Sh. Navdeep Jain, Yamunanagar V. ITO, Yamunanagar

ITA 641/CHANDI/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9786 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 26-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTAL
• Keywords: Unexplained cash credit; Gift; Opportunity of cross examination
• Section: 68; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 641/CHD/2016 ASSESSMENT YEAR: 2010-11 SHRI NAVDEEP JAIN, VS THE ITO, PROP. M/S JAMUNA TRANSPORT CO., WARD-2, KHAJURI ROAD, YAMUNA NAGAR YAMUNA NAGAR. PAN: AAOPJ9952A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUDHIR SEHGAL RESPONDENT BY : SHRI S.K.MITTAL DATE OF HEARING : 07.07.2016 DATE OF PRONOUNCEMENT : 12.07.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS), PANCHKULA DATED 31.03.2016 FOR ASSESSMENT YEAR 2010-11 CHALLENGING THE ADDITION OF RS. 4,50,000/- ON ACCOUNT OF UNEXPLAINE D CREDIT IN THE NAME OF MRS. AKSHI JAIN. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS RAISED FRESH UNSECURED LOAN OF RS. 4,50,000/- ON 30.03.2010 FROM HIS DAUGHTER MS. AKSHI JAIN. THE ASSESSEE FURNISHE D AFFIDAVIT OF THE CREDITOR. ON PERUSAL OF HER BANK ACCOUNT MAINTAINED WITH PUNJAB NATIONAL BANK, IT WA S FOUND THERE WAS A CASH DEPOSIT OF RS. 4,50,000/- IN HER BANK ACCOUNT ON 26.03.2010 AND THE CHEQUE OF THE SA ME 2 AMOUNT WAS ISSUED TO M/S JAMUNA TRANSPORT COMPANY, OF WHICH ASSESSEE IS A PROPRIETOR ON 30.03.2010. T HE ASSESSEE WAS ASKED TO FURNISH THE SOURCE OF THE CAS H DEPOSIT IN THE ACCOUNT OF THE CREDITOR. THE ASSESS EE EXPLAINED THAT RS. 4,50,000/- WAS GIFTED TO THE CRE DITOR BY HER GRANDMOTHER SMT. DARSHNA JAIN, WHOSE AFFIDAV IT WAS ALSO FILED. ON PERUSAL OF THE RETURN OF SMT. DARSHNA JAIN FOR ASSESSMENT YEAR 2010-11, ASSESSING OFFICER NOTED THAT SHE HAD DECLARED INCOME OF RS. 35,250/- UNDER THE HEAD 'INCOME FROM OTHER SOURCES' AND RS. 1,18,000/- UNDER THE HEAD BUSINESS & PROFESSION. THE ASSESSEE STATED THAT SMT. DARSHNA JAIN DECLARED STITCHING INCOME UNDER THE HEAD BUSI NESS & PROFESSION. SHE HAS FILED HER RETURN OF INCOME AS NO ACCOUNT CASE AND NO PROFIT & LOSS ACCOUNT AND BALAN CE SHEET HAVE BEEN FILED. THE ASSESSING OFFICER FURTH ER NOTED THAT ASSESSEE AND HIS BROTHERS WERE HAVING HANDSOME AMOUNT OF INCOME WHOSE ALL MEMBERS ARE INCOME TAX ASSESSEES, WHY THEY WILL ALLOW THEIR OLD MOTHER TO DO STITCHING WORK FOR A MEAGER AMOUNT. S MT. DARSHNA JAIN FILED HER RETURN OF INCOME FOR ASSESSM ENT YEAR 2009-10 DECLARING INCOME FROM HOUSE PROPERTY O F RS. 25,200/- AND INCOME FROM OTHER SOURCES OF RS. 1,15,790/- TOTALING TO RS. 1,40,990/-. THERE WAS N O STITCHING WORK IN ASSESSMENT YEAR 2009-10. THE ASSESSING OFFICER NOTED THAT IF THE TOTAL INCOME IS TAKEN TOGETHER FOR THESE YEARS, STILL IT WILL REMAIN LESS THAN THE GIFTED AMOUNT. 3 2(I) THE ASSESSING OFFICER RECORDED STATEMENT OF TH E CREDITOR MRS. AKSHI JAIN WHICH IS REPRODUCED IN THE ASSESSMENT ORDER IN WHICH THE CREDITOR HAS STATED T HAT HER GRANDMOTHER IS A HOUSE WIFE AND THAT LOAN WAS G IVEN TO HER FATHER IN CASH WHEREAS AS PER COPY OF THE BA NK ACCOUNT MAINTAINED BY THE CREDITOR WITH PUNJAB NATI ONAL BANK, LOAN WAS GIVEN TO HER FATHER THROUGH CHEQUE. THE ASSESSING OFFICER, THEREFORE, FOUND CONTRADICTION I N THE STATEMENT AND DID NOT ACCEPT CAPACITY OF SMT. DARSH NA JAIN FOR GIVING GIFT TO THE CREDITOR AND CREDIT WOR THINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION WAS NOT ACCEPTED. THEREFORE, ADDITION OF RS. 4,50,000/ - WAS MADE ON ACCOUNT OF UNEXPLAINED CREDIT UNDER SECTION 68 OF THE ACT. 3. THE ADDITION WAS CHALLENGED BEFORE LD. CIT(APPEALS) AND SAME SUBMISSIONS WERE REITERATED A ND IT WAS SUBMITTED THAT THE CREDITOR HAS CONFIRMED GI VING OF LOAN TO THE ASSESSEE. THE LOAN WAS GIVEN ON INT EREST BASIS. THE AMOUNT OF LOAN WAS RECEIVED BY THE CRED ITOR FROM HER GRANDMOTHER AS GIFT. THE CREDITOR AND HER GRANDMOTHER ARE ASSESSED TO TAX, THEREFORE, ASSESSE E PROVED IDENTITY OF THE CREDITOR, HER CREDIT WORTHIN ESS AND GENUINENESS OF THE TRANSACTION. THE LD. CIT(APPEALS), HOWEVER, DID NOT ACCEPT CONTENTION OF THE ASSESSEE AND DISMISSED THE APPEAL OF THE ASSESSEE. 4 HIS FINDINGS IN PARA 5.4 TO 5.13 OF THE APPELLATE O RDER ARE REPRODUCED AS UNDER : 5.4 I HAVE GONE THROUGH THE FACTS OF THE CASE AND WRITTEN SUBMISSION FILED BY THE APPELLANT. IT IS NOTED THAT THE APPELLANT RAISED UNSECURED LOAN OF RS.9,89,846/- FROM TWO DEPOSITORS . ONE OF THE UNSECURED LOAN OF RS.4,50,000/- WAS FROM HIS DAUGHT ER. IN SUPPORT, THE APPELLANT PROVIDED AFFIDAVIT OF HIS DAUGHTER. T HE AO FOUND THAT A CASH DEPOSIT OF RS.4,50,000/- WAS MADE IN APPELLA NT'S DAUGHTER ACCOUNT ON 26.03.2010 AND A 'CHEQUE WAS ISSUED TO T HE APPELLANT'S PROPRIETARY BUSINESS ON 30.03.2010. IN EXPLANATION TO THE SOURCE OF CASH DEPOSIT, THE APPELLANT PROVIDED AN AFFIDAVIT OF HIS MOTHER STATING THAT AMOUNT WAS GIFTED BY HIS MOTHER TO THE APPELLANT'S DAUGHTER. THE AO EXAMINED THE TOTAL INC OME OF THE APPELLANT'S MOTHER AND FOUND THAT SHE WAS NOT HAVIN G ENOUGH MONEY TO MAKE GIFT OF RS.4,50,000/- TO THE APPELLANT'S DAUGH TER WHICH TRAVELLED TO THE APPELLANT'S BOOKS OF ACCOUNT IN FORM OF UNSE CURED LOAN. THE AO RECORDED THE STATEMENT OF APPELLANT'S DAUGHTER A ND FOUND THAT NEITHER THE APPELLANT'S DAUGHTER NOR HER GRANDMOTHE R HAD CAPACITY TO PROVIDE GIFT AND IN TURN UNSECURED LOAN. THE STATEM ENT OF APPELLANT'S DAUGHTER WAS RECORDED IN THE PRESENCE OF THE AUTHOR IZED REPRESENTATIVE AND THE AO NOTED CONTRADICTIONS IN THE STATEMENT GI VEN BY THE APPELLANT'S DAUGHTER. BASED ON THE EVIDENCES GATHERED, THE AO F OUND THAT THE CAPACITY OF THE APPELLANT'S DAUGHTER AS WELL AS HER GRANDMOTHER AND THE GENUINENESS OF THE TRANSACTION COULD NOT BE SAT ISFACTORILY PROVED. THUS, THE AO PROCEEDED WITH ADDITION OF RS.4,50,000 /- UNDER THE DEEMING PROVISIONS OF SECTION 68 OF THE ACT. 5.5 ON THE OTHER HAND, THE APPELLANT HAS SUBMITTED THAT IDENTITY OF THE CREDITOR, MODE OF TRANSACTION THROUGH ACCOUNT PAYEE CHEQUE AND CREDITWORTHINESS OF THE LENDER WHO HAS RECEIVED AMO UNT FROM HER GRANDMOTHER AS GIFT HAS BEEN PROVED, SO THE ADDITIO N IS NOT WARRANTED. FURTHER, AN OPPORTUNITY OF CROSS EXAMINATION OF MS. AKSHI JAIN WAS NOT PROVIDED. 5.6 AFTER CONSIDERING THE FACTS AND SUBMISSION, A REFERENCE IS MADE TO THE PROVISIONS OF SECTION 68 WHICH PROVIDES THAT THERE HAS TO BE CREDIT OF AMOUNT IN THE BOOKS MAINTAINED BY ASSESSE E; THAT SUCH CREDIT 5 HAS TO BE OF A SUM DURING THE PREVIOUS YEAR; AND TH AT THE ASSESSEE OFFER NO EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH CREDIT FOUND IN THE BOOKS OR THE EXPLANATION OFFERED BY THE ASSESSEE IN THE OPINION OF THE AO IS NOT SATISFACTORY. IT IS ONLY THEN THE SUM SO CREDIT ED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PR EVIOUS YEAR. THE EXPRESSION 'THE ASSESSEE OFFER NO EXPLANATION' MEAN S WHERE THE ASSESSEE OFFER NO PROPER, REASONABLE AND ACCEPTABLE EXPLANAT ION AS REGARDS THE SUMS FOUND CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEE. IN THE INSTANT CASE, THE APPELLANT'S EXPLANATION IS LIMITE D TO THE IDENTITY OF THE LENDER, I.E., HER DAUGHTER AND LOAN RECEIVED THROUG H A CHEQUE. HOWEVER, THE CHEQUE WAS DRAWN FROM THE CASH DEPOSIT IN THE S AME BANK ACCOUNT. THE APPELLANT'S DAUGHTER WAS NOT HAVING ANY REGULAR SOURCE OF INCOME DURING THE YEAR. EVEN THE EXPLANATION REGARDING SOU RCE BEING GIFT FROM GRANDMOTHER WAS ALSO RIOT SATISFACTORY AS THE ALLEG ED GIFT IN CASH WAS BEYOND THE MEANS OF INCOME OF GRANDMOTHER. 5.7 THE APPELLANT IS EXPECTED TO ESTABLI SH IDENTITY OF THE CREDITORS, CREDITWORTHINESS 'OF THE CREDITORS AND G ENUINENESS OF THE TRANSACTIONS IN ORDER TO DISCHARGE THE ONUS CAST ON HIM. BY MERELY FILING AFFIDAVITS CLAIMING TRANSFER OF MONEY THROUGH CHEQU E, IT IS NOT ENOUGH TO HOLD THAT APPELLANT HAS SATISFIED BY ABOVE INGREDIE NTS TO DISCHARGE HIS ONUS. HERE, A REFERENCE IS MADE TO THE JUDGMENT OF HON'BLE HIGH COURT OF CALCUTTA IN THE CASE OF CIT VS. MAITHAN INTERNATION AL (2015) 375 ITR 123 WHEREIN THE HON'BLE COURT HELD THAT WHERE AO W HILE ACCEPTING GENUINENESS OF LOAN TAKEN BY ASSESSEE FROM VARIOUS CREDITORS, DID NOT TAKE INTO CONSIDERATION CREDITWORTHINESS OF LENDERS , MERE EXAMINATION OF THEIR BANK STATEMENTS OR LETTER OF CONFIRMATION WAS NOT ENOUGH AND, THEREFORE IMPUGNED REVISIONAL ORDER PASSED BY COMMI SSIONER SETTING ASIDE ASSESSMENT WAS TO BE UPHELD. 5.8 FURTHER, REFERENCE IS MADE TO THE JUDGMENT OF HON'BLE HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF CIT VS. Y.M. SINGLA (2014) 50 TAXMANN.COM 410 WHEREIN HON'BLE JURISDICTIONAL HI GH COURT DECIDED IN FAVOUR OF REVENUE WHERE ASSESSEE COULD NOT PROVE CA PACITY OF CREDITOR AND GENUINENESS OF TRANSACTION, THE ADDITION OF GIF T AMOUNT WAS UPHELD. THE HON'BLE HIGH COURT IN ITS JUDGMENT OBSERVED AS UNDER :- '11) IT IS SETTLED THAT TO PROVE THE GENUINENESS O F THE TRANSACTION, THE BURDEN LIES ON THE ASSESSEE AND TO DISCHARGE TH E ONUS, THE ASSESSEE MUST PROVE (I) THE IDENTITY OF THE CREDITO RS, (II) THE 6 CAPACITY OF THE CREDITORS TO ADVANCE MONEY AND (IN) THE GENUINENESS OF THE TRANSACTION. 14) ALL THESE IMPORTANT FACTORS WERE IGNORED BY THE TRIBUNAL WHILE ORDERING DELETION. THE ASSESSEE IS NOT REQUIR ED TO EXPLAIN THE 'SOURCE OF THE SOURCE' BUT IT HAS TO SATISFY TH E OTHER SINE QUA NON, VIZ., IDENTITY AND CAPACITY OF THE CREDITOR AN D THE GENUINENESS OF THE TRANSACTION. NO DOUBT, THE ASSES SEE ESTABLISHED THE IDENTITY OF THE DONORS BUT THE OTHE R INGREDIENTS TO PROVE THE GENUINENESS OF THE TRANSACTIONS ARE CONSP ICUOUSLY MISSING. A SIMPLE IDENTIFICATION OF THE DONOR AND S HOWING THE MOVEMENT OF THE GIFT AMOUNT THROUGH BANKING CHANNEL S IS NOT ENOUGH TO PROVE THE GENUINENESS OF THE GIFT. SINCE, THE CLAIM OF GIFT IS MADE BY THE ASSESSEE, THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIF T BUT ALSO HIS CAPACITY TO MAKE A GIFT AND THAT IT HAS ACTUALLY BE EN RECEIVED AS A GIFT. THE FACT FINDING ENQUIRY CONDUCTED BY THE ASS ESSING OFFICER IN THE MATTER HAD BEEN OVERLOOKED BY THE TRIBUNAL. THE TRIBUNAL OVERLOOKED THE FACT THAT THE DONORS WERE NOT RELATE D TO THE ASSESSEE NOR WAS THERE ANY OCCASION FOR THEM TO PAR T WITH SUCH A BIG SUM OF RS.26 LAKHS. 15) IN THE CASE OF TIRATH RAM GUPTA VS. CIT [2008] 304 ITR 145/ [2009] 177 TAXMAN 294 (P&H), IT WAS HELD THAT A GIFT CANNOT BE ACCEPTED AS SUCH TO BE GENUINE, MERELY BE CAUSE THE AMOUNT HAS COME BY CHEQUE OR DRAFT THROUGH BANKING CHANNELS, UNLESS THE IDENTITY OF THE DONOR, HIS CREDITWORTHINESS, RELATIONSHIP WITH THE DONEE AND T HE OCCASION ARE PROVED. UNLESS THE RECIPIENT HAS PROVED THE GENUINE NESS THEREOF, THE GIFT CAN VERY WELL BE TREATED TO BE AN ACCOMMOD ATION ENTRY OF THE ASSESSEE'S OWN MONEY, WHICH IS NOT DISCLOSED FO R THE PURPOSE OF TAXATION. ' 5.9 THE SLP FILED IN THE CASE OF Y.M. SINGLA VS. CI T WAS DISMISSED BY HON'BLE SUPREME COURT OF INDIA (2015) 56 TAXMANN.COM 17 UPH OLDING THE ORDER OF HON'BLE P&H HIGH COURT. 5.10 THE HON'BLE SUPREME COURT IN THE CASE OF SUM ATI DAYAL VS. CIT 214 ITR 801 HAD HELD AS UNDER :- 7 'IN ALL CASES IN WHICH A RECEIPT IS SOUGHT TO BE TA XED AS INCOME, THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN THE TAXING PROVISION AND IF A RECEIPT IS IN THE NATURE OF INCOME, THE BURDEN OF PROVING THAT IT IS NOT TAXABL E BECAUSE IF FALLS WITHIN THE EXEMPTION PROVIDED BY THE ACT LIES UPON THE ASSES SEE. BUT IN VIEW OF SECTION 68 OF THE I.T. AC T, 1961, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF ASS ESSEE FOR ANY PREVIOUS YEAR IT MAY BE CHARGED TO INCOME TAX A S THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR IF THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT THE NATURE AND SOURCE THEREOF IS, IN THE OPINION OF THE AO, NOT SATISFACTORY. IN SUCH A CASE THERE IS, PRIMA FACIE, EVIDENCE AGAINST THE ASSESSEE, VIZ THE RECEIPT OF MONEY, AND IF HE FAILS TO REBUT THE SAID EVIDENC E, IF CAN BE USED AGAINST HIM BY HOLDING THAT IT WAS A RECEIPT O F AN INCOME NATURE. 6) THERE IS NOT DISPUTE THAT THE AMOUNTS WERE RECEIVED BY THE APPELLANT FROM VARIOUS RACE CLUBS ON THE BAS IS OF WINNING TICKETS PRESENTED BY HER. WHAT IS DISPUTED IS THAT THEY WERE REALLY THE WINNINGS OF THE APPELLANT FROM THE RACES. THIS RAISES THE QUESTION WHETHER THE APPARENT CAN B E CONSIDERED AS REAL. AS LAID DOWN BY THIS COURT, APP ARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE AR E REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL AND THAT THE TAXING AUTHORITIES ARE ENTITLED TO LOOK INTO THE SURROUNDI NG CIRCUMSTANCES TO FIND OUT THE REALITY AND THE MATTE R HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILIT IES- CIT V. DURGA PRASAD MORE [1971]82 ITR 540 (SC). ' 5.11 FURTHER, IN THE CASE OF SH. HARI CHAND VIRENDR A PAUL VS. CIT 140 ITR 148, THE HON'BLE P&H HIGH COURT HELD THAT THE B URDEN OF PROVING THE CAPACITY OF THE CREDITOR TO ADVANCE THE LOAN (B EYOND RS.6,000/-) WAS ON THE ASSESSEE AND THE ASSESSEE HAVING FAILED TO PROVE THE SAME, IT COULD NOT BE SAID THAT THERE WAS NO MATERI AL BEFORE THE TRIBUNAL TO SUSTAIN THE ADDITION. 5.12 REGARDING THE APPELLANT'S CONTENTION THAT HE WAS NO T GIVEN OPPORTUNITY TO CROSS EXAMINE HIS DAUGHTER, IT IS FO UND THAT THE DAUGHTER WAS APPELLANT'S WITNESS, WHO WAS PRODUCED TO TESTIF Y THE LOAN GIVEN BY TIER. 8 IT WAS PRIMARY ONUS ON THE PART OF THE APPELLANT TO SATISFACTORILY EXPLAIN THE CLAIM OF UNSECURED LOAN CREDITED BY APPELLANT I N ITS BOOKS OF ACCOUNTS. HER STATEMENT WAS RECORDED IN THE PRESENC E OF AUTHORIZED REPRESENTATIVE. NEITHER ANY QUERY WAS RAISED BY THE AUTHORIZED REPRESENTATIVE NOR IT WAS WARRANTED TO PROVIDE CROS S EXAMINATION IN THE ABSENCE OF RAISING ANY OBJECTION TO THE STATEMENT G IVEN BY APPELLANT'S OWN DAUGHTER. THE UNSECURED LOAN IN THE NAME OF DAU GHTER OUT OF CASH DEPOSIT IN HER BANK ACCOUNT, THE CASH DEPOSIT BEING GIFT GIVEN BY HER GRANDMOTHER WAS AN EFFORT ON THE PART OF APPELLANT TO CREATE EVIDENCES AND TO MAKE TRANSACTION APPEARING TO BE GENUINE. 5.13 IN VIEW OF THE ABOVE FACTS AND THE JUDGMENTS OF HON 'BLE COURTS, I FIND THAT IN THE INSTANT CASE, THE APPELLANT HAS AR RANGED HIS LOAN AFFAIRS OBTAINED THROUGH CHEQUES FROM HIS DAUGHTER IN WHOSE ACCOUNT EQUAL AMOUNT OF CASH WAS FOUND DEPOSITED BEFORE ISS UE OF CHEQUE. TO EXPLAIN THE SOURCE OF CASH, THE APPELLANT FURTHER S TATED THAT AMOUNT WAS GIFTED TO HIS DAUGHTER BY HER GRANDMOTHER. IN FACT. THE GRANDMOTHER IS APPELLANT'S MOTHER RESIDING IN THE SAME FAMILY AND THE INCOME DECLARED IN HER RETURN OF INCOME FOR TWO YEARS WERE NOT SUFFICI ENT TO PROVIDE GIFT TO APPELLANT'S DAUGHTER WITHOUT ANY OCCASION. IT IS PE RTINENT TO NOTE HERE THAT THE FIRST EXPLANATION WAS GIVEN THAT THE MONEY WAS GATHERED BY GRANDMOTHER AS STITCHING INCOME. HOWEVER, NO SUCH I NCOME WAS FOUND IN HER RETURNS OF INCOME FILED. THE SOLITARY GIFT WAS FOUND TO BE GIVEN WITHOUT ANY OCCASION WHEREAS EVEN DURING THE MARRIAGE OF AP PELLANT'S DAUGHTER ON A LATER DATE, NO SUCH GIFT WAS PROVIDED BY THE GRAN DMOTHER TO THE APPELLANT'S DAUGHTER. THE FACTS CLEARLY ESTABLISH T HAT THE LOAN SHOWN IN THE NAME OF APPELLANT'S DAUGHTER WAS AN ARRANGED AFFAIR . THE PERSON WAS OF NO MEANS TO ADVANCE SUCH LOAN. THE APPELLANT HAS PROVIDED AFFIDAVITS WHICH CAN SUPPORT THE IDENTITY OF THE PERSON. HOWEV ER, THE APPELLANT'S EXPLANATION DOES NOT PROVE THE CREDITWORTHINESS OF LENDER AND GENUINENESS OF TRANSACTION. THE LOAN RECEIVED BY CHEQUE DOES NO T EXPLAIN THE GENUINENESS OF THE TRANSACTION AS THE LENDER HAD NO SOURCE OF AVAILABLE FUND TO ADVANCE THE LOAN. T'HE CASH DEPOSIT PRIOR T O THE DATE OF ISSUE OF CHEQUE AMPLY PROVE THAT UNACCOUNTED MONEY WAS DEPOS ITED IN THE LENDER BANK ACCOUNT TO RECEIVE LOAN BY THE APPELLANT FROM SUCH LENDER. THEREFORE, THE APPELLANT HAS FAILED TO SATISFACTORI LY EXPLAIN THE SOURCE OF UNSECURED LOAN IN HIS ACCOUNT WHICH IS AN ARRANGED AFFAIR. HENCE, I AM IN 9 AGREEMENT WITH THE AO IN HOLDING THAT THE AMOUNT OF RS.4,50,000/- IS UNEXPLAINED MONEY AND LIABLE TO BE ADDED IN THE HAN DS OF THE APPELLANT UNDER THE DEEMING PROVISIONS OF SECTION 68 OF THE A CT. THUS, THESE GROUNDS OF APPEAL ARE DISMISSED. 4. AFTER CONSIDERING RIVAL SUBMISSIONS, I AM NOT INCLINED TO INTERFERE WITH THE ORDERS OF THE AUTHOR ITIES BELOW. THE LD. COUNSEL FOR THE ASSESSEE REITERATED SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND ALSO SUBMITTED THAT INTEREST ON LOAN WAS GIVEN TO THE CR EDITOR IN SUBSEQUENT YEAR. THE SAME WAS SHOWN BY THE CREDITOR IN HER RETURN OF INCOME. THEREFORE, IT IS NOT AN UNACCOUNTED TRANSACTION. HE HAS ALSO SUBMITTED THA T THERE WERE OTHER CASH DEPOSITS IN THE BANK ACCOUNT OF THE CREDITOR AND AS SUCH, THE AUTHORITIES BELOW SHO ULD NOT DISBELIEVE THE EXPLANATION OF THE CREDITOR. ON THE OTHER HAND, LD. DR RELIED UPON ORDERS OF THE AUTHOR ITIES BELOW. 5. IN VIEW OF THE FACTS AND EVIDENCE ON RECORD, IT IS CLEAR THAT ASSESSEE FAILED TO EXPLAIN THE CREDIT WORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION IN THE MATTER. IT IS STATED THAT THE A SSESSEE RECEIVED RS. 4,50,000/- THROUGH CHEQUE ON 30.03.201 0 FROM HIS DAUGHTER SMT. AKSHI JAIN. ON 26.03.2010, THE CREDITOR HAS DEPOSITED RS. 4,50,000/- IN CASH IN HE R BANK ACCOUNT. PRIOR TO DEPOSIT OF RS. 4,50,000/- C ASH IN HER BANK ACCOUNT, THE CREDITOR WAS HAVING BANK BALANCE OF RS. 4,642.60. THEREFORE, THERE WAS ONLY A 10 MEAGER AMOUNT CREDITED IN THE ACCOUNT OF THE CREDIT OR AT THE TIME OF ISSUING CHEQUE IN FAVOUR OF THE ASSESSE E. THE BANK ACCOUNT OF THE CREDITOR ALSO SHOWS THAT ON 01.03.2009, SIMILARLY THERE WAS A MEAGER CREDIT BAL ANCE IN HER ACCOUNT IN A SUM OF RS. 3,655.60. THESE FAC TS WOULD CLEARLY DISCLOSE THAT CREDITOR WAS NOT HAVING ANY REGULAR SOURCE OF INCOME OR AVAILABILITY OF THE FUN DS WITH HER TO GIVE ANY LOAN TO THE ASSESSEE OR OTHERS . THE ASSESSEE EXPLAINED THAT CREDITOR HAS RECEIVED A GIF T OF RS. 4,50,000/- FROM HER GRANDMOTHER SMT. DARSHNA JA IN BUT IN HER COMPUTATION OF INCOME WITH RETURN OF INC OME SO FILED, THERE WAS NO REGULAR SOURCE OF INCOME AND SOMETIMES, IT WAS MERELY KNITTING AND STITCHING OR INCOME FROM OTHER SOURCES WHICH IS NOT SUPPORTED BY ANY EVIDENCE OR MATERIAL ON RECORD. IT IS NOT CLAR IFIED AS TO WHAT WAS THE MODE OF GIVING GIFT. THE AUTHORITI ES BELOW HAVE NOTED THE DETAILS OF INCOME OF SMT. DARS HNA JAIN AND THE INCOME EARNED BY THE FAMILY AND THEY W ERE JUSTIFIED IN HOLDING THAT WHEN FAMILY HAS HANDSOME INCOME, WHAT WAS THE NECESSITY FOR THEIR OLD MOTHER TO DO STITCHING WORK, THAT TOO WITHOUT HAVING ANY CORROBORATIVE EVIDENCE. THE STATEMENT OF SMT. AKSH I JAIN WAS RECORDED IN WHICH SHE HAS CONFIRMED THAT H ER GRANDMOTHER IS A HOUSE WIFE. THEREFORE, SHE WOULD HAVE NO SOURCE OF INCOME AS IS ALLEGED BY THE ASSESSEE A ND FURTHER, SHE HAS CONFIRMED THAT LOAN WAS GIVEN IN C ASH WHICH IS FALSE. THIS FACT IS INCORRECT BECAUSE THE LOAN WAS GIVEN THROUGH BANKING CHANNEL. ALL THESE FACTS 11 CREATE A DOUBT IN THE EXPLANATION OF THE ASSESSEE O F RECEIVING ANY GENUINE LOAN FROM MRS. AKSHI JAIN. 5(I) THE ITAT AGRA BENCH IN THE CASE OF SMT. SUMAN GUPTA V ITO 138 ITD 153 CONSIDERED THE IDENTICAL FA CT IN WHICH THERE WERE SMALL BANK BALANCES IN THE ACCO UNTS OF THE CREDITOR BEFORE ISSUE OF THE CHEQUE TO THE ASSESSEE AND EQUAL AMOUNT OF THE CASH CREDITS WERE DEPOSITED IN THE BANK ACCOUNTS OF THE CREDITOR FOR GIVING LOAN TO THE ASSESSEE. THE TRIBUNAL CONFIRMED THE E NTIRE ADDITION ON ACCOUNT OF UNEXPLAINED CREDIT. THE ORD ER OF THE TRIBUNAL HAVE BEEN CONFIRMED BY HON'BLE ALLAHAB AD HIGH COURT IN IT APPEAL NO. 680/2012 VIDE JUDGMENT DATED 07.08.2012. 6. HON'BLE GUJRAT HIGH COURT IN THE CASE OF BLESSIN G CONSTRUCTIONS V ITO 32 TAXMAN.COM 366 HELD THAT, WHERE SIZEABLE AMOUNTS WERE DEPOSITED IN CASH IN ACCOUNT OF DEPOSITORS ONLY, BEFORE THEIR WITHDRAWAL S THROUGH CHEQUES IN FAVOUR OF ASSESSEE, ADDITION UND ER SECTION 68 WOULD BE JUSTIFIED. HON'BLE HIGH COURT ALSO HELD THAT THE GENUINENESS OF THE TRANSACTION IN SUC H CIRCUMSTANCES WAS NOT PROVED/ESTABLISHED. 7. CONSIDERING THE FACTS OF THE CASE AND MATERIAL O N RECORD, IT IS CLEAR THAT IN THE INSTANT CASE, THE A SSESSEE HAS ARRANGED HIS LOAN AFFAIRS OBTAINED THROUGH CHEQ UE FROM HIS DAUGHTER IN ASSESSEE'S ACCOUNT BY EQUAL AMOUNT OF CASH WAS DEPOSITED BEFORE ISSUE OF THE CHEQUE. THE ASSESSEE HAS CREATED A STORY OF GIVING A 12 GIFT BY SMT. DARSHNA JAIN TO SMT. AKSHI JAIN. THE MATERIAL ON RECORD, THUS, DID NOT PROVE ANY CREDIT WORTHINESS OF THE CREDITOR OR GENUINENESS OF THE TRANSACTION IN THE MATTER. IT IS ARRANGED AFFAIR O F THE ASSESSEE TO CREATE THE STORY ON TAKING GENUINE GIFT IN THE MATTER. HOWEVER, ASSESSEE HAS MISERABLY FAILED TO PROVE THE CREDIT WORTHINESS OF THE CREDITOR AND GENUINENESS OF THE TRANSACTION. MERELY BECAUSE LOA N WAS RECEIVED THROUGH BANKING CHANNEL WOULD NOT PROV E NON-GENUINE TRANSACTION TO BE GENUINE. THE LD. COU NSEL FOR THE ASSESSEE FILED A LIST OF CERTAIN DECISIONS OF VARIOUS TRIBUNALS AND HIGH COURTS BUT THERE ARE CLE ARLY DISTINGUISHABLE ON FACTS OF THE PRESENT CASE AND TH ERE IS NO NEED TO DISCUSS EACH CASE IN VIEW OF THE FACTS A ND CIRCUMSTANCES NOTED ABOVE. 8. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, I DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF THE AUTHORITIES BELOW. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED: 12 TH JULY, 2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD