INCOME TAX OFFICER 20(2)(3), MUMBAI V. OM SHANTI REALTORS, MUMBAI

ITA 5615/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2961 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 04-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AWANGSHI GIMSON
• Assessee Lawyers: B V JHAVERI; KENIN BOTHRA
• Keywords: Unexplained cash credit; Retrospective amendment; Question of law; Accommodation entries; Onus to prove
• Section: 131; 68; 143(3); 133(6)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , JM & HONBLE SH. N. K. PRADHAN, A M ./ I.T.A. NO . 5615 /MUM/2017 ( / ASSESSMENT YEAR: 2013 - 14 ) ITO 20(2 ) (3 ), R. NO. 210 , PIRAMAL CHAMBER, LALBAUG, MUMBAI - 400 012 / VS. OM SHANTI REALTORS, 9/A CHUNAWALA COMPOUND, PAREL TANK ROAD, KALACHOWKI MUMBAI - 400 033 ./ ./ PAN NO. AA BFO1844K ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI AWANGSHI GIMSON , DR / RESPONDENTBY : SHR I B. V. JHAVERI & KENIN BOTHRA , AR / DATE OF HEARING : 11 .02 .201 9 / DATE OF PRONOUNCEMENT : 01.03.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 32 , MUMBAI, DATED 20.06.17 FOR AY 2013 - 14 ON THE GROUNDS MENTIONED HEREIN BELOW: - 2 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS (I) 'ON THE FACTS AND CIRCUMSTANCE OF CASE AND IN LAW, THE LD CIT(A) ERRED IN GRANTING RELIEF WITH REGARDS TO THE ADDITIONS MADE U/S 68 OF THE INCOME TAX ACT, 1961 IGNORING THE FACTS THAT ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE CREDITS CLAIMED TO HAVE AVAILED BY THEM.' (II) 'ON THE FACTS AND CIRCUMSTANCE OF CASE AND IN LAW, THE LD CIT(A) ERRED IN GRANTING RELIEF WITH REGARDS TO THE ADDITIONS MADE U/S 68 OF THE INCOME TAX ACT, 1961 IGNORING THE FACTS THAT CREDITORS WHO WERE CLAIMED TO HAVE ADVANCED LOANS ARE SHOWING MEARGE INCOME AND HENCE LACK OF CREDITWORTHINESS .' (III) 'ON THE FACTS AND CIRCUMSTANCE OF CASE AND IN LAW, THE LD CIT(A) ERRED IN GRANTING RELIEF U/S 68 OF THE INCOME TAX ACT, 1961 IGNORING THE FACTSTHAT APEX COURT IN THE CASE OF SUMATI DAYAL VS CIT91995) 214 ITR 801 (SC) STATED THAT BURDEN OF PROOF FOR ESTABLISHI NG THAT THE CASH CREDITS DOES NOT CONSTITUTE THE INCOME OF THE ASSESSEE COMPLETELY LIES ON THE ASSESSEE AND THAT THE ASSESSEE'S EXPLANATION WITH REGARD TO THE CASH CREDITS NEEDS TO BE CONSIDERED IN VIEW OF THE HUMAN PROBABILITIES.' 2 . AS PER THE FACTS OF THE PRESENT CASE, T HE ASSESSEE IS A PARTNERSHIP FIRM WHO IS ENGAGED IN THE BUSINESS OF REAL ESTATE 3 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS DEV ELOPMENT. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 28 .09.13 DECLARING TOTAL INCOME OF RS.NIL. THE SAID RETURN WAS SCRUT INIZED AND THE ORDER WAS PASSED U/S. 143(3) OF THE I. T. ACT, 1961, ON 30 .03. 2016. IN THE SAID ASSESSMENT ORDER, THE A.O. ADDED RS. 15,43,74,600/ - AS UNEXPLAINED CASH CREDIT U/S. 68 OF THE ACT ON ACCOUNT OF THE LOANS RECEIVED FROM EIGHT DIFFERENT COMPANI ES AND INTEREST PAID THEREON. THE ADDI TION OF RS. 15,43,74,600/ - COMPRISES OF RS. 14,30,00,000/ - BEING UNSECURED LOANS AVAILED AND RS. 1,13,74,600/ - BEING AMOUNT OF INTEREST PAID ON THE SAID LOANS. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITIONS MADE BY AO. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENU E HAS FILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. 4 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS GROUND NO. (I) TO (III) 3 . THESE GROUND RAISED BY THE REVENUE ARE INTER RELATED AND INTER CONNECTED AND RELATES TO CHAL LENGING THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION MADE BY AO U/S 68 OF THE I.T. ACT, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 4 . LD. DR APPEARING ON BEHALF OF THE REVENUE RELIED UPON THE ORDERS PASSED BY AO AND SUBMITTED THAT LD CIT(A) ERRED IN GRANTING RELIEF WIT H REGARDS TO THE ADDITIONS MADE U/S 68 OF THE INCOME TAX ACT, 1961 BY IGNORING THE FACTS THAT ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE CREDITS CLAIMED TO HAVE AVAILED BY THEM. IT WAS ALSO ARGUED THAT LD CIT(A) IGNORED THE FACTS THAT CREDITORS WH O WERE CLAIMED TO HAVE ADVANCED LOANS WER E SHOWING MEARGE INCOME AND HENCE LACK OF CREDITWORTHINESS. IT WAS SUBMITTED THAT AO MADE THE ADDITIONS BY RELYING UPON THE FACTS OF THE PRESENT CASE AS SOME OF THE PARTIES HAD NOT RESPONDED TO THE SUMMONS ISSUED BY THE AO ON GIVEN DATES AND THUS, THE IDENTITY AND CREDITWORTHINESS COULD NOT BE PROVED, THEREFORE ADDITIONS WERE MADE U/S 68 OF THE I.T. ACT BY 5 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS TREATING UNEXPLAINED CASH CREDIT TO THE TOTAL INCOME. IN THIS CONTEXT, LD. DR RELIED UPON THE JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE OF SEEMA JAIN VR. ACIT (2018) 96 TAXAMAN.COM 307 (DEL) 5. ON THE OTHER HAND, LD. AR RELIED UPON THE ORDERS PASSED BY LD. CIT(A) AND REITERATED THE SAME ARGUMENTS AS WERE RAISED BY HIM BEFORE LD. CIT(A). IT WAS SUBMITTED THAT THE ASSESSEE HAD PROVED THE GENUINENESS OF THE TRANSACTIONS OF LOAN FROM THE EIGHT LENDERS BY FURNISHING BANK STATEMENTS OF THE LENDER COMPANIES I.E. BOTH FOR RECEIPT OF LOAN AND PAYMENT OF INTEREST AND ALSO PROVED THE REPAYMENT OF THE SAID LOANS. IT WAS SUBMITTED THAT THE ASSESSEE HAD PROVED THE CREDITWORTHINESS OF ALL THE EIGHT LENDER COMPANIES WHO LEND LOAN AMOUNTS TO THE ASSESSEE BY FURNISHING THE AUDITED ACCOUNTS OF THE SAID LENDER COMPANIES. ACCORDING TO THE ASSESSEE, T HE IDENTITY OF THE SE EIGHT LENDERS GIVING LOANS WAS ESTABLISHED BY FURNISHING LOAN CONFIRMATION HAVING COMPLETE ADDRESS AND PAN, ACKNOWLEDGEMENT OF FILING ITR, COMPANY MASTER DATA FROM THE WEBSITE OF THE REGISTRAR OF COMPANIES, ETC. THUS , ACCORDING TO LD. AR, ALL THE THREE CRITERIA TO ESTABLISH, THE TRANSACTIONS OF LOAN WAS PROVED BY THE ASSESSEE AND THE AO COULD 6 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS NOT CONTROVERT THE DOCUMENTARY EVIDENCE S PRODUCED BY THE ASSESSEE. THEREFORE, IN SUCH CIRCUMSTANCES, THE ADDITION MADE BY THE AO U/S.68 OF THE ACT WERE RIGHTLY DELETED BY LD . CIT(A). IN THIS CONTEXT, LD. AR RELIED UPON THE DECISIONS IN THE CASE OF ITO VS. VIJAY DWELLERS PVT. LTD. IN ITA NO.141/MUM/2018' FOR A.Y. 2009 - 10 DATED 30.01.19, ITO VS . LOTUS GRIH NIRMAN PVT. LTD. ITA NO.3998/MUM/2014 FOR A.Y. 2010 - 11 DATED 18 .10.2018, ITO VS. SHRI NEMICHAND LALCHAND JAIN ITA NO.159/MUM/2017 FOR A.Y. 2007 - 08 DATED 17 .12.2018, SHRI VASANT RAMJI SAVLA VS. ACIT IN ITA NO.6123/MUM/2017 FOR A.Y. 2011 - 12 DATED 27 .12. 2018, ACIT VS. RAJESH M. SHAH (HUF) ITA NO.7105/MUM/2016 FOR A.Y. 2 012 - 13 DATED 30 .08.2018 AND M/S. KEYNOTE FINCORP LIMITED VS. DCIT IN ITA NOS. 1643 & 1647/MUM/2018 FOR A.YS. 2012 - 13 AND 2013 - 14 DATED 5 .11. 2018. 6 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENT CITED BY THE PARTIES AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. 7 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE OR DERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAISED BY THE REVENUE IN PARA NO. 5 (5.1 TO 5.8) OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 5. DECISION: I HAVE CONSIDERED THE FACTS OF THE CASE, GROUNDS OF APPEAL AND ORAL AND WRITTEN SUBMISSIONS MADE BEFORE ME. AFTER A CAREFUL CONSIDERATION OF THE SAME AS WELL AS THE ASSESSMENT ORDER. ALL GROUNDS OF APPEAL ARE CORRELATED THEREFORE I DEALT TOGETHER FOR SAKE OF CONVENIENCE. I PROCEED TO RULE AS UNDER. 5.1 FROM THE ASSESSMENT ORDER I FIND THAT A.O. MADE ADDITION U/S. 68 LOAN TAKEN FROM FOLLOWING 8PARTIES VIZ. DIVYANSHI GEMS P. LTD. RS, 3,09,00,000/ - I - , MANBHAWAN EXIM P. LTD. RS, 2,00,00,000/ - , SIDDHAM GEMS P. LTD. RS. 37,00,000/ - RADHEY KRISHNA GEMS. P. LTD. RS. 1,29,00,000/ - , SHRI BRAHMA SHAKTI GEMS P. LTD. RS. 1,50,00,0001 - . SHANKESHWAR DIAMONDS P. LTD. RS. 2,27,00,000/ - , SHRI CHARBHUJA DIAMONDS P. LTD. RS. 2,10,00,000/ - AND SHRI JAGDAMBA SHAKTI GEMS P. LTD. RS. 1,68,00,000 TOTALING TO RS.14,30,00,000/ - . THE ADDITION HAS BEEN DONE BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT STATING THAT LENDERS ARE NOT GENUINE BECAUSE APPELLANT REMAIN FAILED TO PRODUCE THE PARTIES BEFORE THE A.O. FOR VERIFICATION AND IDENTITY 8 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS OF THE LENDERS AND CREDITWORTHINESS WAS NOT PROVIDED BY THE APPELLANT. THE AO CAME TO THE CONCLUSION THAT AS THE DECLARED INCOME BY THE RESPECTIVE LOAN CREDITORS WAS LESS THEY WERE NOT CAPABLE OF LENDING WHICH HAS BEEN DONE BY IGNORING THE FACT THAT THEY HAD SUBSTANTIAL TURNOVER AND HAD A VERY L ARGE BASE OF ASSETS AS EVIDENT IN THE RESPECTIVE BALANCE SHEET. 5.2 I FIND FROM THE ASSESSMENT ORDER OF THE A.O., IN PARA 4.2 IT HAS BEEN STATED THAT 'ASSESSEE HAS FILED CONFIRMATIONS OF THE ABOVE LOAN PARTIES ALONGWITH COPY OF ITR AND RELEVANT PAGE OF THE BANK STATEMENT'. DURING THE ASSESSMENT PROCEEDINGS NOTICE U/S. 133(6) OF 2 PARTIES VIZ BRAHM SHAKTI GEMS PVT.LTD. AND SHREE CHARBHUJA DIAMONDS PVT. LTD. WAS RETURNED FROM POSTAL AUTHORITIES WITH REMARK 'LEFT'. AS IT CAME TO NOTICE TO THE APPELLANT, HE PRO DUCED THE NEW ADDRESS OF THE ALL LENDERS FROM WHOM NOTICES RETURN UNSERVED. I FIND FROM PARA 4.5 OF THE ASSESSMENT ORDER WHEREIN AO HERSELF ACCEPTED THAT FINALLY ALL THE LENDERS FILED CONFIRMATIONS. THE SAME EXTRACT IS AS UNDER: '4.5 THEREAFTER IN THIS CAS E COMPLIANCE HAS BEEN MADE BY ALL THE LENDERS OF LOAN BY SPEED POST FROM THE NEW BUSINESS ADDRESS. 5.3 I COME ON THE ISSUE OF COMMISSION ISSUED BY THE ANOTHER AO TO DDIT (INV.), SURAT. THE AO RECEIVED 9 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS INFORMATION THAT ITO - 20(3)(1),MUMBAI ISSUED COMMISSION TO DDIT, SURAT U/S. 131(1)(D) TO VERIFY THE GENUINENESS AND CREDITWORTHINESS OF LENDERS. THE DDIT(INV.), SURAT SUBMITTED REPORT STATING THAT HE HAS ISSUED SUMMONS U/S. 131 FOR APPEARANCE BUT DUE TO CLOSE PREMISES SUMMONS COULD NOT BE SERVED, THEREFORE SUMM ONS WERE SERVED BY AFFIXTURE BUT LOAN CREDITORS NOT RESPONDED. IN THIS CASE THREE PARTIES VIZ. SHREE CHARBHUJA DIAMONDS PVT, LTD, SHANKESHWAR DIAMONDS PVT. LTD AND RADHY KRISHNA GEMS PVT. LTD. ARE RELATED TO THE PARTIES TO WHOM COMMISSION WAS ISSUED IN OTH ER CASE. I FIND THAT REGISTERED OFFICE OF THESE LENDERS HAVE BEEN CHANGED. BEFORE ME APPELLANT SUBMITTED THAT CHANGED ADDRESS OF THE LENDERS WERE PROVIDED TO THE AO DURING THE PROCEEDINGS. APPELLANT FILED BEFORE ME PROOF OF CHANGE OF ADDRESS IN FORM OF FOR M NO. 18/FORM NO. INC - 22 WHICH IS THE NOTICE OF SITUATION OR CHANGE OF SITUATION OF REGISTERED OFFICE PURSUANCE TO SECTION 146 OF THE COMPANIES ACT 1956/ SECTION 12(2)&4 OF THE COMPANIES ACT, 2013 AND RULE 25 AND 27 OF THE COMPANIES (INCORPORATION) RULES 2 014. ON VERIFICATION OF THE SAME IT IS NOTICED THAT IN SR. NO. 4 IT IS CLEARLY MENTIONED 'NOTICE IS HEREBY GIVEN THAT (A) THE ADDRESS OF THE REGISTERED OFFICE OF THE COMPANY WITH E FFECT FROM PARTICULARS OF THE DETAILS ARE AS UNDER: 10 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS SR. NAME OF THE COMPA NY CHANGE ADDRESS WITH EFFECT FROM 1 SHREE CHARBHUJA DIAMONDS PVT. LTD. H. NO. 5/909, 3 RD FLOOR, GANSESH A SHISH GHIYA SHERI, KAMNATH ROAD, MAHIDHARPURA SURAT, GUJRAT - 395003 01/07/20 13 2. SHANKESHWAR GEMS P. 6/2497, MAZE NINE FLOOR, OFFICE NO. 21/08/2014 LTD M3 BALAJI SADAN, LIMBU SHERI, M AHIDHARPURA, SURAT, 395003 21.08.14 3. RADHEY KRISHNA GEMS 6/1766, SAINATH BUIDLING, GUNDI SHERI, MAHAPURA, SURAT, GUJRAT - 395003 29.04.13 ALL THE LENDERS ARE PVT. LTD. CO. ARE REGISTERED UNDER COMPANIES ACT. ALL THE DETAILS OF COMPANY ARE AVAILABLE ON PUBLIC DOMAIN. ON THE ABOVE FACT I COME TO THE CONCLUSION THAT THE DDIT(INV.), SURAT HAS NOT MADE ADEQUATE ENQUIRY NOR ANY ADEQUATE REPORT IS TAKEN ON RECORD BY AO. ONLY ON THE BASIS OF THE PREMISES CLOSED ON ONE DAY OR NOTICES RETURNED FROM THE POSTAL AUTHORITY IT CANNOT BE ACCEPTABLE THAT PARTIES FROM WHOM THE LOANS WERE TAKEN ARE NOT IN EXISTENCE OR THEY ARE BOGUS. THE DDIT(INV.) SURAT ISSUED /SERVED NOTICE ON THE OLD ADDRESS WHICH HAVE BEEN CHANGED. 11 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS THEREFORE COMPLIANCE OF SUMMONS ISSUED BY HIM COULD NOT BE MADE. FINALLY ALL THE CONFIRMATION AND DETAILS CALLED FOR WAS PROVIDED DURING THE ASSESSMENT PROCEEDINGS AS WELL AS BEFORE ME. IT IS ALSO PERTINENT TO NOTE THAT IN THIS CASE NO COMMISSION WAS ISSUED TO THE DDIT(INV.) SURAT. AS NO COMMISSION WAS ISSUED IN THIS CASE AND APPELLANT PROVIDED THE CHANGE OF ADDRESS OF THE PARTIES DURING THE ASSESSMENT PROCEEDINGS, THIS CONTENTION WAS ALSO ACCEPTED BY THE AO IN HIS ORDER, THEN AO SHOULD HAVE MADE ENQUIRY FOR THE SAME BUT HE DID NOT DO SO. 5.4 BEFORE ME AS WELL AS THE A.O. ALSO DOCUMENTS WERE PRODUCED BY THE PARTIES TO PROVE THE GENUINENESS OF THE TRANSACTIONS WHICH INTER ALIA INCLUDED THE CONFIRMATIONS, BANK STATEMENTS OF LENDERS, ACKNOWLEDGEMENTS, ROL, FROM THESE PARTIES, THEIR BALANCE SHE ETS, PROFIT AND LOSS ACCOUNTS, STATEMENTS OF ADVANCES WHICH INCLUDED NAME OF THE APPELLANT AS BORROWER IN TWO CASES AND DETAILS OF INTEREST AND PRINCIPAL REPAID WHICH WERE BY PAYEES ACCOUNT CHEQUES/RTGS. THE APPELLANT HS FILED DETAILS FROM THE RECORDS OF M INISTRY OF CORPORATE AFFAIRS WHICH ALSO SHOWS THAT LENDER COMPANIES ARE ALIVE. MOREOVER, THE APPELLANT HAS NOT COMMENCED THE CONSTRUCTION OR DONE ANY BOOKING TO GENERATE ANY FUNDS. HOWEVER, THE A.O. 12 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS BRUSHED THIS ASIDE ON THE GROUNDS THAT THE IDENTITY ITSEL F WAS NOT PROVED. THE A.O. FURTHER HELD THAT THE GENUINENESS WAS NOT PROVED BECAUSE THESE PARTIES WERE NOT CREDIT WORTHY TO ADVANCE LOANS OF SUCH MAGNITUDE. I FIND THAT LOANS HAVE BEEN GIVEN BY CROSSED ACCOUNT - PAYEE CHEQUES/RTGS AND THEY ARE REFLECTED IN THEIR AUDITED BOOKS OF ACCOUNT AND FILED THEIR RETURNS OF INCOME INCLUDING BANK STATEMENTS FROM WHICH THE FUNDS HAVE BEEN GIVEN TO THE APPELLANT, THIS FACT WAS ALSO ACCEPTED BY THE AO. THE APPELLANT HAS PRODUCED THE AUDITED ACCOUNTS AND RETURNS OF INCOME O F ALL THE PARTIES WHICH SHOW THAT THE LOANS GIVEN BY THEM TO THE ASSESSEE ARE REFLECTED IN THEIR AUDITED ACCOUNTS. THESE PARTIES HAVE NOT BORROWED ANY FUNDS AND THUS THEY HAVE UTILISED THEIR OWN FUNDS FOR GIVING LOANS TO THE ASSESSEE ON WHICH THEY HAVE EAR NED INTEREST. 5.5 1 AM UNABLE TO APPRECIATE THIS POSITION OF THE A.O. THE A.O HIMSELF STATES THAT THE TURNOVER OF THESE PARTIES IS IN HUNDREDS OF CRORES. IN THE SAME BREATH HE STATES THAT THESE PARTIES ARE NOT CREDIT WORTHY. I FIND THAT THE A.O HAS NO OT HER CORROBORATIVE EVIDENCE TO SHOW THAT CASH HAD BEEN PAID BY THE APPELLANT TO THESE PARTIES FOR AVAILING THE LOANS. AN ACCOMMODATION ENTRY OF THIS NATURE WOULD PERFORCE REQUIRE THE APPELLANT TO PART WITH CASH IN HIS HANDS AND OBTAIN A CHEQUE IN LIEU 13 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS OF TH E SAME. THE A.O. HAS NOT BEEN ABLE TO ESTABLISH THE CASH TRAIL AT ALL. THE APPELLANT HAS FILED THE ENTIRE DOCUMENTS REQUIRED TO ESTABLISH THE IDENTITY OF THE CREDITORS THEIR CREDITWORTHINESS, AS WELL AS THE GENUINENESS OF THE TRANSACTION. THE SOURCE OF THE SAID LOANS THUS STANDS PROVEN. AS HAS BEEN HELD IN SEVERAL DECISIONS OF SUPERIOR JUDICIAL AUTHORITIES {MURLIDHARLAHORIMA! V CIT [280 ITR 512 (GUJ)] , LABHCHAND BOHRA V ITO [ 219 ITR 571 (RAJ)] AND CIT V DWARKADHISH INVESTMENT PRIVATE LIMITED [299 ITR 268 (DEL)], THE ASSESSEE CANNOT BE CALLED UPON TO PROVE THE SOURCE OF THE SOURCE OF HIS LOANS. 5.7 THE AO HAS RELIED ON A NUMBER OF JUDGEMENTS, HOWEVER THE FACTS OF THESE JUDGEMENTS ARE COMPLETELY DIFFERENT AS IN THIS CASE THE APPELLANT HAS PROVED THE IDENTI TY AND CREDITWORTHINESS OF THE LENDER AND THE GENUINENESS OF THE TRANSACTIONS. 5.8 AS THE LOANS HAVE BEEN SUBSEQUENTLY REPAID BY THE APPELLANT THROUGH BANKING CHANNELS. THUS, THE APPELLANT IS ABLE TO PROVE THAT NOT ONLY DID HE TAKE GENUINE LOANS, BUT THE SAME HAS ALSO BEEN REPAID. IF THESE LOANS WERE NOT GENUINE, THEN THERE WOULD NOT HAVE BEEN A QUESTION OF REPAYMENT. I FIND THAT THE WEIGHT OF EVIDENCE IS IN FAVOUR OF THE APPELLANT AS HE 14 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS HAS BEEN ABLE TO SATISFY ALL INGREDIENTS OF CASH CREDIT I.E. IDENTIT Y, CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS. ACCORDINGLY, I DELETE THE ADDITION OF RS. 14,30,00,000/ - AND INTEREST THEREON AMOUNTING TO RS.1,13,74,600/ - TOTALING TO RS. 15,43,74,600/ - MADE BY THE A.O 7. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AND PERUSAL OF THE DOCUMENTS AND AFTER HEARING BOTH PARTIES AT LENGTH WE FIND THAT THE ASSESSEE HAD ALREADY PLACED ON RECORD ALL THE DOCUMENTARY EVIDENCES IN ORDER TO SHOW THE IDENTITY AND CREDITWORTHINESS OF THE LENDERS AND GENUINENESS OF THE TRANSACTIONS. WE HAVE PERUSED THE CONFIRMATION FILED BY THE PARTIES, COPIES OF ACKNOWLEDGEMENT OF RETURN OF INCOME FILED BY THE LENDERS FOR THE YEAR UNDER CONSIDERATION, COPIES OF THE BANK STATEMENT OF LENDERS, WHICH ESTABLISH THAT THE PAYMENT TOWARDS LOA NS WERE RECEIVED DURING THE YEAR UNDER CONSIDERATION. THEREFORE THE IDENTITY OF THE LENDERS WAS NOT IN DISPUTE. WE HAVE ALSO CONSIDERED ALL THE DOCUMENTS PLACED ON RECORD BY THE ASSESSEE IN THE SHAPE OF STATEMENT OF ACCOUNTS AND DOCUMENTS TO SHOW THAT THE TRANSACTIONS WERE CARRIED OUT THROUGH BANKING 15 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS CHANNELS AND THE CONFIRMATIONS WHICH WERE FILED IN THE FORM OF LEDGER ACCOUNTS WHICH REFLECT THAT THE ASSESSEE HAD RE CEIVED THE AMOUNT THROUGH RTGS. ALL THOSE DOCUMENTS PROVE THE GENUINENESS OF THE TRANSACTIONS . NOW AS FAR AS CREDITWORTHINESS OF THE LENDERS ARE CONCERNED, WE HAVE PERUSED THE AUDITED ACCOUNTS OF THE LENDERS WHICH SHOWS THE CREDITWORTHINESS OF THE LENDERS TO GRANT LOANS AND ADVANCES. FURTHER, WE ALSO NOTICED FROM THE RECORD S THAT LD. CIT(A) HAD RI GHTLY POINTED OUT IN ITS ORDER THAT THE AO MADE THE ADDITIONS BY HOLDING THAT AS THE DECLARED INCOME BY THE RESPECTIVE LOAN CREDITORS WAS LESS, THEREFORE, THEY WERE NOT CAPABLE OF LENDING. HOWEVER, THE AO IGNORED THE FACT THAT THE LENDERS HAD SUBSTANTIAL T URNOVER AND HAD A VERY LARGE BASE OF ASSETS AS IS REFLECTED IN THE RESPECTIVE BALANCE SHEETS. 8. WE HAVE ALSO CONSIDERED THE FACT THAT IN THE PRESENT CASE, THE AO HERSELF HAD ACCEPTED THAT ALL THE LENDERS HAD FILED THEIR CONFIRMATIONS APART FROM OTHER DOC UMENTS AS MENTIONED ABOVE. THE RECORD OF MINISTRY OF CORPORATE AFFAIRS WAS ALSO PLACED ON RECORD TO SHOW THAT THE LENDER COMPANIES ARE ALIVE. THE LOANS, WHICH WERE TAKEN BY THE ASSESSEE HAD ALSO BEEN REPAID AND 16 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS THOSE DETAILS HAVE ALSO BEEN FILED BY THE ASSESSEE . IN THE CASE OF PR.CIT VS. PARADISE INLAND SHIPPING PVT. LTD. (SUPRA) THE HON'BLE HIGH COURT HAS CATEGORICALLY HELD THAT THE INITIAL ONUS IS UPON THE ASSESSEE TO PLACE ON RECORD ALL THE DOCUMENTARY EVIDENCES TO ESTABLISH THE IDENTITY AND CREDITWOR THINESS OF THE LENDERS AND GENUINENESS OF THE TRANSACTIONS AND WHEN ONCE THE ASSESSEE PRODUCE ALL THE DOCUMENTARY EVIDENCES TO ESTABLISH THE EXISTENCE OF THE SAID LENDERS THEN THE BURDEN SHIFTS ON THE REVENUE TO ESTABLISH THE CASE . SIMILAR VIEW WAS ALSO TA KEN BY THE HON'BLE HIGH COURT IN THE CASE OF CIT VS. GREEN INFRA LTD. (SUPRA) WHEREIN IT WAS HELD AS UNDER: - SECTION 68 OF THE INCOME - TAX ACT, 1961 - CASH CREDIT (SHARE CAPITAL) - ASSESSMENT YEAR 2011 - 12 - ASSESSEE - COMPANY OFFERED TO SELL ITS SHARES - ID ENTITY OF SUBSCRIBERS WAS CONFIRMED BY VIRTUE OF ASSESSING OFFICER ISSUING NOTICES TO THEM - GENUINENESS OF ENTIRE TRANSACTION WAS RECORDED IN BOOKS OF ACCOUNT AND REFLECTED IN FINANCIAL STATEMENTS OF ASSESSEE - COMPANY SINCE SUBSCRIPTION WAS DONE THROUGH BA NKING CHANNELS AS EVIDENCED BY BANK STATEMENTS - TRIBUNAL EXAMINED CASE OF REVENUE ON PARAMETERS OF SECTION 68 AND FOUND ON FACTS THAT IT WAS NOT HIT BY SAID SECTION WHETHER 17 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS SINCE REVENUE WAS NOT ABLE TO SHOW THAT FACTUAL FINDING RECORDED BY TRIBUNAL WAS PERVERSE, NO SUBSTANTIAL QUESTION OF LAW AROSE - HELD, YES [PARA 3(C)] [IN FAVOUR OF ASSESSEE]. 9. IN THE CASE OF CIT VS. GAGANDEEP INFRASTRUCTURE PVT. LTD. (SUPRA) THE HON'BLE HIGH COURT HELD AS UNDER: - SECTION 68 OF THE INCOME - TAX ACT, 1961 - CASH CREDIT (SHARE CAPITAL) - ASSESSMENT YEAR 2008 - 09 - WHETHER PROVISO TO SECTION 68 INTRODUCED BY FINANCE ACT 2012 WITH EFFECT FROM 1 - 4 - 2013, WOULD NOT HAVE RETROSPECTIVE EFFECT - HELD, YES - WHETHER WHERE ASSESS EE - COMPANY HAD ESTABLISHED IDENTITY, GENUINENESS AND CAPACITY OF SHAREHOLDERS WHO HAD SUBSCRIBED TO ITS SHARES, ASSESSING OFFICER WAS NOT JUSTIFIED IN ADDING AMOUNT OF SHARE CAPITAL SUBSCRIPTION AS UNEXPLAINED CREDIT HELD, YES - WHETHER WHERE REVENUE URG ED THAT ASSESSEE HAD RECEIVED SHARE APPLICATION MONEY FROM BOGUS SHAREHOLDERS, IT WAS FOR INCOME - TAX OFFICERS TO PROCEED BY REOPENING ASSESSMENT OF SUCH SHAREHOLDERS AND ASSESSING THEM TO TAX IN ACCORDANCE WITH LAW AND IT DID NOT ENTITLE REVENUE TO ADD SAM E TO ASSESSEE'S INCOME AS UNEXPLAINED CASH CREDIT - HELD, YES [PARA 3] [IN FAVOUR OF ASSESSEE]. 18 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS 10. AS FAR AS THE FACTS OF THE PRESENT CASE, ASSESSEE HAS ALSO REPAID THE LOAN WHICH WAS TAKEN TO THE LENDERS THROUGH BANKING CHANNEL AND IN SUCH A SITUATION THE HON'BLE HIGH COURT IN THE CASE OF RAHUL VINEET TRADERS (SUPRA ) HAS HELD AS UNDER: - SECTION 68 OF THE INCOME - TAX ACT, 1961 CASH CREDITS [LOAN] ASSESSMENT YEAR 2000 - 01 ASSESSEE - FIRM HAD TAKEN LOAN FROM 14 FIRMS OUT OF WHICH LOAN FROM FOUR FIRMS WERE NOT FOUND BY ASSESSING OFFICER AS GENUINE BECAUSE THOSE FIRMS WERE, ALLEGEDLY, RELATED TO ONE G INVOLVED IN PROVIDING ACCOMMODATION ENTRIES ASSESSING OFFICER THUS INVOKED SECTION 68 AND MADE ADDITION TO ASSESSEES INCOME ON ACCOUNT OF UNEXPLAINED CASH CREDITS COMMISSIONER NOTICED THAT LENDERS WERE REGULAR INCOME - TAX ASSESSEE AND THEIR PANS WERE ON RECORD IT WAS ALSO UNDISPUTED THAT AMOUNT HAD BEEN ADVANCED THROUGH ACCOUNT PAYEE CHEQUES AND FURTHER BEFORE ISSUING CHEQUES LENDERS HAD GOT SUFFICIE NT BALANCE IN THEIR ACCOUNT MOREOVER, AMOUNT HAD ALSO BEEN REPAID THROUGH ACCOUNT PAYEE CHEQUES IN VIEW OF ABOVE, COMMISSIONER (APPEALS), TAKING A VIEW THAT LOAN TRANSACTIONS WERE GENUINE, DELETED ADDITION MADE BY ASSESSING OFFICER TRIBUNAL UPHELD OR DER OF COMMISSIONER (APPEALS) WHETHER ON FACTS, IMPUGNED ADDITION MADE IN HANDS OF 19 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS ASSESSEE WAS RIGHTLY DELETED HELD, YES [PAPA 5] [IN FAVOUR OF ASSESSEE]. 11. IN THE CASE OF VARINDER RAWLLEY (SUPRA) THE HON'BLE HIGH COURT HAS HELD AS UNDER: - SECTI ON 68 OF THE INCOME - TAX ACT, 1961 CASH CREDIT (SALE OF GOODS) ASSESSMENT YEAR 2002 - 23 WHETHER WHERE ASSESSEE RECEIVED AND RETURNED AMOUNT IN QUESTION BY WAY OF ACCOUNT PAYEE CHEQUES AND TRANSACTIONS WERE REFLECTED IN BANK ACCOUNTS OF ASSESSEE AS WELL AS CREDITOR WHO WAS AN INCOME - TAX ASSESSEE, ASSESSEE HAD SUFFICIENTLY EXPLAINED NATURE AND SOURCE OF CREDIT ENTRY AND IN SUCH CASE ENTRY COULD NOT BE TREATED ASS ASSESSEES INCOME WHEN DEPARTMENT FAILED TO PROVE TO CONTRARY HELD, YES [PARAS 9 AND 10] [I N FAVOUR OF ASSESSEE]. IN THE CASE OF APEX THERM PACKAGING (P) LTD. (SUPRA) THE HON'BLE HIGH COURT HAS CATEGORICALLY HELD THAT WHEN THE ASSESSEE HAD PLACED ON RECORD FULL PARTICULARS, WHICH ARE INCLUSIVE OF CONFIRMATION WITH NAME, ADDRESS AND PAN, COPY OF INCOME TAX RETURNS, BALANCE SHEET, ETC. IN RESPECT OF ALL CREDITORS/LENDERS THEN REVENUE IS NOT JUSTIFIED IN MAKING ADDITIONS . SIMILAR VIEW HAS ALSO BEEN TAKEN BY THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE 20 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS OF VIJAY KUMAR JAIN (SUPRA) AND THE HON'BLE R AJASTHAN HIGH COURT IN THE CASE OF JAI KUMAR BAKLIWAL (SUPRA) AND ALSO IN THE CASE OF ITO VS. VIJAY DWELLERS PVT. LTD. IN ITA NO.141/MUM/2018' FOR A.Y. 2009 - 10 DATED 30.01.19, ITO VS. LOTUS GRIH NIRMAN PVT. LTD. ITA NO.3998/MUM/2014 FOR A.Y. 2010 - 11 DATED 18.10.2018, ITO VS. SHRI NEMICHAND LALCHAND JAIN ITA NO.159/MUM/2017 FOR A.Y. 2007 - 08 DATED 17.12.2018, SHRI VASANT RAMJI SAVLA VS. ACIT IN ITA NO.6123/MUM/2017 FOR A.Y. 2011 - 12 DATED 27.12. 2018, ACIT VS. RAJESH M. SHAH (HUF) ITA NO.7105/MUM/2016 FOR A.Y . 2012 - 13 DATED 30.08.2018 AND M/S. KEYNOTE FINCORP LIMITED VS. DCIT IN ITA NOS. 1643 & 1647/MUM/2018 FOR A.YS. 2012 - 13 AND 2013 - 14 DATED 5.11.2018. 12. IN THE PRESENT CASE , LD. CIT(A) APART FROM APPRECIATING THAT ALL THE DOCUMENTS HAD BEEN PLACED ON RECO RD BY THE ASSESSEE, WHICH IS SPECIFICALLY MENTIONED IN PARA NO. 5.4 OF ITS ORDER HAD ALSO CATEGORICALLY MENTIONED THAT THE AUDITED ACCOUNTS AND RETURN OF INCOME OF ALL THE PARTIES , SHOW THAT THE LOANS GIVEN BY THEM TO THE ASSESSEE WERE REFLECTED IN THEIR AUDITED ACCOUNTS AND THESE PARTIES HAD NOT B ORROWED ANY FUNDS AND THUS HAD UTILISED THEIR 21 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS OWN FUNDS FOR GIVING LOANS TO THE ASSESSEE ON WHICH THEY HAD EARNED INTEREST. IT IS ALSO IM PORTANT TO MENTION HERE THAT THE A.O HIMSELF STATED THAT THE TURNOVER OF THESE PARTIES WAS IN HUNDREDS OF CRORES AND AT THE SAME TIME, AO STATED THESE PARTIES WERE NOT CREDIT WORTHY. IN THIS RESPECT, THE A.O HAD NO T PLACED ON RECORD ANY CORROBORATIVE EVIDE NCE TO SHOW THAT CASH HAD BEEN PAID BY THE A SSESSEE TO THESE PARTIES FOR AVAILING THE LOANS AND HAD NOT BEEN ABLE TO ESTABLISH THE CASH TRAIL AT ALL. ON THE CONTRARY, THE ASSESSEE HAD FILED THE ENTIRE DOCUMENTS , REQUIRED TO ESTABLISH THE IDENTITY OF THE CR EDITORS AND THEIR CREDITWORTHINESS, AS WELL AS THE GENUINENESS OF THE TRANSACTION. 13. AS FAR AS THE CASE LAW RELIED UPON BY THE REVENUE IS CONCERNED, WE HAVE CONSIDERED THOSE CASE LAW, BUT THEY ARE NOT APPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THE PRE SENT CASE AS THE PARI MATERIA CONTAINED IN THOSE CASES ARE DIFFERENT FROM THE PARI MATERIAL CONTAINED IN THE PRESENT CASE. 14. WE ALSO NOTICED THAT LD. CIT(A) HAD RIGHTLY CONCLUDED THAT THE LOANS TAKEN BY THE ASSESSEE WERE SUBSEQUENTLY REPAID THROUGH BANKI NG CHANNELS. THUS, IF THESE LOANS WERE NOT GENUINE, 22 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS THEN IN THAT EVENTUALITY THE SAME WOULD NOT HAVE BEEN REPAID. THEREFORE, CONSIDERING THE ENTIRTIY OF THE FACTS, THE LD. CIT(A) HAD RIGHTLY HELD THAT THE ASSESSEE HAD SATISFIED ALL THE INGREDIENTS OF CASH CREDIT I.E. IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS AND A CCORDINGLY DELETE D THE ADDITION S. 15 . MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US IN ORDER TO CONTROVERT OR REBUT THE F INDINGS SO RECORDED BY LD CIT (A). THEREFORE, THERE ARE NO REASONS FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD. CIT (A). HENCE, WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND AR E WE LL REASONED. RESULTANTLY, THESE GROUND RAISED BY THE REVENUE STANDS DISMISSED . 14. IN THE NET RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST MARCH , 2019. SD/ - SD/ - (N. K. PRADHAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 01 . 0 3 .201 9 SR.PS. DHANANJAY 23 I.T.A. NO. 5615 /MUM/201 7 OM SHANTI REALTORS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI