Topline Buildtech Pvt. Ltd., New Delhi V. DCIT, Circle- 25(2), New Delhi

ITA 6507/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5559 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 27-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Keywords: Unexplained cash credit; Income from undisclosed sources; Question of law; Corroborative evidences
• Section: 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES G : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA.NO.6507/DEL./2017 ASSESSMENT YEAR 2013-2014 M/S. TOPLINE BUILDTECH PVT. LTD., FLAT NO.104, LOWER GROUND FLOOR, WESTEND MARG, SAID UNDISCLOSED INCOME-AJAB MARG, BEHIND SAKET METRO STATION, NEW DELHI. PAN AABCT5348L VS THE DCIT, CIRCLE-25(2), C.R. BUILDING, NEW DELHI. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI R.S. SINGHVI, ADVOCATE FOR REVENUE : SHRI KAUSHLENDRA TIWARI, SR.DR DATE OF HEARING : 2 7 .03.2018 DATE OF PRONOUNCEMENT : 13. 04.2018 ORDER PER BHAVNESH SAINI, J.M. THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-43, NEW DELHI, DATED 22 ND SEPTEMBER, 2017, FOR THE A.Y. 2013-2014. 2 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASS ESSEE- COMPANY FILED RETURN OF INCOME DECLARING LOSS OF RS.5,30,72,598/- AND PAID TAXES AT THE BOOK PROFIT OF RS.6,42,609/-. THE NATURE OF BUSINESS OF ASSESSEE-C OMPANY IS CIVIL CONSTRUCTION AS CONTRACTOR AND REAL ESTATE DE VELOPMENT. THE ASSESSEE-COMPANY FILED REQUIRED DETAILS BEFORE A.O. AT ASSESSMENT STAGE WHICH HAVE BEEN EXAMINED BY A.O. T HE A.O. MADE CERTAIN ADDITIONS TO THE RETURNED INCOME AND C OMPUTED THE INCOME OF THE ASSESSEE-COMPANY ACCORDINGLY. THE ASSESSEE- COMPANY CHALLENGED THE ADDITIONS BEFORE LD. CIT(A). THE APPEAL OF ASSESSEE-COMPANY HAS BEEN PARTLY ALLOWED. 3. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BO TH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE- COMPANY HAS RAISED THREE EFFECTIVE GROUNDS OF APPEA L WHICH ARE DECIDED AS UNDER. ISSUE NO.1 : 4. THE ASSESSEE-COMPANY CHALLENGED THE ADDITION OF RS.18 LAKHS UNDER SECTION 68 OF THE I.T. ACT IN RES PECT OF SUNDRY 3 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. CREDITOR M/S. TRANSEARCH CONSULTATIONS PVT. LTD. TH E A.O. ON EXAMINING THE DETAILS OF SUNDRY CREDITORS AND CALLI NG THE INFORMATION UNDER SECTION 133(6) OF THE I.T. ACT FO UND THAT THERE IS A SUNDRY CREDITOR NAMELY M/S. TRANSEARCH CONSULT ATIONS PVT. LTD. IN A SUM OF RS.18 LAKHS. NO REPLY HAVE BEEN RE CEIVED. IN THE ABSENCE OF ANY DOCUMENTS ON RECORD, A.O. MADE T HE ADDITION OF RS.18 LAKHS IN RESPECT OF THIS PARTY UN DER SECTION 68 OF THE I.T. ACT. 4.1. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT S AME IS RUNNING ACCOUNT AND THERE HAVE BEEN SUBSTANTIAL MOV EMENT IN ACCOUNT DURING THE YEAR UNDER CONSIDERATION AND AS SUCH THERE IS NO GROUND OR BASIS FOR ANY ADDITION UNDER SECTIO N 68 OF THE I.T. ACT. COPY OF THE LEDGER ACCOUNT OF THE PARTY W AS FURNISHED BEFORE A.O. DURING THE COURSE OF ASSESSMENT PROCEED INGS. IT WAS STATED THAT THERE IS NO CASE OF APPLICABILITY OF SE CTION 41(1) OF THE I.T. ACT, AS THE ASSESSEE-COMPANY HAS NOT WRITT EN-OFF THE CREDITOR IN ITS BOOKS OF ACCOUNT AND THE SAME CONTI NUED TO BE RECOGNISED AS LIABILITY. IN SUPPORT OF ITS CONTENTI ON, THE 4 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. ASSESSEE-COMPANY RELIED UPON THE DECISION OF THE HO NBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SHRI VARDHMAN OVE RSEAS LTD., (2011) 343 ITR 408 (DEL.), DECISION OF GUJARAT HIGH COURT IN THE CASE OF CIT VS. BHOGILAL RAMJIBHAI ATARA (GUJ.). TH E ASSESSEE- COMPANY ARGUED BEFORE THE LD. CIT(A) THE APPLICABIL ITY OF SECTION 41(1) CLEARLY STATES THAT AMOUNTS SHOULD BE WRITTEN-OFF IN THE BOOK BEFORE LIABILITY CAN CEDE AND TAKE FORM OF INCOME FOR THE ASSESSMENT RELEVANT TO FINANCIAL YEAR IN WHICH AMOUNT HAS BEEN WRITTEN OFF. THE AMOUNT HAS BEEN WRITTEN OFF I N SUBSEQUENT FINANCIAL YEAR. HOWEVER, A.O. HAS ADDED THE SAME UN DER SECTION 68 OF THE I.T. ACT. THE LD. CIT(A) NOTED THAT NO IN FORMATION HAS BEEN FURNISHED IN RESPECT OF THIS PARTY. THEREFORE, ONUS UPON ASSESSEE-COMPANY HAD NOT BEEN DISCHARGED TO PROVE T HE GENUINENESS OF THE AMOUNT IN QUESTION. THE ARGUMENT THAT AMOUNT HAVE BEEN WRITTEN BACK IN SUBSEQUENT YEAR PR OVES THAT AMOUNTS WERE NOT GENUINE IN THE FIRST PLACE. THE LD . CIT(A) ACCORDINGLY CONFIRMED THIS ADDITION. 5 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. 5. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S UBMITTED THAT SECTION 68 IS NOT APPLICABLE IN RESPECT OF TRA DE CREDITOR AND RELIED UPON DECISION OF THE HONBLE DELHI HIGH COUR T IN THE CASE OF CIT VS. RITU ANURAG AGGARWAL (2010) 02 TAXMANN.C OM 134 (DEL.) IN WHICH IT WAS HELD AS UNDER : 3. THIS FINDING OF ASSESSING OFFICER REMAINED UNDISTURBED BEFORE THE CIT(A) AS WELL AND HAS BEEN ACCEPTED BY THE ITAT. PROCEEDING ON THIS BASIS, THE ITAT OBSERVED THAT THE SALES, PURCHASES AS WELL AS GROSS PROFITS AS DISCLOSED BY THE ASSESSEE HAVE BEEN ACCEPTED BY THE ASSESSING OFFICER. 4. ONCE THIS IS ACCEPTED, WE ARE OF THE OPINION THAT T HE APPROACH OF THE ITAT WAS CORRECT INASMUCH AS THE ASSESSING OFFICER DID NOT CONSIDER THIS ASPECT WHIL E MAKING ADDITIONS OF THE SUNDRY CREDITORS UNDER SECTION 68 OF THE INCOME TAX ACT. AS THERE WAS NO CASE FOR DISALLOWAN CE FOR CORRESPONDING PURCHASES, NO ADDITION COULD BE MADE UNDER 6 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. SECTION 68 INASMUCH AS IT IS NOT IN DISPUTE THAT TH E CREDITORS' OUTSTANDING RELATED TO PURCHASES AND THE TRADING RE SULTS WERE ACCEPTED BY THE ASSESSING OFFICER. 5. WE ARE, THEREFORE, OF THE OPINION THAT NO SUBSTANT IAL QUESTION OF LAW ARISES FOR CONSIDERATION IN THIS CA SE. THE APPEAL IS ACCORDINGLY DISMISSED. 5.1. HE HAS ALSO FILED COPY OF THE LEDGER ACCOUNT OF THE CREDITOR TO SHOW THAT THERE IS A HEAVY MOVEMENT OF THE AMOUNTS IN QUESTION. HE HAS SUBMITTED BOOKS OF ACCOUNT OF A SSESSEE- COMPANY HAVE BEEN ACCEPTED BY THE A.O. 6. ON THE OTHER HAND, LD. D.R. SUBMITTED THAT SECT ION 41(1) HAVE BEEN APPLIED BY THE A.O. THEREFORE, ADDI TION IS CORRECTLY MADE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE A .O. NOTED IN THE ASSESSMENT ORDER THAT NOTICE UNDER SEC TION 133(6) HAVE BEEN ISSUED TO 05 SUNDRY CREDITORS INCLUDING M /S. TRANSEARCH CONSULTATIONS PVT. LTD., BUT NO REPLY AN D 7 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. DOCUMENTS HAVE BEEN FURNISHED. IN THE ABSENCE OF RE QUISITE INFORMATION/DOCUMENTS, THE A.O. MADE THE ADDITION O F RS.18 LAKHS UNDER SECTION 68 OF THE I.T. ACT. THE ASSESSE E-COMPANY SUBMITTED BEFORE THE LD. CIT(A) THAT THE SAME IS RU NNING ACCOUNT OF THE CREDITOR AND THERE HAVE BEEN SUBSTAN TIAL MOVEMENT IN THE ACCOUNT DURING THE YEAR UNDER CONSI DERATION. COPY OF THE LEDGER ACCOUNT WAS FURNISHED BEFORE A.O . DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THIS FACT HAS NOT BEEN REBUTTED BY THE AUTHORITIES BELOW. IT WOULD MEAN TH AT LEDGER ACCOUNT OF THE PARTY WAS AVAILABLE BEFORE THE AUTHO RITIES BELOW AND THE A.O. IN THE ASSESSMENT ORDER ALSO MENTIONED THAT ASSESSEE-COMPANY FILED THE DETAILS AND DOCUMENTS AN D CASE HAVE BEEN DISCUSSED WITH THE ASSESSEE-COMPANY. THE ASSESSEE- COMPANY SUBMITTED BEFORE THE LD. CIT(A) THAT SECTIO N 41(1) WOULD NOT APPLY BECAUSE THE LIABILITY HAVE NOT BEEN WRITTEN BACK IN THE ACCOUNT. THIS FACT IS ALSO NOT DISPUTED BY T HE AUTHORITIES BELOW. COPY OF THE LEDGER ACCOUNT IS ALSO FILED ON RECORD WHICH SHOWS THAT DURING ASSESSMENT YEAR UNDER APPEAL THER E WERE MANY TRANSACTIONS CONDUCTED BETWEEN ASSESSEE-COMPAN Y AND 8 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. M/S. TRANSEARCH CONSULTATIONS PVT. LTD.. THIS PARTY /CREDITOR HAS TRANSFERRED RS.33 LAKHS ON DIFFERENT DATES IN T HE ACCOUNT OF THE ASSESSEE-COMPANY THROUGH BANKING CHANNEL AND SI MILARLY THERE ARE 04 DEBIT ENTRIES OF RS.15 LAKHS AND THE A MOUNT OF RS.18 LAKHS WAS CREDIT CLOSING BALANCE AT THE END O F THE YEAR. ON 31 ST MARCH, 2014, THE SAME AMOUNT WAS WRITTEN OFF IN TH E BOOKS OF ACCOUNT AND HAS BEEN OFFERED FOR TAXATION. THESE FACTS WOULD SUPPORT THE EXPLANATION OF ASSESSEE-COMPANY T HAT AMOUNT IN QUESTION WAS RECEIVED THROUGH BANKING CHA NNEL AND THERE ARE VARIOUS ENTRIES BETWEEN THE PARTIES AND O NLY ADDITION WAS MADE OF THE CLOSING BALANCE WITHOUT DISTURBING THE OTHER ENTRIES IN THE ACCOUNT OF THE CREDITOR. ADDITION OF CLOSING BALANCE WAS, THEREFORE, NOT JUSTIFIED ON FACTS OF C ASE. OTHERWISE, THE A.O. SHOULD HAVE MADE FULL ADDITION AGAINST THE ASSESSEE- COMPANY OF RS.33 LAKHS. THE BOOK RESULTS OF THE ASS ESSEE- COMPANY HAVE NOT BEEN DISTURBED BY THE A.O. THE DEC ISION IN THE CASE OF CIT VS. RITU ANURAG AGGARWAL (SUPRA) WO ULD SUPPORT THE CASE OF THE ASSESSEE-COMPANY. THE ASSESSEE-COMP ANY HAS ALSO WRITTEN BACK THE AMOUNT IN QUESTION IN SUBSEQU ENT YEAR 9 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. WHICH IS ALSO SUPPORTED BY THE LEDGER ACCOUNT OF TH IS PARTY. SINCE THE ASSESSEE-COMPANY HAS OFFERED THE SAME AMO UNT FOR TAXATION IN SUBSEQUENT YEAR, THEREFORE, IF THE SAID ADDITION IS MAINTAINED IN THE ASSESSMENT YEAR UNDER APPEAL, IT WOULD AMOUNT TO DOUBLE ADDITION. OTHERWISE ALSO, IT IS A CASE OF LOSS, THEREFORE, WHEN AMOUNT IS SURRENDERED SUBSEQUENTLY FOR TAXATION, AT THE BEST, IT COULD BE A TAX NEUTRAL EX ERCISE. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE, WE DO NOT FIND ANY JUSTIFICATION TO SUSTAIN T HE ADDITION. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHOR ITIES BELOW AND DELETE THE ADDITION OF RS.18 LAKHS. THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE-COMPANY. ISSUE NO. 2 : 8. THE ASSESSEE-COMPANY CHALLENGED THE ADDITION OF RS.5 CRORES UNDER SECTION 68 OF THE I.T. ACT IN RES PECT OF UNSECURED LOANS FROM M/S. MAPLE TECHNOLOGY LTD., AN D M/S. MARRY GOLD OVERSEAS LIMITED. ON EXAMINING THE DETAI LS OF FRESH UNSECURED LOANS TAKEN DURING THE YEAR AS PER THE AU DIT REPORT, 10 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. IT WAS FOUND THAT ASSESSEE-COMPANY HAS TAKEN UNSECU RED LOANS AT RS.3.70 CRORES FROM M/S. MAPLE TECHNOLOGIES LTD. , AND RS.1.30 CRORES FROM M/S. MARRY GOLD OVERSEAS LIMITE D. THE ASSESSEE-COMPANY WAS ASKED TO FURNISH CONFIRMATION AND SUPPORTING EVIDENCES TO ESTABLISH THE GENUINENESS O F THE LOAN AND CREDITWORTHINESS OF LENDERS. THE ASSESSEE-COMPA NY HAS FURNISHED THE COPY OF THE LEDGER ACCOUNT OF M/S. MA PLE TECHNOLOGIES LTD., AND M/S. MARRY GOLD OVERSEAS LIM ITED, ALONG WITH COPY OF THEIR BANK ACCOUNTS. THE A.O. IS SUED NOTICES UNDER SECTION 133(6) TO BOTH THE CREDITORS. IN RESP ONSE TO THE SAME, BOTH THE LENDER COMPANIES SENT THEIR REPLIES BY POST ENCLOSING THEREOF CONFIRMED COPIES OF THEIR LEDGER ACCOUNTS, BANK STATEMENTS, ITR AND BALANCE-SHEETS. THE A.O. O N EXAMINING THE SAME NOTED THAT BOTH THE COMPANIES HA VE NO FIXED ASSETS OR TRADE/DEBTORS/CREDITORS. IN THE CAS E M/S. MARRY GOLD OVERSEAS LIMITED NO REVENUE FROM OPERATION IS SHOWN AND AGAINST THE CLAIM OF OTHER INCOME OF RS.41,53,247/- , THE EXPENSES OF RS.10,06,022/- HAVE BEEN CLAIMED SHOWIN G THE NET PROFIT OF RS.31,47,225/- AS AGAINST THE GROSS TOTAL INCOME IN THE 11 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. ITR SHOWN AT RS.19,36,810/-. SIMILARLY, IN THE CASE OF M/S. MAPLE TECHNOLOGIES LTD., NO REVENUE OPERATION HAS S HOWN AND AGAINST THE CLAIM OF OTHER INCOME OF RS.52,58,510/- , EXPENSES OF RS.14,11,776/- HAVE BEEN CLAIMED, LEAVING NET PR OFIT OF RS.38,47,744/- AGAINST THIS INCOME SHOWN IN THE RET URN OF INCOME OF RS.27,02,018/-. THERE IS NO FIXED ASSETS IN THE BALANCE-SHEET AND THERE IS NO ACCUMULATED LOSS. IN THE BANK STATEMENT OF M/S. MAPLE TECHNOLOGIES LTD., FURNISHE D FOR THE PERIOD STARTING FROM 03 RD OCTOBER, 2012 TO 28 TH MARCH, 2013 FOR ABOUT SIX MONTHS, THERE ARE TRANSACTIONS TOTALING I NTO MORE THAN RS.10 CRORE WHICH ARE NEITHER JUSTIFIED BY THE RECEIPT OF RS.52.85 LAKHS SHOWN IN THE P & L A/C NOR BY THE SI ZE OF ITS BALANCE-SHEET TOTALING TO RS.3.84 CRORES. IN THE CA SE OF M/S. MARRY GOLD OVERSEAS LIMITED ONLY ONE PAGE BANK STAT EMENT FOR MARCH, 2013, HAS BEEN FURNISHED. IT IS NOT ONLY THE VOLUME OF TRANSACTIONS BUT ALSO MANNER OF DEBITS AND CREDITS REFLECTED IN THE BANK STATEMENTS ONLY TO SPEAK OUT ONE THING THA T THEY ARE RECEIVING FUNDS IN ROUND FIGURES. THE A.O. THEREFOR E, ISSUED SUMMONS UNDER SECTION 131 OF THE I.T. ACT TO THE CR EDITOR SHRI 12 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. HITESH GARG, CLAIMED TO BE THE DIRECTOR IN BOTH THE COMPANIES, WHO ATTENDED THE PROCEEDINGS BEFORE A.O. AND HIS ST ATEMENT WAS RECORDED ON OATH UNDER SECTION 131 OF THE I.T. ACT AND HE CONFIRMED SOURCE OF THE AMOUNT WAS RECEIVED ON RETU RN OF ADVANCES GIVEN TO M/S. DIVINE INFRACON P. LTD. HE I NFORMED THAT THESE ADVANCES WERE GIVEN AGAINST PROPERTY IN RESPE CT OF WHICH THEY WERE RECEIVING RENTAL INCOME ON REGULAR BASIS. HOWEVER, COPY OF THE AGREEMENT WAS NOT FURNISHED. THE REPLY OF THE ASSESSEE-COMPANY WAS CALLED FOR IN WHICH ASSESSEE-C OMPANY SUBMITTED THAT LOANS ARE FROM UNRELATED PARTY AND I F ANY, ADVERSE INFERENCE IS TO BE DRAWN, THE SAME SHOULD B E TAKEN IN THE HANDS OF THE LENDER COMPANY. THE A.O. DID NOT A CCEPT THEE EXPLANATION OF ASSESSEE AND TREATED BOTH THE AMOUNT S AS UNEXPLAINED LOANS UNDER SECTION 68 OF THE I.T. ACT AND MADE THE ADDITION OF RS.5 CRORES AND ALSO DIRECTED THAT THIS AMOUNT WILL BE TAXED SEPARATELY AS PER THE PROVISIONS OF SECTIO N 115BBE OF THE I.T. ACT AND THE SAME IS NOT REDUCED FROM THE C LAIM OF BUSINESS LOSS. 13 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. 9. THE ASSESSEE-COMPANY CHALLENGED THE ADDITION BEFORE THE LD. CIT(A) AND REITERATED THE SUBMISSION S MADE BEFORE THE A.O. AND SUBMITTED THAT ALL THE DOCUMENT S ARE PART OF THE RECORD WHICH CONFIRM THE TRANSACTION WITH TH E CREDITORS. BOTH THE CREDITORS ARE ASSESSED TO TAX AND HAVE CON FIRMED THEIR TRANSACTIONS DIRECTLY TO THE A.O. UNDER SECTION 133 (6) OF THE I.T. ACT AS WELL AS STATEMENTS OF THE DIRECTOR WAS RECOR DED UNDER SECTION 131 OF THE I.T. ACT IN WHICH ALSO HE HAS CO NFIRMED GIVING LOANS TO THE ASSESSEE-COMPANY. THE ASSESSEE-COMPANY MADE INTEREST PAYMENT ON THE LOAN WHICH WAS SUBJECTED TO TDS. THE A.O. CONSIDERED PAYMENTS OF INTERESTS ON THESE LOAN S AND ACCEPTED. THE LOANS WERE TAKEN THROUGH BANKING CHAN NEL AND APPEARED IN THE BANK STATEMENT AND BALANCE SHEET OF THE CREDITORS. THEREFORE, NO ADVERSE INFERENCE SHOULD B E DRAWN AGAINST THE ASSESSEE-COMPANY. THE ASSESSEE-COMPANY SUBMITTED THAT A.O. CANNOT ASK THE ASSESSEE-COMPANY TO PROVE SOURCE OF THE SOURCE AND RELIED UPON THE FOLLOWING DECISIONS: (I) CIT VS. SHIV DHOOTI PEARLS AND INVESTMENT LTD., (DEL.) (2015) 64 TAXMANN.COM 329 (DEL.) (HC) 14 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. (II) CIT VS. VRINDAVAN FARMS PVT. LTD., ITA.NO.71/2 015 DATED 12 TH AUGUST, 2015 (DEL) (HC) (III) NEMI CHAND KOTHARI VS. CIT AND ANOTHER (2003) 264 ITR 254 (GAU.) (HC) (IV) CIT VS. VALUE CAPITAL SERVICES PVT. LTD., (200 8) 307 ITR 334 (DEL.) (HC) 9.1. IT WAS FURTHER SUBMITTED THAT IN THE CASE OF M/S. MARRY GOLD OVERSEAS LIMITED, THE AMOUNT HAVE BEEN R EPAID IN SUBSEQUENT YEAR. THEREFORE, IT IS NOT A CASE OF UNE XPLAINED CREDIT. IN THE CASE OF M/S. MAPLE TECHNOLOGIES LTD. , THE AMOUNT HAS BEEN WRITTEN BACK AND CREDITED TO OTHER INCOME. THEREFORE, IT COULD NOT BE UNDISCLOSED INCOME. 10. LD. CIT(A) HOWEVER NOTED THAT THE BANK ACCOUNT OF THE LENDERS SHOWS THAT THE AMOUNT HAVE BEEN ADVANCE D ON SPECIFIC DATES. ON THE DATE OF THE AMOUNT IS TRANSF ERRED, JUST PRIOR TO THE TRANSFER, THERE IS A DEPOSIT OF THE SA ME AMOUNT IN THE ACCOUNT. THE LD. CIT(A) ACCORDINGLY DISMISSED T HIS GROUND OF APPEAL OF ASSESSEE-COMPANY. 15 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. 11. LEARNED COUNSEL FOR THE ASSESSEE REITERATED TH E SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE H AS SUBMITTED THAT ADDITION HAVE BEEN MADE WITHOUT APPR ECIATING THE FACTS AND MATERIAL ON RECORD. LOANS WERE RAISED FROM CORPORATE ENTITIES AND THEIR IDENTITY IS NOT DISPUT ED. THE LOANS WERE TAKEN THROUGH ACCOUNT PAYEE CHEQUE AND INTERES T WAS ALSO PAID ON SUCH LOANS AFTER DEDUCTION OF TDS. THE A.O. MADE INVESTIGATION DIRECTLY FROM THE CREDITORS UNDER SEC TION 133(6) OF THE I.T. ACT, WHO HAVE CONFIRMED GIVING LOANS TO TH E ASSESSEE- COMPANY WITH SUPPORTING DOCUMENTS. THE A.O. ALSO RE CORDED STATEMENT OF THE DIRECTOR UNDER SECTION 131 OF THE I.T. ACT IN WHICH HE HAS CONFIRMED GIVING LOANS TO THE ASSESSEE -COMPANY. THE ASSESSEE-COMPANY FURNISHED ALL THE DOCUMENTARY EVIDENCES OF CONFIRMATIONS OF LOANS ON RECORD WHICH SUPPORT THE EXPLANATION OF ASSESSEE-COMPANY OF RECEIPT OF GENUI NE AMOUNT IN QUESTION. NO CASH WAS FOUND DEPOSITED IN THE ACC OUNT OF THE CREDITORS. THE AUTHORITIES BELOW HAVE NOT DISPUTED THE GENUINENESS OF THE DOCUMENTS AND A.O. ALSO ALLOWED DEDUCTION OF INTEREST ON SUCH LOANS. IN CASE OF M/S. MARRY GO LD OVERSEAS 16 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. LIMITED, THE AMOUNT HAVE BEEN RETURNED NEXT YEAR AN D IN CASE OF M/S. MAPLE TECHNOLOGIES LTD., THE AMOUNT HAVE BE EN WRITTEN BACK IN SUBSEQUENT YEAR, ON WHICH, TAX HAVE BEEN PA ID. HE HAS RELIED UPON DECISION OF THE HONBLE SUPREME COURT I N THE CASE OF CIT VS. ORISSA CORPORATION PVT. LTD., 159 ITR 78 IN WHICH IT WAS HELD AS UNDER : IN THIS CASE THE ASSESSEE HAD GIVEN THE NAMES AND A DDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE O F THE REVENUE THAT THE SAID CREDITORS WERE THE INCOME-TAX ASSESSE ES. THEIR INDEX NUMBER WAS IN THE FILE OF THE REVENUE. THE REV ENUE, APART FROM ISSUING NOTICES UNDER SECTION 131 AT THE INSTAN CE OF THE ASSESSEE, DID NOT PURSUE THE MATTER FURTHER. THE REV ENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGED CRE DITORS TO FIND OUT WHETHER THEY WERE CREDIT-WORTHY OR WERE SUCH WH O COULD ADVANCE THE ALLEGED LOANS. THERE WAS NO EFFORT MADE TO PURSUE THE SO-CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTAN CES, THE ASSESSEE COULD NOT DO ANY FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE ASSESSEE H AD DISCHARGED THE BURDEN THAT LAY ON HIM, THEN IT COULD NOT BE SAID 17 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. THAT SUCH A CONCLUSION WAS UNREASONABLE OR PERVERSE OR BASED ON NO EVIDENCE. IF THE CONCLUSION WAS BASED ON SOME EVIDENCE ON WHICH A CONCLUSION COULD BE ARRIVED AT, NO QUESTI ON OF LAW AS SUCH COULD ARISE. 11.1. HE HAS, THEREFORE, SUBMITTED THAT ASSESSEE-C OMPANY PROVED IDENTITY OF THE CREDITORS AND CREDITWORTHINE SS AND GENUINENESS OF THE TRANSACTION IN THE MATTER. THERE FORE, ADDITION IS LIABLE TO BE DELETED. 12. ON THE OTHER HAND, LD. D.R. RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THERE WAS NO FIXED ASSETS OR THE CREDITORS AND SUBMITTED THAT WHERE MU TUAL TRANSACTIONS WERE CONDUCTED THROUGH BANKING CHANNEL IS NO GROUND TO CONSIDER THE SAME AS GENUINE TRANSACTION. HE HAS RELIED UPON DECISION OF THE HONBLE SUPREME COURT I N THE CASE OF SUMAN GUPTA VS. CIT 2013-LL-0122-69 (SC) CONFIRM ING JUDGMENT OF HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF SUMAN GUPTA VS. ITO (ORDER DATED 07.08.2012 IN ITA.NO.680 /12) IN WHICH CASH WAS FOUND DEPOSITED IN THE ACCOUNT OF TH E CREDITOR. 18 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. SIMILARLY, THE LD. D.R. RELIED UPON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF BLESSING CONSTRUC TION VS. ITO (2013) 214 TAXMAN 645 (GUJ.) IN WHICH IT WAS FOUND THAT WHERE SIZABLE AMOUNTS WERE DEPOSITED IN CASH IN ACCOUNT O F THE DEPOSITORS ONLY BEFORE THEIR WITHDRAWAL THROUGH CHE QUES IN FAVOUR OF ASSESSEE, ADDITION WAS JUSTIFIED. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE A.O. FOUND THAT THERE ARE FRESH CREDITS RECEIVED BY ASSE SSEE-COMPANY FROM TWO CREDITORS MENTIONED ABOVE. THE ASSESSEE-CO MPANY FURNISHED COPY OF THE LEDGER ACCOUNT, COPIES OF THE IR BANK STATEMENTS. THE A.O. THEN ISSUED NOTICE UNDER SECTI ON 133(6) OF THE I.T. ACT TO BOTH THE CREDITORS AND BOTH THE CRE DITORS IN THEIR REPLIES FILED BEFORE A.O. CONFIRMED GIVING OF LOANS TO THE ASSESSEE-COMPANY WHICH IS SUPPORTED BY CONFIRMED CO PIES OF THEIR ACCOUNTS, BANK STATEMENTS, ITR AND BALANCE-SH EET. THE A.O. HOWEVER, NOTED THAT THE CREDITORS DO NOT HAVE ANY FIXED ASSETS OR TRADE DEBTORS/TRADE CREDITORS AND THERE W ERE NO REVENUE FROM THE OPERATION. THE A.O. THEREFORE, IN ORDER TO VERIFY 19 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. THE TRANSACTIONS, ISSUED SUMMONS UNDER SECTION 131 TO BOTH THE CREDITORS AND THEIR COMMON DIRECTOR SHRI HITESH GARG WHO APPEARED BEFORE THE A.O. IN RESPONSE TO SUMMON AND CONFIRMED THE GIVING OF LOANS TO THE ASSESSEE-COMPANY IN HIS STATEMENT RECORDED UNDER SECTION 131 OF THE I.T. ACT. THE A.O . HOWEVER, DID NOT BELIEVE STATEMENT OF THIS PERSON BECAUSE CO PY OF THE AGREEMENT WAS NOT FILED. THESE FACTS AND MATERIAL O N RECORD CLEARLY PROVE THAT IDENTITY OF BOTH THE CREDITORS A RE NOT IN DISPUTE BECAUSE BOTH THE CREDITORS ARE ASSESSED TO TAX AND HAVE FILED CONFIRMATION DIRECTLY TO THE A.O. IN RESPONSE TO NOTICE ISSUED UNDER SECTION 133(6) OF THE I.T. ACT AND ALS O CONFIRMED TRANSACTION WITH THE ASSESSEE-COMPANY IN THE STATEM ENT RECORDED UNDER SECTION 131 OF THE I.T. ACT. THE PAR TIES HAVE BEEN FILED CONFIRMED COPIES OF THEIR LEDGER ACCOUNT, BAN K STATEMENTS, ITR AND AUDITED BALANCE SHEET IN WHICH THE GIVING O F LOAN TO THE ASSESSEE-COMPANY HAS BEEN MENTIONED. ALL THE TRANSA CTIONS ARE ROUTED THROUGH BANKING CHANNEL. COPIES OF THE LEDGE R ACCOUNT, INCOME TAX RETURN, BALANCE SHEET AND BANK STATEMENT ARE FILED ON RECORD. IN THE BANK STATEMENTS OF THE CREDITORS, NO CASH WAS 20 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. FOUND DEPOSITED BEFORE GIVING LOANS TO THE ASSESSEE -COMPANY. IF IN THE CASE OF M/S. MAPLE TECHNOLOGIES LTD., THERE WERE TRANSACTIONS CONDUCTED OF RS.10 CRORE WOULD SUPPORT THE EXPLANATION OF ASSESSEE-COMPANY THAT SUCH CREDITOR WAS HAVING CAPACITY TO GIVE LOAN OF RS.3.70 CRORES TO THE ASSE SSEE-COMPANY. THE ASSESSEE-COMPANY PAID INTEREST ON THESE LOANS T O THE CREDITOR, ON WHICH, TDS HAVE BEEN DEDUCTED. THE A.O . ACCEPTED THE CLAIM OF ASSESSEE-COMPANY AND DID NOT DISALLOW INTEREST PAID ON SUCH LOANS. BOTH THE CREDITORS ARE UNRELATE D AND INDEPENDENT PARTIES. IN THE CASE OF M/S. MARRY GOLD OVERSEAS LIMITED THE AMOUNT HAVE BEEN RETURNED IN SUBSEQUENT YEAR AND IN THE CASE OF OTHER CREDITOR M/S. MAPLE TECHNOLOGI ES LTD., THE ASSESSEE-COMPANY WRITTEN BACK THE AMOUNT IN SUBSEQU ENT YEAR AND SHOWN ITS INCOME. THEREFORE, IT WOULD AMOUNT TO DOUBLE ADDITION IN ASSESSMENT YEAR UNDER APPEAL. IT IS WEL L SETTLED LAW THAT ASSESSEE-COMPANY CANNOT BE ASKED TO PROVE SOUR CE OF THE SOURCE. EVEN THEN THE DIRECTOR OF BOTH THE COMPANIE S IN HIS STATEMENT CONFIRMED THAT SOURCE OF GIVING LOANS TO THE ASSESSEE- COMPANY WAS ADVANCED RETURN BY M/S. DIVINE INFRACON PVT. LTD. 21 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. HOWEVER, THE A.O. DID NOT BELIEVE THE EXPLANATION O F THE CREDITOR BECAUSE COPY OF THE RENT AGREEMENT WAS NOT FILED. T HE A.O. HAS SUMMONED BOTH THE CREDITORS UNDER SECTION 131 OF TH E I.T. ACT IN ORDER TO VERIFY THE GENUINENESS OF THE TRANSACTI ON IN THE MATTER. THE A.O. MAY ASK THE CREDITOR TO EXPLAIN TH E SOURCE BUT ASSESSEE-COMPANY CANNOT BE ASKED TO EXPLAIN THE SOU RCE OF THE SOURCE. SINCE SHRI HITESH GARG WAS SUMMONED AS WITN ESS OF THE DEPARTMENT AND IN CASE, HE DID NOT PRODUCE THE RENT AGREEMENT SUBSEQUENTLY, A.O. SHOULD EXPLAIN AS TO W HAT STEPS HAVE BEEN TAKEN BY THE HIM AGAINST THIS WITNESS OF THE DEPARTMENT FOR PRODUCTION OF THE RENT AGREEMENT AS PER LAW. THEREFORE, IF THE A.O. HAS NOT TAKEN ANY STEPS AGAI NST HIS OWN WITNESS, NO ADVERSE INFERENCE SHOULD BE DRAWN AGAIN ST THE ASSESSEE-COMPANY. THUS, THE SOLE BASIS LEFT FOR CON SIDERATION IS THAT REVENUE DOUBTED THE CREDITWORTHINESS OF THE CR EDITORS BECAUSE OF THE LOW INCOME REFLECTED IN THEIR RETURN OF INCOME AND THAT THEY HAVE NO FIXED ASSETS OR DEBTORS OR CR EDITORS. HOWEVER, A.O. HAS NOT UNDERTAKEN ANY INVESTIGATION OF THE VERACITY OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE -COMPANY. 22 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. THE BANK STATEMENT OF THE CREDITORS SHOW THAT BOTH CREDITORS WERE HAVING SUFFICIENT AMOUNTS IN THEIR BANK ACCOUN TS FOR GIVING LOANS TO THE ASSESSEE-COMPANY. THE A.O. HAVE NOT MADE ANY INVESTIGATION AND NOTHING HAS BEEN BROUGHT ON R ECORD IF THE AMOUNT OF LOAN GIVEN BY BOTH THE CREDITORS ACTUALLY RECEIVED FROM THE COFFERS OF THE ASSESSEE-COMPANY SO AS TO E NABLE IT TO BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE-CO MPANY. 14. THE HONBLE DELHI HIGH COURT IN THE CASE OF CI T VS. SHIV DHOOTI PEARLS AND INVESTMENT LTD., (DEL.) (201 5) 64 TAXMANN.COM 329 (DEL.) IN WHICH IT WAS HELD AS UNDE R : IN TERMS OF SECTION 68, ASSESSEE IS LIABLE TO DISC LOSE ONLY SOURCE(S) FROM WHERE HE HAS HIMSELF RECEIVED CREDIT AND IT IS NOT BURDEN OF ASSESSEE TO SHOW SOURCE(S) OF HIS CREDITOR NOR IS IT BURDEN OF ASSESSEE TO PROVE CREDITWORTHIN ESS OF SOURCE(S) OF SUB CREDITORS. 14.1. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. VRINDAVAN FARMS PVT. LTD., ITA.NO.71/2015 DATED 12 TH AUGUST, 2015 (DEL), IN WHICH IT WAS HELD AS UNDER : 23 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. THE SOLE BASIS FOR THE REVENUE TO DOUBT THEIR CREDITWORTHINESS WAS THE LOW INCOME AS REFLECTED IN THEIR RETURN OF INCOME. IT WAS OBSERVED BY THE ITA T THAT THE AO HAD NOT UNDERTAKEN ANY INVESTIGATION OF THE VERACITY OF THE DOCUMENTS SUBMITTED BY THE ASSESSEE, THE DEPARTMENTAL APPEAL WAS DISMISSED BY THE HONBLE HIGH COURT. 14.2. THE HONBLE GAUHATI HIGH COURT IN THE CASE O F NEMI CHAND KOTHARI VS. CIT AND ANOTHER (2003) 264 ITR 25 4 (GAU.) IN WHICH IT WAS HELD AS UNDER: HELD, (I) THAT THE ASSESSEE HAD ESTABLISHED THE ID ENTITY OF THE CREDITORS. THE ASSESSEE HAD ALSO SHOWN, IN ACCORDANCE WITH THE BURDEN, WHICH RESTED ON HIM UND ER SECTION 106 OF THE EVIDENCE ACT, THAT THE SAID AMOU NTS HAD BEEN RECEIVED BY HIM BY WAY OF CHEQUES FROM THE CREDITORS WHICH WAS NOT IN DISPUTE. ONCE THE ASSESS EE HAD ESTABLISHED THESE, THE ASSESSEE MUST BE TAKEN T O HAVE PROVED THAT THE CREDITOR HAD THE CREDITWORTHIN ESS TO 24 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. ADVANCE THE LOANS. THEREAFTER, THE BURDEN HAD SHIFT ED TO THE ASSESSING OFFICER TO PROVE THE CONTRARY. THE FA ILURE ON THE PART OF THE CREDITORS TO SHOW THAT THEIR SUB-CR EDITORS HAD CREDITWORTHINESS TO ADVANCE THE SAID LOAN AMOUN TS TO THE ASSESSEE, COULD NOT, UNDER THE LAW BE TREATE D AS THE INCOME FROM UNDISCLOSED SOURCES OF THE ASSESSEE HIMSELF WHEN THERE WAS NEITHER DIRECT NOR CIRCUMSTANTIAL EVIDENCE ON RECORD THAT THE SAID LOAN AMOUNTS ACTUA LLY BELONGED TO, OR WERE OWNED BY, THE ASSESSEE. THE ASSESSING OFFICER FAILED TO SHOW THAT THE AMOUNTS, WHICH HAD COME TO THE HANDS OF THE CREDITORS FROM THE HAN DS OF THE SUB-CREDITORS, HAD ACTUALLY BEEN RECEIVED BY TH E SUB- CREDITORS FROM THE ASSESSEE. THEREFORE, THE ASSESSI NG OFFICER HAVE TREATED THE SAID AMOUNTS AS INCOME DER IVED BY THE ASSESSEE FROM UNDISCLOSED SOURCES. 14.3. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. VALUE CAPITAL SERVICES PVT. LTD., (2008) 307 ITR 33 4 (DEL.) IN WHICH IT WAS HELD AS UNDER: 25 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. DISMISSING THE APPEAL, THAT THE ADDITIONAL BURDEN WAS ON THE DEPARTMENT TO SHOW THAT EVEN IF THE SHARE APPLI CANTS DID NOT HAVE THE MEANS TO MAKE THE INVESTMENT, THE INVESTMENT MADE BY THEM ACTUALLY EMANATED FROM THE COFFERS OF THE ASSESSEE SO AS TO ENABLE IT TO BE TR EATED AS THE UNDISCLOSED INCOME OF THE ASSESSEE. NO SUBSTANTIA L QUESTION OF LAW AROSE. 14.4. THE HONBLE GUJARAT HIGH COURT IN THE CASE O F DCIT VS. ROHINI BUILDERS (2002) 256 ITR 360 (GUJ.) HELD AS UNDER : THE ASSESSEE WAS A FIRM, ENGAGED IN THE BUSINESS O F DEALINGS IN LAND. DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE HAD TAKEN LOANS FROM VAR IOUS PARTIES AND DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE ASSESSEE HAD FURNISHED THE LOAN CONFIRMATIONS G IVING FULL ADDRESSES, G1R NUMBERS/PERMANENT ACCOUNT NUMBE RS, ETC., OF ALL THE DEPOSITORS. THE ASSESSING OFFICER HOWEVER ISSUED SUMMONS TO SOME OF THE CREDITORS AND ALSO CONDUCTED INQUIRIES INTO THE GENUINENESS OR OTHERWI SE OF THE 26 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. LOANS TAKEN BY THE ASSESSEE. AFTER CONSIDERING THE EVIDENCE, THE ASSESSING OFFICER MADE AN ADDITION OF RS.12,85,000 TO THE RETURNED INCOME OF THE ASSESSEE . THIS WAS CONFIRMED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). ON FURTHER APPEAL TO THE TRIBUNAL THE TR IBUNAL HELD THAT THE PHRASEOLOGY OF SECTION 68 OF THE INCOME-TAX ACT, 1961, WAS CLEAR, THAT THE LEGISLATURE HAS LAID DOWN THAT IN THE ABSENCE OF A SATISFACTORY EXPLANATION, THE UNEXPLAINED CASH CREDIT MAY BE CHARGED TO INCOME-TA X AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR, T HAT THE LEGISLATIVE MANDATE IS NOT IN TERMS OF THE WORDS S HALL BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR', THAT THE UNSATISFACTORINESS OF THE EXPLANATION DOES NOT AND NEED NOT AUTOMATICALLY RES ULT IN DEEMING THE AMOUNT CREDITED IN THE BOOKS AS INCOME OF THE ASSESSEE. THE TRIBUNAL FOUND THAT THE ASSESSEE HAD DISCHARGED THE INITIAL ONUS WHICH LAY ON IT IN TERM S OF SECTION 68 BY PROVING THE IDENTITY OF THE CREDITORS BY GIVING THEIR COMPLETE ADDRESSES, GIR NUMBERS/PERMANENT ACC OUNT 27 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. NUMBERS AND THE COPIES OF ASSESSMENT ORDERS WHEREVE R READILY AVAILABLE, THAT IT HAD ALSO PROVED THE CAPA CITY OF THE CREDITORS BY SHOWING THAT THE AMOUNTS WERE RECEIVED BY THE ASSESSEE BY ACCOUNT PAYEE CHEQUES DRAWN FROM BANK ACCOUNTS OF THE CREDITORS AND THE ASSESSEE WAS NOT EXPECTED TO PROVE THE GENUINENESS OF THE CASH DEPOS ITED IN THE BANK ACCOUNTS OF THOSE CREDITORS BECAUSE UNDER LAW THE ASSESSEE CAN BE ASKED TO PROVE THE SOURCE OF THE CR EDITS IN ITS BOOKS OF ACCOUNT BUT NOT THE SOURCE OF THE SOUR CE. THUS TAKING INTO CONSIDERATION THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, AND, IN PARTICULAR THE F ACT THAT THE ASSESSING OFFICER HAD NOT DISALLOWED THE INTERE ST CLAIMED/PAID IN RELATION TO THESE CREDITS IN THE ASSESSMENT YEAR UNDER CONSIDERATION OR EVEN IN THE SUBSEQUENT YEARS AND TAX HAD BEEN DEDUCTED AT SOURCE OUT OF THE INTE REST PAID/CREDITED TO THE CREDITORS, THE TRIBUNAL HELD T HAT THE DEPARTMENTAL AUTHORITIES WERE NOT MAKING THE ADDITI ON OF RS.12,85,000. ON APPEAL TO THE HIGH COURT : 28 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. HELD, THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE NARRATED BY THE TRIBUNAL AND THE LAW EXPLAINED BY IT, THE APPEAL WAS LIABLE TO BE DISMIS SED. 14.5. THE HONBLE SUPREME COURT HAS DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE REVENUE AGAINST THIS JUDGMENT REPORTED IN (2002) 254 ITR (ST.) 275. 15. THE DECISIONS RELIED UPON BY THE LEARNED COUNS EL FOR THE ASSESSEE SQUARELY APPLY TO THE FACTS AND CIRCUM STANCES OF THE CASE. THUS, THE ASSESSEE-COMPANY PROVED THE IDE NTITY OF THE CREDITORS, THEIR CREDITWORTHINESS AND GENUINENESS O F THE TRANSACTION IN THE MATTER. THE DECISIONS RELIED UPO N BY THE LD. D.R. DO NOT SUPPORT THE CASE OF THE REVENUE. IN VIE W OF THE ABOVE DISCUSSION AND EVIDENCE AND MATERIAL ON RECORD, WE DO NOT FIND ANY JUSTIFICATION TO SUSTAIN THE ADDITION. WE, ACCO RDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DELET E THE ADDITION OF RS.5 CRORES. THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE- COMPANY. 29 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. ISSUE NO.3 : 16. THE A.O. WHILE MAKING THE ADDITION UNDER SECTI ON 68 OF THE I.T. ACT NOTED THAT THE SAME WOULD BE TAXED SEPARATELY UNDER THE PROVISIONS OF SECTION 115BBE AS THE SAME WOULD NOT BE REDUCED FROM THE CLAIM OF BUSINESS LOSSES. THOUG H BOTH THE PARTIES HAVE MADE THEIR RESPECTIVE CONTENTIONS ON T HIS ISSUE REGARDING APPLICABILITY OF THESE PROVISIONS TO THE CASE OF ASSESSEE-COMPANY, HOWEVER, WE ARE OF THE VIEW THAT SINCE WE HAVE DELETED THE ADDITIONS UNDER SECTION 68 OF THE I.T. ACT, THEREFORE, THIS ISSUE IS LEFT WITH ACADEMIC DISCUSS ION ONLY. NO FURTHER FINDING IS REQUIRED. THIS GROUND OF ASSESSE E-COMPANY IS ACCORDINGLY DISPOSED OFF. 17. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (LP SAHU) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 13 TH APRIL, 2018 VBP/- 30 ITA.NO.6507/DEL./2017 M/S. TOPLINE BUILDTECH PVT. LTD., NEW DELHI. COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT G BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.