Sh. Jagpal Singh, Panchkula V. ACIT, Panchkula

ITA 576/CHANDI/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6776 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-02-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Unexplained cash credit
• Section: 133A; 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.576/CHD/2015 (ASSESSMENT YEAR : 2005-06) SH.JAGPAL SINGH, VS. THE A.C.I.T., HOUSE NO.851, SECTOR 11, PANCHKULA CIRCLE, PANCHKULA. PANCHKULA. PAN: AXAPS8356G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AKASH CHAWLA PROXY FOR SHRI AJAY JAIN RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 25.07.2017 DATE OF PRONOUNCEMENT : 16.10.2017 O R D E R PER ANNAPURNA GUPTA, A.M . : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER OF CIT(APPEALS), PANCHKULA DATED 30.3.201 5 RELATING TO ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE LEARNED C.I.T. (A) CHANDIGARH HAS WRONG LY UPHELD THE ADDITION OF RS197000/- ON ACCOUNT OF UNE XPLAINED CREDIT. 2. THAT THE LEARNED C.I.T. (A) CHANDIGARH HAS WRONGL Y UPHELD THE ADDITION OF RS 600,000/- UNDER SECTION 68 OF INCOME TAX ACT 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GR OUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD AND DISPO SED OFF. 3. THE SOLE ISSUE IN THE PRESENT APPEAL PERTAINS T O ADDITIONS MADE ON ACCOUNT OF UNEXPLAINED CASH CREDI TS AMOUNTING TO RS.7.97 LACS. 2 4. THE FACTS LEADING TO THE AFORESAID ADDITION ARE THAT A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WAS CONDUCTED ON THE BUSI NESS PREMISES OF CHANDIGARH OVERSEAS PVT. LTD., SCO NO.1 96- 197, SECTOR 34A, CHANDIGARH AND ITS SISTER CONCERN, DURING THE COURSE OF WHICH CERTAIN INCRIMINATING DOCUMENTS RELATING TO THE ASSESSEE WERE FOUND AND IMPOUNDED. ONE OF THE DOCUMENTS WAS AN AGREEMENT TO SELL DATED 29.1.2 005 ENTERED INTO BY THE ASSESSEE ALONGWITH ONE SHRI GUL SHAN RAI SATIJA AND SHRI BIMAL SURI FOR PURCHASE OF 25 K ANAL 10 MARLA LAND FROM SMT.PUSHPINDER KAUR & OTHERS OF JALANDHAR FOR A A TOTAL CONSIDERATION OF RS.3,767,1 2,500/-. THE AGREEMENT TO SELL SHOWED EVIDENCE REGARDING C ASH RECEIPT AND INCLUDED EARNEST MONEY GIVEN BY THE BUY ERS TO THE SELLERS OF RS.40 LACS ON 29.1.2005 WHICH WAS PA ID BY WAY OF DEMAND DRAFT OF RS.15 LACS AND CASH OF RS.25 LACS. THE SHARE OF EARNEST MONEY PAID BY THE ASSESSEE WAS RS.13.33 LACS, RS.5 LACS THROUGH PAY ORDER AND RS.8 .33 IN CASH. ON BEING ASKED BY THE ASSESSING OFFICER ABOU T THE SOURCE OF INVESTMENT, THE ASSESSEE REPLIED THAT THE PAY ORDER WAS MADE OUT OF HIS MOTHERS SAVING ACCOUNT I N HDFC BANK AND BALANCE CASH WAS ARRANGED FROM UNSECURED L OANS AMOUNTING TO RS.2.36 LACS AND RS.6 LACS CASH RECEIV ED IN ADVANCE AGAINST SALE OF LAND. THE UNSECURED LOANS WERE SHOWN TO HAVE BEEN TAKEN FROM 13 PERSONS, EACH OF W HOM HAD GIVEN CASH BELOW RS.20,000/-. TO VERIFY THE CR EDITORS AND GENUINENESS OF THE TRANSACTIONS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE CREDITORS . THE ASSESSEE 3 FAILED TO PRODUCE THE CREDITORS AND, THEREFORE, THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE HAD FAILED TO SATISFACTORILY EXPLAIN THE IDENTITY, CREDITWORTHINE SS OF THE CREDITORS, AND GENUINENESS OF THE TRANSACTIONS AND, THEREFORE, HELD THE UNSECURED LOANS OF RS.2.36 LACS AS UNEXPLAINED CASH CREDITS. REGARDING ADVANCE OF RS. 6 LACS WHICH WAS SHOWN TO BE RECEIVED IN CASH AGAINST THE SALE OF LAND TO SHRI SAUDAGAR SINGH AND KULBIR SINGH, THE ASSESSING OFFICER NOTED THAT AS PER THE AGREEMENT T HE TOTAL SALE PRICE WAS FIXED AT RS.18.25 LACS AND THE DATE OF REGISTRY WAS FIXED ON OR BEFORE 30.4.2005 BUT EVEN IN THE SUBSEQUENT YEAR THE ASSESSEE HAD NOT SHOWN ANY CAPI TAL GAIN ON THE SALE OF THE SAID LAND. FURTHER THE ASS ESSEE NEVER PRODUCED THESE PERSONS. THEREFORE, THE ASSES SING OFFICER CONCLUDED THAT THE AGREEMENT WAS ONLY AN AF TER THOUGHT OF THE ASSESSEE AFTER THE DEPARTMENT WAS IN POSSESSION OF INCRIMINATING DOCUMENTS REGARDING PAY MENT MADE ON PURCHASE OF PROPERTY IN CASH. SINCE THE AS SESSEE FAILED TO SATISFACTORILY EXPLAIN THE ADVANCE OF RS. 6 LACS RECEIVED IN CASH, THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED MONEY. 5. THE MATTER WAS CARRIED IN APPEAL BEFORE THE CIT (APPEALS). DURING APPELLATE PROCEEDING, THE ASSESS EE SUBMITTED THAT THE CREDITORS COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER DUE TO PAUCITY OF TIME. THE LEARNED CIT (APPEALS), THEREFORE, DIRECTED THE ASSESSING OF FICER TO VERIFY THE CREDITS OF RS.2.36 LACS AND ALSO THE ADV ANCE OF 4 RS.6 LACS RECEIVED BY THE ASSESSEE. DURING THE ASS ESSMENT PROCEEDINGS, THE ASSESSING OFFICER EXAMINED THE SAI D PERSONS WHO CONFIRMED THAT THEY HAD ADVANCED THE SA ID SUM OF RS.6 LACS FOR PURCHASING LAND ,TO THE ASSESS EE. THEY FURTHER STATED THAT THEIR COMBINED ANNUAL INCOME FR OM AGRICULTURE WAS RS.50,000/- APPROX. AND THE SOURCE OF THE SAID ADVANCE WAS AN ADVANCE TAKEN BY THEM FROM AN A ARTIA AT BADDALI,ALLA SINGH DISTT. FATEHGARH SAHIB, WHICH HAD SINCE BEEN RETURNED BY SELLING AN AGRICULTURAL LAND FOR RS.17 LACS. THE ASSESSING OFFICER DISBELIEVED THE CLAIM SINCE HE FOUND THAT IT WAS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. FURTHER THE ASSESSING OFFICE R NOTED THAT THE AMOUNT ADVANCED WAS FORFEITED BY THE ASSES SEE. AS FOR THE PERSONS WHO HAD GIVEN LOANS OF RS.2.36 LACS , THE ASSESSING OFFICER PROVIDED OPPORTUNITY TO THE ASSES SEE TO PRODUCE THEM. ONLY TWO PERSONS WERE PRODUCED BY TH E ASSESSEE ALONGWITH THEIR COPIES OF ITRS, PAN CARDS AND AFFIDAVITS IN SUPPORT OF LOANS GIVEN BY THEM OF RS. 19,000/- AND RS.20,000/-. VIS--VIS THREE MORE PERSONS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD PROVI DED DOCUMENTS SHOWING THEIR IDENTITY ONLY. IN RESPECT OF THE REST EIGHT PERSONS NEITHER ANY EVIDENCE WAS FILED N OR THE SAID PERSONS WERE PRODUCED. THE REMAND REPORT OF T HE ASSESSING OFFICER WAS SENT TO THE ASSESSEE FOR HIS REJOINDER. THE ASSESSEE SUBMITTED IN HIS REJOINDER THAT THE AF FIDAVITS OF ALL THE PERSONS FROM WHOM LOANS HAD BEEN TAKEN H AD BEEN FILED BY THE ASSESSEE. FURTHER THE ASSESSEE F ILED UNDERTAKINGS FROM SIX PERSONS REGARDING THE REPAYME NTS OF 5 UNSECURED LOANS. FOR THE REST, THE ASSESSEE STATED THAT THEY WERE NOT AVAILABLE AND THEREFORE THEIR REPAYME NT UNDERTAKING COULD NOT BE PRODUCED. THE ASSESSEE AL SO SUBMITTED COPY OF JAMABANDI OF LAND OWNED BY HIM ON ACCOUNT OF SALE FOR WHICH ADVANCE WAS RECEIVED FROM S/SHRI KULBIR SINGH AND SAUDAGAR SINGH. THE LEARNED CIT (A PPEALS) AFTER CONSIDERING THE CONTENTIONS OF BOTH THE ASSES SING OFFICER AND THE ASSESSEE HELD THAT THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE CASH RECEIVED OF RS.6 LACS FROM SHRI KULBIR SINGH AND SAUDAGAR SINGH. FURTHER WITH RESPECT TO THE UNSECURED LOANS RECEIVED BY THE ASSE SSEE THE LEARNED CIT (APPEALS) ACCEPTED THE UNSECURED LOANS IN RESPECT OF TWO PERSONS AMOUNTING TO RS.39,000/- AS EXPLAINED, WHILE THE BALANCE WAS TREATED AS UNEXPLA INED. THEREFORE, OUT OF THE TOTAL ADDITION MADE ON ACCOUN T OF UNSECURED LOANS AN ADDITION OF RS.1,79,000/- WAS SUSTAINED .IN EFFECT THE LD.CIT(A) UPHELD ADDITION TO THE EXTENT OF RS.7,79,000/-(6,00,000 + 1,79,000) 6. AGGRIEVED BY THE SAME, THE ASSESSEE HAS COME UP IN APPEAL BEFORE US. DURING THE COURSE OF HEARING BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE HAD DISCHARGED HIS ONUS OF EXPLAINING THE CREDITS SHOWN IN HIS BOOKS OF ACCOUNT ON ACCOUNT OF UNSECUR ED LOANS RECEIVED AS WELL AS ON ACCOUNT OF ADVANCES RE CEIVED FROM SALE OF LAND. 7. TAKING UP FIRST THE ISSUE OF ADVANCE OF RS.6 LA CS RECEIVED ON ACCOUNT OF SALE OF LAND, THE LD. COUNSE L FOR THE 6 ASSESSEE POINTED OUT THAT THE ASSESSEE HAD DEMONSTR ATED THAT HE WAS THE OWNER OF LAND WHICH WAS AGREED TO B E SOLD TO TWO PERSONS WHO HAD PAID ADVANCE OF RS.6 LACS ON ACCOUNT OF THE SAME. THE LD. COUNSEL FOR THE ASSES SEE DREW OUR ATTENTION TO THE DOCUMENTS PLACED AT PAPER BOOK NOS.23 AND 24 OF THE PAPER BOOK WHICH WAS THE COPY OF THE JAMABANDI SHOWING OWNERSHIP OF LAND AGAINST WHICH T HE EARNEST MONEY WAS RECEIVED. THE LD. COUNSEL FOR TH E ASSESSEE ALSO DREW OUR ATTENTION TO PAPER BOOK PAGE NOS.3 TO 5 WHICH WAS THE COPY OF AGREEMENT ENTERED INTO B Y THE ASSESSEE AGAINST WHICH EARNEST MONEY OF RS.6 LACS W AS RECEIVED. THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT IN REMAND PROCEEDING BOTH SHRI KULBIR SINGH AND SAU DAGAR SINGH, WHO WERE THE PURCHASERS OF THE AFORESAID LAN D, HAD ADMITTED THAT THEY HAD ENTERED INTO THE AFORESAID A GREEMENT TO BUY THE LAND FROM THE ASSESSEE AND HAD FURTHER A DMITTED TO HAVE PAID THE AMOUNT OF RS.6 LACS TO THE ASSESSE E. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT IT IS EVID ENT FROM THIS THAT THE ASSESSEE HAD DISCHARGED ITS ONUS OF P ROVING THE IDENTITY OF THE CREDITORS, THE CREDITWORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION ENTERED INTO BY IT. THE LD. COUNSEL FOR THE ASSESSEE FURTHER STATE D THAT ADDITION HAD BEEN UPHELD BY THE LEARNED CIT (APPEAL S) SINCE THE SOURCE OF GIVING THE ADVANCE BY S/SHRI KULBIR S INGH AND SAUDAGAR SINGH WAS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT IT WAS NOT REQUIRED TO EXPLAIN THE SOURCE OF THE SOURC E. RELIANCE WAS PLACED ON THE DECISION OF THE I.T.A.T. , 7 CHANDIGARH BENCH IN THE CASE OF SMT.POONAM CHAUHAN VS. ITO IN ITA NO.901/CHD/2014 DATED 7.11.2016 AND ON T HE DECISION OF HON'BLE RAJASTHAN HIGH COURT IN THE CAS E OF ARAVALI TRADING CO. VS. ITO (2008) 220 CTR 622. 8. THE LEARNED D.R, ON THE OTHER HAND, POINTED OUT THAT BOTH S/SHRI KULBIR SINGH AND SAUDAGAR SINGH HA D ADMITTED IN THEIR STATEMENTS THAT THEIR YEARLY INCO ME JOINTLY WAS RS.50,000/- TO RS.60,000/-. THE LEARNED D.R. P OINTED OUT THAT SHRI KULBIR SINGH HAD EXPLAINED THE SOURCE OF MAKING SUCH ADVANCE AS ADVANCE FURTHER RECEIVED BY HIM FROM AN AARHTIA AT BADDALI ALLA SINGH, DISTT. FATEH GARH SAHIB. THE LEARNED D.R. FURTHER POINTED OUT THAT H E HAD ALSO ADMITTED TO HAVE RETURNED THE SAID AMOUNT TO T HE AARHTIA FROM SALE OF AGRICULTURAL LAND OWNED BY HIM . THE LEARNED D.R. FURTHER POINTED OUT THAT THE SAID ADVA NCE GIVEN TO THE ASSESSEE WAS FORFEITED BY THE ASSESSEE . THE LEARNED D.R. FURTHER POINTED OUT THAT NO DOCUMENTAR Y EVIDENCE OF ANY OF THE CLAIMS MADE BY S/SHRI KULBIR SINGH AND SAUDAGAR SINGH WAS FILED. IT WAS FURTHER SUBMI TTED THAT IT WAS DIFFICULT TO BELIEVE AND IT WAS A CLEAR LY COOKED UP STORY THAT RS.6 LACS WERE ADVANCED AND FURTHER F ORGONE BY PERSONS WHO WERE EARNING ONLY RS.50,000/- PER Y EAR. IT WAS ALSO DIFFICULT TO BELIEVE THAT THE PERSONS WITH SUCH MEAGER INCOME HAD BEEN ADVANCED MONEYS BY AARTIAS A ND SINCE NO EVIDENCE OF HAVING SOLD SOME LAND FOR RETU RNING THE SAID MONEY TO THE AARHTIA WAS FILED, THE ENTIRE STO RY WAS ONLY COOKED UP AND THERE WAS NO MERIT IN THE SAME. THE 8 LEARNED D.R. POINTED OUT THAT CLEARLY THE CREDITWOR THINESS OF THE CREDITORS WAS NOT PROVED IN THE PRESENT CASE AND, THEREFORE, THE ADDITION UPHELD BY THE LEARNED CIT ( APPEALS) ON THIS ACCOUNT WAS CORRECT. 9. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND DOCUMENTS TO WHICH OUR ATTENTION HAS BEEN DRAWN . WE FIND NO INFIRMITY IN THE ORDER OF THE LD.CIT(A) HOL DING THE SAID ADVANCE OF RS.6 LACS AS UNEXPLAINED. WE ARE IN COMPLETE AGREEMENT WITH THE LD.CIT(A) THAT THE CREDITWORTHINESS OF SHRI KARTAR SINGH AND SH. SAUDA GAR SINGH TO MAKE THE SAID ADVANCE AND THE GENUINENESS OF THE TRANSACTION HAS NOT BEEN PROVED. ADMITTEDLY, THE SA ID PERSONS WERE AGRICULTURISTS AND JOINTLY EARNED AGRI CULTURE INCOME OF RS.50,000/- TO RS.60,000/- PER ANNUM. TH E SAME HAS BEEN ADMITTED BY THEM IN THEIR STATEMENTS RECORDED BY THE ASSESSING OFFICER AND FILED BEFORE US IN PAPER BOOK. THIS UNDOUBTEDLY IS NOT ENOUGH MONEY F OR MAKING THE ADVANCE OF RS.6 LACS TO A PERSON WHICH I S ALSO ADMITTEDLY FORGONE. FURTHER EXCEPT FOR MAKING ORAL CLAIMS THAT THE ADVANCE WAS FINANCED BY AN ADVANCE TAKEN F ROM AN AARHTIA AND WHICH WAS REPAID FROM THE SALE PROCEEDS OF A LAND SOLD, NO DOCUMENTARY EVIDENCE SUBSTANTIATING T HE SAME WAS EVER FILED EITHER BEFORE THE LOWER AUTHORI TIES OR EVEN BEFORE US. THE ORAL STATEMENTS THEREFORE CAN NOT BE RELIED UPON AND IT REMAINS THAT THE CREDITWORTHINE SS OF THE SAID CREDITORS IS NOT ESTABLISHED UNDOUBTEDLY, THE ENTIRE 9 STORY APPEARS TO BE A COOKED UP . THEREFORE, WE ARE IN AGREEMENT WITH THE LEARNED CIT (APPEALS) THAT THE S AID ADVANCE HAS REMAINED UNEXPLAINED AND ADDITION MADE BY THE LEARNED CIT (APPEALS) IS, THEREFORE, CONFIRMED. 10. ON THE ISSUE OF LOAN RECEIVED BY THE ASSESSEE AMOUNTING TO RS.2.36 LACS THE ASSESSEE HAD STATED T HAT IT HAD RECEIVED THE SAID AMOUNT FROM THE FOLLOWING 13 PERSONS: SERIAL NO. NAME OF PERSONS GIVING THE LOAN AMOUNT OF LOAN IN RUPEES 1. ASHWINI KUMAR SAINI 20000/- 2. BALKRISHNA VERMA 20000/- 3. BHUPINDER PAL SINGH 17000/- 4. DILBAGH SINGH 17000/- 5. GURCHARAN SINGH 18000/- 6. GURSATWANT SINGH 18000/- 7. HARKIRAT SINGH 18000/- 8. JANAKRAJ KAPOOR 19000/- 9. KULWINDER SINGH 18000/- 10. MEHRABAN 19000/- 11. RIPUDAMAN SINGH 15000/- 12. SANDEEP SUKHIJA 20000/- 13. SURINDER SINGH 17000/- TOTAL 236000/- 1`. DURING THE ASSESSMENT PROCEEDINGS, AFFIDAVIT S OF THE ABOVE PERSONS WERE FILED BUT ON BEING ASKED TO PRODUCE THEM THE ASSESSEE DID NOT DO SO. THE ASSESSING OFF ICER, THEREFORE, TREATED THE SAID UNSECURED LOANS AS UNEX PLAINED AND ADDED THE SAME TO THE INCOME OF THE ASSESSEE. DURING APPELLATE PROCEEDING IN REMAND TO THE ASSESSING OFF ICER THE ASSESSEE PRODUCED TWO PERSONS OUT OF THE ABOVE 13 I .E. SHRI MEHARBAN ALI AND SHRI ASHWANI KUMAR SAINI ALONGWITH THEIR COPIES OF INCOME-TAX RETURNS, PAN CARDS AND A FFIDAVITS STATING THAT THEY HAD ADVANCED THE AMOUNTS OF RS.19 ,000/- 10 AND RS.20,000/- RESPECTIVELY TO THE ASSESSEE. FURT HER WITH RESPECT TO THE LOANS GIVEN BY S/SHRI DILBAG SINGH, JANAK RAJ KAPOOR AND GURCHARAN SINGH, COPIES OF VOTER ID, BANK ACCOUNTS STATEMENTS AND PAN CARD WAS FURNISHED. IN RESPECT OF THE BALANCE, NO DOCUMENT WAS PRODUCED. FURTHER IN REPLY TO THE REMAND REPORT OF THE ASSESSEE, THE ASSESSEE SUBMITTED UNDERTAKING FROM FOLLOWING 6 PERSONS FOR THE PAYMENT OF UNSECURED LOANS: SERIAL NO. NAME OF PERSONS GIVING THE LOAN AMOUNT OF LOAN IN RUPEES 1. DILBAGH SINGH 17000/- 2. JANAKRAJ KAPOOR 19000/- 3. GURCHARAN SINGH 18000/- 4. BHUPINDER PAL SINGH 17000/- 5. GURSATWANT SINGH 18000/- 6. KULWINDER SINGH 18000/- 12. FOR THE BALANCE, THE ASSESSEE STATED THAT SIN CE THEY WERE NOT AVAILABLE, THE REPAYMENT UNDERTAKING COULD NOT BE PRODUCED. THE LEARNED CIT (APPEALS) HELD TH AT OUT OF THE UNSECURED LOANS OF RS.2.36 LACS, THE LOAN TAKEN FROM S/SHRI MEHARBAN ALI AND ASHWANI KUMAR SAINI TOTALIN G RS.39,000/- STOOD EXPLAINED AND, THEREFORE, DELETED ADDITION TO THIS EXTENT. THE BALANCE ADDITION MADE WAS UPHELD BY THE LEARNED CIT (APPEALS). 13. DURING THE COURSE OF ARGUMENTS BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STATED THAT ALL NECESSARY EVIDENCES HAD BEEN FILED BEFORE THE LOWER AUTHORITIES AND ONU S OF THE ASSESSEE AS CONTEMPLATED UNDER SECTION 68 OF THE AC T STOOD DISCHARGED. THE LD. COUNSEL FOR THE ASSESSEE STATE D THAT MERELY BECAUSE THE CREDITORS WERE NOT PRODUCED, THE SAID CREDITS COULD NOT BE TREATED AS UNEXPLAINED AND ADD ITION 11 MADE ON ACCOUNT OF THE SAME. THE LD. COUNSEL FOR T HE ASSESSEE RELIED UPON HE DECISION OF THE HON'BLE APE X COURT IN THE CASE OF CIT VS. ORISSA CORPORATION (P) LTD., 159 ITR 78 (SC). 14. THE LEARNED D.R., ON THE OTHER HAND RELIED UPO N THE ORDER OF THE LEARNED CIT (APPEALS) AND STATED THAT MERELY BY FILING AFFIDAVITS AND UNDERTAKINGS OF REP AYMENTS TO THE SAID CREDITORS, THE ONUS ON THE ASSESSEE COU LD BE SAID TO BE DISCHARGED. THE ASSESSEE HAD FAILED TO PROVE THE IDENTITY OF THE SAID PERSONS IN MOST OF THE CASES A ND HAD ALSO FAILED TO PROVE THE CREDITWORTHINESS OF THE SA ID PERSONS. THE GENUINENESS OF THE TRANSACTION ALSO R EMAINED UNSUBSTANTIATED AND UN-PROVED. THE LEARNED D.R., THEREFORE, STATED THAT THE ADDITION MADE ON ACCOUNT OF THE AFORESAID UNSECURED LOAN HAD BEEN RIGHTLY UPHELD BY THE LEARNED CIT (APPEALS). 15. HAVING HEARD BOTH THE PARTIES WE FIND NO REASO N TO UPHOLD THE ADDITION. UNDISPUTEDLY THE ASSESSEE H AD CLAIMED RECEIVING LOANS IN CASH EACH BELOW 20,000/- FROM 13 PERSONS OUT OF WHICH TWO WERE FOUND TO BE GENUIN E BY THE AO HIMSELF. OF THE BALANCE 11 LOAN CREDITORS, A DMITTEDLY AFFIDAVITS OF ALL OF THEM CONFIRMING THE LOAN GIVEN WAS FILED, IN CASE OF THREE CREDITORS THEIR VOTER IDS, BANK S TATEMENT & PAN CARD COPY WAS ALSO FILED, WHILE IN CASE OF SIX CREDITORS UNDERTAKING OF REPAYMENT MADE TO THEM WAS ALSO FIL ED. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, THE ASSESSEE, WE HOLD, HAS DISCHARGED HIS ONUS OF 12 ESTABLISHING THE GENUINENESS OF THE TRANSACTION AND MERELY BECAUSE HE FAILED TO PRODUCE THEM DURING REMAND PRO CEEDS THE CREDITS CANNOT BE SAID TO BE UNEXPLAINED, ESPEC IALLY WHEN THE ASSESSEE HAD REQUESTED THE AO TO EXERCISE HIS POWERS U/S 131 OF THE ACT TO VERIFY THE SAID LOANS. THE ADDITION UPHELD BY LEARNED CIT (APPEALS), OF RS.1,9 7,000/- IS THEREFORE DIRECTED TO BE DELETED. THE GROUND OF APPEAL NO.1 RAISED BY THE ASSESSEE IS ALLOWED WHILE GROUND NO.2 IS DISMISSED. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16 TH OCTOBER, 2017 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH