M/s. Harshdeep Real Estate Pvt. Ltd., Indore V. THE ACIT 2(1), Indore

ITA 55/IND/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0908 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-10-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 06-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: YOGEE SH MISHRA
• Assessee Lawyers: N D PATWA ADVS
• Keywords: Unexplained cash credit; Gift; Business income; Salary income; Notional interest
• Section: 271(1)(c); 143(3); 142(1); 147; 131; 68; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.55/IND/2017 ASSESSMENT YEAR: 2010-11 M/S. HARSHDEEP REAL ESTATE PVT. LTD., 182 GH, SCHEME NO.54, INDORE / VS. ACIT, 2(1), INDORE ( APPELLANT ) ( RE VENUE) P.A. AAACH4126M APPELLANT BY SHRI ASHISH GOYAL & N.D. PATWA ADVS. RESPONDENT BY SHRI YOGEE SH MISHRA SR. DR DATE OF HEARING: 18.10.2018 DATE OF PRONOUNCEMENT: 20.11.2018 / O R D E R PER MANISH BORAD, A.M: THIS APPEAL OF ASSESSEE PERTAINING TO A.Y. 2010-11 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INC OME TAX(APPEALS)-I, INDORE, (IN SHORT CIT(A)), DATED 11 .10.2016 WHICH IS ARISING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(HEREINAFTER CALLED AS THE ACT) FRAMED ON HARSHDEEP REAL ESTATE PVT. LTD. 2 12.02.2015 BY ACIT-2(1), INDORE. THE ASSESSEE HAS RAIS ED FOLLOWING GROUNDS OF APPEAL: 1.THAT THE LD. AO ERRED IN RE-OPENING THE ASSESSMEN T WITHOUT BRINGING ANY NEW MATERIAL ON RECORD AFTER PASSING T HE ORDER U/S 143(3) ON 28-03-2013 BY THE IR. AD DHARMADHIKARI WH O ACCEPTED ALL THE CREDITS FOUND IN THE BOOKS OF THE ASSESSEE. THE CIT(A) HAS BEEN ARBITRARY AND BAD IN LAW IN CONFIRM ING THE ACTIONS OF THE LD. AO OF RE-OPENING THE ASSESSMENT IN SPITE OF THE FACTS THAT THE MATERIAL PRODUCED BEFORE LD. AO WAS DULY EXAMINED BY HIM. 2. THAT THE IR. ASSESSING OFFICER FURTHER ERRED IN MAKING THE ADDITION OF R.84,05,355/- WHICH PERTAINS TO UNSECUR ED LOANS OF RS.73,73,L18/- AND RELATED INTEREST OF RS.10,32,237 /- @ 14% AND THE HONORABLE CIT(A) HAS BEEN UNWARRANTED IN RE STRICTING THE RELIEF TO RS.28,47,237/- & SUSTAINED THE ADDITION OF RS.55,58,L18/-. THE SAME MAY KINDLY BE DELETED. 3.) THAT THE IR. ASSESSING OFFICER FURTHER ERRED I N CHARGING THE INTEREST U/S 234A & 2348. 4.) THAT THE IR. ASSESSING OFFICER FURTHER ERRED I N INITIATING THE PENALTY U/S 271(1)(C) OF THE ACT. THE ASSESSEE NEIT HER CONCEALED THE INCOME NOR FURNISHED INACCURATE PARTICULARS WHI LE FILING THE RETURN. 5.) THAT THE APPELLANT GRAVES LEAVE TO AME ND, ALTER, ADD AND WITHDRAW ANY OF THE ABOVE GROUNDS BEFORE OR AT THE TIME OF HEARING OF THE CASE. 2. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY ENGAGED I N THE REAL ESTATE BUSINESS. NIL INCOME DECLARED IN ITS E -RETURN FILED ON 06.12.2010. IT WAS PROCESSED U/S 143(1) OF THE ACT. THEREAFTER PROCEEDINGS U/S 147 OF THE INCOME TAX ACT , 1961 (HEREINAFTER CALLED AS THE ACT) WERE INITIATED B Y ISSUANCE OF NOTICE U/S 148 OF THE ACT DULY SERVED UP ON THE HARSHDEEP REAL ESTATE PVT. LTD. 3 ASSESSEE. AFTER RECORDING THE REASONS NOTICE U/S 143( 2) & 142(1) OF THE ACT WERE SERVED UPON THE ASSESSEE. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS LD. ASSESSING O FFICER CALLED FOR THE DETAILS OF UNSECURED LOANS OF RS.73,73, 118/- RECEIVED FROM 20 PARTIES. 3. THE ASSESSEE FILED SOME DETAILS TO EXPLAIN THE SOUR CE OF UNSECURED LOANS WHICH WERE NOT SUFFICIENT TO SATISFY THE ASSESSING OFFICER. HE ACCORDINGLY MADE AN ADDITION FOR THE UNEXPLAINED UNSECURED LOAN OF RS.73,73,118/- ALONG WIT H ADDITION FOR NOTIONAL INTEREST OF RS.10,32,237/-. IN TOTAL ADDITION OF RS.84,05,355/- WAS MADE TO THE NIL INCOME SHOWN BY THE ASSESSEE. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE THE L D. CIT(A ) BUT PARTLY SUCCEEDED. LD. CIT(A) AFTER DETAILED EXAMINATION DELETED THE ADDITION OF RS.18,15,000/- TOWARDS UNSECURED LOAN FROM FOLLOWING FIVE PERSONS: NAME AMOUNT (RS.) 1. ANULATA SINGH 9,98,000 2. SEEMA PANDEY 1,75,000 3. PRABHAWATI SINGH 36,000 4. SARDAR SINGH HUF 4,06,000 5. VERSHA ACHARYA 2,00,000 TOTAL 1815000 5. THE LD. CIT(A) ALSO DELETED THE ADDITION FOR THE I NTEREST OF RS.10,32,237/- NOTIONALLY CHARGED BY THE ASSESSING HARSHDEEP REAL ESTATE PVT. LTD. 4 OFFICER OBSERVING THAT NO INTEREST HAS BEEN PAID TO ANY OF THE DEPOSITORS. 6.AGGRIEVED THE ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL. 7. APROPOS GROUND NO.1 CHALLENGING THE REOPENING OF THE ASSESSMENT, AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE REQUESTED FOR NOT PRESSING THIS GROUND. WE, THEREFOR E, DISMISS GROUND NO.1 AS NOT PRESSED. 8. APROPOS GROUND NO.2 RELATING TO ADDITION OF RS.55,58,L18/- CONFIRMED BY THE LD. CIT(A). LD. COU NSEL FOR THE ASSESSEE REFERRING TO THE CHART PLACED AT PAGE 3 TO 8 OF THE SYNOPSIS SUBMITTED THAT THE APPELLANT HAS DISCHARGED ITS INITIAL ONUS BY FILING THE DETAILS PERTAINING TO I DENTITY AS WELL AS GENUINENESS. THE SUBMISSIONS WERE ALSO MADE T O PROVE THE CREDITWORTHINESS OF SOME OF THE CASH CREDI TORS. RELIANCE PLACED ON THE FOLLOWING JUDGMENTS: 1. CIT, AJMER VS. JAI KUMAR BAKLIWAL [2014] 45 TAXMANN.COM 203 (RAJASTHAN) 2. CIT VS. DWARKADHISH INVESTMENT (P) LTD. 330 ITR 298 3. DCIT VS. ROHINI BUILDERS [2003] 127 TAXMAN 523 (GUJ.) 4. CIT VS. METACHEM INDUSTRIES 245 ITR 160 (MP) HARSHDEEP REAL ESTATE PVT. LTD. 5 9. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE(DR) VEHEMENTLY ARGUED SUPPORTING THE ORDER OF THE LD. CI T(A). 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD PLACED BEFORE US, GONE THROUGH FACTUAL MATRIX AND THE JUDGMENTS RELIED BY LD. COUNSEL FOR THE ASSESSEE . IN GROUND NO.2 GRIEVANCE OF THE ASSESSEE IS AGAINST ADDITI ON OF RS.55,58,118/- TOWARDS UNSECURED CASH CREDIT I.E. UNSECURED LOANS FROM FOLLOWING 15 PERSONS: S.NO. NAME OF THE PERSON AMOUNT (RS.) 1 ANURADHA SHAHI 4,00,000 2 CHANDRA BHAL SINGH 6,56,000 3 CHANDRA SHEKHAR SINGH 4,33,000 4 CHANDRA SHEKHAR HUF 3,35,000 5 GULAB SINGH TANWAR, HUF 4,68,000 6 PREETI RAJLAXMI SHAHI 6,50,000 7 KISHORE SINGH 2,23,000 8 KISHORE SINGH HUF 3,93,000 9 SWARNALATA SINGH RAJPUT 2,98,000 10 GANESH KUMAR BADOLE 3,00,000 11 GAURA BAI TANWAR 65,000 12 VARSHA MAHESH DASOUNDHI 2,00,000 13 RAJENDRA ACHARYA 2,00,000 14 SARDAR SINGH 6,94,118 1 5 SMITA SINGH 2,34,000 TOTAL 55,58,118/- 11. WE FIND THAT THAT THE ASSESSEE TRIED TO DISCHAR GE ITS ONUS BY PROVIDING CERTAIN DETAILS SO AS TO PROV E THE IDENTITY GENUINENESS AND CREDITWORTHINESS OF THE ALLEGED CASH CREDITORS BUT WAS ABLE TO PARTLY SUCCE ED HARSHDEEP REAL ESTATE PVT. LTD. 6 BEFORE THE LD. CIT(A). IN ORDER TO ADJUDICATE THE I SSUE WE WILL TAKE UP THE FINDING OF THE LD. CIT(A) AND T HE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSE E FOR EACH OF THE ALLEGED CASH CREDITORS IN THE SERIA L ORDER AS PER THE ABOVE MENTIONED LIST. 1. SMT. ANURADHA SHAHI: RS.400000/- LD. CIT(A) FINDING: FROM THE FINDINGS RECORDED IN THE ASSESSMENT ORDER IT IS SEEN THAT THE DEPOSITOR HAS SHOWN INCOME IN THE RET URN WHICH IS NOT COMMENSURATE WITH THE CASH DEPOSITED I N HER ACCOUNT. IN VIEW OF THE ABOVE THE CREDITWORTHIN ESS OF SMT. ANURADHA SHAHI IS NOT ESTABLISHED AND HENCE TH E ADDITION IS CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB 66- 67 . THE RETURN OF INCOME IS ON PB 68-69 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 70 THE CREDITOR IS AN EDUCATED LADY TAKING TUITION CLA SSES FROM MORE THAN 10 YEARS FROM HER RESIDENCE. PERUSAL OF HER BANK ACCOUNTS SHOWS THAT SHE HAS DEP OSITED CASH IN PREVIOUS FINANCIAL YEAR ALSO. SHE IS UNDER NO REQUIREMENT FOR MAINTAINING ANY BOO KS OF ACCOUNTS, THUS SUBMISSION OF CAPITAL A/C AND STATEMENT OF AFF AIRS TO PROVE THE CREDITWORTHINESS IS UNJUSTIFIED. 2. SHRI CHANDRA BHAL SINGH: RS.6,56,000/-: LD. CIT(A) FINDING: THE AO HAS RECORDED A FACTUAL FINDING THAT CASH HAS BEEN DEPOSITED IN THE ACCOUNT SHRI CHANDRA BHAL SIN GH JUST BEFORE THE LOAN WAS GIVEN TO THE APPELLANT. FR OM THE RETURN OF INCOME AND STATEMENT OF AFFAIRS FILED IT IS SEEN THAT THE PRIME SOURCE OF INCOME OF THE DEPOSITOR IS FROM SALARY. THE TOTAL INCOME IS ONLY RS. 282703/ - AND THE EXPENSES ARE AT RS. 287346/-. THE CREDITWORTHINESS OF SHRI CHANDRA BHAL SINGH IS THEREFORE NOT ESTABLISHE D SO AS TO EXPLAIN THE CASH DEPOSITS IN HIS ACCOUNT OF R S. 425000/- AND RS.205000 / -. IN VIEW OF THE ABOVE TH E ADDITION IS CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS HARSHDEEP REAL ESTATE PVT. LTD. 7 I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB71-72 . THE RETURN OF INCOME IS ON PB 73-75 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 70 . II. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN OF INCOME SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 6,56,000/-. PB 76 THE LENDER WAS INTO GOVERNMENT JOB OF M.P POLICE DE PARTMENT FROM LAST 10 YEARS. OUT OF HIS SALARY INCOME, HE HAS SAV ED MONEY TO INVEST IN ASSESSEE COMPANY. 3. SHRI CHANDRA SHEKHAR SINGH : RS.433000/-:- LD. CIT(A) FINDING: THE AO HAS RECORDED A FACTUAL FINDING THAT JUST BEFORE LOAN WAS 'GIVEN TO THE APPELLANT CASH HAS BEEN DEPOSITED IN THE ACCOUNT OF THE APPELLANT. ON PERUS AL OF THE DOCUMENTS WHICH HAVE BEEN FILED IT IS SEEN THAT THE DEPOSITOR HAS INCOME FROM SALARY AND INCOME FROM PAYING GUEST. THE TOTAL INCOME IS RS.325822/. AND T HE EXPENSES ARE RS. 225519/-, NO EXPLANATION OF THE CA SH DEPOSITED HAS BEEN GIVEN AND THE CREDITWORTHINESS O F SHRI CHANDRA SHEKHAR SINGH IS NOT PROVED. IN VIEW OF THE ABOVE THE ADDITION IS CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB80-81 . THE RETURN OF INCOME IS ON PB 82-84 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 86-88 . II. HE IS ONE OF THE DIRECTORS OF THE ASSESSE COMPANY. HE STARTED HIS CAREER AS MARKETING MAN IN DIFFERENT COMPANIES AND HAS SAVINGS FROM SALARY INCOME EARNED IN LAST 15 YEARS. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN IS ON PB 85 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 4,33,00 0/-. 4. SHRI CHANDRA SHEKHAR SINGH (HUF): RS.335000/-: LD. CIT(A) FINDING: THE AO HAS RECORDED A FACTUAL FINDING THAT CASH HAS BEEN DEPOSITED IN THE ACCOUNT. FROM THE COPY OF COMPUTATION AND STATEMENT OF AFFAIRS FILED IT IS SE EN THAT HUF HAS INCOME FROM HANDLING CHARGES FROM TRAVEL TR ADE OF RS.153000/- AND WITHDRAWALS ARE SHOWN AT RS.48000/-. THE LOAN WHICH HAS BEEN GIVEN TO THE APPELLANT IS OUT OF CASH DEPOSITED IN THE ACCOUNT O F HUF. THE DETAILS OF ONLY LOAN OF RS.20000/- AND RS.65000/- HAVE BEEN FILED, DETAILS OF BALANCE AMOUNT HAS NOT BEEN MED. CONSIDERING THE ABOVE THE CREDITWORTHINESS OF SHRI CHANDRA SHEKHAR SINGH HUF IS NOT ESTABLISHED. THE ADDITION IS THEREFORE CONFIRMED IN APPEAL. LEARNED AR SUBMISSION HARSHDEEP REAL ESTATE PVT. LTD. 8 I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB89-90 . THE RETURN OF INCOME IS ON PB 91-92 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 94-95. II. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN IS ON PB 93 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 3 ,35,000/-. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN I S ON PB 85 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 4,33,00 0/-. 5. SHRI GULAB SINGH TANWAR (HUF): RS.468000/-: LD. CIT(A) FINDING: THE AO HAS RECORDED A FACTUAL FINDING THAT THE LOAN IS OUT OF CASH DEPOSITED IN THE ACCOUNT OF HUF. FROM T HE DOCUMENTS WHICH ARE PLACED ON RECORD IT IS SEEN THA T HUF IS SHOWING INCOME RS.99690/. OUT OF BUSINESS INCOME, HOWEVER NO DETAILS OF WHAT IS THE BUSINESS HAVE BEE N GIVEN. PERUSAL OF THE BANK STATEMENT SHOWS THAT AN AMOUNT OF RS.195000/- HAS BEEN CREDITED IN THE ACCOUNT OF THE HUF FROM SMT. GAURA BAI TAN WAR. IT HAS ALRE ADY BEEN NOTED IN THE CASE OF SMT. GAURA BAI TANWAR THA T THE INCOME SHOWN BY HER FROM PAYING GUEST WAS FOUND TO BE FALSE. IN VIEW OF THE ABOVE CASH DEPOSITED IN THE A CCOUNT OF THE HUF IS NOT SATISFACTORILY EXPLAINED AND HENC E CREDITWORTHINESS OF HUF AND GENUINENESS OF TRANSACT ION IS NOT ESTABLISHED. THE ADDITION IS THEREFORE CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB111-112 . THE RETURN OF INCOME IS ON PB113-114 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 115-116. II. THE LENDER IS EARNING INCOME FROM KIRANA SHOP, OUT OF SAVING, THE UNSECURED LOAN GIVEN TO COMPANY. 6. SMT. PREEETI RAJLAXML SHAHI: RS.650000/-: LD. CIT(A) FINDING: THE AO HAS RECORDED A FACTUAL FINDING THAT EQUIVALENT AMOUNT OF CASH WAS DEPOSITED IN THE ACCOUNT OF SMT. PREETI RAJLAXMI SHAHI. FROM THE DOCUMENTS ON RECORD IT IS SEEN THAT IN HER RETURN OF INCOME SMT. PREETI RAJLA XMI SHAHI HAVE SHOWN INCOME FROM YOGA CLASSES AND PRIVA TE INTEREST INCOME TOTALING TO RS.159000 /. , HER ACCO UNT SHOWS CASH DEPOSITS ON REGULAR BASIS WHICH ARE NOT COMMENSURATE WITH THE INCOME SHOWN BY HER. CREDITWORTHINESS OF SMT, PREETI RAJLAXMI SHAHI IS NOT ESTABLISHED THEREFORE ADDITION IS CONFIRMED IN APPE AL. LEARNED AR SUBMISSIONS HARSHDEEP REAL ESTATE PVT. LTD. 9 I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB138-139 . THE RETURN OF INCOME IS ON PB 140-141 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 142-144. II. THE INCOME IS FROM TEACHING OF YOGA. EARLIER SHE WA S ENGAGED IN TRADING BUSINESS OF SAREE. SHE IS INCOME TAX PAYEE FROM LAST 10 YEARS. THE NATURE OF BUSINESS/PROFESSION CARRIED OUT IS SU CH THAT CASH IS RECEIVED BY HER, WHICH SHE HAS DEPOSITED IN BANK A/ C. 7. SHRI KISHORE SINGH: RS.223000/-:- LD. CIT(A) FINDING: FROM THE MATERIAL ON RECORD IT IS SEEN THAT SHRI KISHORE SINGH HAS INCOME FROM ELECTRIC CONTRACT WOR K OF RS.158810/- AND THE LOAN WHICH HAS BEEN GIVEN IS OU T OF CASH DEPOSITED IN HIS BANK ACCOUNT WHICH IS NOT COMMENSURATE WITH THE INCOME SHOWN BY HIM. THE ADDITION IS THEREFORE CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB124-125 . THE RETURN OF INCOME IS ON PB 126-127 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 122-123. II. THE INCOME IS FROM COMMISSION. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN IS ON PB 128 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 3,93,00 0/-. 8. SHRI KISHORE SINGH (HUF): RS.3,93,000/-:- LD. CIT(A) FINDING: FROM THE MATERIAL RECORD IT IS SEEN THAT SHRI KISHORE SINGH (HUF) HAS INCOME FROM COMMISSION INCOME OF RS.116000 / -AND THE LOAN WHICH HAS BEEN GIVEN IS O UT OF CASH DEPOSITED IN HIS BANK ACCOUNT WHICH IS NOT COMMENSURATE WITH THE INCOME SHOWN BY HIM. THE ADDI TION IS THEREFORE CONFIRMED IN APPEAL. LEARNED AR SUBMISSION I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB124-125 . THE RETURN OF INCOME IS ON PB 126-127 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 122-123. II. THE INCOME IS FROM COMMISSION. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN IS ON PB 128 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 3,93,00 0/-. 9. SMT. SWARNLATA SINGH RAJPUT: RS.298000/-:- LD. CIT(A) FINDING: SMT. SWARNLATA SINGH RAJPUT WAS EXAMINED BY THE AO. IN HER STATEMENT SHE HAS STATED THAT SHE HAS INCOME FROM RENT AND PAYING GUEST, HOWEVER HER STATEMENT W AS HARSHDEEP REAL ESTATE PVT. LTD. 10 RECORDED DURING THE COURSE OF PROCEEDINGS FOR A. Y. 2011- 12 ALSO AND IN HER STATEMENT SHE WAS ASKED WHETHER ANY PAYING GUEST STAYED IN HER HOUSE VIDE QUESTION NUMBER 6 TO WHICH HER REPLY WAS 'NO'. SHE ALSO DID NOT HAVE ANY IDEA ABOUT THE CASH DEPOSITED IN HER ACCOU NT. IT WAS STATED BY HER THAT ALL THIS WAS BEING LOOKED AFTER BY HER SON-IN-LAW. IN THE STATEMENT RECORDED DURING THE COURSE OF PROCEEDINGS FOR A.Y. 2011-12 SHE WAS UNAW ARE OF M/S HARSHDEEP REAL ESTATE PVT. LTD., INDORE AND HAD NO IDEA ABOUT THE LOAN GIVEN TO THE APPELLANT. SHE WAS ALSO NOT AWARE OF INCOME TAX RETURN FILED BY HER AN D ALSO STATED THAT SHE HAS NOT GIVEN ANY LOAN TO ANYB ODY EXCEPT SOME AMOUNT OF MONEY GIVEN TO HER SON-IN-LAW WHICH ARE ALSO NOT IN THE NATURE OF LOAN. IN VIEW O F THE ABOVE THE GENUINENESS OF THE TRANSACTION AND THE CREDITWORTHINESS OF SMT. SWARNLATA SINGH RAJPUT WAS NOT ESTABLISHED. THE ADDITION HAS RS.298000 / - IS THEREFORE CONFIRMED IN APPEAL. THE DEPOSIT IN HER ACCOUNT PRIOR TO GIVING OF LOAN IS NOT IN CASH BUT, BY WAY OF CLEARING. IN VIEW OF THE ABO VE IT CANNOT BE STATED THAT THE CREDITWORTHINESS OF THE DEPOSITOR WAS SUSPECT AND SINCE THE DEPOSITOR HAS CONFIRMED GIVING THE LOAN AND NO OTHER ADVERSE MATERIAL IS ON RECORD THE ONUS UNDER SECTION 68 OF THE ACT STANDS DISCHARGED. THE ADDITION OF RS.17S000 / - THEREFORE CANNOT BE SUSTAINED AND IS DIRECTED TO BE DELETED. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB185-186 . THE RETURN OF INCOME IS ON PB187-188 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 190-193 . II. SHE IS EARNING INCOME FROM RENT, PAYING GUEST AND I NTEREST. AN INCOME TAX PAYEE FROM LAST 7 YEARS. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN IS ON PB 189 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 2,98,000/-. 10. SHRI GANESH KUMAR BADOLE: RS.300000/-:- LD. CIT(A) FINDING: FROM THE MATERIAL ON RECORD IT IS SEEN THAT APART FROM CONFIRMATION AND PAN NO OTHER DETAILS HAVE BEEN PLA CED ON RECORD. AS PER NOTICE DATED 22/12/2014 THE AO HA D SPECIFICALLY CALLED FOR DETAILS OF RETURN FILED, CO MPUTATION OF INCOME AND BANK STATEMENTS OF ALL THE PARTIES FR OM WHOM LOANS WERE RECEIVED BY THE APPELLANT IN THE LI GHT OF THE FINDINGS THAT GENUINENESS OF LOANS WAS SUSPECT AS BROUGHT OUT IN THE REASONS RECORDED FOR REOPENING T HE HARSHDEEP REAL ESTATE PVT. LTD. 11 ASSESSMENT. NO DETAILS WERE SUBMITTED BY THE APPELL ANT. IN VIEW OF THE ABOVE IT CANNOT BE HELD THAT BY MERE LY FILING CONFIRMATION AND PAN THE ONUS OF THE APPELLA NT STOOD DISCHARGED. THE CREDITWORTHINESS OF SHRI GANE SH KUMAR BADOLE AND THE GENUINENESS OF TRANSACTIONS AR E THEREFORE NOT ESTABLISHED. THE ADDITION IS THEREFOR E CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB96-97 . THE RETURN OF INCOME IS ON PB 98 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 99-102. THE LENDER IS IN JOB WITH STATE BANK OF INDIA, OUT OF HIS SAVINGS, HE GAVE UNSECURED LOAN TO THE COMPANY. 11. SMT. GAURA BAI TANWAR: RS.65000/-:- LD. CIT(A) FINDING: IN VIEW OF THE FINDINGS RECORDED BY THE AO AND THE FACT THAT IN HER STATEMENT THE DEPOSITOR DENIED HAV ING ANY KNOWLEDGE ABOUT THE LOAN GIVEN AND THE INCOME FROM PAYING GUEST THE GENUINENESS OF THE TRANSACTIO N AND THE CREDITWORTHINESS OF THE DEPOSITOR IS NOT ESTABLISHED AND HENCE THE ADDITION IS CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB103-104 . THE RETURN OF INCOME IS ON PB105-106 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 108-110. THE LENDER IS EARNING INCOME FROM RENT, PAYING GUES T INCOME AND INTEREST, OUT OF SAVING, THE UNSECURED LOAN GIVEN T O COMPANY. 12. SMT. VARSHA MAHESH DASOUNDHI : RS.200000/- LD. CIT(A) FINDING: FROM THE RECORD IT IS SEEN THAT APART FROM CONFIRMATION AND PAN NO OTHER DETAILS HAVE BEEN 'PLACED ON RECOR D. AS PER NOTICE DATED 22/12/2014 THE AO SPECIFICALLY CALLED FOR DETAILS OF RETURN FILED COMPUTATION OF INCOME AND BANK STATEMENTS OF ALL THE PARTIES FROM WHOM LOANS WERE RECEIVED BY THE APPELLANT IN THE LIGHT O F THE FINDINGS THAT GENUINENESS OF LOANS WAS SUSPECT AS BROUGHT OUT IN THE REASONS RECORDED FOR REOPENING T HE ASSESSMENT. NO DETAILS WERE SUBMITTED BY THE APPELL ANT. IN VIEW OF THE ABOVE IT CANNOT BE HELD THAT BY MERE LY FILING CONFIRMATION AND PAN THE ONUS OF THE APPELLA NT STOOD DISCHARGED. THE CREDITWORTHINESS OF SMT. VARS HA MAHESH DASOUNDHI AND THE GENUINENESS OF TRANSACTION ARE THEREFORE NOT ESTABLISHED. THE ADDITION IS THER EFORE HARSHDEEP REAL ESTATE PVT. LTD. 12 CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB198-199 . THE RETURN OF INCOME IS ON PB187-188 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 200 . 13. SHRI RAJENDRA' ACHARYA: RS.200000/-:- LD. CIT(A) FINDING: FROM THE RECORD IT IS SEEN THAT ONLY FORM NO.16 OF SHRI RAJENDRA ACHARYA HAS BEEN FILED WHERE IN SALAR Y INCOME OF RS.229000 / - HAS BEEN SHOWN. FROM THIS THE CREDITWORTHINESS OF SHRI RAJENDRA ACHARYA IS NO T ESTABLISHED. IN VIEW OF THE ABOVE THE ADDITION IS CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS THE LENDER IS IN GOVERNMENT JOB AS A TEACHER IN GO VT MIDDLE SCHOOL, HE IS FILING HIS INCOME TAX RETURN FROM LAST 25 YEARS, OUT OF HIS SAVINGS HE HAS GIVEN UNSECURED LOAN TO THE COMPANY 14. SHRI SARDAR SINGH: RS.694118/-:- LD. CIT(A) FINDING: FROM THE RECORD IT IS SEEN THAT SHRI SARDAR SINGH HAS INCOME FROM PENSION ARID INCOME FROM HOUSE PROPERTY TOTALING TO RS.140000/- AND HAS SHOWN GIFT OF RS.5L000/-. THUS, FROM THE ABOVE THE CREDITWORTHINE SS OF SHRI SARDAR SINGH FOR ADVANCING LOAN OF RS.694LL 8/ - IS NOT ESTABLISHED. THE ADDITION IS THEREFORE CONFI RMED IN APPEAL. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB149-150 . THE RETURN OF INCOME IS ON PB151-153 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 155-157 . II. HE IS ONE OF THE DIRECTORS OF THE ASSESSE COMPANY. HE IS RETIRED GOVERNMENT EMPLOYEE AND EARNING INCOME FROM PENSION AND RENT AND INTEREST. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN IS ON PB 154 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 6,94,11 8/- 15. SMT. SMITA SINGH: RS.243000/-:- LD. CIT(A) FINDING: SMT. SMITA SINGH WAS EXAMINED BY THE AO. IN HER STATEMENT SHE HAS STATED THAT SHE HAS INCOME FROM COACHING CLASS AND YOGA CLASS, WHEREAS IN THE RETUR N OF INCOME SHE HAS SHOWN INCOME FROM COOKING CLASS AND YOGA CLASS. CASH HAS BEEN DEPOSITED IN HER ACCOUNT PRIOR TO GIVING LOAN TO THE APPELLANT SOURCE OF WHICH IS STATED TO BE HER SAVINGS. SHE HAS STATED THAT HER HUSBAND IS AN INSPECTOR OF POLICE THEIR MONTHLY EXPENDITURE IS HARSHDEEP REAL ESTATE PVT. LTD. 13 RS.40000/- TO RS.50000/- THEY HAVE TWO DAUGHTERS STUDYING IN DALY COLLEGE WHERE THE FEES IS RS.15000 0/- TO RS.200000/-. CONSIDERING ALL THESE ASPECTS THE CREDITWORTHINESS OF SMT. SMITA SINGH IS NOT ESTABLI SHED AND THEREFORE ADDITION IS CONFIRMED IN APPEAL. LEARNED AR SUBMISSIONS I. THE CONFIRMATION ALONG WITH LEDGER A/C IS ON PB177-178 . THE RETURN OF INCOME IS ON PB179-180 AND THE TRANSFER IS THROUGH BANKING CHANNEL. PB 182-184 . II. SHE IS EARNING INCOME FROM TEACHING AND IS AN INCOM E TAX PAYEE FROM LAST 10 YEARS. III. THE STATEMENT OF AFFAIRS FILED ALONG WITH RETURN IS ON PB 181 , WHICH SHOWS THE RECEIVABLES FROM HARSHDEEP RS. 2 ,43,000/-. 12. BEFORE GOING THROUGH THE ABOVE SUBMISSIONS WE WOULD LIKE TO MENTION THAT TEST FOR EXAMINING CASH CREDITORS VARIES FROM CASE TO CASE AND DEPENDS UPON THE DOCUMENTARY EVIDENCES FILED FOR THE PARTICULAR CASH CREDITOR. IN VIEW OF ABOVE WE HAVE CAREFULLY G ONE THROUGH THE FACTS PLACED BEFORE US FOR ALL THE 15 C ASH CREDITORS. 13. AS REGARDS, THE CASH CREDITORS APPEARING AT SER IAL NOS. 1 TO 9, WE FIND THAT IN ALL THESE NINE CASH CREDITORS, CASH HAS BEEN DEPOSITED JUST BEFORE THE ISSUANCE OF CHEQUE TO THE ASSESSEE FOR UNSECURED LO AN. THERE IS NO PLAUSIBLE BASIS GIVEN BY THE LD. COUNSE L FOR THE ASSESSEE WHICH COULD PROVE THAT ALL THESE NINE CASH CREDITORS WERE HAVING SUFFICIENT CREDITWORTHIN ESS AS WELL AS THE SOURCE OF INCOME TO DEPOSIT THE CASH USED FOR ISSUING THE CHEQUE TO THE ASSESSEE. IN THE SE GIVEN FACTS WE ARE OF THE CONSIDERED OPINION THAT T HE ASSESSEE HAS MISERABLY FAILED TO EXPLAIN THE HARSHDEEP REAL ESTATE PVT. LTD. 14 CREDITWORTHINESS OF THESE 9 CASH CREDITORS NAMELY: S.NO NAME AMOUNT 1 ANURADHA SHAHI 4,00,000 2 CHANDRA BHAL SINGH 6,56,000 3 CHANDRA SHEKHAR SINGH 4,33,000 4 CHANDRA SHEKHAR HUF 3,35,000 5 GULAB SINGH TANWAR, HUF 4,68,000 6 PREETI RAJLAXMI SHAHI 6,50,000 7 KISHORE SINGH 2,23,000 8 KISHORE SINGH HUF 3,93,000 9 SWARNALATA SINGH RAJPUT 2,98,000 TOTAL 38,56,000 14. WE, THEREFORE, CONFIRM THE ADDITION RELATING TO THESE NINE CASH CREDITORS TOTALLING TO RS.38,56,000/- TREATING THEM ARE UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. 15. AS REGARDS CASH CREDITORS OF RS. 7,65,000/- SHOWN AT SERIAL NO. 10 TO 13 RELATING TO GANESH KUMAR BADOLE RS.3,00,000/-, GAURA BAI TANWAR RS.65,000/-, VARSHA MAHESH DASOUNDHI RS.2,00,000/- & RAJENDRA ACHARYA RS. 2,00,000/-. WE FIND THAT IN THESE CASES CONFIRMATIONS OF BANK STATEMENT HAVE NOT BEEN FILED. CREDITWORTHINESS OF THE CASH CREDITORS HAS NOT BEEN PROVED. IN CASE OF GAURA BAI TANWAR IN THE STATEMENT RECORDED U/S 131 OF THE ACT SHE SHOWED IGNORANCE ABOUT ISSUING ANY CHEQUE TO THE ASSESSE. FOR ALL THESE REASONS IT IS WELL ESTABLISHED THAT ALL THESE FOUR CASH CREDITORS WERE RIGHTLY CATEGORIZED UNDER THE HARSHDEEP REAL ESTATE PVT. LTD. 15 CATEGORY OF UNEXPLAINED CASH CREDITORS U/S 68 OF THE ACT. WE, THEREFORE, CONFIRM THE VIEW TAKEN BY THE LD. CIT(A) CONFIRMING ADDITION OF RS.7,65,000/-. 16. NOW WE ARE LEFT WITH THE UNEXPLAINED ALLEGED CASH CREDIT OF RS.9,37,118/- RELATING TO TWO PARTIES NAMELY; SARDAR SINGH AT RS.6,94,118/- AND SMITA SINGH AT RS. 2,34,000/-. FROM PERUSAL OF VARIOUS DETAILS WE FIND THAT IN THESE TWO CASES THE RE IS NO IMMEDIATE CASH DEPOSIT BEFORE THE ISSUANCE OF CHEQUE. INCOME TAX RETURNS ARE DULY SUBMITTED, STATEMENT OF AFFAIRS AT YEAR END ARE SHOWING THE ALLEGED AMOUNT AS RECEIVABLE FROM HARSHDEEP REAL ESTATE. IN CASE OF SARDAR SINGH LD. AO HAS MERELY MADE ADDITION FOR CLOSING BALANCE IGNORING THE FACT THAT THERE IS REPAYMENT OF MAJOR PORTION OF UNSECUR ED LOAN BROUGHT FORWARD FROM EARLIER YEAR. SIMILARLY I N CASE OF SMITA SINGH, AGAINST TOTAL LOAN TAKEN OF RS.4,05,000/-, RS. 2,000/- HAS BEEN ADJUSTED TOWARD S SHARE APPLICATION MONEY AND RS.1,60,000/- HAS BEEN REPAID. THERE SEEMS NO JUSTIFICATION IN THE FINDING OF LD. AO MAKING THE ADDITION ONLY FOR THE CLOSING BALANCE AT END OF YEAR. WE ARE OF THE CONSIDERED VI EW THAT THE ALLEGED ADDITION OF RS.9,37,118/- RELATING TO SARDAR SINGH AT RS. 6,94,118/- AND SMITA SINGH AT HARSHDEEP REAL ESTATE PVT. LTD. 16 RS.2,43,000/- IS UNCALLED FOR NEEDS TO BE DELETED. WE ACCORDINGLY ORDER SO AND DIRECT THE ASSESSING OFFIC ER TO DELETE THE ADDITION OF RS.9,37,118/-. 17. IN THE RESULT OUT OF THE TOTAL ALLEGED CASH CRE DIT OF RS.55,58,118/-, WE CONFIRM THE ADDITION FOR RS.46,21,000/- AND DELETE THE ADDITION OF RS.9,37,118/-. GROUND NO.2 OF THE ASSESSEES APPEAL IS PARTLY ALLOWED. 18. GROUND NOS. 3 & 4 ARE GENERAL AND CONSEQUENTIA L IN NATURE WHICH NEEDS NO ADJUDICATION. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20 .11. 2018. SD/- (KUL BHARAT) SD/- (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : 20/11/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR