RAJENDRA SINGH, Jaipur V. ITO, BHARATPUR

ITA 416/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1936 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 22-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Gift; Income from undisclosed sources; Salary income; Question of law; Onus to prove
• Section: 68; 6

Judgement Text

ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 416/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15 SHRI RAJENDRA SINGH 31, ACHHNERA ROAD ANIRUDH NAGAR, BHARATPUR CUKE VS. THE ITO WARD- 3 BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: BCKPS 2456 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/09/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 06 /11/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), ALWAR DATED 24-03-2017 FOR THE ASSESSMENT YEAR 2014-15 RA ISING THEREIN FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N CONFIRMING THE ADDITION OF RS. 3,45,222/- OUT OF OPENING CASH BALA NCE BY TREATING THE SAME AS UNEXPLAINED INCOME OF THE ASSESSEE U/S 68 OF THE AC T. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.9.00 LACS BY TREATING THE LOAN OF RS . 7 LACS RECEIVED FROM SHRI BANEY SINGH AND RS. 2.00 LACS RECEIVED FROM SHRI MA N SINGH AS UNEXPLAINED INCOME OF THE ASSESSEE U/S 68 OF THE ACT. ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 2 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.15.00 LACS BY TREATING THE ADVANCE R ECEIVED FROM SHRI JAY SSINGH AND SMT. MANJU SINGH AGAINST SALE OF PROPERTY AS UN EXPLAINED INCOME OF THE ASSESSEE U/S 68 OF THE ACT. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 5.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS W ELL AS SUBMISSIONS MADE BY THE APPELLANT. FOLLOWING HAVE EMERGED. 1. THAT THE ASSESSEE IS A SALARIED EMPLOYEE DERIVIN G HIS INCOME FROM SALARY. DURING THE YEAR UNDER CONSIDERA TION, THE APPELLANT HAD DECLARED TOTAL INCOME OF RS. 2,70,278/-. 2. THAT A TOTAL OF CASH AMOUNTING TO RS. 39,78,000/ - WAS FOUND DEPOSITED IN THE BANK ACCOUNT MAINTAINED AT A XIS BANK, BHARATPUR DURING THE YEAR UNDER CONSIDERATION. 3. THAT IN ORDER TO EXPLAIN THE SOURCE OF CASH DEPO SITS, THE ASSESSEE HAD FILED CASH FLOW STATEMENT FOR THE PERI OD AND HAS SHOWN AN AMOUNT OF RS. 4,95,222/- AS THE OPENING IN CASH IN HAND. THE ASSESSEE HAS CLAIMED THAT THE CASH IN HAND REPRESENTS ACCUMULATE CASH FROM THE PRECEDING YEAR. 4. THAT THE AO HAS REJECTED THE ASSESSEE'S CLAIM AS NO CONCRETE EVIDENCE WAS FILED IN SUPPORT OF HIS CLAIM AND AO HELD IT AS MERE AFTERTHOUGHT TO SOMEHOW EXPLAIN THE SOURCE OF CASH DEPOSITS. 5.3.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS OF THE CASE. IT IS A FACT THAT UNUSUAL CASH WERE FOUND DEPOSITED IN THE APPEL LANTS BANK ACCOUNTS. THE APPELLANT IS MERELY A SALARIED EMPLOYING DERIVI NG A TOTAL ANNUAL INCOME OF RS. 2,70,278/- ONLY. EVEN PAST YEAR INCOM E IS FOUND TO BE TOO MEAGER TO EXPLAIN THE SOURCE OF CASH DEPOSITS. THE AO HAS GIVEN A WELL REASONED ORDER ON THIS ISSUE. HOWEVER, I HAVE ALSO TAKEN INTO CONSIDERATION THAT THE ASSESSEE HAD WITHDRAWN CASH OF RS. 1,94,50 0/- DURING THE MONTH OF MARCH, 2013. THE APPELLANT HAS CLAIMED THAT PART OF OPENING CASH IN HANDS IS FROM THIS WITHDRAWAL. AS THE CASH WITHDRAW AL IS MADE IN THE MONTH OF MARCH, 2013 ONLY TO APPELLANTS CLAIM ON T HIS PART IS FOUND TO BE REASONABLE. THEREFORE, IT IS MY CONSIDERED VIEW THA T AN AMOUNT OF RS. 1,50,000/- OUT OF OPENING CASH BALANCE OF RS. 4,95, 222/- STAND EXPLAINED ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 3 TO A REASONABLE EXTENT. THEREFORE, THE ADDITION ON ACCOUNT OF UNEXPLAINED OPENING CASH BALANCE IS REDUCED TO RS. 3,45,222/-. ACCORDINGLY, APPELLANTS GROUND OF APPEAL ON THIS ISSUE IS PARTL Y ALLOWED. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION SUSTAINED BY THE LD. CIT(A) FOR WHICH T HE LD.AR OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. SUBMISSION:- 1. IT MAY BE NOTED THAT ASSESSEE IS REGULARLY FILING T HE RETURN FROM LAST NUMBER OF YEARS. AO HIMSELF HAS VERIFIED THE RETURNS FROM AY 2009-10 ON WARDS. IN THE AXIS BANK ACCOUNT OF THE ASSESSEE (PB 17-18) , THERE IS A DEPOSIT OF RS.3,10,000/- IN THE MONTH OF FEBRUARY, 2013. THIS AMOUNT HAS BEEN WITHDRAWN PARTLY IN THE MONTH OF FE BRUARY, 2013 AND PARTLY IN THE MONTH OF MARCH, 2013. THE WITHDRAWALS MADE IN THE MONTH OF F EBRUARY REDUCED BY THE AMOUNT DEPOSITED ON 13.03.2013 IS RS.1,13,000/- (3,10,000- 37,000-1,60,000). THE WITHDRAWALS MADE BETWEEN 16.03.2013 TO 31.03.2013 IS RS.1,94,500/-. THUS, THE TOTAL WITHDRAWAL MADE FROM THE BANK ACCOUNT DURING THIS PERIOD IS RS.3,07,500/ -. 2. THE LD. CIT(A) HAS ACCEPTED THE OPENING BALANCE TO THE EXTENT OF RS.1,50,000/- CONSIDERING THE WITHDRAWALS OF RS.1,94,500/- MADE BETWEEN 16.03 .2013 TO 28.03.2013 FROM THE BANK ACCOUNT. HOWEVER, HE HAS NOT CONSIDERED THE NET CAS H WITHDRAWAL OF RS.1,13,000/- MADE IN THE MONTH OF FEBRUARY, 2013. IF BOTH THESE WITHDRAW AL ARE AGGREGATED, IT AMOUNTS TO RS.3,07,500/-. THEREFORE, CREDIT OF RS.1,50,000/- G IVEN BY THE LD. CIT(A) IS UNREASONABLE. THUS, AN AMOUNT OF RS.3,07,500/- OUT OF OPENING CAS H BALANCE OF RS.4,95,222/- IS VERIFIABLE FROM THE BANK ACCOUNT ITSELF. IT MAY BE NOTED THAT IN COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAS FILED THE BALANCE SHEET AS ON 31.03.20 13. AS PER THIS BALANCE SHEET, THE CASH IN HAND AS ON 31.03.2013 IS RS.4,95,222/- (PB 15) . THUS, THE ENTIRE OPENING CASH BALANCE AS ON 01.04.2013 IS FULLY VERIFIABLE AND THEREFORE, IN TH E ABSENCE OF ANY MATERIAL OTHERWISE, THE SAME BE DIRECTED TO BE ACCEPTED. 3. WITHOUT PREJUDICE TO ABOVE, IT IS TO SUBMIT THAT SE CTION 68 IS APPLICABLE ONLY IF AMOUNT IS CREDITED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE I N THE RELEVANT FINANCIAL YEAR. NO ADDITION CAN BE MADE IF THE AMOUNT IS BROUGHT FORWARD FROM EARLI ER YEARS. IN THE PRESENT CASE ALSO, THE BALANCE IS COMING FROM THE LAST YEAR. IT IS NOT THE CASE OF THE AO THAT THIS AMOUNT IS CREDITED IN THE BOOKS OF ACCOUNTS ON 01.04.2013. THUS, NO ADDITION FOR TH IS AMOUNT CAN BE MADE IN THE YEAR UNDER CONSIDERATION AS IT IS BROUGHT FORWARD AMOUNT OF PR EVIOUS YEAR. FOR THIS PURPOSE, RELIANCE IS PLACED ON THE FOLLOWING CASES:- ACIT VS. SMT. N. SASIKALA 92 TTJ 1196 (CHENNAI) (TR IB.) THE HEAD NOTE OF THIS DECISION IS AS UNDER:- ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 4 INCOME FROM UNDISCLOSED SOURCESADDITIONGENUINENE SS OF OPENING CASH BALANCEAO DOUBTED THE AVAILABILITY OF PHYSICAL CASH TO THE EX TENT OF RS. 6,57,642 AS SHOWN BY ASSESSEE AND MADE ADDITION OF RS. 6,50,000NOT JUSTIFIEDRET URN FOR THE PRECEDING YEAR WAS ALSO BEFORE THE AOINSTEAD OF TREATING THE OPENING BALAN CE OF CASH AS UNEXPLAINED, THE AO COULD HAVE DEALT WITH THIS ISSUE IN THE EARLIER YEA RTHUS, OPENING BALANCE OF CASH COULD NOT BE TREATED AS UNEXPLAINED IN THE RELEVANT YEARCIT( A) RIGHTLY DELETED THE ADDITION. ITO VS. SHRI N. MUDDAIAH 2012 ITL 311 (BANG.) (TRIB .) THE HONBLE ITAT AT PARA 8 OF ITS ORDER HELD AS UND ER:- 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE AR E OF THE VIEW THAT THE ADDITION WAS RIGHTLY DELETED BY THE CIT(A). AS ALREADY SEEN THE CIT(A) ALSO FOUND JUSTIFICATION IN THE CLAIM OF THE ASSESSEE REGARDING THE AVAILABILITY OF OPENING CASH BALANCE AS ON 01-04-2006. THE LEARNED DR HARPED ON THE POINT THAT THE ASSESSE E DID NOT MAINTAIN BOOKS OF ACCOUNTS AND DID NOT PRODUCE THE BOOKS OF ACCOUNTS DESPITE R EPEATED REQUESTS BY THE AO. THE LEARNED DR COULD NOT CONTROVERT THE FINDINGS OF THE CIT(A) ON THE EXPLANATION REGARDING THE SOURCE OF CASH, EXCEPT TO SAY THAT THE AO DID NOT HAVE OPP ORTUNITY OF EXAMINING THE SAID CLAIM. APART FROM THE ABOVE, WE ARE ALSO OF THE VIEW THAT THE OPENING CASH BALANCE CANNOT BE SAID TO BE ANY SUM FOUND CREDITED IN THE BOOKS OF THE AS SESSEE MAINTAINED FOR THE PREVIOUS YEAR WHICH IS THE YEAR FROM 01-04-2006 TO 31-03- 2007. T HE DECISIONS RELIED UPON BY THE ASSESSEE BEFORE THE CIT(A) SUPPORT THE PLEA OF THE ASSESSEE. THE DECISION OF THE HONBLE MADRAS HIGH COURT IS CONTRARY TO THE DECISION RENDERED BY THE H ON BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS N.L. SATHYANARAYANA SETTY, (SUPRA). THEREFORE, THE SAME WOULD NOT BE BINDING. FOR THE REASONS GIVEN ABOVE, WE CONFIRM THE ORDER O F THE CIT(A) AND DISMISS GROUND NOS.1 TO 3. NUCHEM LTD. VS. DCIT 87 TTJ 166 (DEL.) (TRIB.) REVENUE HAS FAILED TO PROVE THAT THE AMOUNTS WERE C REDITED TO THE BOOKS OF ACCOUNT OF THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. THESE AMO UNTS WERE BROUGHT FORWARD FROM EARLIER YEARS. IT IS SETTLED LAW THAT THE ADDITION UNDER S. 68 OF THE ACT COULD BE MADE ONLY IF THE AMOUNT WAS CREDITED IN THE ACCOUNTS OF THE ASSESSEE IN THE RELEVANT FINANCIAL YEAR. 4. THE AO HAS RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN CASE OF C. PACKIRISAMY VS. ACIT 315 ITR 293. IN THIS CASE, ASS ESSEE CLAIMED OPENING BALANCE OF CAPITAL AT RS.5,73,960/-. BOOKS OF ACCOUNTS WERE NOT PRODUCED BY ASSESSEE. THE RETURNS FOR EARLIER AYS WERE FILED ON THE SAME DAY AS THAT OF CURRENT YEAR. IN THESE FACTS IT WAS HELD THAT ASSESSEE FAILED TO PROVE FORMATION OF CAPITAL AND THE ADDITION OF 50 P ER CENT OF OPENING CAPITAL IS JUSTIFIED. THUS, THIS CASE IS DISTINGUISHABLE ON FACTS AS IN THE PRE SET CASE, ASSESSEE HAS FURNISHED THE BALANCE SHEET AS ON 31.03.2013 AND ALSO THE CASH BOOK FOR T HE YEAR UNDER CONSIDERATION FROM WHICH THE FACTUM OF OPENING CASH BALANCE AS ON 01.04.2013 IS VERIFIABLE. IN VIEW OF ABOVE, THE ADDITION CONFIRMED BY LD. CIT (A) BE DIRECTED TO BE DELETED. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LOWER AUTHORITIES AND RELIED ON FOLLOWING CASE LAWS. ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 5 (I) DAYAL SINGH AND SONS VS CIT, 335 ITR 90 (P& H) (II) UMESH KRISHNANI VS ITO 217 TAXMAN 13 (GUJ) (III) KAMAL MOTORS VS LD. CIT 131 TAXMAN 155 (RA J.) 2.4 THE BENCH HAS HEARD THE RIVAL CONTENTIONS AND P ERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT THE AO DID NO T ALLOW THE CLAIM OF OPENING CASH BALANCE AS ON 01.04.2013 OF RS.4,95,222/- AS PER TH E CASH BOOK AND MADE THE ADDITION U/S 68 OF THE ACT R.W.S.115BE OF THE I.T. ACT TO THE TOTAL INCOME OF THE ASSESSEE. THE LD. CIT(A) NOTED THAT DURING THE MONT H OF MARCH, 2013 THERE IS A CASH WITHDRAWAL FROM THE BANK ACCOUNT OF RS.1,94,50 0/- AND THEREFORE, HE ACCEPTED THE OPENING CASH BALANCE AT RS.1,50,000/- AND CONFI RMED ADDITION OF RS.3,45,222/-. IT IS NOTED FROM PAGE 17 OF THE PAPER BOOK OF THE A SSESSEE THAT ASSESSEE HAS OPENED A BANK ACCOUNT WITH AXIS BANK ON 19.01.2013. IN THI S BANK ACCOUNT, THERE IS A DEPOSIT OF RS.3,10,000/- IN THE MONTH OF FEBRUARY, 2013. OUT OF IT, RS.2,73,000/- WAS WITHDRAWN BETWEEN 13.02.2013 TO 28.02.2013 AND RS.1,60,000/- IS DEPOSITED BACK ON 13.03.2013 IN THE BANK. THUS, THE CASH WITH DRAWAL FOR THE MONTH OF FEBRUARY, 2013 IS RS.1,13,000/- (RS. 2,73,000 MINUS RS. 1,60,000). IN THE MONTH OF MARCH, 2013, ASSESSEE HAS WITHDRAWN RS.1,94,500/ -. THUS, THE TOTAL WITHDRAWAL MADE FROM THE BANK ACCOUNT IN FEBRUARY & MARCH, 201 3 IS RS.3,07,500/- (RS.1,13,000+ RS. 1,94,500). IT IS ALSO NOTED THAT ASSESSEE IS REGULARLY ASSESSED TO TAX AND IN THE BALANCE SHEET AS ON 31.03.2013, THER E IS CASH IN HAND OF ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 6 RS.4,95,222/- (PBP 15). IN THESE FACTS AND CIRCUMST ANCES OF THE CASE, I DO NOT FIND ANY JUSTIFICATION IN RESTRICTING THE CLAIM OF OPENI NG CASH IN HAND AT RS.1,50,000/- ONLY. THE AO IS THEREFORE, DIRECTED TO ACCEPT THE C LAIM OF OPENING CASH IN BALANCE OF RS.4,95,222/-. HENCE, THE ADDITION CONFIRMED BY LD. CIT(A) IS DELETED BY ALLOWING THE GROUND NO. 1 OF THE ASSESSEE. 3.1 APROPOS GROUND NO. 2, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 6.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS W ELL AS SUBMISSION MADE BY THE APPELLANT. 1. THAT THE ASSESSEE IS A SALARIES EMPLOYEE DERIVI NG HIS INCOME FROM SALARY. DURING THE YEAR UNDER CONSIDERA TION, THE APPELLANT HAD DECLARED TOTAL INCOME OF RS. 2,70,278/-. 2. THAT A TOTAL OF CASH AMOUNTING TO RS. 39,78,000/ - WAS FOUND DEPOSITED IN THE BANK ACCOUNT MAINTAINED AT A XIS BANK, BHARATPUR DURING THE YEAR UNDER CONSIDERATION.. 3. THAT THE ASSESSEE HAS SUBMITTED BEFORE THE AO TH AT RS. 15 LAKHS WERE RAISED AS UNSECURED LOAN FROM (I) SHRI K AUSHALENDRA SINGH RS. 6 LAKHS, (II) RS. BANEY SINGH RS. 7 LAKHS AND ( III ) SHRI MAN SINGH RS. 2 LAKHS). 4. THAT ALL SUCH LOANS HAVE BEEN RECEIVED THROUGH C HEQUE. 5. THAT ALL THE 3 PERSONS HAVE GIVEN CONFIRMATIONS. 6. THAT AO HAD FOUND CASH DEPOSITS IN THE BANK ACCO UNT OF THE LENDER PRIOR TO ADVANCEMENT OF LOAN THROUGH CHEQUE. 7. THAT THE AO HAS REJECTED THE CLAIM OF THE ASSESS EE AS CREDITWORTHINESS WAS NOT ADEQUATE IN THE OPINION OF THE AO. 6.3.2 I HAVE PERUSED THE EVIDENCES FILED DURING THE COURSE OF APPELLATE PROCEEDINGS. IT IS SEEN THAT UNSECURED LOAN RECEIVE D FROM VARIOUS PERSONS AND THE EVIDENCES FILED DURING ASSESSMENT AND APPELLATE PRO CEEDINGS IS COLLATED AS UNDER:- ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 7 S.N. NAME OF THE LENDER LOAN AMOUNT IN RS. CASH/ CHEQUE IT ASSESSEE OR NOT CONFIRMATION FILED OR NOT REMARKS 1. SH KAUSHALENDRA SINGH 6,00,000 CHEQUE YES YES CASH DEPOSITED PRIOR TO ADVANCEMENT OF LOAN BY CHEQUE 2. SH. BANEY SINGH 7,00,000 CHEQUE NO YES CASH DEPO SITED PRIOR TO ADVANCEMENT OF LOAN BY CHEQUE 3. SH. MAN SINGH 2,00,000 CHEQUE NO YES CASH DEPOS ITED PRIOR TO ADVANCEMENT OF LOAN BY CHEQUE 6.3.3 IN THIS REGARD, I HAVE ALSO TAKEN INTO CONSID ERATION THE HON'BLE DELHI HIGH COURT RULING WHICH LAYS DOWN THE PARAMET ERS FOR VERIFICATION OF SHARE APPLICATION MONEY/ CREDITORS WHICH HAS BEEN FURTHER CONFIRMED BY THE APEX COURT. IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT: IN COME TAX ACT, 1961 ITA NO.342 OF 2011 RESERVED ON : DECEMBER 12,2 011 DATE OF DECISION: FEB. 15, 2012. COMMISSIONER OF INCOME TAX APPELLANT THROUGH: MR.DEEPAK CHOPRA, ADVOCATE VERSUS NOVA PRO MOTERS & FINLEASE (P) LTD.- RESPONDENT THROUGH MR. C.S. AGAR WAL, SR. ADVOCATE WITH MR. PRAKASH KUMAR AND MR. ARTA TRANA PANDA, AD VOCATE. CORAM: HON'BLEBLE MR. JUSTICE SANJIVKHANNA, HON'BLE MR. J USTICE R.V. EASWAR. .36. IT IS NOT ONLY RELEVANT TO NOTE THE ABOVE FACTS WHICH DISTINGUISH THOSE THREE CASES (SUPRA) FROM THE CASE BEFORE US BUT IT IS ALSO RELEVANT TO NOTE THE FOLLOWING OBSERVATIONS MADE BY THIS COURT IN THE ABOVE THREE CASES: THERE CANNOT BE TWO OPINION ON THE ASPECT THAT THE PERNICIOUS PRACTICE OF CONVE RSATION OF UNACCOUNTED MONEY THROUGH THE MASQUERADE OR CHANNEL OF INVESTMENT IN THE SHAR E CAPITAL OF A COMPANY MUST BE FIRMLY EXCORIATED BY THE REVENUE. EQUALLY, WHERE TH E PREPONDERANCE OF EVIDENCE INDICATES ABSENCE OF CULPABILITY AND COMPLEXITY OF THE ASSESS ED IT SHOULD NOT BE HARASSED BY THE REVENUES INSISTENCE THAT IT SHOULD PROVE THE NEGATI VE I HAVE TAKEN INTO ACCOUNT FACTUAL MATRIX OF THE CAS E. SO FAR AS LOAN AMOUNT SHOWN TO HAVE BEEN TAKEN FROM SHRI MAN SINGH AND SH RI BANEY SINGH ARE CONCERNED, THEY ARE NOT INCOME TAX ASSESSEE AND THE IDENTICAL CASH AMOUNT WERE FOUND TO HAVE BEEN DEPOSITED IN THEIR ACCOUNT PRIOR TO ADVANCE OF LOAN TO THE APPELLANT. THEREFORE, GOING BY PARAMETERS SET BY TH E ABOVE MENTIONED JUDICIAL PRONOUNCEMENT, THE APPELLANT HAS FAILED TO DISCHARG E HIS ONUS OF PROVING THE GENUINENESS OF TRANSACTION. THEREFORE, IN MY CONSID ERED VIEW LOAN OF RS. 7 LAKHS FROM SHRI BANEY SINGH AD RS. 2 LAKHS FROM SHRI MAN SINGH HAS RIGHTLY BEEN ADDED TO THE INCOME OF THE APPELLANT U/S 68 OF THE ACT. HOWEVER, IN THE CASE OF SHRI KAUSHALENDRA SINGH, HE IS AN EXISTING INCOME T AX ASSESSEE AND HAS GIVEN HIS CONFIRMATIONS ALSO. THEREFORE, THE ONUS IN HIS CASE HAS BEEN DISCHARGED BY THE APPELLANT. ACCORDINGLY,THE ADDITION ON ACCOUNT OF U NEXPLAINED UNSECURED LOAN TO ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 8 THE EXTENT OF RS. 9 LAKHS FROM SHRI BANEY SINGH AND SHRI MAN SINGH IS SUSTAINED. THEREFORE, THE ADDITION IS REDUCED TO RS. 9 LAKHS A ND THE APPELLANTS GROUND OF APPEAL ON THIS ISSUE IS PARTLY ALLOWED. 3.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION ADDITION SUSTAINED BY THE LD. CIT(A) FOR WHICH THE LD.AR OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. SUBMISSION:- 1. THE ASSESSEES EXPLANATION ON THE OBSERVATION OF TH E AO/CIT(A) IS AS UNDER:- SH. BANEY SINGH- RS.7 LACS HE IS AN AGRICULTURIST DERIVING INCOME FROM SALE OF AGRICULTURAL PRODUCE. HE IS NOT LIABLE TO FILE HIS INCOME TAX RETURN. THE CREDITWORTHINESS IS PROVED FROM THE FACT THAT HE HIS HOLDING AROUND 12 BIGHA OF LAND (COPY OF JAMABANDI IS AT PB 35-37 ) AND REGULARLY DEPOSIT THE SALE PROCEEDS OF AGRICULTURAL PRODUCE IN HIS BANK ACCOUN T. BEFORE GIVING LOAN TO ASSESSEE, HE HAS DEPOSITED CASH OF RS.3,50,000/- ON 25.04.2013 AND C HEQUE OF RS.1,50,000/- ON 25/26.04.2013 AGAINST SALE OF AGRICULTURAL PRODUCE TO FOOD CORPORATION OF INDIA (PB 31) . THE BANK STATEMENT ALSO SHOWS THAT HE EARNED RENT O F RS.4,800/- P.M. FROM BANK ITSELF (PB 31-32) . THUS, CREDITWORTHINESS OF CREDITOR COULD NOT BE D OUBTED. THE GENUINENESS OF TRANSACTION IS PROVED FROM THE FACT THAT THE ENTIRE TRANSACTION HAS BEEN CARRIED OUT THROUGH BANKING CHANNEL. THE LOAN HAS BEEN REPAID SUBSEQUEN TLY THROUGH CHEQUE ON 19.06.2015. COPY OF BANK PASS BOOK AND BANK STATEMENT OF ASSESS EE OF SUBSEQUENT YEAR EVIDENCING THE REPAYMENT IS AT PB 38-41 . THE CONFIRMATION OF THE CREDITOR IS AT PB 29 . REGARDING THE OBSERVATION OF LOWER AUTHORITIES THAT CASH OF RS.7. 05 LACS WAS DEPOSITED ON 17.05.2013 BEFORE GIVING LOAN TO ASSESSEE, IT IS SUBMITTED THA T HE HAS WITHDRAWN RS.5 LACS FROM THE SAME BANK ACCOUNT ON 27.04.2013 (PB 31) AND RS.1,70,000/- ON 17.05.2013 FROM HIS KISAN CRED IT A/C MAINTAINED WITH BANK OF BARODA. THIS WITHDRAWAL IS DEPOSITED IN THE BANK ACCOUNT FROM WHICH LOAN IS GIVEN TO ASSESSEE. THUS, CREDITWORTHI NESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION IS ESTABLISHED. SH. MAN SINGH- RS.2 LACS HE IS A GOVERNMENT TEACHER DERIVING INCOME FROM SAL ARY. HE HAS ADVANCED SUM OF RS.2 LACS DURING THE MONTH OF DEC, 2013 & JAN, 2014. TO PROVE THE CREDITWORTHINESS OF CREDITOR AND GENUINENESS OF TRANSACTION, ASSESSEE HAS FILED CONF IRMATION OF MAN SINGH (PB 42) AND RETURN ACKNOWLEDGMENT ALONG WITH FORM NO.16 (PB 43-46) WHICH SHOWS THAT HE HAS EARNED SALARY OF RS.5,34,716/- DURING THE YEAR. THUS, ADVANCING R S.2 LACS OUT OF CURRENT YEAR INCOME AND PAST SAVINGS COULD NOT BE DOUBTED. AO HAS ACCEPTED THAT THE TRANSACTION HAS BEEN CARRIED OUT THROUGH BANKING CHANNEL. THERE IS NO FINDING OF AO THAT IMMEDIATE CASH WAS DEPOSITED IN BANK ACCOUNT BEFORE GIVING LOAN TO ASSESSEE AS IN C ASE OF SH. KOUSHALENDRA SINGH AND SH. BANEY SINGH. THUS, FINDING OF LD. CIT(A) IN CONFIRM ING THE ADDITION THAT SH. MAN SINGH IS NOT INCOME TAX ASSESSEE AND IDENTICAL CASH AMOUNT W AS FOUND TO HAVE BEEN DEPOSITED IN HIS ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 9 ACCOUNT PRIOR TO ADVANCEMENT OF LOAN TO ASSESSEE IS INCORRECT. HENCE, CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION CANNOT BE DOUBTED. 2. FROM THE ABOVE, IT CAN BE NOTED THAT ASSESSEE HAS D ISCHARGED HIS ONUS TO PROVE THE CREDITORS U/S 68. BOTH THE CREDITORS HAVE ACCEPTED GIVING ADVANCE TO THE ASSESSEE. THE FACT THAT IDENTICAL CASH WAS DEPOSITED IN THE ACCOUNT OF CRED ITORS BEFORE LOAN WAS ADVANCED TO THE ASSESSEE DOES NOT PROVE THAT THE MONEY WAS DEPOSITED BY THE ASSESSEE COMPANY MORE PARTICULARLY WHEN THE LOAN WAS SUBSEQUENTLY REPAID BY ASSESSEE. CAPAC ITY OF THE CREDITOR TO ADVANCE THE MONEY TO ASSESSEE IS NOT A MATTER WHICH COULD BE REQUIRED TO BE ESTABLISHED BY THE ASSESSEE AS THAT WOULD AMOUNT TO CALLING UPON HIM TO ESTABLISH THE SOURCE OF THE SOURCE. NO DIRECT ENQUIRY WAS MADE BY THE AO FROM THESE CREDITORS. IN THESE CIRCUMSTANCES , GENUINENESS OF THE TRANSACTION & THE CREDITWORTHINESS OF THE CREDITOR CANNOT BE DOUBTED & THE ADDITION CONFIRMED BY THE LD. CIT(A) BE DELETED. IN THIS CONNECTION, RELIANCE IS PLACED ON THE FOLLOWING CASES:- CIT VS. JAI KUMAR BAKLIWAL (2014) 366 ITR 217/ 101 DTR 377 (RAJ.) (HC) THE ASSESSEE RAISED UNSECURED LOAN FROM THE RELATIV ES. THE AO MADE ADDITION U/S 68 ON THE GROUND THAT NONE OF THE CREDITORS WERE ABLE TO PROV E THE SOURCE OF AMOUNT ADVANCED TO THE ASSESSEE AND IMMEDIATELY BEFORE THE GRANT OF LOAN B Y THEM, CASH WAS DEPOSITED IN THEIR ACCOUNTS. HOWEVER, IT WAS ADMITTED BY THE AO THAT A LL THE CREDITORS WERE ASSESSED TO INCOME-TAX AND THEY HAVE PROVIDED CONFIRMATION AS W ELL AS THEIR PAN. MOREOVER, ALL THE PAYMENTS WERE THROUGH ACCOUNT PAYEE CHEQUES AND MOS T OF THE CASH CREDITORS APPEARED BEFORE THE AO AND WERE EXAMINED ON OATH. IT WAS HEL D THAT SINCE THERE WAS NO CLINCHING EVIDENCE NOR THE AO HAD BEEN ABLE TO PROVE THAT THE MONEY ACTUALLY BELONGED TO NONE BUT TO THE ASSESSEE HIMSELF, ACTION OF THE AO APPEARED TO BE BASED ON MERE SUSPICION AND THUS ADDITION CANNOT BE MADE. CIT VS. H.S. BUILDERS (P.) LTD. 78 DTR 169 (RAJ.) ( HC) (2012) IN THIS CASE, ORDER OF CIT(A) DELETING ADDITION U/S 68 WAS UPHELD BY TRIBUNAL AFTER FINDING THAT ASSESSEE HAD SUBMITTED THE ACCOUNTS OF RETURN, COMPUTATIONS OF INCOME, BALANCE SHEETS OF THE CREDITORS AND ALSO SUPPLIED ALL THEIR PARTIC ULARS TO EVIDENCE THAT THE MONEY GIVEN TO THE ASSESSEE HAD BEEN SHOWN IN THE RESPECTIVE BALANCE S HEETS OF THE CREDITORS, AND THAT THE CREDITORS WHO WERE CALLED BY THE AO DID AFFIRMED TH E FACT OF GIVING MONEY AND EXPLAINED THE SOURCE OF SAME. TRIBUNAL ALSO FOUND THAT THE CI RCUMSTANCES OF DEPOSIT OF CASH IN THE BANK ACCOUNTS OF SOME OF THE CREDITORS BEFORE GIVING CHE QUES TO THE COMPANY BY ITSELF, WOULD NOT LEAD TO THE CONCLUSION THAT THE MONEY WAS DEPOSITED BY THE ASSESSEE COMPANY. THEREFORE, IT WAS HELD THAT THERE IS NO REASON TO ENTER INTO A FA CTUAL INQUIRY SO AS TO APPRECIATE & EVALUATE THE EVIDENCE OVER AGAIN. LABH CHAND BOHRA VS. ITO 189 TAXMAN 141/ 219 CTR 57 1 (RAJ.) (HC) IDENTITY OF THE CREDITORS HAVING BEEN ESTABLISHED W HO HAVE CONFIRMED THE CREDITS BY MAKING STATEMENTS ON OATH AND THE AMOUNTS HAVING BEEN ADVA NCED BY ACCOUNT PAYEE CHEQUES, IMPUGNED ADDITION IN RESPECT OF THE ENTRIES IN THE NAMES OF SAID CREDITORS CANNOT BE SUSTAINED. CAPACITY OF THE LENDER TO ADVANCE MONEY TO THE ASSESSEE IS NOT A MATTER WHICH COULD BE REQUIRED TO BE ESTABLISHED BY THE ASSESSEE , AS THAT WOULD AMOUNT TO CALLING UPON HIM TO ESTABLISH SOURCE OF THE SOURCE. ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 10 KANHAIALAL JANGID VS. ACIT 8 DTR 38/217 CTR 354 (RA J.) (HC) WHILE IT IS THE ASSESSEES BURDEN TO FURNISH THE EX PLANATION RELATING TO CASH CREDITS, THE ASSESSEES BURDEN DOES NOT EXTEND BEYOND PROVING TH E EXISTENCE OF THE CREDITOR AND FURTHER PROVING THAT SUCH CREDITOR OWNS TO HAVE ADVANCED TH E AMOUNT CREDITED IN THE ACCOUNT OF ASSESSEE. HOWEVER, THE BURDEN DOES NOT GO BEYOND TO PUT THE ASSESSEE UNDER AN OBLIGATION TO FURTHER PROVE AS TO WHEREFROM THE CREDITOR HAS GOT OR PROCURED THE MONEY TO BE DEPOSITED OR ADVANCED TO THE ASSESSEE. THE EXPLANATION FURNISHED BY THE CREDITOR ABOUT THE SOURCE FROM WHERE HE PROCURED THE MONEY TO BE DEPOSITED OR ADVA NCED TO THE ASSESSEE, IS NOT RELEVANT FOR THE PURPOSE OF REJECTING THE EXPLANATION FURNISHED BY THE ASSESSEE AND MAKING ADDITIONS OF SUCH DEPOSITS AS INCOME OF THE ASSESSEE FROM UNDISC LOSED SOURCES BY INVOKING SECTION 68, UNLESS IT CAN BE SHOWN BY THE DEPARTMENT THAT THE S OURCE OF SUCH MONEYS COME FROM THE ASSESSEE HIMSELF OR SUCH SOURCE COULD BE TRACED TO THE ASSESSEE ITSELF. IN THE PRESENT CASE, WHILE THE EXISTENCE OF THE CREDITOR IS NOT IN DOUBT & HE HAS ADMITTED TO HAVE ADVANCE THE LOAN TO THE ASSESSEE, THE FACT THAT THE EXPLANATION FURNISHED BY THE CREDITOR ABOUT HIS SOURCE OF SUCH ADVANCEMENT HAS NOT BEEN ACCEPTED BY THE RE VENUE AUTHORITY CANNOT LEAD TO ANY PRESUMPTION THAT THE SOURCE OF SUCH ADVANCEMENT BY CREDITOR EMANATED FROM THE ASSESSEE. THEREFORE, THE ADDITION IN THE INCOME OF THE ASSESS EE AS CASH CREDIT CANNOT BE SUSTAINED. ARAVALI TRADING CO. VS. ITO 187 TAXMAN 338 (RAJ.) ( HC) ONCE THE EXISTENCE OF THE CREDITORS IS PROVED AND S UCH PERSONS OWN THE CREDITS WHICH ARE FOUND IN THE BOOKS OF THE ASSESSEE, THE ASSESSEES ONUS STANDS DISCHARGED AND THE LATTER IS NOT FURTHER REQUIRED TO PROVE THE SOURCE FROM WHICH THE CREDITORS COULD HAVE ACQUIRED THE MONEY DEPOSITED WITH HIM EITHER IN TERMS OF S. 68 OR ON G ENERAL PRINCIPLE. MERELY BECAUSE THE DEPOSITORS EXPLANATION ABOUT THE SOURCES OF MONEY WAS NOT ACCEPTABLE TO THE AO, IT CANNOT BE PRESUMED THAT THE DEPOSIT MADE BY THE CREDITORS IS MONEY BELONGING TO ASSESSEE ITSELF. IF THE CREDITORS EXPLANATION ABOUT THE SOURCE OF DEPO SITS IS NOT FOUND TO BE ACCEPTABLE, THE INVESTMENT OWNED BY SUCH PERSONS MAY BE SUBJECTED T O PROCEEDINGS FOR INCLUSION OF THE AMOUNTS AS THEIR INCOME FROM UNDISCLOSED SOURCES, O R IF THEY ARE FOUND BENAMI, THE REAL OWNER CAN BE BROUGHT TO TAX. IN THE ABSENCE OF ANYT HING TO ESTABLISH THAT THE SOURCES OF THE CREDITORS DEPOSITS FLEW FROM THE ASSESSEE, THE CAS H CREDITS CANNOT BE TREATED AS UNEXPLAINED INCOME OF THE ASSESSEE. CIT VS. DEEN DAYAL CHOUDHARY (2017) 148 DTR 275 (RA J.) (HC) BOTH THE APPELLATE AUTHORITIES AFTER TAKING NOTE OF THE FACTS AND GOING THROUGH THE STATEMENTS OF THREE CASH CREDITORS HAVE COME TO DEFINITE FINDI NG THAT NOT ONLY THE IDENTITY WAS ESTABLISHED BUT THE GENUINENESS AND CREDITWORTHINES S OF THE CREDITORS WERE WELL PROVED. ALL THE CASH CREDITORS HAVE NOT ONLY PLACED ON RECORD T HE ENTIRE MATERIAL BUT HAVE ALSO AFFIRMED IN THEIR EXAMINATION THAT THEY HAD ADVANCED MONEY T O THE ASSESSEE FROM THEIR OWN RESPECTIVE BANK ACCOUNTS. THE ASSESSEE HAS ALSO FILED THE CONF IRMATIONS WHICH CONTAINED PAN, COMPLETE ADDRESSES, COPY OF IT RETURNS, COPY OF COM PUTATION OF RETURN OF INCOME AND COPY OF BANK STATEMENTS. THOUGH THE AO WAS FREE TO CONDU CT AN ENQUIRY ABOUT THE GENUINENESS OF THE TRANSACTIONS WHICH HAS TAKEN PLACE BETWEEN THE ASSESSEE AND CREDITORS, HOWEVER, IT WILL NOT NECESSARILY MEAN THAT IF SOME DISCREPANCIES HAV E BEEN NOTICED IN THE STATEMENT OR OTHERWISE AFTER SOME LAPSE OF TIME, IT BECOMES INCO ME OF THE ASSESSEE FROM UNDISCLOSED SOURCES UNLESS THERE IS STRONG EVIDENCE DIRECT OR S UBSTANTIAL TO SHOW THAT THE AMOUNT WHICH HAS BEEN ADVANCED BY THE CASH CREDITOR TO THE ASSES SEE ACTUALLY WAS RECEIVED FROM THE ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 11 ASSESSEE. THUS, FINDINGS BY THE TRIBUNAL IS ESSENTI ALLY A FINDING OF FACT BASED ON THE MATERIAL ON RECORD AFTER APPRECIATION OF EVIDENCE AND NO SUB STANTIAL QUESTION OF LAW CAN BE SAID TO ARISE OUT OF THE ORDER PASSED BY THE TRIBUNAL. CIT VS. SHIV DHOOTI PEARLS & INVESTMENT LTD. (2016) 237 TAXMAN 104 (DEL.) (HC) IN TERMS OF SECTION 68, ASSESSEE IS LIABLE TO DISCL OSE ONLY SOURCES FROM WHERE HE HAS HIMSELF RECEIVED CREDIT AND IT IS NOT BURDEN OF ASSESSEE TO SHOW SOURCES OF HIS CREDITOR NOR IS IT BURDEN OF ASSESSEE TO PROVE CREDITWORTHINESS OF SOU RCES OF SUB-CREDITORS. HOWEVER, AO HAS AMPLE FREEDOM TO MAKE INQUIRY NOT ONLY INTO SOURCES OF CREDITORS BUT ALSO OF HIS (CREDITORS) SUB-CREDITORS AND PROVE AS A RESULT OF SUCH INQUIRY THAT MONEY RECEIVED BY ASSESSEE IN FORM OF LOAN FROM CREDITOR THOUGH ROUTED THROUGH SUB-CRE DITORS ACTUALLY BELONGS TO OR WAS OF ASSESSEE HIMSELF. CIT VS. VARINDER RAWLLEY (2015) 366 ITR 232/114 DTR 367 (P&H) (HC) ASSESSEE RECEIVED AND REPAID THE AMOUNT IN QUESTION THROUGH BANKING CHANNELS AND ALSO FURNISHED PAN OF CREDITOR. THE TRANSACTIONS WERE RE FLECTED IN THE BANK ACCOUNTS OF THE ASSESSEE AS WELL AS THE CREDITOR. THE ASSESSEE HAVI NG SHOWN THAT THE ENTRIES REGARDING CREDIT IN A THIRD PARTY'S ACCOUNT WERE IN FACT RECEIVED FR OM THE THIRD PARTY AND ARE GENUINE, IT CANNOT BE CHARGED AS THE ASSESSEE'S INCOME IN THE ABSENCE OF ANY MATERIAL TO INDICATE THAT THEY BELONG TO THE ASSESSEE. THUS, ASSESSEE BURDEN U/S 6 8 STOOD DISCHARGED AND AO HAVING FAILED TO INVOKE SEC.131 FOR SUMMONING THE CREDITOR, TRIBU NAL WAS JUSTIFIED IN DELETING THE ADDITION. IN VIEW OF ABOVE, THE ADDITION CONFIRMED BY CIT(A) BE DIRECTED TO BE DELETED. 3.3 ON THE OTHER HAND, THE LD. DR RELIED ON ORDER O F THE AUTHORITIES BELOW. 3.4 AFTER HEARING BOTH THE PARTIES AND PERUSING TH E MATERIALS AVAILABLE ON RECORD, IT IS NOTED THAT THE AO MADE ADDITION OF RS .15 LACS BY TREATING THE LOAN OF RS.6 LACS RECEIVED FROM KOUSHALENDRA SINGH, RS.7 LA CS FROM SH. BANEY SINGH AND RS.2 LACS FROM MAN SINGH AS UNEXPLAINED U/S 68 OF T HE ACT . THE LD. CIT(A) AFTER GIVING A FINDING THAT SH. KOUSHALENDRA SINGH IS AN EXISTING INCOME TAX ASSESSEE AND HAS GIVEN HIS CONFIRMATION, DELETED THE ADDITIO N OF RS.6 LACS BUT CONFIRMED THE ADDITION OF RS.7 LACS RECEIVED FROM SH. BANEY SINGH AND RS.2 LACS RECEIVED FROM MAN SINGH FOR THE REASON THAT THEY ARE NOT INCOME T AX ASSESSEE AND IDENTICAL CASH ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 12 AMOUNT WERE FOUND TO HAVE BEEN DEPOSITED IN THEIR A CCOUNT PRIOR TO ADVANCEMENT OF LOAN TO THE ASSESSEE. FROM PERUSAL OF MATERIALS ON RECORD, IT IS NOTED THAT THAT SH. BANEY SINGH IS AN AGRICULTURALIST HOLDING AROUN D 12 BIGHA OF AGRICULTURAL LAND PBP 35-37). HE HAS GIVEN LOAN TO THE ASSESSEE ON 17 .05.2013 WHEREAS HE HAS DEPOSITED RS.3.50 LACS IN CASH ON 25.04.2013 AND RS .1.50 LACS ON 25/26.04.2013 BY CHEQUE AGAINST THE SALE OF AGRICULTURAL PRODUCE TO FOOD CORPORATION OF INDIA PBP- 31). HE HAS ALSO RENTAL INCOME OF RS.4,800/- P.M (PBP 31-32). THIS AMOUNT WAS WITHDRAWN IN CASH FOR RS.5 LACS ON 27.04.2013. THER EAFTER HE DEPOSITED RS.7,05,000/- IN HIS BANK ACCOUNT ON 17.05.2013 FRO M WHICH LOAN OF RS.7 LACS IS GIVEN TO THE ASSESSEE PBP 31). THE LOAN HAS BEEN RE PAID BY CHEQUE ON 19.06.2015. ALL THESE FACTS PROVE THE CREDITWORTHINESS AND GENU INENESS OF THE TRANSACTION. IN CASE OF SH. MAN SINGH WHO HAS ADVANCED RS.2 LACS TO THE ASSESSEE, HIS CONFIRMATION IS FILED. HE IS A GOVERNMENT TEACHER D RAWING SALARY OF RS.5,34,716/-. HE HAS FILED HIS RETURN OF INCOME FOR THE YEAR UNDE R CONSIDERATION (PBP 42 TO 46). IN SIMILAR FACTS, THE LD. CIT(A) HAS DELETED THE AD DITION IN RESPECT OF LOAN OF RS.6 LACS TAKEN FROM KOUSHALENDRA SINGH HOLDING THAT HE HAS FILED THE CONFIRMATION AND HE IS AN INCOME TAX ASSESSEE. THEREFORE, IN CASE OF MAN SINGH WHO HAS A SALARY INCOME OF MORE THAN RS.5 LACS AND HAS FILED THE CON FIRMATION AND HE IS AN INCOME TAX ASSESSEE, THE BENCH FINDS NO MERIT IN CONFIRMIN G THE ADDITION BY LD. CIT(A). CONSIDERING ALL THESE FACTS AND MATERIAL AVAILABLE ON RECORDS, THE IDENTITY, ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 13 CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION IS ESTABLISHED AND THEREFORE, THE ADDITION IS DIRECTED TO BE DELETED. THUS GROUND NO. 2 OF THE ASSESSEE IS ALLOWED. 4.1 APROPOS GROUND NO. 3 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 7.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS W ELL AS SUBMISSIONS MADE BY THE APPELLANT. THE APPELLANT HAS CLAIMED TH AT AN AMOUNT OF RS. 15 LAKHS WERE RECEIVED AS ADVANCE AGAINST THE IMPENDING SALE OF PROPERTY TO SHRI JAY SINGH AND SMT. MANU SINGH. HOWEVER, I FIND IT QUITE STRAN GE THAT EVEN AFTER LAPSE SUCH A LONG TIME, THE PROPERTY IN QUESTION WAS NEVER SOLD TO SHRI JAY SINGH AND SMT. MANJU SINGH. CURIOUSLY, THEY HAVE NOT EVEN DEMANDED THE MONEY BACK FROM THE APPELLANT ALSO. THE CONTENTS OF THE STATEMENT RECOR DED BY THE AO DURING ASSESSMENT PROCEEDING ALSO SHOWS THAT THE EXPLANATI ON GIVEN FOR THIS AMOUNT IS FAR FROM SATISFACTORY. THEREFORE, THE AO HAS RIGHTLY CO NCLUDED THAT EXPLANATION PUT FORWARD BY THE APPELLANT IN SUPPORT OF DEPOSITS OF RS. 15 LAKHS IN HIS BANK ACCOUNT LACKS REASONABLENESS. THEREFORE, IN MY CONSIDERED V IEW THAT THE ADDITION OF RS. 15 LAKHS IN THE HAND OF THE APPELLANT UNDER SECTION 68 OF THE ACT IS JUSTIFIED HENCE SUSTAINED. APPELLANTS GROUND OF APPEAL ON THIS ISS UE IS DISMISSED. 4.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION FOR WHICH THE LD.AR OF THE ASSESSEE FIL ED THE FOLLOWING WRITTEN SUBMISSION. SUBMISSION:- 1. IT IS SUBMITTED THAT IN SUPPORT OF THE ADVANCE R ECEIVED FROM SH. JAI SINGH AND SMT. MANJU SINGH, ASSESSEE HAS FILED COPY OF SALE AGREEMENT DT . 24.05.2013 (PB 47-48) . BOTH THESE PERSONS WERE PRODUCED BEFORE THE AO AND THEIR STATEMENT WAS RECORDED ON 21.11.2016. SH. JAI SINGH, IN HIS STATEMENT REPRODUCED AT PG 9-10 OF THE ASSESSME NT ORDER, IN REPLY TO Q.NO.18 & 19 ACCEPTED ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 14 THAT HE ALONG WITH HIS YOUNGER BROTHER SHIVRAM HAS ENTERED INTO AN AGREEMENT WITH ASSESSEE FOR PURCHASE OF PLOT SITUATED AT ANIRUDH NAGAR, BHARATP UR ON 24.05.2013 FOR CONSIDERATION OF RS.21 LACS. SHIVRAM HAS PURCHASED THE PLOT IN THE NAME OF HIS WIFE SMT. MANJU SINGH. OUT OF TOTAL CONSIDERATION OF RS.21 LACS, CASH OF RS.15 LACS WAS PAID IN ADVANCE EQUALLY BY HIM AND SHIVRAM. IN REPLY TO Q. NO.21, HE EXPLAINED THE SOURCE OF SU CH PAYMENT WHICH IS OUT OF SALE PROCEEDS OF AGRICULTURAL PRODUCE AND PAST SAVINGS. THUS, WHEN B OTH THE PURCHASERS HAVE CONFIRMED THAT THEY HAVE ENTERED INTO AGREEMENT FOR PURCHASE OF PLOT FR OM ASSESSEE AND PAID ADVANCE OF RS.15 LACS, IT CANNOT BE HELD ON SURMISES AND CONJECTURES THAT THE MONEY BELONGS TO ASSESSEE. 2. BOTH THE LOWER AUTHORITIES HAVE DISBELIEF THE AG REEMENT FOR THE REASON THAT EVEN AFTER LAPSE OF SUCH A LONG TIME, NEITHER THE PROPERTY IS SOLD TO THEM NOR THEY HAVE DEMANDED THE MONEY BACK FROM THE ASSESSEE. THIS CANNOT BE A REASON FOR DISBELIEVING THE TRANSACTION MORE PARTICULARLY WHEN IN THE SALE AGREEMENT IT IS MENTIONED THAT ON THIS LAND THERE IS SOME ENCROACHMENT AND THE SELLER AFTER GETTING THE LAND VACANT WOULD EXECUTE THE REGISTRY ON PAYMENT OF THE BALANCE CONSIDERATION. THEREFORE, SOLELY ON ASSUMPTIONS AND PRESUMPTIONS, THE AMOUNT OF RS.15 LACS RECEIVED FROM SH. JAI SINGH AND SMT. MANJU SINGH CA NNOT BE TREATED AS UNEXPLAINED INCOME OF THE ASSESSEE. IN THIS CONNECTION, RELIANCE IS PLACE D ON THE DECISION OF PUNJAB & HARYANA HIGH COURT IN CASE OF CIT VS. JAWAHAR LAL OSWAL (2016) 1 33 DTR 15 WHERE IT IS HELD THAT SUSPICION AND DOUBT MAY BE THE STARTING POINT OF AN INVESTIGATION BUT CANNOT AT THE FINAL STAGE OF ASSESSMENT TAKE THE PLACE OF RELEVANT FACTS, PARTIC ULARLY WHERE A DEEMING PROVISION IS SOUGHT TO BE INVOKED. THE PRINCIPLE THAT GOVERNS A DEEMING PR OVISION IS THAT THE INITIAL ONUS LIES UPON THE REVENUE TO RAISE A PRIMA FACIE DOUBT ON THE BASIS O F CREDIBLE MATERIAL. THE ONUS, THEREAFTER, SHIFTS TO THE ASSESSEE TO PROVE THAT THE GIFT IS GENUINE A ND IF THE ASSESSEE IS UNABLE TO PROFFER A CREDIBLE EXPLANATION, THE AO MAY LEGITIMATELY RAISE AN INFER ENCE AGAINST THE ASSESSEE. IF, HOWEVER, THE ASSESSEE FURNISHES ALL RELEVANT FACTS WITHIN HIS KN OWLEDGE AND OFFERS A CREDIBLE EXPLANATION, THE ONUS REVERTS TO THE REVENUE TO PROVE THAT THESE FAC TS ARE NOT CORRECT. THE REVENUE CANNOT DRAW AN INFERENCE BASED UPON SUSPICION OR DOUBT OR PERCEPTI ONS OF CULPABILITY OR ON THE QUANTUM OF THE AMOUNT INVOLVED. ANY AMBIGUITY OR ANY IFS AND BUTS IN THE MATERIAL COLLECTED BY THE AO MUST NECESSARILY BE READ IN FAVOUR OF THE ASSESSEE, PART ICULARLY WHEN THE QUESTION IS ONE OF TAXATION UNDER A DEEMING PROVISION. THUS, NEITHER SUSPICION/ DOUBT, NOR THE QUANTUM SHALL DETERMINE THE EXERCISE OF JURISDICTION BY THE AO. THE ABOVE EXPOS ITION SHALL NOT BE MISCONSTRUED TO RESTRICT THE POWER OF THE REVENUE TO RAISE AN INFERENCE AS TO TH E EFFICACY OF MATERIAL PRODUCED BY OR BEFORE THE AO. THEREFORE, WHERE DONOR APPEARED BEFORE THE AO AND ADMITTED THE GIFT AND HAD BANK ACCOUNT FROM WHERE DEMAND DRAFTS WERE PREPARED, THE GIFT CANNOT BE TREATED AS NON GENUINE MERELY BECAUSE A QUESTION MAY LEGITIMATELY ARISE TH AT SUCH A LARGE AMOUNT COULD NOT BE GIVEN AS A GIFT ON THE MARRIAGE OF ASSESSEES DAUGHTER AS TH IS QUESTION IS SPECULATIVE AND CANNOT FORM THE BASIS OF RAISING AN INFERENCE AGAINST THE ASSESSEE. IN VIEW OF ABOVE, THE ADDITION CONFIRMED BY LD. CIT (A) BE DIRECTED TO BE DELETED. 4.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 15 4.4 THE BENCH HAS HEARD THE RIVAL CONTENTIONS AND P ERUSED THE MATERIALS. IT IS NOTED THAT THE AO MADE ADDITION OF RS.15 LACS BY H OLDING THAT ASSESSEE FAILED TO PROVE THAT SH. JAI SINGH AND SMT. MANJU SINGH WERE HAVING SUFFICIENT LAND HOLDING AND EARNING REASONABLE AMOUNT OF AGRICULTURAL INCOM E TO ACCUMULATE HUGE AMOUNT OF RS.15 LACS. THE LD. CIT(A) CONFIRMED THE ADDITIO N BY HOLDING THAT EVEN AFTER A LAPSE OF LONG TIME, THE PROPERTY IS NOT SOLD TO SH. JAI SINGH AND SMT. MANJU SINGH. IT IS NOTED THAT THAT ASSESSEE HAS RECEIVED ADVANC E FROM SH. JAI SINGH AND SH. MANJU SINGH AGAINST AGREEMENT TO SALE DATED 24.05. 2013 IN RESPECT OF HIS PLOT OF LAND AT ANIRUDH NAGAR, BHARATPUR (PBP 47-48). THE A O HAS RECORDED STATEMENT OF BOTH SH. JAI SINGH AND SMT. MANJU SINGH ON 21.11.20 16. FROM THE EXTRACT OF THE STATEMENT REPRODUCED IN THE ASSESSMENT ORDER, IT IS NOTED THAT IN REPLY TO Q. NO. 18 & 19, SH. JAI SINGH HAS ACCEPTED THAT HE AND HIS BR OTHER SHIVRAM THROUGH HIS WIFE SMT. MANJU SINGH HAS ENTERED INTO AN AGREEMENT WITH ASSESSEE FOR PURCHASE OF SAID PLOT FOR R.21 LACS OF WHICH RS.15 LACS WAS PAID IN ADVANCE OUT OF THE SALE PROCEEDS OF AGRICULTURAL PRODUCE AND PAST SAVINGS. IN Q. NO. 20, HE EXPLAINED THAT REMAINING AMOUNT WOULD BE PAID WHEN THE PLOT IS REGISTERED IN THEIR NAME. THUS, WHEN BOTH THE PERSONS HAVE ACCEPTED HAVING GIVEN ADVANCE TO T HE ASSESSEE AGAINST SALE OF PLOT AND IN THE ABSENCE OF ANY CONTRARY MATERIAL TO ESTA BLISH OTHERWISE, THE BENCH FINDS NO REASON TO CONFIRM THE ADDITION. IN THIS VIEW OF THE MATTER, THE ADDITION ITA NO.416/JP/2017 S HRI RAJENDRA SINGH VS ITO, WARD- 3, BHARATPUR 16 CONFIRMED BY THE LD. CIT(A) AMOUNTING TO RS. 15 LAC S. IS DELETED BY ALLOWING GROUND NO. 3 OF THE ASSESSEE. 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/11/2 017 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06 /11/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAJENDRA SINGH, BHARATPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 3, BHARATPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 416/JP/2017 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR