. THUS TO THE EXTENT OF NO CHANGE IN THE PEA K CASH CREDIT IN THE CASH BOOK OF THE ASSESSEE, THE REPAYMENT WOULD BE CONSIDERED AS RE-INTRODUCTION OF THE FRESH CASH CREDIT DURING THE YEAR. HENCE, WE ALLOW PART RELIEF TO THE EXTENT OF REPAYMENT IN ABOVE TERMS. THE AO IS DIRECTED TO VERIFY THE D ETAILS OF THE REPAYMENT AND THE PEAK CASH CREDIT IN THE CASH BOOK OF THE ASSESSEE A ND THEN ALLOW THE BENEFIT OF AVAILABILITY OF THE CASH WHICH WAS CLAIMED TO HAVE BEEN REPAID FOR INTRODUCTION OF FRESH CASH CREDIT DURING THE YEAR. GROUND NO. 2 IS REGARDING DISALLOWANCE OF INTEREST EXPENSES. 11. THIS ISSUE IS CONSEQUENTIAL TO THE ADDITION OF CASH CREDITS FOR THE ASSESSMENT YEAR 1994-95 AND, THEREFORE, THE AO TO RE-COMPUTE T HE AMOUNT OF INTEREST DISALLOWANCE ON THE AMOUNT WHICH HAS BEEN SUSTAINED BY US FOR THE ASSESSMENT YEAR 1994-95. ANY INTEREST DISALLOWANCE ON THE CAS H CREDIT INTRODUCED DURING THE CURRENT YEAR, THE SAME IS ALSO CONSEQUENTIAL TO THE ISSUE OF ADDITION FINALLY STAND SUSTAINED AS PER OUR ORDER ON THIS ISSUE AND ACCORD INGLY THE AO IS DIRECTED TO RE- COMPUTE THE DISALLOWANCE OF INTEREST. 11.1. FURTHER, WHEN THE LD. CIT (A) HAS ALREADY RES TRICTED THE DISALLOWANCE OF INTEREST TO RS. 15,51,706/- IN THE SECOND ROUND OF APPEAL, THEN THE SAID DISALLOWANCE ON ACCOUNT OF INTEREST CANNOT BE ENHANCED IN THE 3 RD ROUND OF LITIGATION BY CONFIRMING THE ORIGINAL DISALLOWANCE MADE BY THE AO OF RS. 18,09,798/-. HENCE, TO THE EXTENT OF DISALLOWANCE WHICH IS MORE THAN RS. 1 5,51,706/-, THE SAME IS DELETED AS BASED ON THE PRESUMPTION OF INCORRECT FACTS. 20 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR. 12. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 04/09/201 8. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 04/09/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI V.M. DAWARA, JAIPUR. 2. THE RESPONDENT THE DCIT, CIRCLE-5, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 600/JP/2018 & 376/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 21 ITA NOS. 600/JP/18 & 376/JP/17 SHRI V.M. DAWARA, JAIPUR.