The ITO, Ward-6(1), Surat V. Build Well, Surat

ITA 429/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73130 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 05-03-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 10-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS
• Assessee Lawyers: SHAH A R
• Keywords: Unexplained cash credit; Gift; Depreciation; Income from undisclosed sources; Opportunity of being heard; Corroborative evidences; Onus to prove
• Section: 194C; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMADABAD , , , , BEFORE SHRI MUKUL KR. SHRAWAT , JUDICIAL MEMBER AND , SHRI T.R. MEENA, ACCOUNTANT MEMBER .. , ! ' ! ' ! ' ! ' ITA NO. 428 /AHD/2010 ASSESSMENT YEAR :2006-07 BUILD WELL 18, ASHIYANA, AMBER COLONY UNN JAKAT NAKA, NAVSARI ROAD, SURAT. V/S . INCOME TAX OFFICER, WARD-6(1), SURAT PAN NO. AA C FB6376N (APPELLANT) .. (RESPONDENT) ITA NO. 429 /AHD/2010 ASSESSMENT YEAR :2006-07 INCOME TAX OFFICER, WARD-6(1), SURAT V/S . BUILD WELL 18, ASHIYANA, AMBER COLONY UNN JAKAT NAKA, NAVSARI ROAD, SURAT. (APPELLANT) (RESPONDENT) # $ % / BY REVENUE SHRI K. C. MATHEWS, SR.D.R. $ % /BY ASSESSEE SHRI M. R. SHAH, A.R. &' $ /DATE OF HEARING 05.03.2014 ()* $ /DATE OF PRONOUNCEMENT 27.03.2014 O R D E R PER : SHRI T. R. MEENA, ACCOUNTANT MEMBER THESE TWO APPEALS ARE CROSS APPEALS FILED BY THE AS SESSEE AND REVENUE, ARISING OUT OF THE ORDER OF LD. COMMISSION ER OF INCOME-TAX (APPEALS)-IV, SURAT, DATED 26.11.2009 IN ITA NO. 99 4/AHD/2009 FOR A.Y. 06-07 IN BOTH APPEALS. THE EFFECTIVE GROUNDS OF BOTH APP EALS ARE AS UNDER: ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 2 GROUNDS OF ITA NO. 428/AHD/2010 (ASSESSEE'S APPEAL) 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN PARTLY CONFIRMING THE ADDITION TO THE EXTE NT OF RS.10,15,000/- AS AGAINST ADDITION OF RS.37,76,000/ - MADE BY THE ASSESSING OFFICER AS UNEXPLAINED CASH CREDITS U/S. 68 OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN DISALLOWING LABOUR EXPENSES OF RS.15,22,585/- U/S. 40(A)(IA) OF THE ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN PARTLY CONFIRMING THE DISALLOWANCE OUT OF VARIOUS EXPENSES TO THE EXTENT OF RS.35,064/- @ 10% AS AGAINST DISAL LOWANCE OF RS.70,128/- MADE BY ASSESSING OFFICER @ 20% OF TELE PHONE EXPENSE, STAFF WELFARE EXPENSE, VEHICLE PETROL AND REPAIRING EXPENSE AND DEPRECIATION ON VEHICLE. GROUND OF ITA NO. 429/AHD/2010(REVENUES APPEAL) [1] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A)-IV, SURAT HAS ERRED IN RESTRICTING THE A DDITION AT RS.10.25 LAKHS INSTEAD OF RS.37.61 LAKHS MADE BY THE AO U/S. 68 OF THE ACT. [2] ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A)-IV, SURAT HAS ERRED IN RESTRICTING THE D ISALLOWANCE @ 10% INSTEAD OF 20% OUT OF EXPENSES. FIRST WE TAKE ITA NO. 428/AHD/2010 (ASSESSEE'S APPE AL) 2. THE ASSESSEE IS IN THE CONSTRUCTION BUSINESS. I T HAD TAKEN LOAN OF RS.67,76,000/- DURING THE YEAR. THE A.O. GAVE REAS ONABLE OPPORTUNITY OF BEING HEARD TO SHOW THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 3 LOAN CREDITOR. THE ASSESSEE FILED THE PARTIAL EVID ENCE BEFORE THE A.O. HE HELD AS UNDER: 4.1 ON VERIFICATION OF THE DETAILS FILED D URING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS SEEN THAT THE ASSESSE E HAS RECEIVED CASH DEPOSIT FROM VARIOUS PERSONS. THE ASSESSEE HAS PRODUCED ONLY PARTIAL EVIDENCE REGARDING THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF. TRANSACTIONS. THE-DETAILS ARE AS UN DER: SR. NO. NAME OF THE ASSESSEE AMOUNT REMARKS 1 FUZAIL A. QURESHI 397000 CONFIRMATION FILED BUT NOT SIGNED, ADDRESS PAN ETC. NOT FURNISHED BY THE ASSESSEE 2 SHABEENA A. QURESHI 418000 -DO- 3 ASIF A. SAIYED 130000 CONFIRMATION FILED BUT ADDRESS NOT FURNISHED BY THE ASSESSEE. 4 IMRAN Y. SAIYED 130000 -DO- 5 MAJIYA QURESHI 165000 -DO- 6 SAMEER E SURESHWAIA 300000 -DO: 7 EBRAHIM A 300000 -DO- 8 RASHIDA E 400000 -DO- 9 SACHIN C. SAVLA HUF 800000 -DO- 10 JAYESH C. SAVLA 500000 -DO- 11 HENEY JAYESH SAYLA (MINOR) 1000000 -DO- 12 KRINJAL LAXMICHAND SAVLA 700000 -DO- 13 HIRA BAI MEGHJI SAVLA 200000 - DO - 14 ASHA LAXMICHAND SHAH 500000 -DO- 15 RAFIQUE F. QURESHI 175000 CONFIRMATION, RETURN OF INCOME AND BANK STATEMENT FILED BUT SAME DAY CASH DEPOSITED AND GIVEN LOAN. CREDITWORTHINESS OF THE DEPOSITOR IS NOT ESTABLISHED. 16 SARIFA Y. SAYYED 216000 -DO- 17 RAISA RAFIQUE QURESHI 347000 -DO- 18 YAQUB M. SAYYED 98000 -DO- TOTAL 6776000 THEREFORE, THE ASSESSEE WAS REPEATEDLY ASKED VIDE O RDER SHEET ENTRIES DATED 22.9.2008, 17.11.2008 AND 8.12.2008 T O SHOW THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE ABOVE TRANS ACTIONS IN WITH ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 4 SUPPORTING EVIDENCE AND WAS ALSO REQUESTED TO PRODU CE THE ABOVE PARTIES FOR VERIFICATION. THE ASSESSEE VIDE LETTER DATED 18 .12.2008 SUBMITTED THE PART DETAILS. THE ASSESSEE FAILED TO PRODUCE COPY O F RETURN OF INCOME IN RESPECT OF PERSONS AT SR. NO.1 AND 2 AND 13. IN RES PECT OF PERSONS AT SR. NO.9 TO 12, THE ASSESSEE FAILED TO PRODUCE THE BANK STAT EMENT. IN RESPECT OF PERSONS AT SR. NO.9 TO 12 THE ASSESSEE STATED TH AT THE DEPOSIT HAS BEEN CLUBBED WITH THE MINORS. IN RESPECT OF PERSONS AT S R. NO. 15 TO 18, NO DETAILS OR SUPPORTING EVIDENCE HAS BEEN PRODUCED. I N VIEW OF THE ABOVE DISCUSSION THE FOLLOWING CONCLUSION EMERGES:- I) IN RESPECT OF PERSONS AT SR.NO.9 TO 12 THE DEPOS ITS STAND EXPLAINED AS THE ASSESSEE HAS PRODUCED THE NECES SARY EVIDENCE. II) IN RESPECT OF PERSONS AT SR. NO.1 AND 2 THE COP Y OF RETURN OF INCOME HAS NOT BEEN PRODUCED. III) IN RESPECT OF PERSONS AT SR. NO3~TO~8 BANK STA TEMENT HAS NOT BEEN PRODUCED. IV) IN RESPECT OF PERSONS AT SR. NO.15 TO ISJTO EVI DENCE OR SUPPORTING DOCUMENTS HAS BEEN PRODUCED. 4.2 BEFORE COMING TO THE FACTUAL ASPECT OF THE CASE IN RESPECT OF CASH CREDITS, IT IS PERTINENT TO NOTE HERE THAT IT IS A SETTLED LAW, IF THERE IS AN ENTRY IN THE ACCOUNTS OF THE ASSESSEE, WHICH SHOWS THE RE CEIPT OF A SUM THE BURDEN IS ON THE ASSESSEE TO EXPLAIN THE NATURE AND SOURCE OF SUCH CREDIT. IN THIS REGARD, IT HAS BEEN HELD IN NUMBER OF CASE LAWS THAT THIS INITIAL BURDEN EXTENDS TO ESTABLISH (1) IDENTITY OF THE CREDITOR/INTRODUCER, (2) CAPACITY OF PERSON WHO HAS INVESTED MONEY (3) GENUINENESS AND CORRECTNESS OF THE TRANSACTION HE ALSO CONSIDERED VARIOUS CASE LAWS ON CASH CREDIT ORS AND AS PER CHART GIVEN ON PAGE 7, WHICH IS REPRODUCED AS UNDER: SR. NO. NAME OF THE ASSESSEE AMOUNT 1 FUZAIL A. QURESHI 397000 2 SHABEENA A. QURESHI 418000 3 ASIF A. SAIYED 130000 4 IMRAN Y. SAIYED 130000 ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 5 5 MAJIYA QURESHI 165000 6 SAMEER E SURESHWALA 300000 7 EBRAHIM A 300000 8 RASHIDA E 400000 9 HIRA BAI MEGHJI SAVLA 200000 10 ASHA LAXMICHAND SHAH 500000 11 RAFIQUE F. QURESHI 175000 12 SARIFA Y. SAYYED 216000 13 RAISA 347000 14 YAQUB M. SAYYED 98000 3776000 HE CONFIRMED THE ADDITION OF RS. 37,76,000/- U/S. 6 8 OF THE IT ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAD PARTIALLY ALLOWED THE APPEAL AND HE FOUND THREE PARTIES, NAMELY, SHRI FUZAIL QURESHI, SHABEEN A A. QURESHI AND HIRA BAI MEGHJI SAVLA IN TOTALING TO THE TUNE OF RS.10,15,00 0/- UNEXPLAINED CASH CREDIT U/S. 68. THE ASSESSEE GETS RELIEF FROM THE CIT(A) AT RS.27,61,000/-. 4. BOTH THE PARTIES ARE BEFORE US. THE ASSESSEE IS AGAINST CASH CREDITOR CONFIRMED BY THE CIT(A) AT RS.10,15,000/- AND REVEN UE IS AGAINST DELETING THE ADDITION ON ACCOUNT OF CASH CREDITOR AT RS.27,6 1,000/-. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT ASSESSEE HAD FILED CONFIRMA TION BEFORE LOWER AUTHORITIES WITH PAN NO. ALONG WITH COPY OF RETURN. THE ASSESSEE ALSO FILED CONFIRMATION AT PAGE NO.14 AND COPY OF BANK ACCOUNT AND ARGUED THAT THESE PAYMENTS WERE RECEIVED BY THE ASSESSEE THROUGH ACCO UNT PAYEE CHEQUE AND RS.3,97,000/- WAS THE TOTAL CREDIT BALANCE AS ON 31 .03.2006 IN CASE OF FUZAIL A. QURESHI. HE ALSO ARGUED THAT THERE IS NO CASH D EPOSIT IN BANK ACCOUNT OF FUZAIL A QURESI BEFORE ISSUING THE CHEQUE. THEREFO RE, CIT(A) WAS NOT RIGHT IN CONFIRMING THE ADDITION. THE LD. A.O. HAS CONSIDER ED ALL THE EVIDENCES IN ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 6 REMAND REPORT ALSO. LD. A.R. HAS DRAWN OUR ATTENTI ON ON COPY OF BANK ACCOUNT OF FUZAIL A QURESI MAINTAINED WITH DCB BANK AND ARG UED THAT THE CASH CREDITOR HAD RECEIVED ORIGINALLY IN APRIL 2005, RS. 3,28,000/- FROM THE ASSESSEE, WHICH HAS BEEN RETURNED BACK TO THE ASSES SEE. AS SUCH, THERE IS NO LOAN FROM THE CASH CREDITOR, NAMELY, FUZAIL A QU RESI. FURTHER, IT WAS ARGUED THAT FUZAIL A QURESI IS A MINOR AND HIS INCO ME IS CLUBBED U/S. 64 OF THE IT ACT IN THE INCOME OF HIS FATHER, SHRI AMIN MOHAM MAD S. QURESHI, FOR WHICH HE FILED THE COPY OF RETURN AND FATHERS PAN WAS ME NTIONED IN THE CONFIRMATION OF FUZAIL A QURESI. AT THE OUTSET, LD. SR. D.R. A RGUED THAT EVEN BEFORE HONBLE ITAT, ASSESSEE HAD FILED ONLY CONFIRMATION ON SIMPL E PAPERS BY QUOTING PAN NO. BUT THERE IS NO EVIDENCE THAT ASSESSEE IS FILIN G INCOME TAX RETURN. THE CREDITWORTHINESS OF THE CREDITOR HAD NOT PROVED BY THE ASSESSEE. 4(I). THE SECOND CREDITOR WAS IN THE NAME OF SHABEE NA A. QURESHI AND LOAN AT RS.4,18,000/- HAD BEEN SHOWN BY THE ASSESSEE. T HE LD. A.R. FILED THE EVIDENCE IN FORM OF CONFIRMATION AT PAGE NO.18 AND COPY OF BANK ACCOUNT AT PAGE NO.19 TO 22. THE LD. COUNSEL ARGUED THAT RS.3 ,62,000/- WAS OPENING IN THE CREDITORS ACCOUNT AS ON 01.04.2005. DURING THE YEAR, ASSESSEE HAS RECEIVED THROUGH BANK ACCOUNT PAYEE CHEQUE REMAININ G AMOUNT I.E. RS.3,93,000/-, RS.10,000/- & RS. 15,000/- ON DIFFER ENT DATES AND FINALLY CLOSING CREDIT BALANCE AT RS.4,18,000/-, WHICH WAS ADDED BY THE A.O. THE LD. A.R. ARGUED THAT THE SOURCE OF THE LOAN CAN BE EXPLAINED FROM THE BANK ACCOUNT ENTRIES THAT IT IS CREDITOR, NAMELY, SHABEENA A. QU RESHI RECEIVED RS.3,93,000/- LOAN IN JULY FROM THE ASSESSEE. THEREAFTER, THE LO AN AMOUNT OF RS.4,18,000/- ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 7 RETURNED BACK FROM THE BANK ACCOUNT OF SHABEENA A. QURESHI. SHABEENA A. QURESHI IS ALSO MINOR AND HER INCOME HAD BEEN CLUBB ED IN THE INCOME OF FATHER SHRI AMIN MOHAMMAD S. QURESHI. FATHERS PAN HAS BEEN QUOTED IN THE CONFIRMATION OF SHABEENA A. QURESHI. AS SUCH, THERE IS NO LOAN FROM THE SHABEENA A. QURESHI. IT IS AN AMOUNT ORIGINALLY TR ANSFERRED BY THE ASSESSEE AND RETURNED BACK TO THE ASSESSEE. AT THE OUTSET, LD. SR. D.R. AGAIN REITERATED THAT ASSESSEE HAD FILED PARTIALLY THESE AFFIDAVITS BEFORE THE LOWER AUTHORITIES ON WHICH REMAND REPORT HAS BEEN CALLED FOR BY THE LD. CIT(A). AFTER CONSIDERING THE REMAND REPORT, LD. CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION. IT IS ALSO FOUND THAT IN BANK ACCOUNT CASH DEPOSITS ENTRIES WE RE THERE. 4(II). WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIAL ON RECORD. IN CASE OF TWO CASH CREDITORS, NAMELY, FUZ AIL A. QURESHI AND SHABEENA A. QURESHI THE FACTS OF THE A.R. HAD BEEN FOUND CORRECT THAT ORIGINALLY AMOUNT CAME FROM THE FIRM AND RETURNED B ACK TO FIRM. THERE IS NO SUBSTANTIAL CASH DEPOSITED. BOTH THE CASH CREDITOR S ARE MINORS. THUS, FATHERS PAN HAD BEEN QUOTED ON BOTH THE CONFIRMATI ON. THEREFORE, WE DO NOT FIND ANY MERIT IN THE ORDER OF THE CIT(A). ACCORDI NGLY, WE REVERSE THE ORDER OF THE CIT(A) IN CASE OF TWO CASH CREDITORS. APPEAL O N ABOVE TWO CASH CREDITORS ARE ALLOWED. 4(III). THE THIRD CASH CREDITOR WAS CONFIRMED BY TH E LD.CIT(A) IN THE NAME OF HIRA BAI MEGHJI SAVLA AT SR.NO.9 WHERE IT WAS CLAIM ED THAT ASSESSEE IS ASSESSED TO TAX. LD. COUNSEL HAS DRAWN OUR ATTENTIO N ON PAGE NO.48 WHERE COPY OF CONFIRMATION FILED BY THE ASSESSEE SHOWS TH AT ASSESSEE HAD RECEIVED ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 8 THIS AMOUNT THROUGH CHEQUE AND IT WAS A CLOSING BAL ANCE OF CASH CREDITOR. HE ALSO FILED COPY OF BANK ACCOUNT AT PAGE 50 AND COPY OF PAN AT PAGE NO.49 AND ARGUED THAT THERE IS NO CASH DEPOSITED IN THEIR BANK ACCOUNT. AT THE OUTSET, LD. SR. D.R. ARGUED THAT PARTIALLY THESE EV IDENCES WERE FILED BEFORE THE CIT(A), WHICH HAS BEEN CONSIDERED BY HIM. AFTER GE TTING REMAND REPORT, THE COPY OF RETURN AND HAS NOT BEEN FILED BY THE ASSESS EE AND SOURCE OF INCOME HAS NOT BEEN EXPLAINED BY HIM. THEREFORE, IT SHOUL D BE CONFIRMED. THE ASSESSEE HEAVILY RELIED UPON FOLLOWING DECISION ON ADDITION MADE U/S. 68 CONFIRMED BY THE CIT(A): I. DCIT VS. ROHINI BUILDERS [256 ITR 360] II. NEMICHAND KOTHARI VS. CIT [264 ITR 254] ALL THE CASE LAWS REFERRED BY THE ASSESSEE ARE ON A DDITION MADE U/S. 68 OF THE IT ACT, WHEREIN IDENTITY OF THE CASH CREDITOR AND G ENUINENESS OF THE TRANSACTION WAS FOUND EXPLAINED BY THE ASSESSEE. B UT IN THIS CASE, THE CREDITWORTHINESS HAS NOT BEEN PROVED BY THE ASSESSE E. AT THE OUTSET, LD. SR. D.R. RELIED UPON FOLLOWING CASES: I. UMESH KRISHNANI VS. ITO [2013] 35 TAXMANN.COM 59 8 (GUJARAT), WHEREIN TRANSACTION WAS CIRCUITOUS ROUTE TO BRING O N BOOKS ASSESSEES OWN UNACCOUNTED MONEY. CHEQUES WERE ISSUED AFTER DEPOS ITING THE CASH. II. BLESSING CONSTRUCTION VS. ITO [2013] 32 TAXMANN .COM 366 (GUJARAT), WHEREIN CASH WAS DEPOSITED BEFORE THE ISSUING OF CH EQUE AND SOURCE HAS NOT BEEN EXPLAINED BY THE ASSESSEE. THE ADDITION WAS C ONFIRMED BY THE HONBLE COURT U/S. 68 FOR NOT EXPLAINING THE SOURCE OF INCO ME. ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 9 III. SATISHKUMAR KANTILAL SHAH (HUF) VS. ITO [2013] 35 TAXMANN.COM 640 (GUJARAT), HONBLE GUJARAT HIGH COURT HAD CONFIRMED THE ADDITION RECEIVED AS A GIFT WHERE THERE IS NO CREDITWORTHINESS OF DONOR. IV. WHITE SILCO (P.) LTD. VS. ACIT, [2012] 20 TAXMA NN.COM 302 (GUJ.), WHEREIN TRANSACTION ROUTED THROUGH BANK. THE TRIBU NAL REMANDED BACK THE ISSUE TO THE A.O. FOR EXAMINATION OF CASH CREDITORS ADDITION. LD. SR. D.R. ALSO REFERRED VARIOUS OTHER CASE LAWS ON THIS ISSUE. 4(IV). WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE MATERIAL ON RECORD. THE CASH CREDITORS SHOWN IN THE NAME OF HI RA BAI MEGHJI SAVLA AT RS.2 LACS WHERE NO COPY OF RETURN HAD BEEN FILED ON LY COPY OF PAN CARD GIVEN TO THE A.O. THE SOURCE OF INCOME HAS NOT BEEN EXPL AINED. THE FULL COPY OF BANK ACCOUNT MAINTAINED WITH HDFC, VAPI HAS NOT BEE N FILED BY THE ASSESSEE. FURTHER, THERE WERE CASH DEPOSITS ALSO I N BANK ACCOUNT. THUS, WE DO NOT FIND ANY REASON TO REVERT THE ORDER OF CIT(A ). ACCORDINGLY, WE DISMISS THE APPEAL ON THE ASSESSEE ON THIS CASH CREDITOR. GROUND NO.1 IS PARTLY ALLOWED. 5. GROUND NO.2 OF ASSESSEES APPEAL IS AGAINST CONF IRMING THE ACTION OF THE A.O. IN DISALLOWING THE LABOUR EXPENSES OF RS.1 5,22,585/- U/S. 40(A)(IA) OF THE ACT. THE A.O. OBSERVED THAT THE ASSESSEE HAS D EBITED LABOUR CHARGES AMOUNTING TO RS.15,22,585/- ON WHICH NO TDS HAD BEE N DEDUCTED BY THE ASSESSEE. AS PER THE PROVISIONS OF SECTION 40(A)(I A) R.W.S. 194C, THE ASSESSEE SHOULD HAVE DEDUCTED TDS ON THE SAID LABOU R WHICH THE ASSESSEE FAILED TO DEDUCT THE TAX. THE A.O. GAVE REASONABLE OPPORTUNITY OF BEING HEARD ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 10 TO THE ASSESSEE. IT WAS ARGUED BY THE ASSESSEE BEF ORE THE A.O. THAT THESE PAYMENTS WERE MADE TO THE LABOUR THROUGH MUKADAM AN D SINGLE PAYMENT WAS LESS THAN REQUIRED AMOUNT AS PER SECTION 194C O F THE IT ACT. THERE IS NO CONTRACT BETWEEN ASSESSEE AND MUKADAM. THEREFORE, THE ASSESSEE WAS NOT REQUIRED TO DEDUCT TDS U/S. 194C OF THE IT ACT. AF TER CONSIDERING THE ASSESSEES REPLY, THE LD. A.O. HELD THAT THERE WAS A CONTRACT WHICH MUKADAM AND PAYMENT WERE MADE FOR LABOUR CHARGES, WHICH WAS REQUIRED TO BE DEDUCTED TAX U/S. 194C OF THE IT ACT. ACCORDINGLY, A.O. MADE ADDITION U/S. 40(A)(IA) AT RS. 15,22,585/-. 6. BEING AGGRIEVED BY THE ORDER OF THE A.O., THE AS SESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO HAD CONFIRMED THE ADDI TION BY OBSERVING AS UNDER: I HAVE CONSIDERED THE RIVAL CONTENTIONS AND AFTER CONSIDERING THE FACTS OF THE CASE, I AM OF THE OPINION THAT ASSESSI NG OFFICER HAS RIGHTLY DISALLOWED PAYMENT OF LABOUR CHARGES U/S. 40(A)(IA) OF THE ACT, AS TDS HAS NOT BEEN MADE BY THE ASSESSEE. THE ASSESSEE HA S NOT MADE PAYMENT TO LABOURERS DIRECTLY BUT THROUGH MUKADAM A ND THUS, THE PAYMENT IS SUBJECT TO TDS U/S 194C OF THE ACT. ACC ORDINGLY, THE ADDITION MADE BY THE ASSESSING OFFICER IS HEREBY CONFIRMED. 7. NOW THE ASSESSEE IS BEFORE US. LD. A.R. OF THE ASSESSEE ARGUED THAT THERE IS NO CONTRACT EITHER WRITTEN OR ORAL WITH MU KADAM FOR LABOUR WORK. THE ASSESSEE MADE PAYMENTS THROUGH CHEQUE TO THE MUKADA M. THE MUKADAM HAS DISTRIBUTED THE LABOUR CHARGES AMONG ALL LABOUR ERS IN SMALL AMOUNT. THEREFORE, THERE IS NO LIABILITY OF TDS ON THE ASSE SSEE. HE FURTHER RELIED ON THIS ISSUE IN CASE OF CIT VS. UNITED RICE LAND LTD. [322 ITR 594] (PUNJAB & ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 11 HARYANA HIGH COURT), WHEREIN THERE WAS NEITHER ANY ORAL OR WRITTEN AGREE MENT BETWEEN THE ASSESSEE AND TRANSPORTER FOR CARRIAGE O F GOODS NOR IT HAS BEEN PROVED THAT ANY FREIGHT CHARGES WERE PAID TO THEM I N PURSUANCE OF A CONTRACT FOR A SPECIFIC PERIOD, QUANTITY OR PRICE. THUS, TD S U/S. 194C WAS HELD NO DEDUCTABLE. HE FURTHER RELIED IN CASE OF CIT VS. BHAGWATI STEEL [326 ITR 108], WHEREIN PAYMENTS WERE MADE TO TRUCK OWNERS WITHOUT DEDUCTING TAX AND DISALLOWANCE WAS MADE BY THE A.O. U/S. 40(A)(IA) OF THE IT ACT. IN THIS CASE, ALSO THE HONBLE PUNJAB & HARYANA HIGH COURT HELD T HAT THERE WAS NO CONTRACT BETWEEN ASSESSEE AND THE TRUCK OWNERS. THUS, DISAL LOWANCE U/S. 40(A)(IA) WAS NOT CALLED FOR. HE FURTHER HAS DRAWN OUR ATTEN TION ON HONBLE ITAT A BENCH, AHMEDABAD, DECISION IN CASE OF DCIT VS. LAXMI PROTEIN PRODUCTS (P.) LTD. IN ITA NOS. 3792, 2582 TO 2584/AHD/2008 FOR A. Y. 2005-06 TO 2007-08, ORDER DATED FEBRUARY 11, 2010, WHEREIN IDENTICAL ISSUE DECIDED BY THE HONBLE BENCH IN FAVOUR OF ASSESSEE. LD. A.R. ALSO ARGUED THAT THERE IS NO COMMISSION/PROFIT WAS GIVEN TO MUKADAM ON LABOUR CH ARGES. AT THE OUTSET, LD. SR. D.R. SUPPORTED THE ORDER OF CIT(A) AND ARGUED T HAT THERE IS ORAL AGREEMENT WITH MUKADAM. THEREFORE, TDS WAS TO BE D EDUCTED BY THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE IS IN CONSTRUCTION BUSINESS. THE EXPENSES DEBITED IN THE P&L ACCOUNT AND HAD NOT BEEN DOUBTED BY THE A.O . IN CONSTRUCTION BUSINESS, THE LABOUR IS REQUIRED AND IT IS AN UNORG ANIZED SECTOR AND SOME PERSONS ARE REQUIRED TO ARRANGE THE LABOUR FOR CONS TRUCTION WORK. THE ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 12 ASSESSEE PAID THIS AMOUNT THROUGH MUKADAM. THE MUK ADAM HAS FURTHER DISTRIBUTED THESE PAYMENTS IN LABOURERS. THE MUKAD AM HAD NOT GIVEN ANY MARGIN MONEY AS PROFIT ON DISTRIBUTION OF LABOUR CH ARGES AMONG LABOURERS. WHEN THERE IS NO PROFIT ELEMENT IN PAYMENTS, THE TD S IS NOT REQUIRED TO BE DEDUCTED AS HELD BY THE CO-ORDINATE BENCH IN CASE O F DCIT VS. LAXMI PROTEIN PRODUCTS (P.) LTD. (SUPRA). THE OPERATIVE PORTION IS REPRODUCED AS UNDER: 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE TH ROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. AS WE HAVE NOTED AB OVE THAT THE ASSESSEE HAS FILED COMPLETE DETAILS VIDE LETTER DAT ED 8-5-2007 AND IT IS NOTED THAT THE ASSESSEE INSTEAD MADE PAYMENTS TO LA BOURERS RATHER THE ASSESSEE HAS MADE PAYMENT TO THE REPRESENTATIVE OF THE LABOURERS THROUGH THEIR MUKADUM, WHO ARE EMPLOYEES OF THE ASS ESSEE. THE INDIVIDUAL PAYMENT IS NOT EXCEEDING THE PRESCRIBED LIMIT AND ONCE THIS IS NOT THE CASE, THE ASSESSEE IS NOT SUPPOSED TO DEDUC T TAX UNDER SECTION 194C OF THE ACT. ACCORDINGLY, THIS ISSUE OF THE RE VENUES APPEAL IS DISMISSED. BY RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINA TE BENCH ON IDENTICAL FACTS, WE ALSO HAVE CONSIDERED VIEW THAT ASSESSEE IS NOT R EQUIRED TO DEDUCT TDS U/S. 194C ON LABOUR PAYMENTS MADE THROUGH THE MUKAD AM. ACCORDINGLY, THE ASSESSEES APPEAL ON THIS GROUND IS ALLOWED. 9. GROUND NO.3 OF ASSESSEES APPEAL IS AGAINST CONF IRMATION OF DISALLOWANCE OF VARIOUS EXPENSES TO THE EXTENT OF R S.35,064/- @ 10% AGAINST DISALLOWANCE OF RS.17,128/- MADE BY THE A.O. @ 20% ON TELEPHONE EXPENSES, STAFF WELFARE EXPENSE, VEHICLE PETROL AND REPAIRING EXPENSES AND DEPRECIATION ON VEHICLE. THE LD. A.R. SERIOUSLY HA S NOT ARGUED THIS ISSUE AND ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 13 LD. CIT(A) ALSO REASONABLY CONFIRMED THE EXPENSES F OR NON BUSINESS PURPOSES. THUS, WE DISMISS THE ASSESSEES APPEAL O N THIS GROUND. NOW WE TAKE ITA NO. 429/AHD/2010 (REVENUE'S APPEAL) 10. FIRST GROUND OF REVENUES APPEAL IS AGAINST DEL ETING THE ADDITION BY LD. CIT(A) AT RS.27,61,000/-. THE FACTS OF THE CASE HA VE BEEN MENTIONED IN ASSESSEES APPEAL. THE LD. CIT(A) ALLOWED THE ASSE SSEES APPEAL AGAINST THE ADDITION MADE BY THE A.O. IN CASH CREDITOR NO.3 TO 8 AND 10 TO 14. 10(I) SERIAL NO.3, CASH CREDITOR IS ASIF A. SAIYED FOR RS.1,30,000/-. THE LD. SR. D.R. SUPPORTED THE ORDER OF THE A.O. THE SIGNATUR E DEFERS ON PAGE 23 AND 25 OF THE CASH CREDITOR ON PAPER BOOK. THE TOTAL INCO ME OF CASH CREDITOR IS ONLY RS.98,801/-, CASH DEPOSITED PRIOR TO ISSUE OF LOAN ON PAGE NO.24. AT THE OUTSET, LD. A.R. SUPPORTED THE ORDER OF THE CIT(A) AND ARGUED THAT ASSESSEE HAD FILED COPY OF PAN, COPY OF RETURN AND COPY OF B ANK ACCOUNT. THE ASSESSEE HAS DISCHARGED HIS ONUS TO PROVE THE IDENT ITY, GENUINENESS OF THE CASH CREDITOR AND CASE LAWS RELIED IN THE APPEAL FI LED BY THE ASSESSEE ARE ALSO SQUARELY APPLICABLE ON THIS CASH CREDITORS. THUS, HE REQUESTED TO CONFIRM THE ORDER OF THE CIT(A). 10(II). WE HAVE GONE THROUGH THE PAPER BOOK, IT IS FOUND THAT ASSESSEE HAD GIVEN LOAN OF RS.1,30,000/-. COPY OF BANK ACCOUNT SHOWS THAT ASSESSEE HAS ONLY INCOME TO THE TUNE OF RS.98,000/-. IN OUR CON SIDERED VIEW, THE CASE LAWS REFERRED BY THE SR. D.R. IS SQUARELY APPLICABLE IN CASE OF ASIF A. SAIYED AS THERE IS NO CREDITWORTHINESS OF THE CASH CREDITOR T O GIVE LOAN OF RS.1,30,000/- TO THE ASSESSEE. THUS, WE REVERSE THE ORDER OF THE CIT(A). ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 14 10(III). FOURTH CASH CREDITOR IN THE NAME OF IMRAN Y. SAIYED FOR RS.1,30,000/- THE LD. SR. D.R. ARGUED THAT THE ASSESSEE FILED COP Y OF PAN, RETURN, CONFIRMATION BUT SIGNATURES AND SPELLING OF SAIYED DOES NOT TALLY. THE ASSESSEE HAS INCOME ONLY RS. 99,216/- PRIOR TO ISSU E OF TWO CHEQUES, THE ASSESSEE DEPOSITED THE CASH IN THE BANK ACCOUNT. T HUS, THE SOURCE OF THE INCOME HAS NOT BEEN EXPLAINED BY THE ASSESSEE. AT THE OUTSET, LD. A.R. SUPPORTED THE ORDER OF THE CIT(A) AND HE ARGUED THA T THE ASSESSEE HAS DISCHARGED HIS ONUS BY FOLLOWING THE COPY OF PAN, C OPY OF RETURN AND CONFIRMATION. AFTER CONSIDERING BOTH THE SIDES, IT IS FOUND THAT ASSESSEE HAD NOT PROVED CREDITWORTHINESS OF THE CASH CREDITOR AS HE HAD SHOWN ONLY INCOME OF RS.99,260/- IN THE RETURN. THE BANK ACCOUNT SHO WS THAT CASH HAS BEEN DEPOSITED IN THE BANK ACCOUNT OF THE CASH CREDITOR AND CASE LAWS REFERRED BY THE REVENUE IS SQUARELY APPLICABLE IN CASE OF IMRAN Y. SAIYED AS THERE IS NO CREDITWORTHINESS OF THE CASH CREDITOR. ACCORDINGLY , WE REVERSE THE ORDER OF THE CIT(A) ON THIS CASH CREDITOR. 10(IV). SERIAL NO.5, CASH CREDITOR IS MAJIYA QURESH I FOR RS.1,65,000/-. LD. SR. D.R. ARGUED THAT THE ASSESSEE HAS PROVED THE GENUIN ENESS AND IDENTITY OF PERSON BUT THERE IS NO CREDITWORTHINESS OF THE ASSE SSEE TO ADVANCE LOAN OF RS.1,65,000/- TO THE ASSESSEE. THE SIGNATURES ALSO DEFER IN CONFIRMATION. THE CASH CREDITOR HAS SHOWN RETURN INCOME AT RS.1,2 9,307/-. AT THE OUTSET, LD. A.R. FOR THE ASSESSEE RELIED UPON THE CASE LAWS REF ERRED ABOVE AND ARGUED THAT THE ASSESSEE HAS DISCHARGED HIS ONUS BY FILING THE COPY OF RETURN, COPY OF PAN, COPY OF BANK ACCOUNT AND ARGUED THAT ORDER OF THE CIT(A) MAY PLEASE ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 15 BE CONFIRMED. AFTER CONSIDERING BOTH THE SIDES, TH E IDENTITY AND THE GENUINENESS OF THE TRANSACTION HAD BEEN PROVED BY T HE ASSESSEE BUT CASH CREDITOR DID NOT HAVE CREDITWORTHINESS TO ADVANCE R S.1,65,000/- TO THE ASSESSEE AND ALSO IN BANK ACCOUNT SUBSTANTIAL CASH HAS BEEN DEPOSITED AND THEREAFTER LOAN WAS ADVANCED BY THE CASH CREDITOR T O THE ASSESSEE. THEREFORE, CASE LAWS REFERRED BY THE REVENUE ARE SQ UARELY APPLICABLE AND ACCORDINGLY, WE REVERSE THE ORDER OF THE CIT(A) AND CONFIRM THE ADDITION ON ACCOUNT OF CASH CREDITOR OF RS.1,65,000/-. 10(V). SERIAL NO.7, CASH CREDITOR IS EBRAHIM A FOR RS. 3 LACS. LD. SR. D.R. ARGUED THAT BY FILING OF COPY OF RETURN, COPY OF BA NK ACCOUNT AND CONFIRMATION, THE IDENTITY AND GENUINENESS OF TRANSACTION CAN BE PROVED NOT CREDITWORTHINESS. ASSESSEE HAD ONLY RETURNED INCOM E AT RS.40,400/- AGAINST ADVANCE RS.3 LACS TO THE ASSESSEE. THEREFORE, CIT( A) ORDER IS NOT JUSTIFIED. AT THE OUTSET, LD. A.R. FOR THE ASSESSEE AGAIN REIT ERATED THAT ASSESSEE HAS DISCHARGED HIS ONUS BY FILING OF COPY RETURN COPY O F BANK ACCOUNT, CONFIRMATION. AFTER CONSIDERING BOTH THE SIDES AND GOING THROUGH THE CASE LAWS REFERRED BY BOTH, IT IS NOT THE DUTY OF THE A. O. TO PROVE THAT UNACCOUNTED INCOME OF THE ASSESSEE ROUTED THROUGH THIS CASH CRE DITOR AS HELD BY VARIOUS COURTS. THE CASE LAWS REFERRED BY THE REVENUE ARE SQUARELY APPLICABLE ON THE CREDITWORTHINESS WHICH HAS NOT BEEN DISCHARGED BY THE ASSESSEE. THUS, WE ALSO REVERSE THE ORDER OF CIT(A) ON THIS CASH CR EDITOR OF RS. 3 LACS. 10(VI). SERIAL NO.8, CASH CREDITOR IS RASHIDA E FOR RS. 4 LACS. LD. SR. D.R. AGAIN REITERATED THAT BY FILING THE COPY OF RETURN, PAN, CONFIRMATION, THE CASH ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 16 CREDITOR CANNOT BE TREATED AS EXPLAINED IN ABSENCE OF CREDITWORTHINESS. THE A.R. ARGUED THAT THE ASSESSEE HAS DISCHARGED HIS ON US BY FILING THESE EVIDENCES. THUS, HE REQUESTED TO CONFIRM THE ORDER OF THE CIT(A). AFTER CONSIDERING BOTH THE SIDES AND COPY OF BANK ACCOUNT , IT REVEALED THAT RASHIDAS BANK ACCOUNT SHOWED CREDIT THROUGH ACCOUN T PAYEE CHEQUES. SHE DEPOSITED CASH OF RS.40,000/- IN THE BANK ACCOUNT T HEREAFTER ISSUED CHEQUE FOR LOAN TO THE ASSESSEE AT RS.4 LACS. THE RETURN OF INCOME IS HARDLY RS.20,000/-. THE ASSESSEE PROVED THE GENUINENESS O F THE TRANSACTION AND THE IDENTITY OF THE CASH CREDITOR BUT NOT CREDITWOR THINESS. THEREFORE, CASE LAWS REFERRED BY THE REVENUE IS SQUARELY APPLICABLE. AC CORDINGLY, WE CONFIRM THE ADDITION OF RS.4 LACS. ACCORDINGLY, WE REVERSE THE ORDER OF CIT(A). THE REVENUES APPEAL IS DISMISSED AGAINST THIS CASH CRE DITOR. 10(VII). SERIAL NO.10, CASH CREDITOR IS ASHA LAXMIC HAND SHAH FOR RS. 5 LACS. LD. SR. D.R. ARGUED THAT TOTAL INCOME OF THE ASSESS EE HAS SHOWN AT RS.1,97,741/- IN THE RETURN AND HE SUPPORTED THE OR DER OF THE A.O. AT THE OUTSET, LD. A.R. FOR THE ASSESSEE CONTENDED THAT AS SESSEE HAS FILED COPY OF RETURN, PAYMENTS WERE RECEIVED THROUGH CHEQUE. NO CASH HAD BEEN DEPOSITED IN THE BANK ACCOUNT OF CASH CREDITOR. CO NFIRMATION HAS BEEN FILED. THE ASSESSEE HAS DISCHARGED HIS ONUS BY FILING THES E EVIDENCES AND HE ALSO PROVED THE CREDITWORTHINESS AS ASSESSEE HAS SUBSTAN TIAL INCOME. AFTER CONSIDERING BOTH THE SIDES, THE ASSESSEE HAS PROVED IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE CASH CREDITOR. AS ASSE SSEE HAS DISCLOSED SUBSTANTIAL INCOME AND THERE IS NO CASH DEPOSITS IN THE BANK ACCOUNT. THUS, ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 17 WE CONFIRM THE ORDER OF THE CIT(A). REVENUES APPE AL AGAINST THIS CASH CREDITOR IS DISMISSED. 10(VIII). SERIAL NO.11, CASH CREDITOR IS RAFIQUE F. QURESHI FOR RS. 1,75,000/-. THE LD. SR. D.R. ARGUED THAT CASH HAS BEEN DEPOSIT ED PRIOR TO ISSUE OF CHEQUE FOR LOAN AND TOTAL INCOME SHOWN IN THE RETURN AT RS .96,668/-. THUS, ASSESSEE HAS NOT PROVED THE CREDITWORTHINESS OF THE CASH CRE DITOR. AT THE OUTSET, LD. A.R. HAS DRAWN OUR ATTENTION ON PAGE NO.54 TO 56 AN D ARGUED THAT THE ASSESSEE HAS FILED COPY OF RETURN, COPY OF BANK ACC OUNT AND CONFIRMATION FROM THE CASH CREDITOR. HE FURTHER ARGUED THAT IN COPY OF ACCOUNT, THE LOAN OF RS.65,000/- WAS OPENING AND THEREAFTER ASSESSEE REC EIVED RS.65,000/- FROM THE CASH CREDITOR. THUS, THE ASSESSEE HAS DISCHARG ED HIS BURDEN BY FILING THESE EVIDENCES. AFTER CONSIDERING BOTH THE SIDES, THE ADDITION TO THE EXTENT OF RS.80,000/- IS EXPLAINED BECAUSE RS.65,000/- RECEIV ED BY CASH CREDITOR ON 27 APRIL, 2005 FROM THE ASSESSEE AND REMAINING AMOUNT WAS OPENING BALANCE IN THE BANK ACCOUNT. REMAINING AMOUNT OF RS.95,000/- IS RECEIVED BY THE ASSESSEE AS LOAN AFTER DEPOSITING THE CASH IN THE B ANK ACCOUNT OF THE CASH CREDITOR BY HIM. THUS, CREDITWORTHINESS OF THE CAS H CREDITOR HAS NOT BEEN PROVED AS CASH DEPOSITED AND CHEQUE GIVEN TO THE AS SESSEE. THUS, THE ADDITION MADE BY THE A.O. AT RS.1,75,000/-, RS.80,0 00/- FOUND EXPLAINED AND REMAINING RS.95,000/- UNEXPLAINED. THE REVENUES A PPEAL AGAINST THIS CASH CREDITOR IS PARTLY ALLOWED. 10(IX). SERIAL NO.12, CASH CREDITOR IS SARIFA Y. SA YYED FOR RS. 2,16,000/-. THE LD. SR. D.R. ARGUED THAT SIGNATURE ON PAPERS ARE DI FFERENT. THE TOTAL INCOME ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 18 SHOWN IN THE RETURN AT RS.1,32,974/- BY THE CASH CR EDITOR AND CASH DEPOSITED IN THE BANK ACCOUNT PRIOR TO ISSUE OF CHEQUE FOR LO AN. THE LD. A.R. OF THE ASSESSEE ARGUED THAT THE ASSESSEE HAS FILED COPY OF RETURN, COPY OF BANK ACCOUNT AND CONFIRMATION. THE ASSESSEE RECEIVED LO AN OF RS.2,16,000/- FROM THE CASH CREDITOR, NAMELY, SARIFA Y. SAYYED. THE C ONFIRMATION ITSELF PROVED THAT SHE RECEIVED RS.1,55,000/- ON 30 TH APRIL, 2004 FROM THE ASSESSEE BEFORE THAT THE ASSESSEE HAS CREDIT BALANCE OF RS.2,36,037 /- IN THE BANK ACCOUNT. THEREAFTER, LOAN WAS GIVEN TO THE ASSESSEE BY CASH CREDITOR. THUS, SOURCE OF INCOME HAS BEEN EXPLAINED BY ASSESSEE IN CASE OF SA RIFA Y. SAYYED. AFTER CONSIDERING THE BOTH SIDES, THE LOAN RECEIVED BY TH E ASSESSEE AT RS.2,16,000/- , IS FOUND EXPLAINED AS ASSESSEE HAS REASONABLE INC OME AS WELL AS OPENING BALANCE IN THE BANK ACCOUNT AT RS.2,36,037/- AND AL SO RS.1,55,000/- RECEIVED BY THE CASH CREDITOR FROM THE ASSESSEE ITSELF. THU S, WE CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE APPEAL OF THE REVENUE AG AINST THIS CASH CREDITOR. 10(X). SERIAL NO.13, CASH CREDITOR IS RAISA RAFIQUE QUERESHI FOR RS. 3,47,000/-. LD. SR. D.R. ARGUED THAT SIGNATURE DOES NOT TALLY O N VARIOUS PAPERS AND RETURNED INCOME IS ONLY AT RS.1,26,077/-. BANK STA TEMENT HAS NOT BEEN ATTACHED IN THE PAPER BOOK. AT THE OUTSET, LD. A.R . ARGUED THAT ASSESSEE HAS DISCHARGED HIS ONUS BY PROVIDING COPY OF THE RETURN , COPY OF THE BANK ACCOUNT AND CONFIRMATION. HE FURTHER ARGUED THAT RS.1,20,0 00/- WAS RECEIVED BY THE CASH CREDITOR FROM THE ASSESSEE ON 30.04.2005. THE REAFTER, THE ASSESSEE HAS RETURNED BACK THE AMOUNT IN FORM OF LOAN TO THE ASS ESSEE. THE CASH CREDITOR ALSO HAS REASONABLE INCOME. THE BANK ACCOUNT ALSO SHOWS THAT OPENING ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 19 CASH BALANCE IN THE BANK ACCOUNT WAS RS.1,44,020/-. THEREFORE, NO ADVERSE INFERENCE CAN BE DRAWN. AFTER CONSIDERING BOTH THE SIDES, THE LOAN TO THE EXTENT OF RS.2,57,000/- IS EXPLAINED BUT ON EXAMINA TION OF BANK ACCOUNT, SHOWS THAT THE CASH CREDITOR DEPOSITED THE CASH AND THEREAFTER ISSUED THE CHEQUE IN FORM OF LOAN TO THE ASSESSEE IN SYSTEMATI C MANNER. THE SOURCE OF CASH HAS NOT BEEN EXPLAINED BY THE ASSESSEE. THERE FORE, REMAINING LOAN OF RS.90,000/- IS FOUND UNEXPLAINED. ACCORDINGLY, WE PARTIALLY REVERSE THE ORDER OF CIT(A). THE REVENUE ALSO SUCCEEDS PARTIALLY AGA INST THIS ADDITION TO THE EXTENT OF RS.90,000/-. 10(XI). SERIAL NO.14, CASH CREDITOR IS YAQUB M. SAY YED FOR RS. 98,000/-. LD. SR. D.R. ARGUED THAT SIGNATURE ON PAPER BOOK ON DIF FERENT PAGES ARE DIFFERENT AND CASH CREDITOR HAS SHOWN RETURNED INCOME AT RS.1 ,01,420/-. THE CASH CREDITOR HAS ALSO DEPOSITED CASH IN THE BANK ACCOUN T PRIOR TO ISSUE OF CHEQUE FOR LOAN. AT THE OUTSET, LD. A.R. FOR THE ASSESSEE HAS DRAWN OUR ATTENTION ON PAGE NO.62 TO 69 AND ARGUED THAT ASSESSEE HAS FILED COPY OF RETURN, COPY OF BANK ACCOUNT AND CONFIRMATION. THE ASSESSEE HAS DI SCHARGED HIS ONUS BY PROVIDING THESE EVIDENCES. THEREFORE, THE ORDER OF THE CIT(A) MAY BE CONFIRMED. AFTER CONSIDERING BOTH THE SIDES AND EV IDENCES PRODUCED BEFORE US, FINDS THAT ASSESSEE HAS DEPOSITED CASH AND ISSU ED THE CHEQUE IN SYSTEMATIC MANNER TO THE ASSESSEE. THE SOURCE OF C ASH HAS NOT BEEN EXPLAINED BY THE ASSESSEE. THE ASSESSEE HAS PROVED THE IDENTITY OF CASH CREDITOR AND GENUINENESS OF THE TRANSACTION BUT CRE DITWORTHINESS OF THE CASH ITA NOS. 428 & 429/AHD/10 FOR A.Y. 06-07 IN BUILD WELL VS. ITO PAGE 20 CREDITOR HAS NOT PROVED. THEREFORE, WE REVERSE THE ORDER OF THE CIT(A). THE REVENUES APPEAL AGAINST THIS CASH CREDITOR IS ALLO WED FULLY. 11. THE SECOND GROUND HAS ALREADY DISCUSSED IN GROU ND NO.3 OF ASSESSEES APPEAL. NO SEPARATE FINDING IS REQUIRED TO GIVE FO R THIS. 12. IN THE RESULT, BOTH APPEALS FILED BY THE ASSESS EE AND REVENUE ARE PARTLY ALLOWED. THESE ORDERS PRONOUNCED IN OPEN COURT ON 27/03/2014 SD/- SD/- ( MUKUL KR. SHRAWAT ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA + + + + $ $$ $ ,- ,- ,- ,- .-* .-* .-* .-* / COPY OF ORDER FORWARDED TO:- 1. # / REVENUE 2. / ASSESSEE 3. 22 3 / CONCERNED CIT 4. 3- / CIT (A) 5. -78 ,& , , / DR, ITAT, AHMEDABAD 6. 8: ;< / GUARD FILE. BY ORDER/ + , =/ 2# , '