ASSISTANT COMMISSIONER OF INCOME TAX 23(1), MUMBAI V. CALVIN PROPERTIES, MUMBAI

ITA 6561/MUM/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8218 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 10-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Bogus purchase; Unexplained cash credit; Gift; Tangible material; Difference of opinion; Accommodation entries; Onus to prove; Reason to believe; Change of opinion; Reassessment proceedings; Set aside
• Section: 143(3); 133(6); 143(1); 68; 148; 6; 132

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , JM & HONBLE SH. N. K. PRADHAN, A M ./ I.T.A. NO . 6561, 6562 & 6564 /MUM/2017 ( / ASSESSMENT YEAR: 2011 - 12, 2012 - 13 & 2013 - 14 ) ACIT CIR 23 (1) R. NO. 113 , 1 ST FLOOR, MATRU MANDIT, TARDEO ROAD, MUMBAI - 400 0 07 / VS. M/S CALVIN PROPERTIES, 14, GITANJALI, PLOT NO. 234, PATKARWADI, S. V. ROAD, BANDRA (WEST), MUMBAI - 400 050 ./ ./ PAN NO. AA GFC2218L ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI ABI RAMA KARTHIKEYAN , DR / RESPONDENTBY : SHR I RAJIV KHANDELWAL , AR / DATE OF HEARING : 21.02 .201 9 / DATE OF PRONOUNCEMENT : 03.04.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT THREE APPEAL S HAVE BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 32, MUMBAI, DATED 31.08.17 FOR AY 2011 - 12 , 2012 - 13 & 2013 - 14 RESPECTIVE LY. 2 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES 2. SINC E THE ISSUES RAISED IN ALL THE SE APPEALS ARE IDENTICAL, THEREFORE, FOR TH E SAKE OF CONVENIENCE, THESE APPEALS ARE CLUBBED, HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. I.T.A. NO. 6561 /MUM/201 7 (AY 2011 - 12 ) 3. FIRST OF ALL WE TAKE UP REVENUE S APPEAL IN I.T.A. NO. 6561 /MUM/201 7 (AY 2011 - 12 ) ON THE GROUNDS MENTIONED HEREIN BELOW: - (I) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION MADE U/S 68 OF THE INCOME - TAX ACT, 1961 WITHOUT APPRECIATING THE FACTS THAT AS PER ENQUIRY & INVESTIGATION MADE BY THI S OFFICE AS WELL AS INVESTIGATION WING, MUMBAI, THE ALLEGED PARTIES ARE MERE ACCOMMODATION ENTRY PROVIDERS WHO PROVIDE ACCOMMODATION ENTRY IN THE FORM OF PURCHASE AND LOANS AS PE R THE REQUIREMENTS OF THE BENEFICIARY. (II) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION MADE U/S 68 OF THE INCOME - TAX ACT, 1961 WITHOUT APPRECIA TING THE FACTS THAT THE ALLEGED PART IES HAVE NO REAL WORTH/CAPABILITY/CREDIT FROM WHERE THEY CAN LEND SUCH HUGE LOAN TO THE ASSESSEE? 3 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES (III) 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION MADE U/S 68 OF THE INCOME - TAX A CT, 1961 WITHOUT APPRECIATING THE FACTS THAT THE ASSESSEE FAILED TO DISCHARGNE HIS ONUS TO PROVE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS' (IV) 'THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AN D THAT OF THE A.O. BE RESTORED.' (V) 'THE APPELLANT CRAVES LEAVE TO ADD, DELETE, ALTER, AMEND AND MODIFY ANY OR ALL GROUNDS OF APPEAL' 4. AS PER THE FACTS OF THE PRESENT CASE, THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF DEVELOPMENT / RE - DEVELOPMENT OF PROPERTIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS INITIALLY FILED ON 28.09.2011 DECLARING TOTAL INCOME AT RS.NIL. THE RETURN OF INCOME WAS PROCESSED U/S 143(1) OF THE ACT SUBSEQUENTLY, ON THE RECEIPT OF CERTAIN INFORMA TION FROM DIT(LNV), MUMBAI - LL, - THE ASSESSMENT WAS REOPENED BY ISSUANCE OF NOTICE U/S 148 ON 18.12.2015 AND SUBSEQUENTLY AFTER PROVIDING OPPORTUNITY OF HEARING TO THE ASSESSEE, IT WAS HELD BY THE AO THAT THE UNSECURED LOAN TAKEN BY 4 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES THE ASSESSEE FROM M/S DUK E BUSINESS P LTD. (JPK TRADING PVT LTD.), M/S CASPER ENTERPRISES PRIVATE LIMITED (OSWAL TRADING PVT. LTD.) AND M/S. NAKSHATRA BUSINESS P LTD. (HEMA TRADING P LTD) WAS NOTHING BUT AN ACCOMMODATION ENTRIES TAKEN BY THE ASSESSEE. THUS, AO MADE ADDITIONS U/S 6 8 OF THE ACT BY TREATING THE AMOUNT OF RS. 1,50,00,000/ - AS UNEXPLAINED CASH CREDIT AND ACCORDINGLY TREATED IT AS INCOME AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT( A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITIONS MADE U/S 68 OF THE ACT. 6. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. 5 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES GROUND NO. (I) TO (III) 7 . THESE GROUND RAISED BY THE REVENUE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHAL LENGING THE ORDER OF LD. CIT(A) IN DELETING THE ADDITION MADE BY AO U/S 68 OF THE ACT, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 8 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD, JUDGMENT CITED BY THE PARTIES AS WELL AS THE ORD ERS PASSED BY REVENUE AUTHORITIES. BEFORE WE DECIDE THE MERITS OF THE CASE, IT IS NECESSARY TO EVALUATE THE ORDERS PASSED BY LD. CIT(A). THE LD. CIT(A) HAS DEALT WITH THE ABOVE GROUNDS RAI SED BY THE REVENUE IN PARA NO. 2.4.3 TO 2.4.9 OF ITS ORDER AND THE SAME IS REPRODUCED BELOW: - 2.4.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS OF THE LD.AR. 1 HAVE ALSO GONE THROUGH THE DECISIONS RELIED ON BY THE AO AND THE LD.AR. WITH REGARD TO THE VALIDITY OF NOTICE ISSUED UNDER SECTION 148 AND THE REASSESSMENT DONE, I AM OF 6 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES THE OPINION THAT THE NOTICE U/S 148 WAS ISSUED VALIDLY BASED ON THE VALID INFORMATION RECEIVED FROM THE INVESTIGATION WING OF INCOME TAX DEPARTMENT AND THE REOPENING WAS DONE WITHIN FOUR YEARS FROM THE END OF THE RELEVANT A.Y. THE REOPENING OF ASSES SMENT ON THE BASIS OF BOGUS PURCHASES IS HELD VALID BY THE HON 'BLE BOMBAY COURT IN THE CASE OF HITESH R. SHAH (2013) 35 TAXMANN.COM 474 EVEN THOUGH THE ORIGINAL ASSESSMENT WAS CONCLUDED U/S 143(3) AND EVEN BEYOND FOUR YEARS. THE AO ALSO FOLLOWED DUE PROCE DURE OF RECORDING OF REASONS AND SUPPLYING SUCH REASONS TO THE APPEL LANT ON REQUEST. IN VIEW OF THE A BOVE THE REASSESSMENT MADE IS HELD INVALID. THE REASSESSMENT IS ALSO HELD VALID IN VIEW OF THE FOLLOWING DECISIONS - (I) HON'BLE GUJARAT HIGH COURT IN THE C ASE OF RHYTHM CHEMICALS P LTD V. ACIT, 33 TAXMAN.COM 426 HAS HELD THAT SINCE INTIMATION U/S 143(1) IS NOT AN ASSESSMENT ORDER THERE IS NO CHANGE OF OPINION AND REOPENING IS VALID BEYOND FOUR YEARS. (II) THE HON'BLE DELHI HIGH COURT IN THE CASE OF OPG METAL S AND FINSEC LTD V. CIT, 358 ITR 144 HAS HELD THAT RE - ASSESSMENT IS VALID IF THE ISSUE, IS NOT A SUBJECT MATTER OF EARLIER ASSESSMENT. SAME VIEW WAS ALSO TAKEN BY HIGH COURT OF BOMBAY IN THE CASE OF EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD V. ADDL. CIT (30 TAXMANN.COM 211) (2013) THAT REOPENING OF AN 7 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES ASSESSMENT IS PERMISSIBLE EVEN IN THE CASE OF SCRUTINY U/S 143(3) ORIGINALLY WHEN THE ORIGINAL ASSESSMENT ORDER PASSED IS SILENT IN RESPECT OF THE ISSUE/POINT ON WHICH RE - ASSESMENT NOTICE IS ISSUED. FURT HER, NO QUERY WITH REGARD TO THE ABOVE ISSUE HAVING BEEN MADE DURING THE ASSESSMENT PROCEEDINGS WOULD ALSO INDICATE ABSENCE OF APPLICATION OF MIND TO THE TANGIBLE MATERIAL, AND REOPENING IS VALID. (III) IT WAS HELD IN THE FOLLOWING CASES THAT WHEN THERE IS NO DISCUSSION ON THIS ISSUE AND NO DETAILS ARE CALLED FOR BY THE AO OR FILED BY THE APPELLANT AND NO FINDINGS EITHER POSITIVE OR NEGATIVE IN THE ORIGINAL ASSESSMENT PROCEEDINGS, REOPENING CANNOT BE CONSTRUED AS CHANGE OF OPINION. 1. ALA FIRM VS. CIT (102 ITR 622) (MAD HC) 2. ESS KAY ENGINEERING COMPANY PYF. LFCF VS. CIT (247 ITR R18)(SC) 3. REVATHI CP EQUIPMENTS LTD VS. DCIT &0RS (241 ITR 856)(MAD HC) 4. EMA INDIA LTD VS. ACIT (30 DTR 82) (AIL HC) (IV) THE HON'BLE SUPREME COURT IN THE CASE OF KALYANJI MAVJ I & COMPANY V. CIT (102 ITR 287) (SC) (1976) HAS HELD THAT THERE IS NO CHANGE OF OPINION IF THE ASSESSMENT IS REOPENED ON NEW FACTS WHICH CAME TO 8 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES NOTICE SUBSEQUENT, EVEN THOUGH THEY ARE ALREADY ON RECORD. (V) THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF PRAF UL CHUNILAL PATEL AND VASANTH CHU NILAL PATEL V. ACIT (236 ITR 832) (1999) HAS HOLD THAT WHE RE THE AO HAD OVERLOOKED SOME THING AT THE FIRST ASSESSMENT, THERE CAN BE NO QUESTION OF ANY CHAN GE OF OPINION, WHEN THE INCOME WHICH WAS CHARGEABLE TO TAX IS ACTUALLY TAXED AS IT OUGHT TO HAVE BEEN UNDER THE LAW BUT WAS NOT TAXED DUE TO AN ERROR COMMITTED AT THE FIRST ASSESSMENT, THE REOPENING WAS HELD VALID. (VI) ITAT, CHENNAI IN THE CASE OF CHONNSI PETROLEUM CORPN. LTD A.Y. 2006 - 07 (ITA NO.66/11 - 12/LTU(A) DATED 08.01.2013 RELYING ON THE HIGH COURT OF DELHI IN THE CASE OF CONSOLIDATED PHOTO AND FINVEST LTD V. ACIT (281 ITR 394) (2006) AND.HIGH COURT OF MUMBAI IN THE CASE OF DR.AMIR'S PATHOLOGICAL LAB ORATORY V. JCIT (252 ITR 673) HAS HELD THAT MERE PRODUCTION OF BOOKS OF ACCOUNT, BALANCE - SHEETND PROFIT AND LOSS ACCOUNT WILL NOT NECESSARILY AMOUNT TO DISCLOSURE NECESSARY FOR EXPLANATION 1 OF SEC 147. (VII) HIGH COURT OF DELHI IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD V. DCIT (197 TAXMAN 415) (2011) HAS HELD THAT MERELY BECAUSE THE MATERIAL LIES EMBEDDED IN THE MATERIAL EVIDENCE WHICH THE AO COULD 9 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES HAVE UNCOVERED BUT DID NOT UNCOVER, IS NOT A GOOD REASON FOR STRIKING DOWN REOPENING. (VIII) THE HON'BLE HIGH COURT OF MUMBAI IN THE CASE OF EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LID V. ADDL.CIT (30 LAXRNANN.COM 211) (2013) HAS HELD THAT THERE IS NO FAILURE ON THE PART OF ASSESSEE TO DISCLOSE MATERIAL FACTS BUT THERE IS COMPLETE FAILURE ON THE PART OF THE AO TO APPLY HIS MIND DURING ORIGINAL ASSESSMENT TO POINTS ON WHICH ASSESSMENT IS REOPENED, REOPENING WAS TREATED AS VALID. IT IS FURTHER TO BE UNDERSTOOD THAT WHEN IT IS THE QUESTION OF NON APPLICATION OF MIND WHETHER IT IS FOR FOUR YEARS OR MORE MAKES NO DIFFERENCE. (IX) NOTWITHSTANDING ANYTHING S TATED AB OVE, IT IS THE PREROGATIVE OF THE AO / REVENUE TO REOPEN THE ASSESSMENT IF THE AO HAS ROUND IN THE COURSE OF TIME THAT CERTAIN AMOUNTS WHICH SHOULD HAVE BEEN BROUGHT TO TAX HAVE ESCAPED ASSESSMENT. THE POWERS WERE CLEARLY ENACTED U/S 149 R.W.S. 151 OF THE ACT. AS PER THESE PROVISIONS WHAT THE AO IS SUPPOSED TO SEE IS WHETHER THERE IS AN ESCAPEMENT OF INCOME AND WHETHER IT IS WITHIN FOUR YEARS OR BEYOND FOUR YEARS AND WHETHER IT IS A CASE OF 1 - 43(1) OR 1 43(3) SO AS TO TAKE APPROVAL FROM COMPETENT AUTHORITIES AS PER TNU PROVISIONS ONCE THE AO ENSURES THESE REQUIREMENTS THEN HE CAN REOPEN THE ASSESSMENT BY RECORDING THE 10 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES REASONS. THE AO WILL BE WITHIN HIS JURISDICTION TO REOPEN THE ASSESSMENT AND HIS JURISDI CTION CANNOT BE CHALLENGED PER SE FURTHER IT IS TO BE UNDERSTOOD THAT MERE REOPENING DOES NOT MEAN THAT THE AO HAS COME TO THE CONCLUSION THAT INCOME HAS ESCAPED' (X) THE HON'BLE HIGH COURT OF BOMB AY IN THE CASE OF ELEGANZA JEWELLERY LTD.(2014) 52 TAXMANN. COM 46 HAS NEID MAT IT IS A TRUE LAW THAT AT THIS STAGE ONLY A PRIMA FACIE VIEW OF THE AO IS NECESSARY TO ISSUE NOTICES AND NOT A CAST IRON CASE OF ESCAPEMENT OF INCOME. SIMILAR VIEWS WERE ALSO EXPRESSED IN THE FOLLOWING CASES, 1. HIGH COURT OF DELHI IN TH E CASE OF MAHANAGAR TELEPHONE NIGAM LTD.(2000)112 TAXMAN 337 2.SC IN THE CASE OF CENTRAL PROVINCES MANGANESE OR CO. LTD. (1991) 191 ITR 662 . 3. .SC IN THE CASE OF SELECTED DALURBRAND COAL CO T J LTD (1996) 217 ITR 597 (XI) THE HON'BLE HIGH COURT, OF BOMBAY IN THE RECENT DECISIONS IN THE FOLLOWING CASES W HILE DEALING WITH BOGUS PURCHASE/LOANS ISSUES HAS RULED THAT THE INITIATION OF REASSESSMENT PROCEEDINGS ON THE BASIS OF SURVEY OPERATIONS, IS HELD VALID EVEN THOU GH THERE WAS SCRUTINY U/S 143(3). THEY OPINED THAT IT WILL NOT TANTAMOUNT TO CHANGE OF OPINION. - 11 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES 1. NIKUNJ EXIM ENTERPRISES PVT.LTD. (2014) 49 IAXMANN.COM 10. 2.BRIGHT STAR SYNTEX(P.) LTD.(2016) 71 TAXMSNN.COM 64. 3. .NARESH K. PAHUJA. (2015) 54 TAXMANN.COM 258 - HELD THAT MERE PAYMENTS ROUTING THROUGH BANK CHANNELS WOULD NOT BY ITSELF ESTABLISH THE GENUINENESS OF THE GIFTS. 4. HITESH R. SHAH (2013) 35 TAXMANN.COM 474 - HELD THAT REOPENING BEYOND 4 YEARS IS JUSTIFIED IN SUCH CASES OF ACCOMMODATION ENTRIES WHIC H THE AO IS IN POSSESSION OF BASED ON THE INVESTIGATION CARRIED OUT. 2.4.4. IN VIEW OF THE ABOVE DISCUSSION THE REOPENING OF ASSESSMENT IS HELD VALID SINCE THERE WAS 'TANGIBLE MATERIAL' AVAILABLE WITH THE AO AT THE TIME OF REOPENING THE ASSESSMENT IN THE FORM OF INFORMATION RECEIVED FROM THE DIT INVESTIGATION. FURTHER, AS THE ASSESSMENT IS REOPENED BASED ON THE EVIDENCE COLLECTED AND STATEMENTS RECORDED DURING THE COURSE OF SEARCH PROCEEDINGS U/S 132 BY THE INVESTIGATION WING OF MUMBAI IT OFFICE, THE AO HA S A 'REASON TO BELIEVE T HAT INCOME HAS ESCAPED ASSESSMENT AND THERE IS 'NO CHANGE OF OPINION'. THE REOPENING PROCEEDINGS ARE, THEREFORE, UPHELD AND THE GROUND IS DISMISSED. 12 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES GROUND NO.1 IS RAISED AGAINST THE ADDITION MADE OF RS. 1,50,00,0007 - AS UNEXPLAINED CASH CREDIT U/S 68 OF I T ACT, 1961. THE LD AO HAS NOTICED THAT THE APPELLANT HAS DURING THE YEAR UNDER CONSIDERATION RECEIVED UNSECURED LOANS OF AGGREGATED AMOUNT OF RS. 1,50,00,000/ - AS UNDER SR. NO. NAME PAN AMOUNT OF SALES TO ASSESSEE IN F.Y.2010 - 11 (IN RS.) 1 . CASPER ENTERPRISES (OSWAL TRADING P LTD.) : AAACO79 5 5 M 20,00,000 2 . DUKE BUSINESS P. LT D (JPK TRAD.NG I PVL : AABCJ6245N 30,00,000 3 . NAKSHATRA BUSINESS P. LTD. (HEMA TRADING P. LTD). AABCH4279G 1,00,00,000 TOTAL 1,50,00,000/ - DURING THE APPELLATE PROCEEDINGS, THE ID AR HAS FILED DETAILED SUBMISSIONS AND OTHER RELEVANT DOCUMENTS IN A P APER BOOK . HE HAS ALSO REFERRED TO SEVERAL CASE LAWS ON WHICH THEY RELY IN SUPPORT OF THE GROUND OF APPEAL. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF THE ID AR. I HAVE ALSO GONE THROUGH THE DECISIONS RELIED ON BY THE AO AND ID AR IT IS OBSERVED THAT DURING THE ASSESSMENT PROCEEDINGS THE APPELLANT HAS FILED RELEVANT DETAILS REQUIRED TO PROVE THE IDENTITY AND CREDITWORTHINES S OF THE INVESTING COMPANIES AND THE GENUINENESS OF THE TRANSACTIONS IN THE FORM OF PAN, INCORPORATION CERTIFICATE, MEMORANDUM OF ASSOCIATE, IT RETURN COPIES , CONFIRMATIONS, BANK STATEMENTS AUDITED ACCOUNTS ETC AS EVIDENT FROM THE RECORD. THE ID AR HAS FUR THER ARGUED THAT THE TRANSACTION HAS TAKEN PLACE THROUGH BANKING CHANNELS, THEREFORE THE GENUINENESS OF 13 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES THE INVESTMENT CAN NOT BE DOUBTED. HENCE THE AR ARGUED THAT APPELLANT HAS DISCHARGED ITS ONUS AND THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE FOUR CO MPANIES WERE PROVED BEYOND DOUBT THE EXCESSIVE RELIANCE ON THE STATEMENTS GIVEN BY THE THIRD - PARTY I.E, KEY PERSONS OF PRAVIN KUMAR JAM GROUP, WHOM THE APPELLANT DOES NOT KNOW IS CONSIDERED TO BE NOT PROPER EVEN WITHOUT GIVING THE APPELLANT A CHANCE TO CROSS - EXAMINE THE PERSONS WHO HAD GIVEN SUCH ADVERSE STATEMENTS. HE FURTHER ARGUED THAT ADDITION WAS MADE WITHOUT PROVIDING THE APPELLANT THE CORROBORATIVE EVIDENCE IN T HE POSSESSION OF THE AO TO PROVE THAT THE APPELLANT HAS PAID THE CASH, AS ALLEGED, AGAINST THE RECEIPT OF CHEQUES ON THE OTHER HAND THE ID AO HAS BELIEVED THE EVIDENCE(SUPPORT:NG DOCUMENTS) SUBMITTED BEFORE HIM WAS ENGINEERED TO EXPLAIN BOGUS INVES TMENT SAYING THAT THE TNOSE WERE INVOLVED IN ACCOMMODATION ENTRIES IN AN ORGANIZED WAY ARE METICULOUS IN ARRANGING THE MAKE - BELIEVE DOCUMENTS. HE FURTHER BELIEVED THAT THE SAID KEY - PERSONS OF PRAVIN KUMAR JAIN GROUP HAVE GIVEN CATEGORICAL STATEMENTS STATING THAT THEY HAVE INVOLVED ONLY IN BOGUS TRANSACTIONS BY GIVING ACCOMMODATION ENTRIES BY GIV ING CHEQUES IN EXCHANGE OF CASH THROUGH THEIR GROUP ENTITIES. THE ID AR ON THE OTHER HAND ARGUED THAT THE AO HAS IGNORED THE FACT THAT ALL THE STATEMENTS WERE RETRACTED BY PRAVIN KUMAR JAM ANA ALL HIS ASSOCIATES. IT IS ALLEGED 14 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES THAT THE AO FAILED TO COLLECT FURTHER INFORMATION AND NOT MADE ANY EFFORTS TO DISPROVE THE GENUINENESS OF THE TRANSACTIONS OF UNSECURED LOANS RECEIVED, IT IS ALSO THE CONTENTION OF THE ID AR THAT THE AO HA S FAILED TO DISCUSS THE MERITS OF THE CASES CITED .BY THE APPELLANT FIRM DURING THE COURSE OF ASSESSMENT PROCEEDINGS 2.4.7 IN THE PRESENT CASE BEFORE ME, AS SEEN FROM THE DETAILS FILED BEFORE THE AO, AS EVIDENT FROM THE PAPER BOOK, I DO NOT. FIND ANY INCONSISTENCY OR INCOHERENCE IN RESPECT OF THE RECEIPT OF THE UNSECURED LOAN RECEIVE D F R OM THE SAID THREE COMPANIES. PRIMARILY, AS REGARDS THE TRANSACTION, THE SAME HAS ROUTED THROUGH THE BANKING CHANNEL AND THE SOURCE CANNOT BE DOUBTED. IT WAS HELD IN SEVERAL CASES THAT, WHATEVER MAY BE THE STRENGTH OF PRESUMPTION IT CANNOT SUBSTITUTE TH E EVIDENCE. EVEN THOUGH THE TRANSACTION IS FROM A TAINTED GROUP, THE AO HAS NOT MADE ANY EFFORTS TO SHOW THAT THE TRANSACTION WITH THE APPELLANT FIRM WAS SHAM, FICTITIOUS OR ARTIFICIAL EXCEPT BELIEVING THE STATEMENTS GIVEN BY THE AC COMMODATION ENTRY PROVID ERS. HE HAS FAILED TO GATHER ANY EVIDENCE TO SHOW THAT THE UNACCOUNTED CASH OF THE APPELLANT HAP, CHANGED HANDS CONSEQUENTLY REPLACING THE CHEQUE PAYMENTS. FURTHER HE HAS NOT PROVIDED THE CORROBORATIVE EVIDENCE OR DOCUMENT WHICH HE RELIED ON TO THE APPELLA NT AND ALSO 15 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES FAILED TO PROVE HOW THE DETAILS LIKE PAN, IT RETURNS, AUDITED FINANCIALS, INCORPORATION CERTIFICATES, BANK STATEMENTS ETC CAN NOT BE TAKEN N OTE OF IN THIS REGARD. THE HONBLE MUMBAI ITAT IN THE CASE OF ANANT SHELTERS P LTD 20 TAXMANN CORN 153(2 012 }.HAS LAID DOWN CERTAIN PRINCIPLES WITH REGARD TO SECTION 68 WHICH THE AO IS BOUND TO FOLLOW. IT HAS OBSERVED AS UNDER: '(I) SECTION 68 CAN BE INVOKED WHEN FOLLOWING THREE CONDITIONS ARE SATISFIED - (A) WHEN THERE IS CREDIT OF AMOUNTS IN THE BOOKS MAINTAINED BY THE ASSESSEE (B) SUCH CREDIT HAS TO BE A SUM OF MONEY DURING THE PREVIOUS YEAR (C) EITHER THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH CREDITS FOUND M THE BOOKS OR THE EXPLANATION OFFERED BY THE ASSESSES, IN THE OPIN ION OF THE ASSESSING OFFICER, IS NOT SATISFACTORY. IT IS ONLY THEN THAT THE SUM SO CREDITED MAY BE CHARGED TO INCOME - TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. (II) THE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION MEANS THE ASSESSEE OFFERS. NO PROPER, REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS THE SUMS FOUND CREDITED IN THE BOOKS MAINTAINED BY HIE - ASSESSEE. THE OPINION OF THE ASSESSING OFFICER FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE AS NOT SATISFACTORY IS REQUIRED TO BE BASED O N PROPER APPRECIATION OF 16 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES MATERNAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON THE RECORD. THE OPINION OF THE ASSESSING OFFICER IS REQUIRED TO BE FORMED OBJECTIVELY WITH REFERENCE TO THE MATERIAL ON RECORD FILE. ONCE THE EXPLANATION OF THE ASSE SSEE IS UNBELIEVABLE OR FALSE T HE ASSESSING OFFICER IS NOT REQUIRED TO BRING POSITIVE EVIDENCE ON RECORD TO TREAT AMOUNT IN QUESTION AS INCOME OF THE ASSESSES 'MULE - CONSIDERING THE EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER HAS 10 ACT REASONABLY - APPLICATION OF MIND IS THE SINE QUA NON FOR FORMING THE OPINION. (III ) PHRASE APPEARING IN THE SECTION - NATURE AND SOURCES OF SUCH CREDITS - SHOULD BE UNDERSTOOD IN RIGHT PERSPECTIVE, SO THAT GENUINENESS OF THE TRANSACTION CAN BE DECIDED ON MERITS ANA NO T ON PREJUDICES. COURTS ARE OF THE FIRM VIEW THAT THE EVIDENCE PRODUCED BY (HE ASSESSEE CANNOT BE BRUSHED ASIDE IN A CASUAL MANNER. ASSESSEE CANNOT BE ASKED TO PROVE IMPOSSIBLE. EXPLANATION ABOUT 'SOURCE OF SOURCE' OR 'ORIGINS OF THE ORIGIN' CANNOT AND SHO ULD NOT BE CALLED FOR WHILE MAKING INQUIRY UNDER SECTION (IV) IN THE MATTERS RELATED TO SECTION 68 BURDEN OF PROOF CANNOT BE DISCHARGED TO THE HILT - SUCH MATTERS ARE DECIDED ON THE PARTICULAR FACTS OF THE CASE AS WELL AS ON THE BASIS OF PREPONDERANCE OF P ROBABILITIES. CREDIBILITY OF THE EXPLANATION, NOT THE MATERIALITY OF EVIDENCES, IS 17 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES THE BASIS FOR DECIDING THE CASES FALLING UNDER SECTION 68. (V) THOUGH CONFIRMATORY LETTERS OR ACCOUNT PAYEE CHEQUES DO NOT PROVE THAT THE AMOUNT IN QUESTION - S PROPERLY EXPL AINED FOR THE PURPOSE OF SECTION 68 AND ASSESSEE HAS TO ESTABLISH IDENTITY AND CREDITWORTHINESS OF THE CREDITOR AS WELL AS THE GENUINENESS OF THE TRANSACTION,, IT IS ALSO TRUE THAT MONEY RECEIVED THROUGH FOREIGN REMITTANCE WITH RBL APPROVAL IS A STRONG INDICATOR OF BONA FIDE OF THE CASH CREDIT THAT HAS TO BE DISAPPROVED O/;/Y VV - M POSITIVE EVIDENCE. (VI) IN MATTERS REGARDING CASH CREDITS, THE ONUS OF PROOF IS NOT A STATIC ONE. AS PER THE PROVISIONS OF THE SECTION THE INITIAL BURDEN OF PROOF LIES ON THE ASSESSEE. AMOUNT APPEARING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE IS CONSIDERED A PROOF AGAINST HIM. HE CAN PROVE THE IDENTITY OF THE CREDITORS BY EITHER FURNISHING THEIR PANS OR ASSESSMENT ORDERS. SIMILARLY, GENUINENESS OF THE TRANSA CTION CAN BE PROVED BY SHOWING THAT THE MONEY WOK RECEIVED BY AN ACCOUNT PAYEE CHEQUE OR BY DRAFT. 'CREDITWORTHINESS OF [LIE LENDER CAN BE ESTABLISHED BY ATTENDING CIRCUMSTANCES. ONCE THE ASSESSEE PRODUCES EVIDENCES ABOUT IDENTITY, GENUINENESS AND CREDITWO RTHINESS OF THE TENDER ONUS OF PROOF SHIFTS TO THE REVENUE.' 18 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES 2.4.8 THE HONBLE APEX COURT IN THE CASE OF LOVELY EXPORTS PVT LTD. 216 CTR 195(SC) 2008 HELD THAT THE AO IS AT LIBERTY TO BRING TO TAX THE AMOUNTS IN THEIR RESPECTIVE HANDS OF THE INVESTORS IF TH EIR IDENTITY, GENUINENESS AND CREDITWORTHINESS IS NOT PROVED. THE AO SHOULD HAVE MADE EFFORTS TO ASSESS THE AMOUNTS IN THE HANDS OF THE INVESTORS AT LEAST ON PROTECTIVE BASIS. EVEN IN CASE, THE CREDITWORTHINESS OF THE INVESTORS JS NOT PROVED IT WILL NOT AU TOMATICALLY GIVE LICENSE TO THE ASSESSING AUTHORITY TO MAKE ADDITIONS IN THE HANDS O F THE RECIPIENT U/S 68 UNLESS IT IS PROVED THAT IT IS THE UNEXPLAINED AND UNACCOUNTED MONEY OF THE APPELLANT WHICH HAS BEEN INTRODUCED IN ITS BOOKS OF ACCOUNT IN THE NA ME O F BOGUS/NON - EXISTENT ENTITIES . AS IT IS OBSERVED THAT, IN THE INSTANT CA.SE, THE AO HAS NOT MADE ANY DENT ON THESE LINES. ON THE OTHER HAND THE APPELLANT HAS FILED ALL THE DETAILS AND SUPPORTING DOCUMENTARY EVIDENCE TO PROVE THE IDENTITY, GENUINENESS AND C REDITWORTHINESS OF TH ESE THREE UNSECURED LOAN PARTIES. 2.4.9 AS SEEN FROM THE ABOVE, THE APPELLANT HAS FURNISHED ALL THE DOCUMENTS AND DETAILS PROVING CONCLUSIVELY - THE - THREE INGREDIENTS O?, IDENTITY, CREDITWORTHINESS OF THE SHARE - APPLICANTS AND THE GENUINE NESS OF THE TRANSACTION. THE AMOUNTS WERE PAID BY INVESTORS FROM, T HEIR RUNNING BANK ACCOUNTS WERE 19 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES DULY ACCOUNTED IN THE BOOKS OF THE APPELLANT AS WELL AS THE INVESTORS AS EVIDENT, FROM THE AUD'LED FINANCIAL STATEMENTS FILED. THESE THREE UNSECURED LOAN LEN DER COMPANIES HAVE CONFIRMED THE TRANSACTION. IN VIEW OF T HE ABOVE DISCUSSION, I HOLD THAT THE UNSECURED LOAN RECEIVED FROM THESE TWO COMPANIES CAN NOT BE DOUBTED AND ADDITION MADE BY THE AO U/S 68 OF THE ACT CANNOT SURVIVE THE TEST OF APPEAL. I THEREFORE DIRECT THE AO TO WITHDRAW THE ADDITION. THIS GROUND S ALLOWED. 9 . AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AND HEARING THE PARTIES AT LENGTH, WE FIND THAT LD. DR RELIED UPON THE ORDERS PASSED BY AO AND SUBMITTED THAT LD. CIT(A) HAD WRONGLY DELETED THE ADDITION MADE U/S 68 OF THE ACT WITHOUT APPRECIATING THAT AS PER THE ENQUIRY & INVESTIGATION MADE BY THE AO AS WELL AS INVESTIGATION WING OF THE DEPARTMENT, THE PARTIES FROM WHOM THE ASSESSEE HAD RECEIVED UNSECURED LOAN WERE MERE ACCOMMODATIO N ENTRY PROVIDERS, WHO PROVIDE ACCOMMODATION ENTRIES AS PER THE REQUIREMENTS OF THE BENEFICIARY. IT WAS ALSO SUBMITTED THAT THE SAID PARTIES HAD NO REAL WORTH/CAPABILITY/CREDIT FROM WHERE THEY COULD LEND SUCH HUGE LOAN TO THE ASSESSEE. IT WAS SUBMITTED TH AT THE ASSESSEE FAILED TO DISCHARGE HIS ONUS TO PROVE 20 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS, THEREFORE IN SUCH CIRCUMSTANCES, LD. CIT(A) OUGHT TO HAVE UPHELD THE ADDITIONS. 10. ON THE OTHER HAND, LD. AR RELIED UPON THE ORDERS PASSED BY LD. CIT(A) AND REITERATED THE SAME ARGUMENTS AS WERE RAISED BY HIM BEFORE LD. CIT(A). LD. AR ALSO DRAWN OUR ATTENTION TO THE WRITTEN SUBMISSIONS MENTIONED AT PARA NO. 2.3.1 OF THE ORDER OF LD. CIT( A). IT WAS SUBMITTED THAT THE ASSESSEE HAD TAKEN AND /OR REPAID UNSECURED LOANS TO THE PARTIES DURING THE NORMAL COURSE OF BUSINESS OR FURTHERANCE OF BUSINESS. IN THIS REGARD, LD. AR HAD ALSO DRAWN OUR ATTENTION TO PARA NO. 2.1 OF THE ORDER OF LD. CIT(A), WHEREIN THE DETAIL IN THE SHAPE OF CHART HAS BEEN SUBMITTED. IT WAS SUBMITTED THAT THE AO HAD MADE AN ERRONEOUS OBSERVATION THAT THE CREDITWORTHINESS OF THE PARTIES WAS NOT ESTABLISHED WHEREAS DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD SUBMITTED T HE CONFIRMATION ALONGWITH ALL SUPPORTIVE DOCUMENTS IN RESPECT OF RECEIVING AND REPAYING UNSECURED LOANS FROM THE PARTIES. ASSESSEE HAD ALSO SUBMITTED DOCUMENTS IN RESPECT OF CONFIRMATION IN RESPECT OF UNSECURED LOANS FROM THE LENDING PARTIES. IT WAS SUBMIT TED THAT THE PARTIES HAD RESPONDED TO 21 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES THE NOTICES ISSUED U/S 133(6) OF THE ACT TO THE LENDING PARTIES AND HAD SUBMITTED THE REQUISITE DETAILS. THE SAID LOANS WERE ADVANCED THROUGH PROPER BANKING CHANNELS AND IN THIS RESPECT, PROPER IDENTITY OF THE LENDING PARTIES WAS PROVED. LD. AR ALSO RELIED UPON THE DECISION OF HONBLE HIGH COURT IN THE CASE OF CIT VRS. KAPURCHAND MANGESHCHAND, WHEREIN IT WAS HELD THAT IF UNSECURED LOANS WERE ADVANCED AND REPAID THROUGH ACCOUNT PAYEE CHEQUES, PAN NO. OF LENDERS WERE FURN ISHED AND LENDERS HAD SUFFICIENT FUNDS IN THEIR BANK ACCOUNTS, NO ADDITION CAN BE MADE U/S 68 OF THE ACT. BESIDES THIS, LD. AR ALSO RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VRS. LOVELY EXPORT PVT. LTD. (216 ITR 195). IT WAS ALSO SUBMITTED THAT SINCE LD. CIT(A) HAS TAKEN A BALANCE VIEW AFTER APPRECIATING IN DETAIL THE DOCUMENTS AND THE LEGAL POSITION, THEREFORE THE PRESENT APPEAL MAY BE DISMISSED. 11. AFTER HAVING HEARD THE PARTIES AT LENGTH, WE FIND THAT ADDITIONS IN THIS CASE WERE MADE ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE I.T. ACT ON THE GROUND THAT DURING THE YEAR UNDER CONSIDERATION , THE ASSESSEE HAD RECEIVED UNSECURED LOANS OF 22 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES AGGRE GATED AMOUNT OF RS. 1,50,00,000/ - THE DETAILS OF WHICH ARE AS UNDER SR. NO. NAME PAN AMOUNT OF SALES TO ASSESSEE INF.Y.2010 - 11 (IN RS.) 1 . CASPER ENTERPRISES (OSWAL TRADING P LTD.) : AAACO7955M 20,00,000 2 . DUKE BUSINESS P. LTD (JPK TRAD.NG I PVL : AABCJ 6245N 30,00,000 3 . NAKSHATRA BUSINESS P. LTD. (HEMA TRADING P. LTD). AABCH4279G 1,00,00,000 TOTAL 1,50,00,000/ - 12. THE ASSESSEE HAD FILED ALL THE REQUIRED DETAILS TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE INVESTING COMPANIES AND THE GENUINENESS OF THE TRANSACTIONS IN THE FORM OF PAN, INCORPORATION CERTIFICATE, MEMORANDUM OF ASSOCIATE, IT RETURN COPIES, CONFIRMATIONS, BANK STATEMENTS, AUDITED ACCOUNTS ETC . WE HAVE ALSO NOTICED THAT THE TRANSACTION HAD TAKEN PLACE THRO UGH BANKING CHANNELS, THEREFORE THE GE NUINENESS OF THE INVESTMENT CAN NOT BE DOUBTED. THE ASSESSEE HAD DISCHARGED ITS ONUS AND THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE FOUR COMPANIES WERE PROVED BY SUBMITTING ALL THE RELEVANT DOCUMENTS SOUGHT F OR BY THE AO. WHEREAS THE AO WHILE MAKING THE ADDITIONS HAD EXCESSIVELY RELIED UPON THE STATEMENT GIVEN BY THE THIRD - PARTY I.E, KEY PERSONS OF PRAVIN KUMAR JAIN GROUP, WHOM THE ASSESSEE DOES NOT KNOW IS CONSIDERED TO BE NOT PROPER AS THE ASSESSEE WAS NEVER 23 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES GIVEN A CHANCE TO CROSS - EXAMINE THE PERSONS , WHO HAD GIVEN SUCH ADVERSE STATEMENTS. EVEN THE CORROBORATIVE EVIDENCE WITH REGARD TO PAYMENT OF CASH AS AGAINST THE RECEIPT OF CHEQUES HAS ALSO NOT BEEN PROVED. THE AO HAD ONLY BELIEVED THE SOLITARY STATEMENT OF THE KEY - PERSONS OF PRAVIN KUMAR JAIN GROUP BY HOLDING THAT THEY WERE INVOLVED ONLY IN BOGUS TRANSACTIONS BY GIVING ACCOMMODATION ENTRIES BY GIVING CHEQUES IN EXCHANGE OF CASH THROUGH THEIR GROUP ENTITIES. AT THE SAME TIME, IT WAS IGNORED THAT ALL THE ST ATEMENTS WER E RETRACTED BY PRAVIN KUMAR JAIN AND ALL HIS ASSOCIATES. IN THE PRESENT SCENARIO, THE AO HAD FAILED TO DISPROVE THE GENUINENESS OF THE TRANSACTIONS OF UNSECURED LOANS RECEIVED. WE HAVE GONE THROUGH THE PAPER BOOK FILED BY THE ASSESSEE AND NOTIC ED THAT THE TRANSACTIONS WERE ROUTED THROUGH THE BANKING CHANNELS AND THUS THE SOURCE CANNOT BE DOUBTED. IT IS A SETTLED LAW THAT SUSPICIOUS HOWSOEVER STRONG MAY BE, BUT CANNOT TAKE PLACE OF PROVE. THE AO HAD NOT MADE ANY EFFORTS TO SHOW THAT THE TRANSACTI ON WITH THE ASSESSEE WERE SHAM, FICTITIOUS OR ARTIFICIAL . SIMULTANEOUSLY , THE AO FAILED TO GATHER ANY EVIDENCE TO SHOW THAT THE U NACCOUNTED CASH OF THE ASSESSEE HAD CHANGED HANDS CONSEQUENTLY REPLACING THE CHEQUE PAYMENTS. WE HAVE GONE 24 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES THROUGH THE ORDERS OF THE COORDINATE BENCH OF ITAT IN THE CASE OF ANANT SHELTERS P LTD 20 TAXMANN CORN 153(2 012 }, WHEREIN THE PRINCIPLES WITH REGARD TO SECTION 68 OF THE ACT HAS BEEN LAID DOWN AS UNDER: '(I) SECTION 68 CAN BE INVOKED WHEN FOLLOWING THREE CONDITIONS ARE SATISFIED - (A) WHEN THERE IS CREDIT OF AMOUNTS IN THE BOOKS MAINTAINED BY THE ASSESSEE (B) SUCH CREDIT HAS TO BE A SUM OF MONEY DURING THE PREVIOUS YEAR (C) EITHER THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH CREDI TS FOUND M THE BOOKS OR THE EXPLANATION OFFERED BY THE ASSESSES, IN THE OPINION OF THE ASSESSING OFFICER, IS NOT SATISFACTORY. IT IS ONLY THEN THAT THE SUM SO CREDITED MAY BE CHARGED TO INCOME - TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. (II) T HE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION MEANS THE ASSESSEE OFFERS. NO PROPER, REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS THE SUMS FOUND CREDITED IN THE BOOKS MAINTAINED BY HIE - ASSESSEE. THE OPINION OF THE ASSESSING OFFICER FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE AS NOT SATISFACTORY IS REQUIRED TO BE BASED ON PROPER APPRECIATION OF MATERNAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON THE RECORD. THE OPINION OF THE ASSESSING OFFICER IS 25 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES REQUIRED TO BE FORMED OBJECTIVELY WIT H REFERENCE TO THE MATERIAL ON RECORD FILE. ONCE THE EXPLANATION OF THE ASSESSEE IS UNBELIEVABLE OR FALSE THE ASSESSING OFFICER IS NOT REQUIRED TO BRING POSITIVE EVIDENCE ON RECORD TO TREAT AMOUNT IN QUESTION AS INCOME OF THE ASSESSES 'MULE - CONSIDERING TH E EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER HAS 10 ACT REASONABLY - APPLICATION OF MIND IS THE SINE QUA NON FOR FORMING THE OPINION. (III) PHRASE APPEARING IN THE SECTION - NATURE AND SOURCES OF SUCH CREDITS - SHOULD BE UNDERSTOOD IN RIGHT PERSPEC TIVE, SO THAT GENUINENESS OF THE TRANSACTION CAN BE DECIDED ON MERITS ANA NOT ON PREJUDICES. COURTS ARE OF THE FIRM VIEW THAT THE EVIDENCE PRODUCED BY (HE ASSESSEE CANNOT BE BRUSHED ASIDE IN A CASUAL MANNER. ASSESSEE CANNOT BE ASKED TO PROVE IMPOSSIBLE. EX PLANATION ABOUT 'SOURCE OF SOURCE' OR 'ORIGINS OF THE ORIGIN' CANNOT AND SHOULD NOT BE CALLED FOR WHILE MAKING INQUIRY UNDER SECTION (IV) IN THE MATTERS RELATED TO SECTION 68 BURDEN OF PROOF CANNOT BE DISCHARGED TO THE HILT - SUCH MATTERS ARE DECIDED ON THE PARTICULAR FACTS OF THE CASE AS WELL AS ON THE BASIS OF PREPONDERANCE OF PROBABILITIES. CREDIBILITY OF THE EXPLANATION, NOT THE MATERIALITY OF EVIDENCES, IS THE BASIS FOR DECIDING THE CASES FALLING UNDER SECTION 68. 26 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES (V) THOU GH CONFIRMATORY LETTERS OR ACCOUNT PAYEE CHEQUES DO NOT PROVE THAT THE AMOUNT IN QUESTION - S PROPERLY EXPLAINED FOR THE PURPOSE OF SECTION 68 AND ASSESSEE HAS TO ESTABLISH IDENTITY AND CREDITWORTHINESS OF THE CREDITOR AS WELL AS THE GENUINENESS OF THE TRAN SACTION,, IT IS ALSO TRUE THAT MONEY RECEIVED THROUGH FOREIGN REMITTANCE WITH RBL APPROVAL IS A STRONG INDICATOR OF BONA FIDE OF THE CASH CREDIT THAT HAS TO BE DISAPPROVED O/;/Y VV - M POSITIVE EVIDENCE. (VI) IN MATTERS REGARDING CASH CREDITS, THE ONUS OF PROOF IS NOT A STATIC ONE. AS PER THE PROVISIONS OF THE SECTION THE INITIAL BURDEN OF PROOF LIES ON THE ASSESSEE. AMOUNT APPEARING IN THE BOOKS OF ACCOUNT OF THE ASSESSEE IS CONSIDERED A PROOF AGAINST HIM. HE CA N PROVE THE IDENTITY OF THE CREDITORS BY EITHER FURNISHING THEIR PANS OR ASSESSMENT ORDERS. SIMILARLY, GENUINENESS OF THE TRANSACTION CAN BE PROVED BY SHOWING THAT THE MONEY WOK RECEIVED BY AN ACCOUNT PAYEE CHEQUE OR BY DRAFT. 'CREDITWORTHINESS OF [LIE LEN DER CAN BE ESTABLISHED BY ATTENDING CIRCUMSTANCES. ONCE THE ASSESSEE PRODUCES EVIDENCES ABOUT IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE TENDER ONUS OF PROOF SHIFTS TO THE REVENUE.' 27 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES 13. WE HAVE ALSO CONSIDERED THE ORDER OF COORDINATE BENCH OF SHRE E SACHDANAND DEVELOPERS VRS. ACIT ITA NO. 3292/MUM/15, ITO VRS. SHREE DHAM CONSTRUCTION PVT. LT.D, ITA NO. 3754, 3755, 3756. 2948/MUM/17, WHEREIN UNDER THE IDENTICAL CIRCUMSTANCES , THE ADDITIONS MADE ON ACCOUNT OF STATEMENT GIVEN BY PRAVIN KUMAR JAIN GROUP WERE DELETED. 14. IN THIS CASE, THERE IS AN IMPORTANT UNDISPUTED FACT THAT THE UNSECURED LOAN HAD A LREADY BEEN REPAID AND IN THIS RESPECT , DOCUMENTS WERE PLACED ON RECORD BY THE AO. WE ARE ALSO RELYING UPON THE JUDGMENT OF HON BLE APEX C OURT IN THE CASE OF LOVELY EXPORT S PVT LTD. 216 CTR 195(SC) 2008, WHEREIN IT WAS HELD THAT THE AO IS AT LIBERTY TO BRING TO TAX THE AMOUNTS IN THEIR RESPECTIVE HANDS OF THE INVESTORS IF THEIR IDENTITY, GENUINENESS AND CREDITWORTHINESS IS NOT PROVED. 15. IN THIS CASE, T HE CRE DITWORTHINESS OF THE INVESTORS EVEN IF IS NOT PROVED , EVEN THEN IT WILL NOT AUTOMATICALLY GIVE LICENSE TO THE ASSESSING AUTHORITY TO MAKE ADDITIONS IN THE HANDS OF THE RECIPIENT U/S 68 , UNLESS THAT IS PROVED THAT IT IS THE UNEXPLAINED AND UN ACCOUNTED MONEY OF THE ASSESSEE WHICH HAS BEEN 28 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES INTRODUCED IN ITS BOOKS OF ACCOUNT IN THE NA ME OF BOGUS/NON - EXISTENT ENTITIES . IN THE INSTANT CASE, THE AO HAD NOT MADE ANY DENT ON THESE LINES. ON THE OTHER HAND THE APPELLANT HAS FILED ALL THE DETAILS AND SUPPORTING DOCUMENTARY EVIDENCE TO PROVE THE IDENTITY, GENUINENESS AND CREDITWORTHINESS OF TH ESE THREE UNSECURED LOAN PARTIES 16 . MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US I N ORDER TO CONT ROVERT OR REBUT THE FINDINGS SO RECORDED BY LD CIT (A) . THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD. CIT (A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THESE GROUND RAISED BY THE REVENUE STANDS DISMISSED . GROUND NO. (IV) & (V) 17 . THESE GROUNDS RAISED BY THE REVENUE ARE GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. 29 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES 18 . CONSEQUENTLY, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ITA NO. 6562 & 6564 /MUM/2017 (AY 2012 - 13 & 2013 - 14 ) 19 . NOW WE TAKE UP REVENUES APPEALS IN ITA NO. 6562 & 6564 /MUM/2017 (AY 2012 - 13 & 2013 - 14 ) . SINCE WE HAVE ALREADY DECIDED THE SIMILAR G ROUNDS OF APPEAL IN ITA NO. 6561 /M UM/2017 FOR AY 2011 - 12 ON MERITS. THEREFORE , FOLLOWING OUR OWN DECISION IN ITA NO. 6561 /MUM /17 , WE APPLY THE SAME FINDINGS IN THE SE APPEAL S IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY WHICH IS APPLICABLE MUTATIS MUTANDIS . 2 0 . IN THE NET RESULT, ALL THE THREE APPEALS FILED BY THE REVENUE STA NDS DISMISSED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD APRIL , 2019 . ( N. K. PRADHAN ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 03 .04 .201 9 SR.PS . DHANANJAY 30 I.T.A. NO. 6561, 6562 & 6564 /MUM/201 7 M/S CALVIN PROPERTIES / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI