M/s. Waves Data Management Pvt. Ltd., New Delhi V. ITO, New Delhi

ITA 4500/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6856 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2011-2012
• Appeal Filed On: 23-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Unexplained cash credit; Onus to prove
• Section: 133(6); 6; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI G.S. PANNU, VICE PRESIDENT & AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO.4500/DEL/2016 ASSESSMENT YEAR 2011-12 M/S. WAVES DATA MANAGEMENT PVT. LTD., 303-D, APRA PLAZA, PLOT NO.28, ROAD NO.44, PITAMPURA, NEW DELHI. V. ITO, WARD-27(2), NEW DELHI. TAN/PAN: AAACW 6334J (APPELLANT) (RESPONDENT) APPELLANT BY: MS. RANO JAIN, ADV. RESPONDENT BY: SHRI S.S. RANA, CIT-D.R.. DATE OF HEARING: 31 10 2019 DATE OF PRONOUNCEMENT: 27 01 2020 O R D E R PER AMIT SHUKLA, J.M.: THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 28.06.2016 PASSED BY COMMISSIONER OF INCOME TAX (APPEALS)-IX, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S.143(3) FOR THE ASSESSMENT YEAR 2011-12. THE EFFECTIVE GROUNDS OF A PPEAL RAISED BY THE ASSESSEE READ AS UNDER:- 3. ON THE FACT AND CIRCUMSTANCES OF THE CASE, LD. AO HAS ERRED IN MAKING ADDITION OF RS.90,00,000/- AS INCOM E FROM OTHER SOURCES, WITHOUT BEING PROPERLY GOING THROUGH THE N ATURE OF I.T.A. NO.4500/DEL/2016 2 TRANSACTION AND THUS PASSED AN ORDER OF ASSESSMENT WHICH IN ITSELF IS INCORRECT. 4. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED BOTH IN EYES OF LAW AND FACTS IN MAKIN G ADDITION OF RS. 1,50,00,000/- U/S 68 OF THE INCOME TAX ACT, 196 1. (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) ERRED BOTH IN EYES OF LAW AND FACTS IN ENHAN CING THE ADDITION TO RS.1,50,00,000/- FROM RS.90,00,000/- AS MADE BY THE LD. AO. (III) THAT THE ABOVE ADDITION MADE BY THE LD. CIT( A) AFTER CHANGING THE HEAD OF ADDITION OF RS.90,00,000/- MAD E BY THE LD. AO, FROM INCOME FROM OTHER SOURCES TO SECTION 6 8 OF THE ACT. (IV) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED CIT(A) ERRED BOTH IN EYES OF LAW AND FACTS IN MAKIN G ADDITION OF RS. 1,50,00,000/- U/S 68 OF THE ACT IGNORING THE FA CT THAT THE APPELLANT HAS ALREADY DISCHARGED ITS ONUS CASTED UP ON IT U/S.68 OF THE ACT AND FURTHER THE TRANSACTION IS INDEPENDE NTLY INVESTIGATED BY THE LD. ASSESSING OFFICER BY ISSUIN G NOTICE U/S.133(6) OF THE ACT. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE COMPANY DURING THE RELEVANT YEAR WAS NOT ENGAGED IN ANY KIND OF BU SINESS ACTIVITIES. LD. ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS CALLED FOR INFORMATION U/S. 133(6) FROM DIFFERENT PARTIES REGARDING TRANSACTION OF SHA RE APPLICATION MONEY. IN RESPONSE TO SUCH INQUIRY, ALL PARTIES FILED THEIR CONFIRMATION WHICH WERE EXAMINED AND VE RIFIED BY THE ASSESSING OFFICER ALONG WITH BOOKS OF ACCOUNT. THE I.T.A. NO.4500/DEL/2016 3 ASSESSING OFFICER FURTHER OBSERVED THAT ASSESSEE CO MPANY HAD PURCHASED LAND AT DARIYAPUR KALAN, DELHI OF RS.2,27,45,833/-. IN RESPONSE TO THE SHOW CAUSE NOT ICE FOR GIVING DETAILS OF CASH PAYMENT FOR PURCHASE OF SAID LAND, THE ASSESSEE SUBMITTED THAT HE GAVE FOLLOWING PAYMENTS AS ADVANCE FOR THE PURCHASE OF LAND: 1. RS.45,00,000/- VIDE CHEQUE NO.036356, RS.7,00,0 00 CH. NO.036357 AND VIDE CH. NO.036360 RS.7,00,000/- DATED 20.10.2010 2. RS.16,00,000/- VIDE CHEQUE NO.489201 DATED 21.10 .2010 3. RS.50,00,000/- BY CASH ON 31.1.2011 4. RS.25,00,000/- BY CASH ON 9.2.2011 5. RS.15,00,000/- BY CASH ON 14.2.2011 3. HOWEVER, THE LD. ASSESSING OFFICER ACCEPTED THE CHEQUE AMOUNT BUT REGARDING CASH PAYMENTS, HE HELD THAT AS SESSEE COULD NOT PROVE THE SOURCE OF THE SAME AND EVEN THE INFORMATION CALLED U/S.133(6) FROM VARIOUS PARTIES COULD NOT BE RECEIVED IN TIME, WERE RETURNED BACK, THEREFORE, HE ADDED THE ENTIRE CASH PAYMENT OF RS.90 LACS. 4. BEFORE THE LD. CIT (A), THE ASSESSEE PREFERRED A N APPEAL ON THE ADDITION OF RS.90 LAC IN RESPECT OF ADVANCE PAID IN CASH FOR THE PURCHASE OF LAND. IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAS WRONGLY OBSERVED THAT THE ASSESSEE COMP ANY HAS DEPOSITED CASH AMOUNT OF RS.90 LACS WITHIN 15 DAYS BETWEEN 31.01.2011 TO 14.02.2011 STATING THAT AMOUNT WAS LY ING IN THE HOUSE AND DEPOSITED IN DIFFERENT DATES, BUT THE FACT OF THE CASE IS THAT, ASSESSEE NEVER DEPOSITED CASH IN THE BANK I.T.A. NO.4500/DEL/2016 4 ACCOUNT INSTEAD HE HAS WITHDRAWN THE SAID CASH FROM THE BANK ACCOUNT AND IMMEDIATELY THEREAFTER THE CASH WA S PAID TO THE SELLERS AND IN THIS REGARD CASH BOOK, BANK B OOK AND BANK STATEMENT HIGHLIGHTING THE TRANSACTION WAS ALS O BROUGHT. TO SUBSTANTIATE THIS FACT, ALL THE NECESSA RY DOCUMENTS AND RECORDS WERE PROVIDED BEFORE THE ASSE SSING OFFICER. LD. CIT (A) CALLED FOR THE REMAND REPORT F ROM THE ASSESSING OFFICER. IN RESPONSE, ASSESSING OFFICER S UBMITTED HIS REMAND REPORT, WHEREIN INSTEAD OF VERIFYING THE CONTENTION OF THE ASSESSEE THAT AMOUNT OF RS.90 LAC WAS WITHDR AWN FROM THE BANK ACCOUNT AND SAME WAS GIVEN AS CASH PAYMENT TO VARIOUS PERSONS AS ADVANCE FOR PURCHASE OF LAND, HE NOTED THAT IN THE BANK STATEMENT OF THE ASSESSEE IT TRANS PIRED THAT ASSESSEE HAD RECEIVED RS.1.65 CRORE BY TWO DIFFEREN T TRANSACTIONS OF:- I) RS.15 LAC ON 17.1.2011; AND II ) RS.1.5 CRORE ON 25 TH JANUARY, 2011, OUT OF WHICH RS.90 LACS WAS WITHDRAWN FROM THE BANK ACCOUNT OF THE ASSESSEE THR OUGH CASH BY FOUR DIFFERENT TRANSACTIONS. LD. CIT (A) DI RECTED THE ASSESSING OFFICER TO GIVE COMMENTS AFTER MAKING INQ UIRY IN THIS CASE AND ASSESSING OFFICER ASKED FOR FURNISHIN G VARIOUS INFORMATION, LIKE CASH PAYMENT, TRANSACTION FOR PUR CHASE OF LAND, BANK STATEMENT AND THE PAYMENT IN CASH TO THE PROPERTY OWNER AND THE SOURCE OF AMOUNT DEPOSITED I N THE BANK ACCOUNT. IN RESPONSE, ASSESSEE PROVIDED THE BA NK STATEMENT AND THE COPY OF CASH BOOK SHOWING THAT PA YMENT OF RS.90 LAC WAS MADE AFTER WITHDRAWING FROM THE SAME BANK ACCOUNT. REGARDING SOURCE OF INVESTMENT, HE SUBMITT ED THAT I.T.A. NO.4500/DEL/2016 5 AMOUNT OF RS.1.56 CRORE WAS RECEIVED THROUGH DIRECT ORS OF THE COMPANY, AS UNDER: S. NO. NAME OF DIRECTOR AMOUNT DATE OF TRANSACTION 1. RENU AGARWAL RS.15,00,000/- 17.01.2011 2. ARUN AGARWAL RS.1,50,00,000 25.01.2011 5. ACCORDINGLY, NOTICE U/S. 133(6) WERE ISSUED TO B OTH THE DIRECTORS SEEKING INFORMATION REGARDING SOURCE OF T RANSACTION ALONG WITH DOCUMENTS. IN RESPONSE, SHRI ARUN AGARWA L SUBMITTED THAT RS.1.50 CRORES WAS GIVEN BY HIM AS S HARE APPLICATION MONEY AND SMT. RENU AGARWAL HAS MADE PA YMENT OF RS.15 LAC AS REPAYMENT OF LOAN. THE SOURCE OF RS .1.5 CRORE GIVEN BY SHRI ARUN AGARWAL WAS NOT FOUND TO BE SATI SFACTORY BY THE ASSESSING OFFICER, BECAUSE ACCORDING TO THE ASSESSING OFFICER HIS ANNUAL INCOME AS PER THE ITR WAS ONLY RS.6,80,382/-. 6. THE ASSESSEE BEFORE THE LD. CIT (A) HAD SUBMITTE D CONFIRMATION OF SHRI ARUN AGARWAL ALONG WITH COPY O F HIS PAN, BANK STATEMENT AND ALSO THE SOURCE OF DEPOSIT, ETC. IT WAS SUBMITTED THAT REMAND REPORT WAS WITHOUT ANY CORROB ORATIVE EVIDENCE AND WITHOUT ANY ADVERSE INFORMATION AND AL L THE PAYMENTS WERE ROUTED THROUGH BANKING CHANNELS. LD. CIT (A) AFTER DETAILED DISCUSSION HELD THAT ASSESSEE COULD NOT PROVE THE CREDITWORTHINESS OF SHRI ARUN AGARWAL AND MADE ENHANCEMENT OF RS.60 LAC AFTER OBSERVING AND HOLDIN G AS UNDER:- I.T.A. NO.4500/DEL/2016 6 4.3.7 SO, IN VIEW OF THE ABOVE FACTS DISCUSSED A ND IN VIEW OF THE REMAND REPORT THE AMOUNT OF RS.1.5 CRORE TREATE D AS UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. THE A O HAS MADE ADDITION OF RS.90 LACS OF CASH PAYMENT AMOUNT AS IN COME FROM OTHER SOURCES SINCE THE SOURCE OF THE INVESTMENT DE POSITED IN THE BANK ACCOUNT BY SH. ARUN AGARWAL HAS BEEN TREAT ED AS UNEXPLAINED U/S 68 OF THE IT ACT. THEREFORE THE ADD ITION MADE BY THE AO OF CASH PAYMENT OF AMOUNTING TO RS.90 LAC S IS NOT REQUIRED TO BE ADDED SEPARATELY. CONSIDERING THE AB OVE FACTS IT IS CLEAR THAT THE AMOUNT OF RS.1 50 CRORES IS UNEXP LAINED CASH CREDIT U/S 68 OF THE IT ACT. HENCE THE INCOME IS EN HANCED BY RS.60 LACS. 7. BEFORE US, LD. COUNSEL, MS. RANO JAIN SUBMITTED THAT THE ONLY ISSUE CHALLENGED BEFORE THE LD. CIT (A) WAS AD DITION OF RS.90 LAC ON ACCOUNT OF CASH PAYMENT MADE TO VARIOU S PARTIES FOR PURCHASE OF LAND. IT WAS CLEARLY BROUGHT ON REC ORD BEFORE THE ASSESSING OFFICER THAT THESE CASH PAYMENTS WERE MADE AFTER WITHDRAWING THE CASH FROM THE BANK ACCOUNT, A ND TO SUBSTANTIATE THE SAME, THE ASSESSEE HAS FILED COPY OF SALE DEED, COPY OF CASH BOOK, LEDGER ACCOUNT, COPY OF BA NK STATEMENT, COPY OF CASH FLOW, ETC. THE ASSESSING OF FICER WITHOUT ASCERTAINING THE CORRECT FACTS AND MATERIAL ON RECORD HAS WRONGLY MADE THE ADDITION. IT IS NOT A CASE OF CASH DEPOSIT WHERE CASH WAS FOUND LYING IN THE HOUSE AFT ER WITHDRAWING FROM THE BANK, ALBEIT THERE WAS CASH WI THDRAWAL FROM THE BANK WHICH WAS IMMEDIATELY PAID TO THE SEL LERS, AND THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFIC ER WAS UNWARRANTED. THE ASSESSEE DURING THE COURSE OF ASSE SSMENT I.T.A. NO.4500/DEL/2016 7 PROCEEDINGS HAS ALSO EXPLAINED THE SOURCE OF THESE MONEY IN DETAIL AMONG OTHER DOCUMENTS AND ALSO FILED THE FOL LOWING DOCUMENTS FOR ESTABLISHING IDENTITY, CREDITWORTHINE SS OF SHRI ARUN AGARWAL AS WELL AS GENUINENESS OF THE TRANSACT ION, VIZ., CONFIRMATION, COPY OF HIS BANK ACCOUNT, PAN DETAILS , ETC. HE FURTHER SUBMITTED THAT ASSESSING OFFICER HAD ISSUED NOTICE U/S.133(6) TO SHRI ARUN AGARWAL WHICH WAS DULY RESP ONDED BY HIM, WHEREIN HE HAS CONFIRMED THE TRANSACTION AN D ALSO FILED COPY OF INCOME TAX RETURN, COPY OF BANK STATE MENT, ETC. THE ASSESSING OFFICER DID NOT DRAW ANY ADVERSE INFE RENCE ON THESE DOCUMENTS DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREAFTER, ASSESSEE WENT IN APPEAL BE FORE THE LD. CIT(A) AND REITERATED THE SAME SUBMISSIONS AND THE LD. CIT(A) DID NOT MADE ANY ADVERSE INFERENCE REGARDING ADDITION OF RS.90 LAC BUT HAS IN FACT MADE ENHANCEMENT OF RS .1.50 CRORE U/S.68 ON THE GROUND THAT SHARE APPLICATION M ONEY RECEIVED FROM SHRI ARUN AGARWAL WAS REMAINED UNEXPL AINED. SHE SUBMITTED THAT SUCH AN ENHANCEMENT WAS BEYOND T HE SCOPE AND POWER OF LD. CIT (A), BECAUSE THE SUBJECT MATTER OF APPEAL BEFORE THE LD. CIT(A) IS ADDITION OF RS.90 L AC MADE UNDER THE HEAD INCOME FROM OTHER SOURCES. BUT LD. CIT (A) HAD NOW TAKEN THE NEW SOURCE OF INCOME WHICH IS NOT PERMISSIBLE. IN SUPPORT, SHE RELIED UPON THE FOLLOW ING JUDGMENTS:- 1. GURINDER MOHAN SINGH NINDRAJOG VS. CIT, (2012) 348 ITR 170 (DEL) I.T.A. NO.4500/DEL/2016 8 2. CIT VS. RAI BAHADUR HARDUTROY MOTILAL CHAMARIA, (19 67) 66 ITR 443 (SC) 3. CIT VS. UNION TYRES, (1999) 240 ITR 556 (DEL.) 8. ON MERITS, SHE SUBMITTED THAT THE ASSESSEE HAS F ILED ALL THE NECESSARY DOCUMENTS TO PROVE THE IDENTITY AND CREDITWORTHINESS OF SHRI ARUN AGARWAL, THE DIRECTOR OF THE COMPANY AND THE GENUINENESS OF THE TRANSACTION WAS DULY ESTABLISHED. FURTHER, HERE THE DIRECTOR HIMSELF HAS ACCEPTED THE TRANSACTION AND GIVEN ALL THE DOCUMENTARY EVIDE NCES. MERELY, THE LENDER WAS SHOWN LESS RETURN OF INCOME THAT DOES NOT LEAD TO ANY ADVERSE INFERENCE WHEN HE HAS AVAIL ABILITY OF FUNDS, DISCLOSED IN THE BALANCE-SHEET. IN SUPPORT, HE RELIED UPON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. VRINDAVAN FARMS (P) LTD., ITA 71/2015, ITA 72/2015, ITA 84/2015 DATED 12.08.2015 AND PCIT VS. M/S. GOODVIEW TRADING PVT. LTD. DATED 21 ST NOVEMBER, 2016. 9. ON THE OTHER HAND, LD. DR RELYING UPON ORDER OF THE LD. CIT(A) SUBMITTED THAT, FIRST OF ALL, ISSUE BEFORE T HE LD. CIT(A) WAS EXAMINING THE SOURCE OF CASH WITHDRAWAL AND THE CASH PAYMENT MADE BY THE ASSESSEE. DURING THE COURSE OF SUCH AN EXAMINATION, LD. CIT (A) TOOK NOTE OF THE FACT THAT THE SOURCE OF DEPOSIT IN THE BANK STATEMENT WAS COMING FROM TH E DIRECTOR WHO WAS UNABLE TO EXPLAIN THE SOURCE PROPE RLY AS HIS CREDITWORTHINESS COULD NOT BE ESTABLISHED. THUS, UN DER THESE CIRCUMSTANCES, LD. CIT (A) WAS JUSTIFIED IN MAKING A N I.T.A. NO.4500/DEL/2016 9 ENHANCEMENT AS THERE IS NO NEW SOURCE OF INCOME AS THIS ISSUE WAS CONSIDERED AND EXAMINED BY THE ASSESSING OFFICER AND IT IS FROM THE SAME EXAMINATION OF THE TRANSACT ION, THE LD. CIT (A) HAS MADE THE ENHANCEMENT THUS, THERE IS NO INFIRMITY IN THE ENHANCEMENT MADE BY THE LD. CIT (A ). ON MERITS, SHE SUBMITTED THAT THE ASSESSEE HAS ONLY TR IED TO PROVE THE GENUINENESS OF THE SHARE APPLICATION MONE Y BUT NOT THE CREDITWORTHINESS AND MERE FILING OF INCOME TAX RETURN DOES NOT PROVE THE CREDITWORTHINESS. HERE, IN THIS CASE, THE RETURN OF INCOME OF THE DIRECTOR WAS ONLY RS.6,80,382/- A ND HE WAS NOT IN A POSITION TO PROVE THE SOURCE OF SUCH AMOUN T AND THE BURDEN OF PROOF LIED UPON THE ASSESSEE COULD NOT BE DISCHARGED. THUS, THERE WAS A LACK OF EVIDENCE, PRO VING THE CREDITWORTHINESS OF THE SHARE APPLICANT. SHE ALSO R ELIED UPON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. NR PORTFOLIO PVT. LTD., (2014) 42 TAXMANN.COM 3 39 . 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PERUSED THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS AS WELL AS MATERIAL REFERRED TO BEFORE US. AS STATED ABOVE, TH E ONLY ADDITION MADE BY THE ASSESSING OFFICER WAS WITH REG ARD TO THE AMOUNT OF RS.90 LAC, ON THE GROUND THAT ASSESSEE CO ULD NOT PROVE THE SOURCE OF CASH PAYMENTS MADE TO THE VARIO US FARMERS. THAT ADDITION PRIMA FACIE WAS UNSUSTAINABLE IN THE WAKE OF VARIOUS MATERIAL PLACED ON RECORD BEFORE TH E LD. CIT (A) AND ALSO BEFORE THE ASSESSING OFFICER THAT THE AMOUNT OF RS.90 LAC WAS WITHDRAWN FROM THE BANK ACCOUNT AND THEREAFTER, IT WAS IMMEDIATELY PAID TO THE SELLER A ND THIS WAS I.T.A. NO.4500/DEL/2016 10 PROVED BY WAY OF SALE DEED, COPY OF BANK STATEMENT, COPY OF CASH BOOK AND LEDGER ACCOUNT. EVEN, THE LD. CIT (A) HAS FINALLY NOT MADE ANY ADVERSE INFERENCE, AND IN THIS MANNER SUCH AN ADDITION STOOD DELETED. NOW, THE ISSUE BEFO RE US IS, THE ADDITION OF RS.1.5 CRORE MADE U/S.68 ON ACCOUNT OF SHARE APPLICATION MONEY RECEIVED FROM THE DIRECTOR OF THE ASSESSEE COMPANY, SHRI ARUN AGARWAL. THE ADDITION WAS MADE O N THE BACK GROUND THAT WHILE EXAMINING THE BANK STATEMENT AND THE SOURCE OF WITHDRAWAL OF RS.90 LAC, IT WAS FOUND THAT SUM OF RS.1.5 CRORE HAVE BEEN DEPOSITED IN THE BANK ACC OUNT OF THE ASSESSEE WHICH WAS RECEIVED BY TWO DIRECTORS OF THE ASSESSEE COMPANY, NAMELY SMT. RENU AGARWAL WHO HAS REPAID HER LOAN BACK AT RS.15 LAC AND SHRI ARUN AGA RWAL WHO HAS GIVEN AMOUNT OF RS.1.50 LAC AS SHARE APPLICATIO N MONEY. BEFORE THE ASSESSING OFFICER, THE ASSESSEE WAS CONF RONTED WITH THIS FACT AND IN RESPONSE, ASSESSEE HAD FILED THE DETAILS OF SHARE APPLICATION MONEY RECEIVED FROM VARIOUS PE RSONS INCLUDING THE DIRECTOR WAS FILED NOT ONLY DURING TH E ASSESSMENT PROCEEDINGS AS WELL AS BEFORE THE LD. CI T(A). THE ASSESSEE HAS FILED THE CONFIRMATION FROM THE DIRECT OR, COPY OF HIS PAN AND INCOME TAX RETURN AND BANK STATEMENT FR OM WHERE HE HAS GIVEN THE PAYMENT TO THE ASSESSEE COMP ANY. FURTHER, NOTICE U/S.133(6) WAS ISSUED TO SHRI ARUN AGARWAL, IN RESPONSE TO WHICH HE HAS SUBMITTED THE COPY OF A CCOUNT OF ASSESSEE COMPANY AS SHOWN IN HIS BOOKS OF ACCOUNT; CONFIRMATION OF SHARE APPLICATION MONEY, COPY OF BA NK STATEMENT WITH ENTIRE NARRATION, ETC. THEREAFTER, N O FURTHER I.T.A. NO.4500/DEL/2016 11 INQUIRY OR MATERIAL WAS BROUGHT ON RECORD TO PROVE THAT THE DOCUMENTS FURNISHED BY THE DIRECTOR OF THE ASSESSEE COMPANY WERE DEFICIENT OR COULD NOT SUBSTANTIATE THE TRANSA CTION. THE ENTIRE CASE OF THE REVENUE HINGES UPON THE FACT THA T IN THE RETURN OF INCOME SHRI ARUN AGARWAL HAS SHOWN INCOME OF MORE THAN RS.6 LAC. NOWHERE, THE ASSESSING OFFICER OR LD. CIT(A) ANALYZED THE BANK STATEMENT OF THE DIRECTOR, WHICH REFLECT THAT THERE WAS HUGE AVAILABILITY OF FUNDS A T THE TIME OF ISSUING CHEQUES AND THERE WAS NO CASH DEPOSITS ON O R BEFORE THE DATE OF ISSUANCE OF CHEQUE TO THE ASSESSEE COMP ANY. THIS IS EVIDENT FROM THE BANK STATEMENT APPEARING FROM P AGES 40 TO 43. ALL THE AMOUNTS HAVE COME THROUGH CLEARANCE. LD. CIT(A) DID NOT EVEN ASKED TO PROVE THE SOURCE OF SU CH CREDIT AMOUNT IN HIS BANK ACCOUNT IF THE CREDITOR/SHARE AP PLICANT WHO HAS FURNISHED HIS BANK STATEMENT AND IF THE CRE DITOR IS NOT CONFRONTED ABOUT THE SOURCE, THEN ASSESSEE CANN OT BE EXPECTED TO PROVE THE SOURCE OF THE SOURCE OR EXPLA IN THE CREDIT ENTRIES OF THE CREDITOR, BECAUSE SAME CAN ON LY BE PROVED BY THE CREDITOR HIMSELF WHICH IN THIS CASE B OTH ASSESSING OFFICER AND LD. CIT(A) HAVE FAILED TO DO SO AND HAS SIMPLY GONE BY THE FACT THAT THE INCOME RETURNED IS LESS. THE OTHER MATERIAL FACT OF AVAILABILITY OF FUND HAS NOT BEEN INQUIRED INTO, WHEN DIRECTOR OF THE ASSESSEE COMPAN Y WAS DULY RESPONDING AND COMPLYING WITH THE NOTICES AND THEREFORE, MERELY ON SUCH PRESUMPTION, THE ADDITION CANNOT BE MADE, BECAUSE IN SO FAR AS ASSESSEE IS CONCERNED IT HAS NOT ONLY ESTABLISHED THE IDENTITY AND GENUINENESS OF TH E I.T.A. NO.4500/DEL/2016 12 TRANSACTION BUT ALSO THE CREDITWORTHINESS BY PROVID ING THE ENTIRE BANK STATEMENT AND THE SOURCE WHEREFROM THE AMOUNT HAVE BEEN RECEIVED. IT IS NOT A CASE OF ANY INFORMA TION OR MATERIAL COMING ON RECORD THAT THE SHARE APPLICATIO N MONEY HAS BEEN RECEIVED THROUGH ANY ACCOMMODATION ENTRY O R BY AN ENTRY PROVIDER OR BY ANY CONDUIT MANNER. THEREFORE, SUCH AN ADDITION OF RS.1.50 CRORE CANNOT BE SUSTAINED AND S AME IS DIRECTED TO BE DELETED. 11. SINCE, WE HAVE ALREADY DELETED THE ADDITION ON MERIT, THEREFORE, ALL THE LEGAL ISSUES OF VALIDITY OF ENHA NCEMENT MADE BY THE LD. CIT(A) IS RENDERED INFRUCTUOUS BEING ACA DEMIC. 12. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JANUARY, 2020. SD/- SD/- [G.S. PANNU] [AMIT SHUKLA] VICE PRESIDENT JUDICIAL MEMBER DATED: 27 TH JANUARY, 2020 PKK: