M/S ANUP INDUSTRIES, Jaipur V. ITO, Jaipur

ITA 873/JPR/2011

• Counselvise Citation: 87323114 RSA 2011
• Duration Of Justice: 3 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-03-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 07-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS NEENA JEPH
• Assessee Lawyers: SHRAVAN KUMAR GUPTA
• Keywords: Unexplained cash credit; Additional evidence; Accommodation entries; Revised return
• Section: 131; 68; 148

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 873/JP/2011 ASSTT. YEAR- 2003-04 PAN NO. AABFA 8510 E M/S ANUP INDUSTRIES, THE I.T.O. 7-B, BHARAT MATA PATH, VRS. WARD 6(3), JAIPUR. JAMNA LAL BAJAJ MARG, JAIPUR. (APPELLANT) (RESPONDENT) ASSESSEE BY :- SHRI SHRAVAN KUMAR GUPTA DEPARTMENT BY :- MRS. NEENA JEPH. DATE OF HEARING : 29/10/2014 DATE OF PRONOUNCEMENT : 12/12/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 20/09/2011 OF THE LEARNED CIT(A)-II, JAIPUR FOR THE A.Y. 2003-04. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT THE IMPUGNED ASSESSMENT ORDER U/S 148/143(3 ) DATED 23/03/2008 IS BAD IN LAW AND ON FACTS OF THE C ASE FOR WANT OF JURISDICTION AND FOR VARIOUS OTHER REASO NS AND HENCE THE SAME MAY KINDLY BE QUASHED. 2. RS. 1,00,000/-- THE CIT(A) HAS GROSSLY ERRED IN L AW AS WELL AS ON THE FACTS OF THE CASE IN SUSTAINING THE ADDIT ION OF RS. 1,00,000/- MADE BY THE A.O. U/S 68 ON ACCOUNT OF CA SH ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 2 CREDIT. THE ADDITION SO MADE AND CONFIRMED BY THE CI T(A) IS BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW A ND FACTS AND HENCE THE SAME MAY KINDLY BE DELETED IN FULL. 3. THE LEARNED A.O. ERRED IN LAW AS WELL AS ON THE FAC TS OF THE CASE IN CHARGING OF INTEREST U/S 234A&B. THE APPELLA NT TOTALLY DENIES IT LIABILITY OF CHARGING OF ANY SUCH INTEREST. HENCE THE INTEREST SO CHARGED, BEING CONTRARY TO TH E PROVISIONS OF LAW AND FACTS, MAY KINDLY BE DELETED I N FULL. 4. THE APPELLANT PRAYS YOU HONOURS INDULGENCE TO AD D, AMEND OR ALTER ALL OR ANY OF THE GROUNDS OF THE APPEAL ON OR BEFORE THE DATE OF HEARING. 2. GROUND NO. 1 OF THE ASSESSEES APPEAL IS NOT PRE SSED, THEREFORE, WE DISMISS THE SAME AS NOT PRESSED. 3. THE 2 ND GROUND OF ASSESSEES APPEAL IS AGAINST SUSTAINING THE ADDITION OF RS. 1,00,000/- MADE BY THE ASSESSING OF FICER U/S 68 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON ACCOUNT O F CASH CREDIT. THE LEARNED ASSESSING OFFICER OBSERVED THAT THE ASSESSE E FIRM WAS ENGAGED IN THE BUSINESS OF MANUFACTURING, TRADING AND JOB WO RK OF THE DPC COPPER/ALUMINUM WIRES AND STRIPS, SUPER ENAMELED COP PER/ ALUMINUM WIRES AND BARE COPPER/ALUMINUM WIRES. THE ASSESSEE HAD FILED ITS ORIGINAL RETURN OF INCOME ON 14/11/2003 DECLARING T OTAL INCOME OF RS. ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 3 1,40,360/-. THE ASSESSING OFFICER DURING COURSE OF ASSESSMENT PROCEEDINGS FOUND THAT THE ASSESSEE HAD RECEIVED AC COMMODATION ENTRY OF RS. 1,50,000/- FROM SHRI SHIV RAJ SINGH AN D ISSUED NOTICED TO THE APPELLANT. IN RESPONSE THERETO, THE ASSESSEE HA D ADMITTED THAT THE ABOVE LOAN WAS AN ACCOMMODATION ENTRY VIDE LETTER DA TED 20/06/2005 TO BUY PEACE OF MIND AND TO AVOID LITIGATION. DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTIC ED THAT THE UNSECURED LOAN OF RS. 1,00,000/- FROM SHRI CHHAGAN SINGH SHEKHAWAT AND RS. 3,00,000/- FROM SHRI SHIVRAJ SINGH WERE NOT VERIFIABLE. THE ASSESSING OFFICER ASKED TO FURNISH CONFIRMATION OF THESE PERSONS. THE ASSESSEE REPLIED THAT HE COULD NOT FILE THE CONFIRM ATION OF BOTH PARTIES BECAUSE THEY WERE OUT OF STATION. ON 19/03/2008, THE ASSESSEE FILED CONFIRMATION OF SHRI CHHAGAN SINGH SHEKAHWAT BUT THE LEARNED ASSESSING OFFICER HAD NOT SATISFIED WITH THE CONFIRM ATION OF SHRI CHHAGAN SINGH SHEKAHWAT FILED BY THE ASSESSEE AND S TATED THAT THE ASSESSEE COULD NOT PRODUCE CONFIRMATION OF SHRI CHH AGAN SINGH SHEKAHWAT. THE LEARNED ASSESSING OFFICER FURTHER OBS ERVED THAT IN CASE OF SHRI SHIVRAJ SINGH, TOTAL AMOUNT RECEIVED D URING THE YEAR WAS AT RS. 3,00,000/- OUT OF WHICH RS. 1,50,000/- HAD BE EN SHOWN AS REPAYMENT BUT FACTUALLY THE ASSESSEE HAD INTRODUCED A SUM OF RS. ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 4 3,00,000/-. HENCE THE ASSESSING OFFICER MADE ADDITI ON OF RS. 2,50,000/- U/S 68 IN ADDITION TO AMOUNT OF RS. 1,50 ,000/- SURRENDERED. 4. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT(A), WHO HAD ALLOWED THE PARTLY BY OBSERVING AS UNDER: 3. I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE A PPELLANT. THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAD TAKE N LOAN OF RS 1,50,000/- FROM SH. SHIVRAJ SINGH ON 23.08.20 02 WHICH WAS IN THE NATURE OF ACCOMMODATION ENTRY. THE INVESTIGATION WING OF THE DEPARTMENT CONDUCTED INQU IRIES AND IT WAS FOUND THAT THE SAID UNSECURED LOAN WAS NOT GENUINE AND THEREFORE THE ASSESSEE SURRENDERED THE LOAN OF RS. 1,50,000/- AS ITS UNDISCLOSED INCOME VIDE LE TTER DATED 20.06.2005 ADDRESSED TO ADIT(INV), JAIPUR AND ALSO PAID TAXES ON IT. THE AO ON RECEIPT OF INFORMATION FROM INVESTIGATION WING ISSUED NOTICE U/S 148 TO THE ASS ESSEE. IN RESPONSE, THE ASSESSEE FILED REVISED RETURN OF I NCOME ON 16.10.2007 WHEREIN THE UNSECURED LOAN OF RS. 1,50,000/- WAS OFFERED AS UNDISCLOSED INCOME. HOWEVER WHILE COMPLETING THE REASSESSMENT ORDER, THE AO NOTE D FROM THE BANK STATEMENT THAT THE ASSESSEE HAD RECEI VED UNSECURED LOAN OF RS 3,00,000/- FROM SH. SHIVRAJ SI NGH. BESIDES ABOVE, THE ASSESSEE HAD ALSO RECEIVED UNSEC URED LOAN OF RS 1,00,000/- FROM SH. CHHAGAN SINGH SHEKHA WAT. THE AO ISSUED SUMMONS U/S 131 OF THE I T ACT TO BOTH OF THESE CREDITORS HOWEVER THESE COULD NOT BE SERVED AS THE ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 5 ALLEGED CREDITORS WERE NOT FOUND AT THE ADDRESSES AV AILABLE WITH THE ASSESSEE. SINCE THE ASSESSEE HAD SURRENDERE D LOAN OF RS 1,50,000/- RECEIVED FROM SH. SHIVRAJ SIN GH IN THE REVISED RETURN OF INCOME, THE AO TREATED THE BA LANCE AMOUNT OF UNSECURED LOANS OF RS 2,5O,0OOI- AS UNEXPLAINED CREDITS U/S 68 OF THE I T ACT. THE FIRST GROUND OF APPEAL IS GENERAL IN NATURE AND SINCE NO ARGUMEN TS WERE RAISED IN REGARD TO IT, NO SPECIFIC ADJUDICATIO N IS REQUIRED FROM ME. DURING THE COURSE OF PRESENT APPE LLATE PROCEEDINGS, THE COUNSEL OF APPELLANT SUBMITTED CONFIRMATIONS FOR UNSECURED LOANS RECEIVED FROM SH. CHHAGAN SINGH SHEKHAWAT AND SH. SHIVRAJ SINGH. SINCE THE CONFIRMATIONS CONSTITUTED ADDITIONAL EVIDENCE, THESE WERE FORWARDED TO THE AO BY MY PREDECESSOR VIDE HIS LETTER DATED 11.12.2008. IN RESPONSE, THE ITO WARD-6 (3), JAIPUR SUBMITTED REMAND REPORT DATED 24.03.2011. THE AO DIRECTED THE ASSESSEE TO PRODUCE BOTH OF THESE CRED ITORS AND SINCE THE ALLEGED CREDITORS WERE NOT PRODUCED, T HE AO HAS REITERATED THE SAME ARGUMENTS AS NARRATED IN TH E ASSESSMENT ORDER. ON CONSIDERATION OF FACTS IN TOTA LITY, I FIND THAT THE ASSESSEE HAD RECEIVED LOAN OF RS 1,50 ,000/- FROM SH. SHIVRAJ SINGH THROUGH CHEQUE NO. 019101 DA TED 17.08.2002 DROWN ON SBBJ AND THE SAME WAS DEPOSITED I N THE BANK ACCOUNT OF THE ASSESSEE ALONG WITH ANOTHER CHEQUE OF RS. 1,50,000/- BEARING NO. 680753 RECEIVE D FROM SMT. PUSHPA SHARMA. HOWEVER AS PER CHEQUE RETURNING MEMO DATED 20.08.2002 ISSUED BY SBBJ, IND IRA BAZAR, JAIPUR, THE CHEQUE ISSUED BY SH. SHIVRAJ SIN GH WAS ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 6 RETURNED DUE TO INSUFFICIENT FUNDS. THE ASSESSEE HAS HELD COPY OF PAY-IN-SLIPS AND CHEQUE RETURNING MEMO. THE CHEQUE OF RS 1,50,000/- BEARING NO. 019101 WAS AGAIN RE- DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE ON 2L08.2002 AND IT WAS CLEARED. THEREFORE IT IS EVIDENT THAT THE AO HAD MADE DOUBLE ADDITION OF RS 1,50,000/- ON ACCOUNT OF UNSECURED LOAN RECEIVED FROM SH. SHIVRAJ SINGH AS IN THE REVISED RETURN, THE ASSESSEE HAD ALREADY SURRENDERED AMOUNT OF RS 1,50,000/- ON ACCOUNT OF L OAN RECEIVED FROM SH. SHIVRAJ SINGH CONSEQUENT TO THE PROCEEDING BEFORE THE ADIT (INV.),JAIPUR AND DECLARE D THE SAME AS INCOME IN THE REVISED RETURN IN RESPONSE TO THE NOTICE U/S 148. THE ADDITION OF RS. 1,50,000/- TANTAMOUNTED TO DOUBLE ADDITION AND IT WAS NOT PERMISSIBLE IN LAW. AS REGARDS LOAN OF RS 1,00,000/- RECEIVED FROM SH. CHHAGAN SINGH SHEKHAWAT, THE ASSESSEE HAS FILED ONLY CONFIRMATION. NO EVIDENCE H AS BEEN PLACED ON RECORD TO PROVE THE CREDITWORTHINESS OF THE ALLEGED CREDITOR. THE RECEIPT OF MONEY THROUGH BANKI NG CHANNELS IS NOT SACROSANCT. THE AO WAS NOT ABLE TO L OCATE THE ALLEGED CREDITOR AT THE AVAILABLE ADDRESS. MERE LY BY FILING CONFIRMATION OR FURNISHING PAN, IT IS NOT SU FFICIENT TO DISCHARGE THE BURDEN THAT LIES ON THE ASSESSEE. THE ASSESSEE HAS TO PROVE THE FINANCIAL CAPACITY OF THE PERSON TO ADVANCE LOAN AND GENUINENESS OF THE TRANSACTION. THIS PREPOSITION HAS BEEN LAID DOWN IN THE FOLLOWING CASES . MANGILAL JAIN VS ITO, (315 ITR 105) MADRAS HIGH C OURT ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 7 BANARSI PRASAD VS CIT, (304 ITR 239) ALLAHABAD HIG H COURT SHIV RICE & GENERAL MILLS VS CIT, (300 ITR 19) PANJ AB HIGH COURT ACIT VS VISHWANATH & CO. (292 ITR 25) KARNATAKA HIGH COURT RAKESH KALIA VS CIT, (286 ITR 357) DELHI HIGH COURT . TAKING ASSISTANCE FROM THE DECISION OF HONOURABLE SUPREME COURT IN THE CASE OF DURGA PRASAD MORE (82 ITR 540) AND SUMATI DAYAL (214 ITR 801) THE SURROUNDING CIRCUMSTANCES DO NOT EVOKE CONFIDENCE ABOUT THE GENUINENESS OF ALLEGED UNSECURED LOANS PROCURED BY THE ASSESSEE AS IT WAS FOUND TO BE INDULGING IN ACCOMMODATION ENTRIES AND ACCORDINGLY THE AMOUNT OF RS 1 LAKH RECEIVED FROM SH. CHHAGAN SINGH SHEKHAWAT WAS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE. THERE I S NO FACTUAL CHANGE IN THIS POSITION EVEN DURING THE PRE SENT APPELLATE PROCEEDINGS. NO EVIDENCE HAS BEEN PLACED BEFORE ME TO REBUT THE FINDINGS OF AO. THE FACT THAT THE UNSECURED LOAN WAS CONVERTED INTO SHARE CAPITAL IN SUBSEQUENT YEAR I.E. AY 2009-10, WILL NOT MAKE A NON GENUINE TRANSACTION INTO A GENUINE TRANSACTION. MER ELY BECAUSE A PAPER TRAIL HAD CREATED THAT WOULD NOT BY ITSELF MAKE THE TRANSACTION GENUINE. THEREFORE THE DECISIO N OF HON'BLE SUPREME COURT IN THE CASE OF LOVELY EXPORTS LTD. IS OF NO HELP TO THE ASSESSEE AS I AM DEALING WITH A CASE OF UNEXPLAINED CASH CREDIT AND NOT SHARE APPLICATIO N MONEY. IN VIEW OF ABOVE FACTS, I DIRECT THE AO TO DE LETE THE ADDITION OF RS 1,50,000/- ON ACCOUNT OF UNSECUR ED LOAN TAKEN FROM SH. SHIVRAJ SINGH AS IT HAD BEEN OF FERED TO ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 8 TAX IN THE REVISED RETURN OF INCOME AND ADDITION TO THAT EXTENT TANTAMOUNTED TO DOUBLE ADDITION. THE ADDITION OF RS 1,00,000/- ON ACCOUNT OF UNSECURED LOAN RECEIVED FROM SH. CHHAGAN SINGH SHEKHAWAT MADE BY THE AO IS CONFIRMED. THIS GROUND OF APPEAL IS PARTLY ALLOWED. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT FR OM THE YEAR 2007 THE SAID FIRM HAS CHANGED IN TO COMPANY NAMELY M/S ANOOP INSULATION PVT. LTD. AND THE ASSESSEE HAD INFORMED TO THE DEPARTMENT VIDE LETTER DATED 13.04.2007AND THE SAID COMPANY HA S CONVERTED UNSECURED LOAN OF THE FIRM IN SHARE APPLICATION MON EY AND ALLOTTED SHARE TO THESE CREDITORS WHO WERE ORIGINALLY CREDITOR IN THE SAID FIRM FOR THE PROOF HE FILED COPY OF FORM NO. 2 AND ROC RETUR N FILED IN THE ROC. HENCE IT IS PROVED THAT THE MONEY RECEIVED FROM THE PERSON IS GENUINE, NOT BOGUS AND NOT OF THE APPELLANT. FURTHER THE AO HAS NOT SPEAK A SINGLE WORD ON THESE EVIDENCE FILED BEFORE HIM AND H AS NOT REBUTTED THE SAME IN THE REMAND REPORT WITH THE HELP OF ANY E VIDENCE. FURTHER HE HAS NOT STATED ANY ADVERSE REGARDING THE LOAN OF RS. 1,00,000/- FROM SH. CHHAGAN SINGH WHICH SHOWS THAT THE AO IS SAT ISFIED AND NOT HAVING ANY MATERIAL TO REBUT THE CONTENTIONS AND EV IDENCE FILED BY THE APPELLANT. AND ONCE SHARES HAVE BEEN ISSUED TO THE PERSON THAN THERE ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 9 DID NOT REMAIN ANY POSSESSION AND CLAIM OF THE APPE LLANT ON THE UNSECURED LOAN/SHARE APPLICATION. FURTHER THE PAN N O. OF THE PERSONS WERE AVAILABLE WITH THE AO HE COULD HAVE KNOWN OR BRO UGHT THE PARTICULARS OF THEIR ASSESSMENT AND INCOME, WHICH WAS EASILY POSSIBLE FOR HIM. BUT HE DID NOT DO SO AND PROCEEDED ON ASSU MPTION, PRESUMPTION AND SUSPICION. AN ALLEGATION REMAINS A MERE ALLEGATION UNLESS PROVED. 6.1 HE FURTHER SUBMITTED THAT THE AO IN THE REMAND REPORT ALLEGED THAT THE ASSESSEE FILED ONLY CONFIRMATION OF THE CA SH CREDITOR, WHICH IS INCORRECT. THE APPELLANT HAS FILED THE CONFIRMATIONS AND FULLY EXPLAINED THE SOURCES OF UNSECURED LOAN WITH NAME AND ADDRESS AND PAN, COPY OF BANK SLIP PROOF OF DEPOSIT OF SUCH CASH CREDIT, BANK STATEMENT OF THE ASSESSEE SHOWING CREDIT IN THE BANK ACCOUNT OF SUCH UNSECURED LOAN. AND THE ASSESSEE HAS ALSO FILED COPY OF FORM NO. 2 AND ROC RETURN SHOWING SHARES ALLOTTED TO THEM. ALL THESE EVIDENCE SHOWS THAT THE ASSESSEE HAS TAKEN LOAN FROM SH. CHHAGAN SINGH SHEK HAWAT AND THESE EVIDENCES HAS NOT BEEN REBUTTED BY THE AO WITH THE H ELP OF ANY CONTRARY EVIDENCES. 6.2 IT IS FURTHER SUBMITTED THAT, U/S 68, IT IS ONL Y INITIAL ONUS, WHICH LAY UPON THE ASSESSEE TO PROVE THE IDENTITY AND THE CAPACITY OF THE CREDITOR/SHARE HOLDERS/APPLICANTS AND THE GENUINENE SS OF THE ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 10 TRANSACTION AND ONCE THIS INITIAL ONUS IS DISCHARGE D, IT SHIFTS TO THE AO TO REBUT/ DISPROVE THE SAME FOR MAKING A VALID ADDI TION U/S 68. 6.3 IT IS FURTHER SUBMITTED THAT EVEN ASSUMING THE RATIO SO LAID DOWN IN THE CASE OF SOPHIA FINANCE LTD. 205 ITR 98 (DEL.) IS HELD APPLICABLE, I.E. WHAT IS REQUIRED IS ONLY TO ESTABL ISH THAT THERE EXISTED A SHAREHOLDER AND THE PAYMENT WAS REALLY MADE BY IT, WHICH STANDS ESTABLISHED IN THE PRESENT CASE, AS WOULD APPEAR FR OM THE ABOVE DOCUMENTS ENCLOSED. AS MUCH AS THE APPELLANT FILED THE NAME AND ADDRESS AND PAN NO. COPIES OF SHARE ALLOTTED ETC. V IDE LETTER DATED 23.03.2011AND THE SAME WAS NOT DISPUTED BY THE AO. TH E PERSON IS IT ASSESSEE. THUS, THE IDENTITY OF THE PERSON STOOD EST ABLISHED. THE LD.AO STATED THAT THE IDENTITY OF THESE PERSONS WAS NOT PR OVED. APPARENTLY, THIS OBSERVATION WAS BASED ON SUSPICION & SURMISES O NLY. BECAUSE HE HAD NOT MADE ANY INDEPENDENT INQUIRY DESPITE THE RE QUEST BY THE A/R IN REMAND PROCEEDING. GENUINENESS OF TRANSACTION IS ALSO DULY AND FULLY ESTABLISHED UNDER THE PECULIAR FACTS AND CIRCUMSTAN CES OF THE CASE IN AS MUCH AS THE RECEIPT OF THE SUBJECTED AMOUNT WAS D ULY HAS BEEN RECEIVED BY A/C PAYEE CHEQUE FROM HIM AS APPEARING FROM THE THEIR DOCUMENTS. THE PERSON IS IT ASSESSEE AND EARRING PER SONS HAVING SUFFICIENT EARNING AND FUNDS. THE ASSESSEE THUS, DUL Y DISCHARGED THE INITIAL BURDEN LAY UPON IT, TO WHICH EXTENT ONLY IT WAS RESPONSIBLE, AS ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 11 HELD IN CIT VS. ORISSA CREDIT CORP. LTD. 159 ITR 78 (SC) AND RECENTLY REFERRED IN CIT VS P. MOHAN KALA 291 ITR 279 (SC). 6.4 HE FURTHER SUBMITTED THAT WHEN THE ONUS SHIFTED TO THE AO HE TOTALLY FAILED TO DISCHARGE THE SAME. THE LD. AO DES PITE HAVING ALL THE RELEVANT INFORMATIONS COULD NOT REBUT THE MATERIAL AVAILABLE WITH HIM WITH THE EVIDENCE. HE PROCEEDED ONLY SUSPICION. AN A LLEGATION REMAINS A MERE ALLEGATION UNLESS PROVED. 6.5 THE APPELLANT FILED SO MANY EVIDENCES TO SUPPOR T ITS CASE AND OTHER SIDE THE AO DID NOT BROUGHT SINGLE EVIDENCE O N RECORD TO REBUT THE EVIDENCE FILED BY THE ASSESSEE. HE PROCEEDED ON LY PRESUMPTION, ASSUMPTION AND SUSPICION AND NO ADDITION CAN BE MAD E ON PRESUMPTION, ASSUMPTION AND SUSPICION DESPITE AVAIL ABILITY OF EVIDENCE. IF THE AO HAD BEEN DOUBTED HE COULD HAVE MADE THE D IRECT INQUIRY FROM THE SHARE HOLDER BUT HE DID NOT DO SO DESPITE FULL DETAILS AVAILABLE AND REQUESTED TO THE AO TO ISSUE SUMMON U/S 131 VID E LETTER DATED 23.11.2011. ON THE OTHER HAND ON THE REQUEST OF TH E ASSESSEE TO ISSUE SUMMON U/S 131, THE AO IN HIS REMAND REPORT HAS STA TED THAT SUMMONS HAD ALREADY BEEN ISSUED ON THE GIVEN ADDRES SES DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THEREFORE, THERE IS NO FURTHER REQUIREMENT TO ISSUE SUMMONS AGAIN ON THE SAME ADDR ESS. HE ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAWS:- ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 12 (I) DHAKESHWARI COTTON MILLS 26 ITR 775 (SC) (II) R.B.N.J. NAIDU V/S CIT 29 ITR 194 (NAG), (III) KANPUR STEEL CO. LTD. V/S CIT 32 ITR 56 (ALL ). (IV) CIT V/S KULWANT RAI 291 ITR 36( DEL). (V) CIT V/S REAL TIME MARKETING (P) LTD 306 ITR 35 (D EL) (VI) CIT V/S S.D. INVESTMENT & TRADING CO. 306 ITR 31 (BOM) (VII) CIT V/S LOVELY EXPORTS (P) LTD 216 CTR 195(SC ), (VII) MOD CREATIONS(P) LTD V/S ITO 62 DTR 259DEL) (IX) UPHAR ALOYS (P) LTD V/S ITO 37 CCH 154(DEL)(2 013) (X) CIT VS SHREE BARKHA SYNTHETICS 182 CTR 175 (RAJ ). (XI) LABHCHAND BOHRA V/S ITO (2008) 8 DTR 44 (RAJ.)- (XII) ARAVALI TRADING CO. V/S ITO 8 DTR 199 . IN VIEW OF THE ABOVE SUBMISSIONS THE ADDITION SO MA DE BY THE AO U/S 68 MAY KINDLY BE DELETED IN FULL. 7 AT THE OUTSET, THE LEARNED DR VEHEMENTLY SUPPORTE D THE ORDER OF THE LEARNED CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE CLAIMED THAT HE HAD FURNISHED ALL THE EVIDENCES BEFORE THE ASSESSING OF FICER REGARDING CASH CREDITORS OF RS. ONE LAC IN THE NAME OF SHRI CHHAGA N SINGH SHEKHAWAT. THE LEARNED CIT(A) AS WELL AS ASSESSING OFFICER CONCL UDED THAT THE ASSESSEE HAS FILED ONLY CONFIRMATION. NO EVIDENCE H AS BEEN PLACED ON RECORD TO PROVE THE CREDITWORTHINESS OF ALLEGED CRED ITORS. THE RECEIPT OF MONEY THROUGH BANKING CHANNEL IS NOT SACROSANCT. THE LEARNED ASSESSING OFFICER WAS NOT ABLE TO LOCATE THE ALLEGED CREDITORS AT THE ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 13 GIVEN ADDRESS. MERELY BY FILING CONFIRMATION, PAN E TC. IS NOT SUFFICIENT TO DISCHARGE THE BURDEN THAT LIES ON THE ASSESSEE. THE ASSESSEE HAS TO PROVE THE FINANCIAL CAPACITY OF PERSON TO ADVANCE L OAN AND GENUINENESS OF THE TRANSACTION. THE ASSESSEE HAS NOT COTROVERTE D THE FINDING GIVEN BY THE LEARNED CIT(A) IN HIS ORDER. THE HON'BLE SUP REME COURT DECISION IN THE CASE OF LOVELY EXPORT HAS BEEN CONSIDERED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF UNION OF INDIA VS. SETTLEMENT COMMISSION, BOMBAY. IN ANOTHER CASE, THE HONBLE DE LHI HIGH COURT IN THE CASE OF CIT VS. EMPIRE BUILTECH (2014) 366 ITR 11 0 (DEL) WHERE THE HON'BLE SUPREME COURT HAS BEEN CONSIDERED AND H ELD THAT THE ASSESSEE HAS TO PROVE THE CREDITWORTHINESS OF THE CA SH CREDITORS, THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE LEA RNED CIT(A) RIGHTLY CONFIRMED THE ADDITION U/S 68 OF THE ACT OF RS. ONE LAC. ACCORDINGLY, WE UPHELD THE ORDER OF THE LEARNED CIT(A). 9. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 12/12/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 12 TH DECEMBER, 2014 * RANJAN ITA 873/JP/2011 M/S ANUP INDUSTRIES VS. ITO 14 COPY FORWARDED TO :- 1. M/S ANUP INDUSTRIES, JAIPUR. 2. THE ITO, WARD 6(3), JAIPUR. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 873/JP/2011) BY ORDER, AR ITAT JAIPUR.