ACIT CIR 15(1), MUMBAI V. A.J.M. & CO., MUMBAI

ITA 6268/MUM/2009

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2306 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-10-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 04-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU JIT BANGAR
• Keywords: Reasonable cause
• Section: 133(6); 131; 68

Judgement Text

1 ITA NO. 62 68/MUM/2009 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH:A MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER & SMT. BEENA PILLAI, JUDICIAL MEMBER I.T.A .NO. 6268/MU M /2009 (ASSESSMENT YEAR-2006- 07) ACIT CIRCLE 15(1), R.NO. 104, MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, MUMBAI. VS A.J.M & CO., 801, PANCHARATNA, OPERA HOUSE, MUMBAI. AAKFM0310R APPELLANT BY SHRI SUJIT BANGAR RESPONDENT BY MS. AARTI VISSANJI ORDER PER BEENA PILLAI, JUDICIAL MEMBER : 1. THIS IS AN APPEAL FILED BY THE REVENUE ARISING OUT OF THE CIT(A)S ORDER DATED 25/11/2011 FOR A.Y. 2006-07, ON THE FOL LOWING GROUNDS: 1.ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED ON FACTS AS WELL AS IN LAW IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER IN RESPECT OF UNSECURED LOAN OF R S. 1,50,00,000/- FROM SHRI HABIB MOHAMMED EXPLAINED WI THOUT DATE OF HEARING 29.10.2015 DATE OF PRONOUNCEMENT 04.12.2015 2 ITA NO. 62 68/MUM/2009 APPRECIATING THE FACTS THAT THE ASSESSEE HAS NOT FU LLY DISCHARGED ITS ONUS IN TERM OF EXPLAINING THE NATURE AND SOURC E OF LOAN. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFI CER IN RESPECT OF INTEREST OF RS. 14,09,918/- ON UNSECURED LOAN FROM SHRI HABIB MOHAMMED. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AME ND AND TO MODIFY ANY OF THE GROUND OF APPEAL. 2. BRIEF FACTS OF THE CASE AS RECORDED BY THE AUTHOR ITIES BELOW ARE AS UNDER; 2.1. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING RS.21,20,513/- ON 23.10.2006. THE RETURN WAS PROCES SED U/S.143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS SE LECTED FOR SCRUTINY. DURING THE YEAR UNDER CONSIDERATION, ASSE SSEE HAD TAKEN A LOAN OF RS.2,50,00,000/- FROM SHRI.HABEEB MOHAMMA D. ACCORDING TO LD.AO, SHRI.HABEEB MOHAMMAD DOES NOT H AVE CREDITWORTHINESS AND IT IS NOT POSSIBLE FOR SHRI.HA BEEB MOHAMMAD TO GIVE SUCH A HUGE LOAN, AS IN CASE OF FAILURE OF THE ASSESSEE TO REPAY THE LOAN, MR. HABEEB MOHAMMAD WILL HAVE NO RE SOURCE TO REPAY THE LOAN TO HIS CREDITOR VIZ. SMT. FAZLEEN, F ROM WHOM AN AMOUNT OF RS. 2.5 CRORES WERE TAKEN BY MR. HABEEB M OHAMMAD. THE LD.AO, OBSERVED THAT IN NORMAL CIRCUMSTANCES, A PERSON OF SMALL MEANS, WILL NOT ENTER INTO SUCH A HUGE TRANSA CTION OF PROVIDING UNSECURED LOAN, UNLESS SUCH UNSECURED LOA N IS DOCTORED OR CREATED. THE LD.AO, OBSERVED THAT ASSESSEE HAS NOT PRODUCED THE DEPOSITOR HENCE, ONUS LIES UPON THE ASSESSEE, W HICH HAS NOT BEEN DISCHARGED. THE LD.AO, FURTHER RECORDS THAT T HE ASSESSEE WAS GRANTED OPPORTUNITY, TO ESTABLISH CREDITWORTHINESS OF THE CREDITOR 3 ITA NO. 62 68/MUM/2009 VIZ. SMT. FAZLEEN. THE LD.AO, HAS RECORDED THE SUB MISSION MADE BY THE ASSESSEE ON 31.12.2008, WHEREIN IT HAS BEEN SUBMITTED BY THE ASSESSEE THAT, SMT. FAZLEEN HAS GIVEN THIS AMOU NT TO THE CREDITOR VIZ. MR. HABEEB MOHAMMAD, OUT OF SALE PROC EEDS OF HER IMMOVABLE PROPERTY. LD.AO, DISBELIEVED THE SUBMISS ION AS VITAL PROOFS WERE NOT FURNISHED, LIKE ACKNOWLEDGEMENT OF THE RETURN OF INCOME, PROFIT AND LOSS ACCOUNT, BALANCE SHEET OF S MT. FAZLEEN, PROOF OF OWNERSHIP OF THE PROPERTY AND COPY OF SALE DOCUMENTS OF THE PROPERTY CLAIMED TO BE SOLD BY SMT. FAZLEEN. 2.2. THE LD.AO MADE AN ADDITION TO AN EXTENT OF RS.1,50, 00,000/- ON THE GROUND THAT THE CREDITOR NAMELY MR. HABEED M OHAMMAD WAS HAVING TOTAL INCOME OF RS. 15,83,766/- AND CAPITAL ONLY OF RS. 1,12,23,602/-, WHICH HAS BEEN LOCKED INTO PURCHASE OF IMMOVABLE PROPERTY AND HENCE, HE WAS HAVING NO LIQUIDITY TO G IVE SUCH HUGE LOAN TO THE ASSESSEE. THE LD.AO FURTHER DISALLOWED THE CORRESPONDING INTEREST AMOUNTING TO RS.14,09,918/- ON THIS LOAN. 3. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE LD.CIT(A). 3.1. BEFORE THE LD.CIT(A), THE ASSESSEE CONTENDED THAT T HE LD.AO HAS FAILED TO APPRECIATE THE FACTS AND EVIDENCES ON RECORD. IT WAS SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAD PRO VED BEYOND DOUBT THE SOURCE OF DEPOSITS WITH DOCUMENTARY EVIDE NCE. THE ASSESSEE SUBMITTED BEFORE THE LD.CIT(A) THAT IT HAD REQUESTED THE LD.AO TO SUMMON THE CONCERNED PARTIES U/S.131 OF TH E ACT OR 4 ITA NO. 62 68/MUM/2009 EXERCISE POWER U/S.131(D) OF THE ACT, BY ISSUING TH E COMMISSION AT CHENNAI. HOWEVER THE LD.AO DID NOT TAKE ANY SUCH ST EPS. 3.2. THE ASSESSEE SUBMITTED THAT IT HAD FURNISHED CONFI RMATIONS FROM MR. HABEEB MOHAMMAD AND SMT. FAZLEEN, WHEREIN THE GENUINENESS OF THE LOAN HAS BEEN ESTABLISHED. THE L D.CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVE D AS UNDER; 3.2 I HAVE CONSIDERED THE RIVAL SUBMISSION AND FIN DING OF THE ASSESSING OFFICER CAREFULLY. I HAVE ALSO CONSI DERED THE DOCUMENTARY EVIDENCES SUBMITTED BY THE APPELLANT BE FORE THE ASSESSING OFFICER. IN FACT, THE LD. ASSESSING OFFI CER HAS MADE THIS ADDITION ON A FLIMSY GROUND WITHOUT SUBSTANTIA TING HIS REASONING. THE PRESUMPTION OF THE ASSESSING OFFICE R REGARDING CREDITWORTHINESS AND GENUINENESS IS UNFOU NDED BECAUSE OF THE REASON THAT APPELLANT HAS PROVED BEY OND DOUBT THE GENUINENESS OF THE TRANSACTIONS AND SOURC E OF THE DEPOSITS OF THE CREDITORS. APPELLANT HAS ALSO PROD UCED NECESSARY EVIDENCE OF OBTAINMENT OF SUCH LOAN. NOT ONLY THAT ASSESSING OFFICER HIMSELF HAS ISSUED A NOTICE U/S 1 33(6) ON 15.12.2008 AND IN RESPONSE TO THE NOTICE, CREDITOR HIMSELF HAS SUBMITTED THE CONFIRMATION LETTER, DETAILS OF PAN, INFORMATION REGARDING HIS ADDRESS, COPY OF ACKNOWLEDGEMENT OF R ETURN OF INCOME OF A.Y. 2005-06 AND 2006-07, COPIES OF CAPIT AL ACCOUNT, STATEMENT OF AFFAIRS FOR THE YEAR ENDED 31 .3.2004 AS ASKED BY THE ASSESSING OFFICER, COPY OF BANK STATEM ENT OF FINANCIAL YEAR 2004-05 AND 2005-06 AND DETAILS OF L OAN OF RS. 2.5 CRORES. ALL THESE EVIDENCES COLLECTED BY ASSES SING OFFICER 5 ITA NO. 62 68/MUM/2009 HIMSELF, PROVES BEYOND DOUBT THAT THE LOAN TRANSACT ION WAS CORRECT AND THAT IS WHAT ACCEPTED BY THE PROVISIONS OF LAW U/S 68. IT IS BASICALLY WRONG PRESUMPTION THAT CREDITO R IS NOT HAVING CREDITWORTHINESS WHEN ASSESSING OFFICER HIMS ELF HAS ADMITTED IN HIS ASSESSMENT ORDER THAT MR. HABEEB MOHAMMAD WAS HAVING TAXABLE INCOME OF RS. 15,83,766 /-. NOT ONLY THAT, ASSESSING OFFICER HIMSELF HAS CONTRA DICTED IN HIS ASSESSMENT ORDER WHILE ACCEPTING RS. 1 CRORE AS GENUINE ONE BUT BALANCE OF RS. 1.5 CRORE AS UNEXPLAINED. T HE APPELLANT HAS RECEIVED RS. 2.50 CRORES LOAN FROM MR . HABEEB MOHAMMAD AND OUT OF THIS LOAN APPELLANT HAS REPAID RS. 60 LAKHS ON 22.3.2006 BY ACCOUNT PAYEE CHEQUE NO. 3789 41 AND RS. 40 LAKHS ON 22.3.2006 BY CHEQUE NO. 378954/ TH IS FACT HAS NOT BEEN PROPERLY APPRECIATED BY THE ASSESSING OFFICER. WHEN RS. 1 CRORE HAS BEEN REPAID BY THE APPELLANT A ND SAME HAS BEEN ACCEPTED BY THE ASSESSING OFFICER HIMSELF AS GENUINE ONE, IT IS NOT UNDERSTOOD AS TO WHY REST OF THE AMOUNT OF RS. 1.5 CRORE IS NOT TO BE ACCEPTED OR TAKEN AS GENUINE ONE. IN FACT, WHOLE TRANSACTION ITSELF IS GENUINE ONE, A S NECESSARY EVIDENCE HAS BEEN PRODUCED BUT LD. ASSESSING OFFICE R HAS SIMPLY IGNORED ALL THESE EVIDENCES FOR THE SAKE OF MAKING ADDITION. IT CAN BE SEEN FROM THE BANK STATEMENT O F MR. HABEEB MOHAMMAD SUBMITTED TO THE ASSESSING OFFICER THAT ON 13.4.05 HE HAD RECEIVED AMOUNT OF RS. 2 CRORE BY ACCOUNT PAYEE CHEQUE NO. 0924369 FROM MR. FAZLEEN AND SAME AMOUNT HAS BEEN GIVEN TO THE APPELLANT ON 19.4.2005 THROUGH 6 ITA NO. 62 68/MUM/2009 ACCOUNT PAYEE CHEQUE NO. 0337314. SIMILARLY, CREDI TOR HAD RECEIVED AN AMOUNT OF RS. 50 LAKHS ON 22.4.2005 BY A/C PAYEE CHEQUE NO. 0924378 AND SAME AMOUNT WAS GIVEN TO THE APPELLANT ON 25.4.2005 BY A/C PAYEE CHEQUE NO. 0337315. THIS BANKING TRANSACTION PROVES THE GENUI NENESS OF THE TRANSACTIONS OF THE LOAN. AS REGARDS CREDIT WORTHINESS OF THE CREDITOR, IT IS THE MATTER OF RECORD THAT WHEN LOANS/DEPOSITS HAD BEEN OBTAINED BY HIM FROM A RELA TED PERSON WHO HAS EXPLAINED IT TO BE OF SALE PROCEEDS OF THE IMMOVABLE PROPERTIES, IT IS WRONG TO PRESUME THAT T HERE IS NO CREDITWORTHINESS BECAUSE OF THE REASON THAT WHEN AM OUNT IS RECEIVED AND SAME IS DEPOSITED SOMEWHERE, SAME CRED ITS IS THERE IN PROPER CHANNEL AND HAND FOR REPAYMENT TO T HE LOANER OF THE CREDITOR THEREFORE, PRESUMPTION OF THE ASSES SING OFFICER IS UNTENABLE THAT CREDITWORTHINESS OF THE CREDITOR IS NOT THERE. MOREOVER, WHILE GIVING THE REPLY DATED 31.12.2008 A PPELLANT HAS SUBMITTED FURTHER CONFIRMATION DATED 30.12.2008 OF SMT. S.A. FAZLEEN, DAUGHTER OF MR. S.A. SYED ABDUL CADER RESIDING AT 5, WALLACE GARDEN, IIND STREET, CHENNAI-6. SMT. S.A. FAZLEEN HAS CONFIRMED, THAT SHE HAS GIVEN ADVANCE O F RS. 2,50,00,000/- TO HER UNCLE MR. HABEEB MOHAMMAD AS I NTEREST FREE LOAN DURING THE FINANCIAL YEAR 2005-06, WHICH IS OUT OF SALE PROCEEDS OF HER AGRICULTURAL LAND. SHE HAS AL SO CONFIRMED THAT SHE IS ASSESSED TO INCOME TAX HAVING PERMANENT ACCOUNT NUMBER AAGPF7986E WITH BUSINESS RANGE-XV(1), CHENNAI-34. THIS EVIDENCE WAS SUBMITT ED 7 ITA NO. 62 68/MUM/2009 DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF BY THE APPELLANT, THEREFORE, THERE WAS NO REASON WHATSOEVE R WITH THE ASSESSING OFFICER TO IGNORE SUCH EVIDENCE WITHOUT A NY REASONABLE CAUSE OR WITHOUT ANY CONTRARY EVIDENCE. IT TRANSPIRES FROM THE ASSESSMENT ORDER ITSELF THAT AS SESSING OFFICER HAS MADE THIS ADDITION MERELY ON UNSUBSTANT IATED PRESUMPTION AND FOR THE SAKE OF ADDITION ONLY. WHE N DURING THE COURSE OF PROCEEDINGS, THE ENQUIRY WAS CONDUCTE D FROM THE CREDITOR, THERE WAS NO PROPRIETY ON THE PART OF THE ASSESSING OFFICER TO MAKE SUCH ADDITION UNDER THE P RETENCE OF NON PRODUCTION OF CREDITOR SPECIALLY WHEN APPELLANT HAD REQUESTED THE ASSESSING OFFICER TO EITHER SUMMON TH E CONCERNED PARTY U/S 131 OR EXERCISE POWER U/S 131(D ) OF THE INCOME TAX ACT BY ISSUING THE COMMISSION AT CHENNAI . ASSESSING OFFICER HAS APPARENTLY FAILED TO DO SO AN D IT IS VERY OBVIOUS THAT HE HAS ASKED HALF HEARTEDLY IN THE LAS T WEEK OF THE MONTH OF LIMITATION FOR PRODUCING THE CREDITOR WHICH WAS UNWARRANTED RATHER UNNECESSARY BECAUSE OF THE REASO N THAT ALL THE DOCUMENTARY EVIDENCE PROOFS AND CORROBORATI NG EVIDENCE HAVE ALREADY BEEN PRODUCED AND ASSESSING O FFICER HIMSELF HAS MADE INDEPENDENT ENQUIRY BY EXERCISING POWER U/S 133(6) OF THE I.T. ACT AND FURTHER ESPECIALLY W HEN APPELLANT HAD REQUESTED TO EXERCISE THE POWER U/S 1 31 OF THE I.T. ACT BUT INSTEAD OF DOING ALL THESE AND COMPLY WITH STATUTORY REQUIREMENTS, HAS PROCEEDED MERELY ON WRO NG PRESUMPTION AND MADE THIS ADDITION BASELESSLY. 8 ITA NO. 62 68/MUM/2009 THUS, IT IS VERY OBVIOUS THAT ASSESSEE IS NOT REQUI RED TO PROVE SOURCE OF THE SOURCE, NEVERTHELESS APPELLANT HAS PR OVED THE SOURCE OF THE SOURCE BY PRODUCING NECESSARY CONFIRM ATION LETTER FROM SMT. FAZLEEN AND THIS EVIDENCE WAS SUBM ITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF. THEREFORE, UNLESS CONTRARY EVIDENCE IS EXTRACTED OR UNEARTHED BY THE ASSESSING OFFICER, VERACITY OF SUCH EVIDENCE CANNOT BE SET ASIDE OR DISREGARDED. IT WOULD BE AGAINST THE JUSTICE IF SUCH DISREGARD IS CAUSED BY IGNORING SUCH RELIABLE EVIDENCES. IF ASSESEE ESTABLISHES THE IDENTITY, GENUINENESS OF THE TRANSACTION AND EVIDENCES OF SOURCE OF MONEY, IT WO ULD BE FURTHER ASSESSING OFFICER TO DISPROVE THE SAME VIDE CIT VS. BAISHNAB CHARAN MOHANTY (1995) 212 ITR 119 (ORI.). THE APPELLANT BY PROVING THESE FACTS AS MENTIONED ABOVE , DISCHARGES THE ONUS UPON HIM, WHICH DOES NOT PREVEN T THE ASSESSING OFFICER CONCERNED FROM MAKING FURTHER INV ESTIGATION OR PROVE OTHERWISE. HERE IN THIS CASE, NOTHING WAS LEFT OUT TO PREVENT OTHERWISE BECAUSE OF THE REASON THAT APPELL ANT HAS PRODUCED ALL THE NECESSARY EVIDENCES, THEREFORE, EX PLANATION OF THE APPELLANT BASED ON THESE EVIDENCES, CANNOT B E ARBITRARILY REJECTED VIDE SRIRAM JHABERMULL (KLIMPO NG) LTD. VS. CIT (1967) 64 ITR 314 (CAL) AND CIT VS. MADHAVNAGAR COTTON MILLS LTD. (1976) 104 ITR 493 (BOM.). THEREFORE, I FIND THAT ASSESSING OFFICER HAS WRONGLY COME TO THE CONCLUSIO N THAT APPELLANT HAD NOT PROVED GENUINENESS OF THE CASH CR EDITS NOR HAS EXPLAINED PROPERLY THE SOURCE OF THE DEPOSITS O R 9 ITA NO. 62 68/MUM/2009 IDENTIFICATION OF THE CREDITORS OR CREDITWORTHINESS OF SUCH CREDITORS. ON THE CONTRARY APPELLANT HAS PROVED BE YOND DOUBT THE GENUINENESS OF THE CREDIT BY PRODUCING ALL THE NECESSARY EVIDENCE AND ASSESSING OFFICER HIMSELF HAS MADE INDEPENDENT ENQUIRY FROM THE CREDITORS BY EXERCISIN G POWER U/S 133(B) OF THE I.T. ACT. THEREFORE, ADDITION OF CASH CREDITS AND DISALLOWANCE OF INTEREST EXPENDITURE RELATED WI TH CASH CREDITS IS DIRECTED TO BE DELETED FROM THE ASSESSME NT. AGGRIEVED BY THE ORDER OF THE LD.CIT(A) THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE PERUSED THE RECORDS, PAPER BOOK, THE JUDGM ENTS RELIED UPON BY THE ASSESSEE AND HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH THE PARTIES. 4.1. THE LD.DR SUBMITS THAT THE BANK STATEMENTS WERE FIL ED ON THE LAST DAY OF THE ASSESSMENT AND FURTHER HE SUBMI TS THAT THE BANK STATEMENT DOES NOT SHOW THAT MR. HABEEB MOHAMM AD HAD SUFFICIENT FUNDS. THE LD.DR RELIES ON THE ORDER OF THE LD. AO. 4.2. THE LD.AR ON THE CONTRARY SUBMITTED THAT THE ASSESS EE HAD PROVED THE GENUINENESS AND CREDITWORTHINESS OF MR. HABEEB MOHAMMAD AND SMT. FAZLEEN. THE PAYMENTS HAVE BEEN EFFECTUATED THROUGH PROPER BANKING CHANNELS. ALL TH E DETAILS LIKE PAN, ACKNOWLEDGMENTS OF IT RETURNS, CAPITAL AC COUNT STATEMENT, BANK STATEMENT, DETAILS IN RESPECT OF TH E PAYMENT TO THE ASSESSEE WERE AVAILABLE WITH THE LD.AO. 10 ITA NO. 6 268/MUM/2009 4.3. FURTHER THE LD.AR SUBMITS THAT THE ASSESSEE HAD FIL ED ALL THE DETAILS SOUGHT FOR, IN RESPONSE TO THE NOTICE U /S.142(1) DATED 20.12.2008. SHE FURTHER SUBMITTED THAT, IT W AS DURING THE ASSESSMENT PROCEEDINGS THAT LD.AO HAD ASKED TO CLARIFY THE SOURCE OF THE DEPOSITS ON30.12.08, WHICH WAS THE SE COND LAST DAY OF LIMITATION FOR COMPLETING THE ASSESSMENT IN THE ASSESSEES CASE. SHE FURTHER SUBMITTED THAT THE ASS ESSEE VIDE LETTER DATED 31.12.2008, SUBMITTED CERTIFICATE ISSU ED BY SMT. FAZLEEN, CLARIFYING THE SOURCE OF HER DEPOSITS. 5. WE OBSERVE AS UNDER; 5.1. ON PERUSAL OF THE PAPER BOOK WE OBSERVE THAT THE AS SESSEE HAS SUBMITTED DETAILS OF MR. HABEEB MOHAMMAD AS WEL L AS SMT. FAZLEEN. IT HAS BEEN OBSERVED BY THE LD.CIT(A) THAT THE ASSESSEE HAS SUBMITTED ALL THE RELEVANT DOCUMENTS RELATING T O MR. HABEEB MOHAMMAD BEFORE THE LD.AO. IT CAN BE SEEN FROM THE BANK STATEMENT OF MR. HABEEB MOHAMMAD SUBMITTED TO THE A SSESSING OFFICER THAT ON 13.4.05 HE HAD RECEIVED AMOUNT OF R S. 2 CRORE BY ACCOUNT PAYEE CHEQUE NO. 0924369 FROM MR. FAZLEEN A ND SAME AMOUNT HAS BEEN GIVEN TO THE APPELLANT ON 19.4.2005 THROUGH ACCOUNT PAYEE CHEQUE NO. 0337314. SIMILARLY, CREDI TOR HAD RECEIVED AN AMOUNT OF RS. 50 LAKHS ON 22.4.2005 BY A/C PAYEE CHEQUE NO. 0924378 AND SAME AMOUNT WAS GIVEN TO THE APPELLANT ON 25.4.2005 BY A/C PAYEE CHEQUE NO. 0337 315. IT IS OBSERVED THAT MR. HABEEB MOHAMMAD, VIDE HIS LETTER DATED 2 ND DECEMBER, 2008, HAD SUBMITTED DETAILS REQUIRED BY T HE LD.AO U/S.133(6) OF THE ACT. FURTHER THE LD.AO RECORDS TH AT THE 11 ITA NO. 6 268/MUM/2009 ASSESSEE HAS RETURNED RS. 60,00,000/- AND 40,00,00 0/- TO MR. HABEEB MOHAMMAD VIDE CHEQUE AMOUNTING NOS. 378941 A ND 378954 ON 22.03.2006 AND 30.03.2006, RESPECTIVELY. THE INTEREST AMOUNTING TO RS. 14,09,918 HAS BEEN PAID B Y THE ASSESSEE TO MR. HABEEB MOHAMMAD ON 31.03.2006. IT I S ALSO NOTED THAT THE ASSESSEE HAS DEDUCTED TDS AMOUNTING TO RS. 1,58,193/-, ON THE INTEREST AMOUNT PAID @ 11.22%. THE LD.AO IS NOT DISPUTING THE PRINCIPAL AMOUNT PAID BY THE A SSESSEE TO MR. HABEEB MOHAMMAD. 5.2. MOREOVER, WHILE GIVING THE REPLY DATED 31.12.2008, ASSESSEE HAS SUBMITTED FURTHER CONFIRMATION DATED 3 0.12.2008 OF SMT. S.A. FAZLEEN, DAUGHTER OF MR. S.A. SYED ABD UL CADER RESIDING AT 5, WALLACE GARDEN, IIND STREET, CHENNAI -6. SMT. S.A. FAZLEEN HAS FURTHER CONFIRMED, THAT SHE HAS GIVEN A DVANCE OF RS. 2,50,00,000/- TO HER UNCLE MR. HABEEB MOHAMMAD AS I NTEREST FREE LOAN DURING THE FINANCIAL YEAR 2005-06, WHICH IS OUT OF SALE PROCEEDS OF HER AGRICULTURAL LAND. SMT.FAZLEEN HAS CONFIRMED THAT, SHE IS ASSESSED TO INCOME TAX, HAVING PERMANE NT ACCOUNT NUMBER AAGPF7986E WITH BUSINESS RANGE-XV(1), CHENNA I-34. 5.3. IT TRANSPIRES FROM THE ASSESSMENT ORDER ITSELF THAT ASSESSING OFFICER HAS MADE THIS ADDITION MERELY ON UNSUBSTANTIATED PRESUMPTION AND FOR THE SAKE OF ADD ITION ONLY. WE DO NOT FIND ANY ERROR IN THE FINDINGS OF THE LD. CIT(A) THAT, WHEN ENQUIRY WAS CONDUCTED FROM THE CREDITOR, DURIN G THE COURSE OF PROCEEDINGS, THERE WAS NO PROPRIETY ON TH E PART OF THE ASSESSING OFFICER TO MAKE SUCH ADDITION UNDER THE P RETENCE OF 12 ITA NO. 6 268/MUM/2009 NON PRODUCTION OF CREDITOR, ESPECIALLY WHEN APPELLA NT HAD REQUESTED THE ASSESSING OFFICER TO EITHER SUMMON TH E CONCERNED PARTY U/S 131, OR, EXERCISE POWER U/S 131(D) OF THE INCOME TAX ACT BY ISSUING THE COMMISSION AT CHENNAI. 5.4. IF ASSESEE ESTABLISHES THE IDENTITY, GENUINENESS OF THE TRANSACTION AND EVIDENCES OF SOURCE OF MONEY, IT WO ULD BE FOR THE ASSESSING OFFICER TO DISPROVE THE SAME AS HELD IN THE CASE OF CIT VS. BAISHNAB CHARAN MOHANTY, REPORTED IN (1995) 212 ITR 119 (ORI.). THE APPELLANT BY PROVING THESE FACTS A S MENTIONED ABOVE, DISCHARGES THE ONUS UPON HIM, WHICH DOES NOT PREVENT THE ASSESSING OFFICER CONCERNED, FROM MAKING FURTHE R INVESTIGATION OR PROVE OTHERWISE. 6. CONSIDERING THE ABOVE FINDING OF THE LD.CIT(A), WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION IN QUESTION MADE U/S 68 OF THE ACT. THE FIRST APPELLA TE ORDER IN THIS REGARD IS THUS UPHELD. 7. THE GROUNDS ARE REJECTED. IN THE RESULT, THE APPEAL IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 4 TH OCTOBER, 2015 SD/- SD/- (RAJENDRA) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04.12.2015 *KAVITA, P.S. 13 ITA NO. 6 268/MUM/2009 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI