SHRI ARPIT MAMODIA, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 625/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3595 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 28-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI D DHK
• Assessee Lawyers: SL GUPTA
• Keywords: Unexplained cash credit; Salary income; Deemed to accrue or arise in india
• Section: 131; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 625/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 SHRI ARPIT MAMODIA PROP. M/S. SAMRIDHI ENTERPRISES E-26, JANPATH MARG, SHASTRI NAGAR, JAIPUR CUKE VS. THE ITO WARD- 4(5) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: BBIPM4555 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI S.L. GUPTA, CA JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI, DCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/04/2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 01/05/2018 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-2, JAIPUR DATED 30-05-2017 FOR THE ASSESSME NT YEAR 2012-13 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD. CIT(A) GROSSLY ERRED IN SUSTAINING AN ADDITION OF R S. 4,60,000/- U/S 68 OF THE I.T. ACT, 1961 ON ACCOUNT OF ALLEGED BOGUS/U NEXPLAINED CASH CREDITS FROM THE FOLLOWING. S.N. NAME RELATION LOAN TAKEN (RS. ) ADDITION MADE BY AO (RS. ) ADDITION SUSTAINED BY LD. CIT (A) (RS.) ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 2 1. SHRI ANKIT MAMODIA BROTHER 150000 120000 120000 2. DILIP MAMODIA UNCLE 200000 200000 150000 3. SMT.PUSHPA MAMODIA AUNT 100000 90000 90000 4. SHRI DINESH GUPTA LATE FATHERS FRIEND 200000 20000 10000 TOTAL 1250000 610000 460000 2.1 APROPOS SOLITARY GROUND OF THE ASSESSEE, THE FA CTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLA NT. THE APPELLANT HAS TAKEN LOANS FROM FOUR PEOPLE AND THE ASSESSING OFFICER AFTER DISCUSSING THE SAME HAS HELD AN AMOUN T OF RS. 6,10,000/- OUT OF RS. 6,50,000/- AS UNEXPLAINED. EA CH CASE IS DISCUSSED (I) ANKIT MAMODIA TOTAL LOAN CLAIMED IS RS. 1,50,000/- OUT OF WHICH RS. 1,20,000/- HAS BEEN TRE ATED AS UNEXPLAINED. IT IS SEEN THAT CASH AMOUNTS OF RS. 45 ,000/- HAVE BEEN DEPOSITED ON 4-10-2011 AND 8-10-2011 AND RS. 30,000/- ON 10-10-2011 AND CHEQUE OF RS. 1,50,000/- ISSUED ON 11-10-2011. THE SOURCES INCLUDE SALARY OF RS. 1. 50 LAKHS FROM DINESH & COMPANY IN ASSESSMENT YEAR 2010-11, R S. 1.08 LAKHS IN ASSESSMENT YEAR 2009-10 AND RS. 96,00 0/- IN THE ASSESSMENT YEAR 2008-09. HOWEVER, AS PER THE SW ORN STATEMENT RECORDED BY THE ASSESSING OFFICER, IT WAS CLAIMED THAT THE AMOUNT OF RS. 1.50 LAKHS WAS FORWARDED FRO M SAVINGS FROM THIS INCOME. FURTHER, AS PER INCOME TA X RETURNS THE SALARY WAS SHOWN AS RS. 60,000/- AND THE DIFFER ENCE BETWEEN THE SALARY AS PER CONFIRMATION OF DINESH & COMPANY AND THAT SHOWN IN THE RETURN COULD NOT BE RECONCILED BY THE PARTY. FURTHER, IT WAS SEEN THAT THE CONFIRMATION FILED BY ANKIT MAMODIA REFERRED TO RS. 1 LAKH AS LOAN WHILE IN THE SWORN STATEMENT THE SAME WAS C LAIMED AT RS. 1.5 LAKHS. SINCE THE PERSON IS GETTING A MEAGER SALARY OF RS.8,000/- TO RS. 10,000/- PER MONTH, THERE IS DISC REPANCY IN ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 3 AMOUNTS EXTENDED AND CONFIRMED, THE AMOUNTS SHOWN A S SALARY IN INCOME TAX RETURNS ARE NOT TALLYING WITH CONFIRMATION FILED AND CASH AMOUNTS WERE DEPOSITED IN THE BANK BEFORE EXTENDING THE LOAN, THE ADDITION MADE B Y THE ASSESSING OFFICER IS CONFIRMED AS THE CREDITWORTHIN ESS OF THE CREDITOR COULD NOT BE SATISFACTORILY PROVED. (II) DILIP MAMODIA HE IS THE UNCLE OF THE ASSESSEE AND EXTENDED RS. 2,00,000/- AND THE ENTIRE AMOUNT H AS BEEN DISALLOWED BY THE ASSESSING OFFICER. THE AMOUNT WA S CLAIMED TO BE FROM SAVINGS RELATING TO SALARY RECEI VED. HIS BANK BALANCE ON 15-09-2009 WAS ONLY RS. 4,390/- AND CASH WAS DEPOSITED PRIOR TO ISSUE OF CHEQUES TO THE ASSE SSEE. THE PERSON IS RECEIVING A SALARY OF RS. 20,000/- TO RS. 25,000/- PER MONTH BUT COULD NOT GIVE DETAILS OF MONTHLY EXP ENDITURE AND SAVINGS THEREON. AS EVIDENCE OF SALARY AUDIT RE PORT OF SHRI SHIV PRASAD SHYAM SUNDER, SHOWING A SALARY OF RS. 2,16,000/- AND INTEREST AND BONUS OF RS. 55,616/- A ND RS. 18,000/- WAS FILED. M/S. SHIV PRASAD SUNDER IS THE PROPRIETARY OF SHRI SHYAM SUNDER MAMODIA. FURTHER C ASH HAS BEEN DEPOSITED ON DIFFERENT DATES BEFORE ISSUE OF CHEQUE TO THE APPELLANT. HOWEVER, THE PERSON IS ASSESSEE'S UNCLE AND COULD HAVE HELPED ASSESSEE FROM HIS SAVINGS. CONSID ERING THE TOTALITY OF FACTS AND LIMITED SALARY, AN AMOUNT OF RS. 50,000/- IS TAKEN AS EXPLAINED AND THE BALANCE AMOU NT IS DISALLOWED. (III) SMT. PUSHPA MAMODIA SHE IS THE AUNT OF THE ASSESSEE AND EXTENDED AN AMOUNT OF RS. 1,00,000/- O UT OF WHICH RS. 90,000/- HAS BEEN HELD UNEXPLAINED BY THE ASSESSING OFFICER.SHE IS HOUSEWIFE AND DOES NOT FIL ED THE RETURN OF INCOME. IN THE SWORN STATEMENT SHE STATED THAT HER HUSBANBD IS AWARE OF THE TRANSACTION AND SHE HAS NO KNOWLEDGE OF THE SAME. IT IS SEEN THAT AMOUNTS OF R S. 45,000/- ARE DEPOSITED ON 4-10-2011 AND 8-10-2011 B EFORE ISSUING THE CHEQUE ON 11-10-2011. THE SOURCES WERE STATED AS RELATING TO HER SAVINGS FROM AMOUNTS RECEIVED ON RELIGIOUS AND SOCIAL OCCASION, NO DOCUMENTARY EVIDENCE OF THE SAVINGS ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 4 WAS PRODUCED, FURTHER CASH IS DEPOSITED BEFORE ISSU ANCE OF CHEQUE AND THE PERSON IS NOT AN INCOME TAX ASSESSEE , THE CREDITWORTHINESS COULD NOT BE PROVED, THE ADDITION IS SUSTAINED. (IV) SHRI DINESH GUPTA HE IS AN LIC/GIC AGENT HAVING COMMISSION INCOME OF AROUND RS. 5.50 LAKHS A ND IS AN INCOME TAX ASSESSEE AS WELL AS MAINTAINS HIS BOO KS OF ACCOUNTS. THE PURPOSE OF LOAN WAS STATED BY HIM AS HIS CLOSENESS TO THE ASSESSEE'S GRANDFATHER WHO HAD HEL PED HIM IN THE PAST. AS REGARDS DEPOSIT OF CHEQUE OF RS. 50 ,000/- AND RS. 1.50 LAKHS IN CASH HE STATED THAT THE CASH WAS DEPOSITED OUT OF RS. 50,000/- WITHDRAWN BY HIM ON 25-04-2011 AND FURTHER AMOUNTS WITHDRAWN BY HIM FROM OTHER ACCOUNT S FROM TIME TO TIME. IN VIEW OF THE FACT THAT RS. 50,000/- RELATES TO A AMOUNT DEPOSITED BY CHEQUE IN THE BANK ACCOUNT OF T HE PARTY AND WITHDRAWAL OF RS. 50,000/- IS EVIDENCED FROM TH E BANK STATEMENT PROVIDED BY HIM, AN AMOUNT OF RS. 1,00,00 0/- IS CONSIDERED AS EXPLAINED AND ADDITION OF RS. 1,00,00 0/- BALANCE MADE BY THE ASSESSING OFFICER IS CONFIRMED. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION SUSTAINED BY THE LD. CIT(A) FO R WHICH THE LD.AR OF ASSESSEE PLEADED AND ALSO FILED THE WRITTEN SUBMIS SION. A. ANY SUM CREDITED CANNOT BE PARTLY EXPLAINED AN D PARTLY UNEXPLAINED: THE LD A.O OUT OF SUM CREDITED AS LOAN FROM CERTAIN RELATIVE PERSON TREATED PARTLY EXPLAINED AND PARTLY UNEXPLAINED AS TABLE GI VEN ABOVE AND ADDITION SUSTAINED FOR PART OF CREDIT AS UNEXPLAINED CREDIT U/S 68. HO WEVER OUT OF ANY DEPOSIT RECEIVED AND CREDITED IN BOOKS, HOW IT COULD BE PARTLY UNEXP LAINED FOR PURPOSE OF CHARGE TO INCOME TAX UNDER THIS SECTION. THE CLEAR READING OF SECTION AS UNDER: WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLA NATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, I N THE OPINION OF THE ASSESSING ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 5 OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE C HARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. FROM THE CLEAR READING OF SECTION, THE SATISFACTION OF EXPLANATION REQUIRED FOR SUM SO CREDITED AND NOT OUT OF SUM SO CREDITED AND HENCE SATISFACTION OF EXPLANATION CAN BE COMPLETE FOR SUM SO CREDITED CAN NOT BE PART LY SATISFIED AND PARTLY UNSATISFIED. ONCE THE LD A.O/CIT APPEAL IS SATISFIED FOR ANY EXP LANATION OFFERED BY ASSESSEE, THE SATISFACTION IS TO BE TREATED FOR WHO LE SO SUM CREDITED AND THERE IS NO QUESTION OF PARTLY UNEXPLAINED OUT OF SUCH SUM. THE LD CIT APPEAL GROSSLY ERRED IN SUSTAINING ADDITION U/S 68 BY TREATING CREDIT PARTL Y EXPLAINED FOR PURPOSE OF CHARGING TAX U/S 68. B. ON MERIT WE FURTHER SUBMIT AS UNDER: 1. THE APPELLANT SUBMITTED FOLLOWING DOCUMENT IN SU PPORT OF VERIFYING THE TRANSACTION: ANKIT MAMODIA(CREDIT RS 150000, ADDITION SUSTAI NED RS 120000) CONFIRMATION (PB24) AN AFFIDAVIT (PB 25-26) COPY OF BANK STATEMENT(PB 27) COY OF SALARY CERTIFICATE FROM M/S DINESH &CO (RELA TIVE FIRM) ALONGWITH COPY OF AUDIT REPORT U/S 44AB IN FORM 3CD OF THAT FIRM SPEC IFYING SALARY PAID BY THAT FIRM.(PB 28-50) DILIP MAMODIA(CREDIT RS200000-ADDITION SUSTAINED RS 150000 ) CONFIRMATION (PB60) AN AFFIDAVIT (PB 61-62) COPY OF BANK STATEMENT (PB63) COY OF AUDIT REPORT U/S 44AB IN FORM 3CD OF M/S SH IV PRASHAD SHYAM SUNDER FOR VERIFICATION OF SALARY RECEIVED FROM THAT FIRM SPE CIFYING SALARY PAID BY THAT FIRM.(PB64-94) COPY OF ITR(PB 95-98) PUSPA MAMODIA( CREDIT RS 100000, ADDITION SUSTAINED RS 90000) CONFIRMATION (PB106) AN AFFIDAVIT (PB 107-1808) COPY OF BANK STATEMENT (PB 109) SHRI DINESH GUPTA(CREDIT RS 200000, ADDITION SUSTAI NED RS 100000) CONFIRMATION (PB 113) AN AFFIDAVIT (PB114-115) COPY OF BANK STATEMENT (PB116) COPY OF ITR,COMPUTATION AND BALANCE SHEET (PB117-12 0) 2. THAT DURING COURSE OF HEARING, ALL THESE CREDITO RS PRODUCED BEFORE THE LD A.O AND STATEMENT RECORDED BY HIM. THE ALLEGED BOGUS CASH CREDITORS HAVE NO WHERE DENI ED THAT LOANS HAVE NOT BEEN GIVEN TO TH E APPELLANT. THE FACT OF GIVING LOAN BY THE CREDITORS IS ESTABLISHED BY ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 6 THECONFIRMATION S . AFFIDAVITS , STATEMENTS RECORDED BY THE A . 0. AND OTHER EVIDENCES ON RECORD (SUPRA). THE ID. A O WRONGLY REPRODUCED SOME PART OF THE STATEMENTS REC ORDED IN THE ASSESSMENT ORDER . THE ENTIRE STATEMENTS ARE READ AS A WHOLE IN SEQUEN CE ESTABLISHES THAT THE LOANS IS GENUINE & THE CREDITORS ARE CAPABLE TO ADVANCE SUCH LOANS. 3. FROM THE DOCUMENTS SUBMITTED AND STATEMENT OF CRED ITED AS ABOVE, IT IS AMPLY EVIDENT THAT THE OANS RECEIVED AREGENUINE & THE CREDITORS HAD CAPACITY TO ADVANCE THE LOANS. THE LD A.O MADE ADDITION ERELY BECAUSE CASH IS DEPO SITED IN THE BANK ACCOUNTS OF THE CREDITORS BEFORE ISSUE OF CHEQUE, IT DOES NOT NECES SARILY IMPLY EITHER THAT THE CASH DOES NOT BELONG TO THE CREDITOR OR THE CREDITOR DOES NOT HAV E CAPACITY TO DEPOSIT SUCH AMOUNT IN HIS BANK ACCOUNT. DURING THE PERIOD OF DEMONETIZATION ALL CITIZENS ARE DEPOSITING THEIR PAST SAVINGS IN THEIR RESPECTIVE BANK ACCOUNTS AND THE G OVERNMENT ITSELF HAS ACCEPTED THE FACT THAT NO INQUIRY SHALL BE CONDUCTE D IN CASE A PERSON DEPOSITS HIS/HER CASH SAVINGS IN HIS / HER BANK ACCOUNTS UPTO A LIMIT OF RS . 2.5 LAKHS IN SAVINGS ACCOUNT. IN THIS REGARD, CBDT ISSUED NOTIFICATION NO. 104 / 2016-IT ON 15.11 . 2016 AMENDING RULE 114B PROVIDING THAT NO REPORTING SHALL BE MADE UPTO RS.2 .5 LAKHS CASH DEPOSIT IN SAVING ACCOUNT (COPY OF NOTIFICATION IS ENCLOSED). THIS CLEARLY EV IDENT THAT PAST SAVING UPTO 2.50 LACS IN CASH IS JUSTIFIED. IN THE APPELLANT CASE, NON OF CREDITO R DEPOSITED MORE THAN 1.50 LAC FOR LOAN TO HIM. 3. AS REGARDS TO VARIOUS ALLEGATION OF A.O AND LD C IT APPEAL, WE SUBMIT PARTY WISE CLARIFICATION AS UNDER: SHRI ANKIT MAMODIA IS ELDER BROTHER GIVEN CHEQUE AMOUTING RS 150000 F OR WHICH HE HAS DEPOSITED CASH RS 120000 OUT OF ACCUM ULATED PAST SAVINGS FROM SALARY INCOME AS STATED BY HIM IN STATEMENT RECORDE D BY A.O. DURING COURSE OF HEARING(PB 55).HE WAS DRAWING SALARY FROM MIS DINE SH & CO. FROM 2008 TO 2011 AMOUNTING RS 8000 TO 10000 AND AS STATED IN S TATEMENT RECORDED HIS ESTIMATED EXPENDITURE UPTO 2012-13 WAS ABOUT RS 200 0 PER MONTH(PB53 Q.7). AS SUCH HIS TOTAL SAVING UPTO 2011 WAS RS 252000 OUT O F WHICH HE HAS DEPOSITED RS 120000/- IS JUSTIFIED. ALL THE DOCUMENTS OF RELAT ING TO VERIFICATION OF SALARY INCOME I.E. CERTIFICATE FROM EMPLOYER AND INDEPENDE NT AUDIT REPORT IN FORM 3CD WHERE SALARY PAID TO HIM MENTIONED SUBMITTED. THE L OAN RS 150000/- IS VERIFIED FROM LEDGER ACCOUNT, BANK STATEMENT AND STATEMENT R ECORDED DURING COURSE OF HEARING. THE LD CIT APPEAL AGAIN CREATED DOUBT ON BASIS OF CLERICAL MISTAKE IN HIS RETURN OF INCOME AND CONFIRMATION. HOWEVER WHE N CORRECT SALARY AND LOAN HAS BEEN VERIFIED FROM INDEPENDENT DOCUMENT AS MENT IONED ABOVE AND HE HAS ADMITTED HIS MISTAKE IN HIS STATEMENT RECORDED DURI NG COURSE OF HEARING, THERE IS NO QUESTION OF DOUBT. THE LD CIT APPEAL ERRED IN NO T CONSIDERING FACTS AS PROVED FROM DOCUMENTS. SHRI DILIP MAMODIA IS UN C LE OF THE APPELLANT GIVEN CHEQUE AMOUTING RS 200000 FOR WHICH HE HAS DEPOSITED CASH RS 150000 OUT OF A CCUMULATED PAST SAVINGS FROM SALARY INCOME AS STATED BY HIM IN STATEMENT RECORDE D BY A.O. DURING COURSE OF HEARING(PB 102).HE WAS DRAWING SALARY FROM MIS SHI V PRASHAD SHYAM SUNDER AMOUNTING RS 148000 IN 2009-10 AND 234000 I N 2010-11 AND AS STATED IN STATEMENT RECORDED HIS ESTIMATED EXPENDITURE WA S ABOUT RS 8000 PER MONTH(PB100 Q.4). AS SUCH HIS TOTAL SAVING IN LAST TWO YEARS ITSELF WAS RS 190000 OUT OF WHICH HE HAS DEPOSITED RS 150000/- IS JUSTIF IED AND THE SALARY INCOME IS VERIFIABLE FROM INDEPENDENT AUDIT REPORT IN FORM 3 CD OF M/S SHIV PRASHAD SHYAM SUNDER WHERE SALARY PAID TO HIM MENTIONED. TH E LD CIT APPEAL HOWEVER CONSIDERED EXPLAINED ONLY RS 50000/- OUT OF RS 200000/- GIVEN ARBITRARILY. ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 7 SMT. PUSHPA MAMODIA IS AUNT OF THE APPELLANT HAS G IVEN CHEQUE AMOUNTING RS 100000 FOR WHICH HE HAS DEPOSITED CASH RS 90000 OUT OF ACCUMULATED PAST SAVINGS FROM SUM RECEIVED ON RELIGIOUS AND SOCIAL O CCASIONS AS STATED IN HER STATEMENT RECORDED DURING COURSE OF HEARING(PB 112 Q10).THE LD A.O TREATED IT UNEXPLAINED BY SAYING THAT SHE IS NOT FILING ITR AN D NO DOCUMENTARY EVIDENCE TO PROVE HER CONTENTION ARBITRARILY. IT IS HUMBLY SUBM ITTED THAT SIMPLY BECAUSE A CASH CREDITOR DOES NOT FILE HIS/HER RETURN OF INCOM E OR SIMPLY BECAUSE SHE IS A HOUSEWIFE, IT DOES NOT NECESSARILY MEAN THAT THE LO AN IS BOGUS OR NOT GENUINE . IT IS A WELL ESTABLISHED FACT THAT HOUSEWIVES IN INDIA GE NERALLY DO NOT HAVE BANKING HABITS. RELIANCE IS BEING PLACED ON THE FOLLOWING J UDGMENTS IN THIS REGARD : - PRABHAJEE KAUR VS . ITO (ITAT JAIPUR BENCH) XXXIV TAX WORLD 101 SHRI DINESH KUMAR GUPTA IS FRIEND OF APPELLANTS LA TE FATHER HAS GIVEN RS 200000/-. HE LLC / GIC AGENT HAVING COMMISSION INCOME OF AROUND RS . 5 . 50 LAKHS AND PREPARES FINANCIAL STATEMENTS COMPRISING OF P&L ACCOUNT , CAPITAL A L E, BALANCE SHEET ETC. WHICH WAS ALSO SUBMITTED WITH HI S RETURN OF INCOME FILED. THE LOAN GIVEN IS CORRECTLY APPEARING IN HIS BALANCE SH EET(PB 120).HE HAS ALSO EXPLAINED SOURCE OF CASH DEPOSITED IN BANK IN HIS S TATEMENT RECORDED DURING COURSE OF HEARING BY A. O(PB 123 Q.NO 11). THE LD A.O FOUND CASH DEPOSIT N OT SATISFACTORY ARBITRARILY WITHOUT CONSIDERING THE FA CT AND WITH IRRELEVANT GROUND. 4. IT IS FURTHER SUBMITTED AS UNDER :- 4.1 IDENITITY, CAPACITY OF CREDITORS AND GENUINENES S OF TRANSACTION STANDS ESTABLISHED APPELLANT HAS DISCHA RGED ITS ONUS. IT IS HUMBLY SUBMITTED THAT THE APPELLANT HAS ESTAB LISHED THE IDENTITY AND CAPACITY OF THE LOAN CREDITORS AS WELL AS THE CAPACITY & GENUINENESS OF THE TRANSACTIONS. THIS IS EVIDENT FROM THE FOLLOWING :- THE IDENTITY OF THE LOAN CREDITORS HAS BEEN ESTABLI SHED BY FILING CONFIRMATIONS, BANK PASS BOOKS, AFFIDAVITS, INCOME TAX RETURNS AND ALSO THEY PERSONALLY APPEARED BEFORE THE A O . U / S 131 & THEIR STATEMENTS WERE ALSO RECORDED. THE CAPACITY OF THE LOAN CREDITORS IS PROVED THROUG H AFFIDAVITS, INCOME TAX RETURNS, SALARY CERTIFICATES , AUDIT REPORTS OF EMPLOYERS, BANK PASS BOOKS AND ALS O FROM THE STATEMENTS RECORDED BY THE ID. A O . DURING THE ASSESSMENT LOANS WERE ADVANCED TO HELP THE APPELLANT (WHO LOST HIS FATHER LONG AGO) IN ESTABLISHING HIS NEW BUSINESS STARTED DURING THE YE AR UNDER CONSIDERATION BY THE JOINT FAMILY MEMBERS WHO RESIDED AS JOINT FAMILY AT THE SAME ADD RESS EXCEPT SH. DINESH GUPTA WHO WAS CLOSE FRIEND OF LATE FATHER OF THE APPELLANT. HENCE THE GENUINENESS OF THE TRANSACTIONS IS ALSO ESTABLISHED. THE ALLEGED LOANS WERE TAKEN THROUGH B ANKING CHANNELS AS IS EVIDENT FROM THE BANK STATEMENT OF THE APPELLANT AS WELL AS THE BANK PASS BOOKS OF THE CASH CREDITORS . ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 8 STATEMENTS OF ALL THE CASH CREDITORS WERE RECORDED BY THE ID. A.O WHEREIN THEY CONFIRMED TO HAVE ADVANCED LOAN TO THE APPELLANT OU T OF THEIR OWN SAVING S. THEY NOWHERE DENIED NOT HAVING ADVANCED LOAN TO THE APPELLANT. THE APPELLANT HAD DISCHARGED ITS ONUS OF E STABLISHING THE IDENTITY , CAPACITY AND GENUINENESS. THE ONUS SHIFTED ON THE ASSESSING OFFI CER TO PROVE THAT THE ALLEGED CASH CREDITORS WERE BOGUS , HOWEVER, HE GROSSLY FAILED IN DISCHARGING HIS ONUS. RELIANCE IS BEING PLACED ON THE FOLLOWING JUDGMENTS IN THIS REGARD : - 1. CIT VS LOVELY EXPORTS (P) LTD. 216 CTR 194 (S C) 2. CIT VS KAMDHENU STEEL & ALOYS LTD 2006 TAXMAN 254 (DEL.) 3. CIT VS ARUNANANDA TEXTILES (P) LTD. 15 TAXMAN .COM 226 (KARN) 4. CIT VS DWARAKDHISH INVESTMENT (P) LTD. V194 T AXMAN 43 (DEL.) 5. CIT VS VALUE CAPITAL SERVICES (P) LTD. 307 IT R 334 (DEL.) 4.2 MATERIAL AVAILABLE ON RECORD REMAINED UNCONTROVERTED. AO FAILEDTO DISCHARGE THEN ONUS ON HIS PART. THE ID. A.O.FAILED TO POINT EVEN A SINGLE DEFECT IN THE EVIDENCES SUBMITTED BY THE APPELLANT VIZ. CONFIRMATIONS, AFFIDAVITS, BA NK STATEMENTS, INCOME TAX RETURNS, SALARY CERTIFICATES, ETC. EVIDENCES WHICH REMAINED UNCONTROVERTED, SHOULD BE ACCEPTED. THE CONTENTS OF THE AFFIDAVITS REMAINED UNCONTROVER TED. AN AFFIDAVIT CANNOT SIMPLY BE BRUSHED ASIDE ON THE BASIS THAT IT IS A S ELF SERVING DOCUMENT. ITS CONTENTS HAVE TO BE ACCEPTED AS SUCHUNLESS OTHERWISE PROVED. RELIANCE IS BEING PLACED ON THE FOLLOWING JUDGMENT IN THIS REGARD :- PARAS COTTON CO . VS. CIT XXX TAX WORLD 168 (ITAT, JODHPUR BENCH) 4-3 AO FAILED TO BRING ANY MATERIAL EVIDENCES ON RECORD TO SUPPORT HIS BELIEF THAT THE CREDITORS WER E BOGUS. HE MERELY ACTED ON SURMISES AND CONJECTURES THE !D. A.O. MERELY ACTED ON SURMISES AND CONJECTUR ES AND FAILED TO BRING ANY MATERIAL EVIDENCES ON RECORD TO SUPPORT HIS BEL IEF THAT THE CREDITORS WERE BOGUS . HE WRONGLY CONCLUDED THAT THE APPELLANT ROUTED ITS OWN MONEY THROUGH CHEQUES FROM THE BANK ACCOUNTS OF CASH CREDITORS WITHOUT AN Y BASIS AND MERELY ON SURMISES AND CONJECTURES. 4.5 SOURCE OF SOURCE NEED NOT BE PROVED. ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 9 THE ISSUE UNDER CONSIDERATION IN THIS APPEAL IS SQU ARELY COVERED BY THE JUDGMENT OF THE HON'BLE RAJASTHAN HIGH IN THE CASE O M/S ARAVALI TRADING CO . VS. INCOME TAX OFFICER REPORTED AT (2008) 8 DTR 199 ,. HENCE. IT IS NOW A WELL ESTABLISHED LAW THAT IN CAS E OF LOAN TRANSACTIONS, SOURCE OF SOURCE NEED NOT BE PROVED. ONCE THE IDENT ITY , CAPACITY AND GENUINENESS OF A LOAN TRANSACTION IS PROVED BY THE ASSESSEE, THE P RIMARY ONUS WHICH LAY UPON HIM IS DISCHARGED AND IS SHIFTED ON THE R E VENUE. THE A S SESSEE NEED NOT TO PROVE THE SOURCE OFSOURCEOFTHELOANTRANSA C TION.RELIANCE IS AL S O BEING PLACED ON THE FOLLOWING JUDGMENTS IN THIS REGARD :- 1. LD. CIT VS FIRST POINT FINANCE LTD, 286 ITR 477 (RAJ.) 2. ACIT VS SRAJASTHAN ASBESTOS CEMENT CO. XLI TW 15 3 ITAT, JAIPUR AS SUBMITTED ABOVE, IT IS HUMBLY REQUESTED THAT THE IMPUGNED ADDITION SUSTAINED BY TH E ID. CIT APPEAL IS , BEING ILLEGAL AND UNJUSTIFIED, MAY KINDLY BE DELETED 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ERS OF THE AUTHORITIES BELOW. 2.4 THE BENCH HAS HEARD THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEF FACTS OF THE C ASE ARE THAT THE AO MADE THE ADDITION OF RS. 6,10,000/- IN RESPECT OF FOLLOW ING CASH CREDITORS. NAME OF CREDITOR TOTAL AMOUNT OF LOAN CLAIMED AMOUNT OF LOAN FOUND UNEXPLAINED SHRI ANKIT MAMODIA RS. 1,50,000 RS. 1,20,000 SHRI DILIP MAMODIA RS. 2,00,000 RS. 2,00,000 SMT. PUSHPA MAMODIA RS. 1,00,000 RS. 90,000 SHRI DINESH GUPTA RS.2,00,000 RS. 2,00,000 TOTAL RS. 6,50,000 RS. 6,10,000/- THE RELEVANT OBSERVATION AS TO MAKING THE ADDITION BY THE AO IS AS UNDER:- ASSESSEE HAS PROVED ONLY IDENTITY OF CREDITORS BU T FAILED TO PROVE THAT THEY WERE CREDITWORTHY. FURTHER, THE TRA NSACTIONS WERE NOT ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 10 FOUND GENUINE. THE CREDITORS ARE FAMILY MEMBERS OR RELATIVE OF THE ASSESSEE, THE BURDEN OF PROVING CREDITWORTHINESS OF THE PARTIES AND GENUINENESS OF THE TRANSACTIONS WAS RELATIVELY HEAV IER THAN IN A NORMAL CASE, AND THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE BURDEN I AM SATISFIED THAT THE TRUE NATURE AND SOURCE OF T HE AMOUNTS OF CASH CREDITS ENTERED IN THE BOOKS OF ACCOUNTS OF TH E ASSESSEE, AS PER INVESTIGATION OR ENQUIRY IS NOT FOUND SATISFACTORY. IN VIEW OF ABOVE DISCUSSION RS. 6,10,000/- IS TREATED DEEMED INCOME OF THE ASSESSEE U/S 68 OF THE ACT AND THE SAME IS ADDED TO THE TOTAL IN COME OF THE ASSESSEE. IN FIRST APPEAL, THE LD. CIT(A) HAS DISCUSSED THE C ASE OF RESPECTIVE CASH CREDITORS EXPLICITLY AND PARTLY CONFIRMED/SUSTAINED THE ADDITION BY OBSERVING AS UNDER:- 1. ADDITION MADE BY THE AO IN THE CASE OF SHRI ANKIT M AMODIA IS CONFIRMED. 2. ADDITION MADE BY THE AO IN THE CASE OF SHRI DILIP MAMODIA IS PARTLY CONFIRMED. 3. ADDITION MADE BY THE AO IN THE CASE OF SMT. PUSHPA IS CONFIRMED. 4. ADDITION MADE BY THE AO IN THE CASE OF SHRI DINESH GUPTA IS PARTLY CONFIRMED. THE BENCH HAS TAKEN INTO CONSIDERATION THE ORDERS OF THE LOWER AUTHORITIES AND THE WRITTEN SUBMISSIONS OF THE ASSE SSEE. IT IS NOTED THAT THE LD. CIT(A) HAS ELABORATELY DISCUSSED THE ISSUE OF C ASH CREDITORS AND GIVEN THE RELIEF APPROPRIATELY TO THE ASSESSEE AS PER T HE DETAILS AVAILABLE BEFORE ITA NO. 625/JP/2017 SHRI ARPIT MAMODIA VS ITO, WARD-4(5), JAIPUR 11 HIM. TAKING INTO CONSIDERATION THE PRESENT FACTS AN D CIRCUMSTANCES OF THE CASE, THE BENCH FINDS NO REASON TO INTERFERE WITH T HE ORDER OF THE LD. CIT(A). THUS THE APPEAL OF THE ASSESSEE IS DISMISSE D. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/05/201 8. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01 /05/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ARPIT MAMODIA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT-THE ITO, WARD- 4(5), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 625/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR