Sh. Rohit Jain, Samana V. ITO, Patiala

ITA 961/CHANDI/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63932 (ITAT-CHANDIGARH)
• Duration Of Justice: 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-06-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 04-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILESH GUPTA
• Assessee Lawyers: TEJ MOHAN SINGH
• Keywords: Gift
• Section: 131; 143(3); 56(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO.961/CHD/2011 (ASSESSMENT YEAR : 2008-09) SH.ROHIT JAIN VS. THE INCOME TAX OFFICER, C/O M/S JAIN SALES CORPORATION, WARD 3, OLD MIRCH MANDI, SAMANA. PATIALA. PAN: ABLPJ4833G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SINGH RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 19.06.2012 DATE OF PRONOUNCEMENT : 14.09.2012 O R D E R PER SUSHMA CHOWLA, J.M, : THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME-TAX(APPEALS), PATIALA DATED 29.08.2011 RELATING TO ASSESSMENT YEAR 2008-09 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL : 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS ) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING T HE ADDITION OF RS.50,000/- TREATING THE GIFT RECEIVED FROM HIS GRAND-FATHER SHRI NIRANJAN DASS TO BE BOGUS AND WAS THE UNDISCLOSED INCOME OF THE APPELLANT WHICH IS ARBITRARY & UNJUSTIFIED. 2. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING T HE ADDITION OF RS.5,00,000/- TREATING THE GIFT RECEIVE D FROM HIS AUNT SMT.PROMILA JAIN (TAI JI) TO BE BOGUS AND WAS THE UNDISCLOSED INCOME OF THE APPELLANT WHICH IS ARBITRARY & UNJUSTIFIED. 2 3. GROUND NO.1 RAISED BY THE ASSESSEE IS AGAINST TH E ADDITION OF RS.50,000/-. THE ASSESSEE HAD RECEIVED A GIFT OF R S.50,000/- FROM HIS GRANDFATHER SHRI NIRANJAN DASS. THE ASSESSEE EXPLA INED THAT THE SOURCE OF THE SAID GIFT OF RS.50,000/- WAS THE LOAN RECEIV ED BY HIS GRANDFATHER FROM LIC, WHO IS ASSESSED TO TAX. THE ASSESSING OF FICER REJECTING THE CLAIM OF THE ASSESSEE HELD THAT THE CREDITWORTHINES S OF THE PERSON MAKING THE GIFT WAS NOT PROVED AND HENCE, ADDITION OF RS.5 0,000/- WAS MADE. 4. THE CIT (APPEALS) UPHELD THE ADDITION OF RS.50,0 00/-. THE ASSESSEE IS IN APPEAL AGAINST THE SAME. 5. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES, THE ASSESSEE HAD PROVED THE IDENTITY OF THE PERSON MAKING THE GIFT I .E. GRANDFATHER OF THE ASSESSEE, WHO IN TURN HAD RAISED A LOAN FROM LIC WH ICH IN TURN WAS GIFTED TO THE ASSESSEE BEFORE US. THE ASSESSEE HAS FILED COPY OF GIFT DEED AT PAGE 14 OF THE PAPER BOOK, ALONGWITH THE BA NK STATEMENT OF DONOR AT PAGES 16 & 17 OF THE PAPER BOOK. THE ASSE SSEE HAS FURTHER ENCLOSED THE COMPUTATION OF INCOME ALONGWITH COPY O F BALANCE SHEET FILED WITH THE RETURN OF INCOME AND ALSO ACKNOWLEDG EMENT OF FILING RETURN OF INCOME AT PAGES 23 TO 26 OF THE PAPER BOO K. THE SECOND PLEA OF THE LEARNED A.R. FOR THE ASSESSEE WAS THAT SOURC E OF SOURCE CANNOT BE GONE INTO. WE FIND NO MERIT IN THE AFORESAID ADDI TION OF RS.50,000/-. THE ASSESSEE HAVING ESTABLISHED CREDITWORTHINESS OF THE DONOR AND HENCE PROVING THE GENUINENESS OF THE TRANSACTION, CANNOT BE HELD TO HAVE NOT DISCHARGED HIS ONUS. WE DIRECT THE ASSESSING OFFIC ER TO DELETE THE ADDITION OF RS.50,000/- AS THE AMOUNT OF GIFT IS ME AGRE. GROUND NO.1 RAISED BY THE ASSESSEE IS THUS ALLOWED. 3 6. THE ISSUE IN GROUND NO.2 RAISED BY THE ASSESSEE IS AGAINST THE ADDITION OF RS.5 LACS ON ACCOUNT OF GIFT RECEIVED F ROM THIS AUNT SMT.PROMILA (TAI JI). THE EXPLANATION OF THE ASSES SEE IN RESPECT OF THE SAID GIFT WAS THAT HIS AUNT HAD WITHDRAWN CASH FROM BANK ACCOUNT, WHICH IN TURN WAS REDEPOSITED IN CASH IN THE SAID BANK AC COUNT ITSELF WITHIN SHORT SPAN OF TIME AND THEREAFTER GIFT OF RS.5 LACS WAS MADE TO THE ASSESSEE ON 28.12.2007. THE ASSESSING OFFICER REJE CTED THE EXPLANATION OF THE ASSESSEE AS THE SAID WITHDRAWALS IN CASH WER E MADE MUCH BEFORE THE DATE OF MAKING THE GIFT. THE ASSESSING OFFICER FURTHER HELD THAT THE ASSESSEE HAD FAILED TO EXPLAIN THE PURPOSE FOR WHIC H THE SAID WITHDRAWALS WERE MADE BY HER. THE GIFT OF RS.5 LACS WAS TREATE D AS INCOME OF THE ASSESSEE. 7. THE CIT (APPEALS) UPHELD THE ORDER OF THE ASSESS ING OFFICER. THE ASSESSEE IS IN APPEAL AGAINST THE SAME. 8. THE LEARNED A.R. FOR THE ASSESSEE POINTED OUT TH AT DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALONGWITH THE EXPL ANATION FILED BY THE ASSESSEE, COPY OF THE GIFT DEED AND COPY OF BANK PA SSBOOK OF THE DONOR WERE FURNISHED. IT IS ALSO POINTED OUT THAT THE DO NOR WAS ASSESSED TO TAX AND COPIES OF HER INCOME-TAX RETURNS AND ALSO COPY OF COMPUTATION OF TOTAL INCOME AND CAPITAL ACCOUNT ALONGWITH EVIDENCE OF FURNISHING RETURN OF INCOME WERE PLACED BEFORE THE ASSESSING OFFICER. THE COPIES OF THE SAID DOCUMENTS ARE AVAILABLE IN THE PAPER BOOK AT P AGES 11 TO 22 OF THE PAPER BOOK. THE LEARNED A.R. FOR THE ASSESSEE FURT HER POINTED OUT THAT ADDITION IN THE CASE WAS MADE BECAUSE THERE WAS TIM E GAP BETWEEN CASH DEPOSITED IN THE BANK ACCOUNT AND CASH WITHDRAWN. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY DELHI BENCH OF THE TRIBUN AL IN ACIT VS. 4 BALDEV RAJ CHARLA & ORS. REPORTED IN 18 DTR (DEL)(T RIBUNAL)413. FURTHER RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE HON'BLE DELHI HIGH COURT IN CIT VS. DIAMOND PRODUCTS LTD. [21 DTR (DEL) 9], BY THE HON'BLE MADHYA PRADESH HIGH COURT IN SUMER CHAND J AIN VS. CIT [292 ITR 241 AND BY THE HON'BLE SUPREME COURT IN CIT VS . ORISSA CORPORATION P. LTD. [159 ITR 78 (SC)] FOR THE PROPO SITION THAT SOURCE OF SOURCE IS NOT TO BE EXAMINED. 9. THE LEARNED D.R. FOR THE REVENUE PLACING RELIANC E ON THE ORDERS OF THE AUTHORITIES BELOW STRESSED THAT THE ASSESSEE HA D FAILED TO GIVE ANY EXPLANATION WHY THE MONEY WAS FIRST WITHDRAWN IN CA SH AND THEN DEPOSITED BACK IN CASH. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE IN THE GROUND NO.2 RAISED BY THE ASSESSEE IS IN RELATION TO THE GIFT RECEIVED BY THE ASSESSEE AMOUNTING TO RS.5 LACS ON 28.12.2007 FROM HIS AUNT (TAI JI) SMT.PROMILA JAIN. THE GIFT DEED IS P LACED AT PAGE 15 OF THE PAPER BOOK. THE RELATIVE IS COVERED BY THE DEFINIT ION OF RELATION UNDER SECTION 56(2) OF THE INCOME TAX ACT. THE SAID GIFT OF RS.5 LACS WAS VIDE CHEQUE DRAWN ON SAVING ACCOUNT WITH STATE BANK OF P ATIALA. THE PERUSAL OF THE BANK PASSBOOK PLACED AT PAGES 18 TO 20 REFLE CTS THAT PRIOR TO ISSUE OF CHEQUE OF RS.5 LACS CASH OF RS.5 LACS WAS DEPOSI TED IN THE BANK ACCOUNT AS UNDER : ON 22.12.2007 RS.3,00,000/- ON 26.12.2007 RS. 90,000/- ON 26.12.2007 RS.1,10,000/- RS.5,00,000/- 11. WHEN CONFRONTED THE ASSESSEE EXPLAINED THAT THE SAID DEPOSITS WERE RELATING TO THE WITHDRAWALS MADE IN CASH ON THE EAR LIER DATES AS UNDER : ON 12.09.2007 RS.1,00,000/- 5 ON 20.09.2007 RS.1,50,000/- ON 13.10.2007 RS.1,25,000/- ON 21.12.2007 RS.1,00,000/- RS.4,75,000/- 12. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTEN TION OF THE ASSESSEE BECAUSE THESE WITHDRAWALS HAVE BEEN MADE MUCH BEFOR E THE DATE OF MAKING THE GIFT I.E. ON 28.12.2007. THE ASSESSEE W AS ASKED TO EXPLAIN THE PURPOSE OF WITHDRAWAL EARLIER MADE BY THE DONOR BUT IN THE ABSENCE OF ANY EXPLANATION, THE ASSESSING OFFICER PRESUMED THAT THE WITHDRAWALS EARLIER MADE BY HER HAD BEEN INVESTED SOMEWHERE ELS E. IN VIEW THEREOF, GENUINENESS OF THE CASH DEPOSITED BEING NON-ESTABLI SHED, THE GENUINENESS OF THE GIFT OF RS.5 LACS WAS HELD TO BE NOT ESTABLISHED. REFERENCE IS MADE TO THE OBSERVATION OF THE ASSESSI NG OFFICER UNDER PARA 5 AT PAGE 4 OF THE ASSESSMENT ORDER IN THIS REGARD. THE CIT (APPEALS) WAS OF THE VIEW THAT MERELY BECAUSE THE PERSON CONC ERNED HAD ADMITTED TO THE GRANT OF GIFT TO THE ASSESSEE, DID NOT ABSOL VE THE ASSESSEE FROM PROVING THAT THE PERSON MAKING THE GIFT HAD FINANCI AL CAPACITY TO DO SO. THE CIT (APPEALS) FURTHER OBSERVED THAT WHERE THE APPELLANT EXPLAINS THE GIFT AS EMANATING FROM THE SOURCE OF SUMS ALREA DY CREDITED IN THE BANK ACCOUNT OF THE DONOR THEN HE MUST PRODUCE NECE SSARY EVIDENCE TO SUBSTANTIATE THAT THESE SUMS WERE AVAILABLE AT A PA RTICULAR POINT OF TIME FOR MAKING SUCH GIFTS. WHERE THERE IS A LONG INTER VAL BETWEEN THE DATE OF THE PERSON BECOMING THE OWNER OF THE AMOUNT AND ITS CREDIT IN THE BANK ACCOUNT THEN THE APPELLANT OR SUCH A PERSON IS REQU IRED TO PRODUCE EVIDENCE TO ESTABLISH THAT THE INCOMING AND OUTGOIN G IN THE ACCOUNT ARE SUCH AS TO INDICATE THAT THE AMOUNTS IN QUESTION RE MAINED INTACT AND THE BALANCE WAS SUFFICIENT TO ENABLE HIM OR HER TO MAKE SUCH GIFTS. THE CIT (APPEALS) UPHELD THE ORDER OF THE ASSESSING OFFICER IN DOUBTING THE ENTRIES IN THE BANK ACCOUNT AND HOLDING THE GIFT AS INVALID. 6 13. THE ASSESSEE DURING THE YEAR UNDER CONSIDERAT ION RECEIVED GIFT OF RS.5 LACS FROM HIS AUNT SMT.PROMILA JAIN, WHO WAS A SSESSED TO TAX. THE ACKNOWLEDGEMENT OF FILING THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR IS PLACED AT PAGE 21 OF THE PAPER B OOK. THE COMPUTATION OF INCOME IS ANNEXED AT PAGE 22 OF THE PAPER BOOK, IN WHICH COPY OF CAPITAL ACCOUNT OF SMT.PROMILA JAIN I S ALSO INCORPORATED. THE DONOR HAD DECLARED GIFT TO ROHIT JAIN I.E. THE ASSESSEE BEFORE US, IN THE SAID CAPITAL ACCOUNT ITSELF AND THE BALANCE FUN DS AVAILABLE WITH THE ASSESSEE WERE ABOUT RS.14,38,458/-. THE TOTAL INCO ME DECLARED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION WAS RS.1, 34,550/-. THE DONOR HAD ALSO DECLARED LIST OF ASSET AS ON 31.3.2008 IN THE SAID COMPUTATION OF INCOME ITSELF. THE ASSESSEE HAD PRODUCED THE BANK STATEMENT OF THE DONOR WHEREIN THE CASH WAS WITHDRAWN FROM THE BANK ACCOUNT ON DIFFERENT DATES AND WAS DEPOSITED BACK IN THE BANK ACCOUNT ITSELF BY THE ASSESSEE. THE DONOR HAD WITHDRAWN RS.1 LAC ON 12.9 .2007, RS.1.50 LACS ON 20.9.2007 AND RS.1.25 LACS ON 13.10.2007, AGAINS T WHICH SHE HAD DEPOSITED RS.3 LACS ON 22.12.2007 AND RS.90,000/- O N 26.12.2007. FURTHER THE DONOR HAD WITHDRAWN RS.1 LAC ON 21.11.2 007 AND DEPOSITED RS.1.10 LACS ON 26.12.2007. ADMITTEDLY THERE WAS G AP OF ABOUT ONE DAY TO THREE MONTHS IN THE CASH WITHDRAWN BY THE DONOR AND DEPOSITED IN BANK ACCOUNT. THE EXPLANATION OF THE DONOR VIS--V IS THE CASH DEPOSITED IN HER BANK ACCOUNT WAS OUT OF SUCH CASH WITHDRAWAL MADE IN THE EARLIER PART OF THE YEAR AND ITS REDOPOSIT IN THE BANK ACCO UNT. THE AUTHORITIES BELOW HAVE EJECTED THE EXPLANATION OF THE DONOR PRE SUMING THAT THE AMOUNT WITHDRAWN ON THE EARLIER DATE HAVE BEEN SPEN T BY THE DONOR AND CASH DEPOSITED BEFORE THE ISSUE OF THE GIFT CHEQUE TO THE ASSESSEE WAS ACCORDINGLY HELD TO BE UNEXPLAINED. DURING THE COU RSE OF HEARING, THE ASSESSEE WAS ASKED TO FURNISH THE EVIDENCE OF THE C ASH WITHDRAWALS MADE FROM THE STATE BANK OF INDIA, WHICH WERE CLAIMED TO BE SELF WITHDRAWALS 7 BUT CHEQUES WERE APPARENTLY CLEARED IN THE NAME OF SHRI SURINDER PAL. THE DONOR HAD CERTIFIED THAT THE AMOUNTS WERE WITHD RAWN IN CASH THROUGH THE EMPLOYEE SHRI SURINDER PAL. A CERTIFICATE FORM THE STATE BANK OF PATIALA HAS ALSO BEEN FILED ON RECORD IN WHICH IT I S CERTIFIED THAT AGAINST TWO CHEQUES DATED 13.10.2007 OF RS.1.25 LACS AND DA TED 21.12.2007 FOR A SUM OF RS.1 LAC, AMOUNTS WERE PAID IN CASH BY WAY O F WITHDRAWAL FROM SAVING ACCOUNT OF SMT.PROMILA JAIN. 14. THE EXPLANATION OF THE ASSESSEE CANNOT BE BRUSH ED ASIDE ON THE SURMISES THAT THE AMOUNT WITHDRAWN IN CASH BY THE D ONOR FROM HER BANK ACCOUNT IN CASH WAS INVESTED SOMEWHERE ELSE, FOR WH ICH NO EXPLANATION HAD BEEN RENDERED. 15. WE FIND NO MERIT IN THE OBSERVATION OF THE CIT (APPEALS) THAT THE ASSESSEE MUST PRODUCE NECESSARY EVIDENCE TO SUBSTAN TIATE THAT THE SUMS WERE AVAILABLE AT PARTICULAR POINT OF TIME FOR MAKI NG SUCH GIFTS ESPECIALLY WHERE THERE IS SHORT INTERVAL BETWEEN TH E DATES OF CASH DEPOSITS AND WITHDRAWALS FROM THE BANK ACCOUNT. TH E ASSESSEE CANNOT BE ASKED TO PRODUCE NEGATIVE ASPECTS OF THE TRANSACTIO N. WHERE THE DONOR HAD CLAIMED THAT SHE HAD WITHDRAWN CASH ON EARLIER DATES OF WITHDRAWAL, WHICH WERE FURTHER CLAIMED TO BE AVAILABLE WITH HER FOR REDEPOSIT IN THE BANK ACCOUNT, THE SAID EXPLANATION OF THE DONOR COU LD NOT BE BRUSHED ASIDE IN THE ABSENCE OF ANY EVIDENCE. THE ASSESSIN G OFFICER FAILED TO BRING ON RECORD ANY EVIDENCE TO DISPROVE THE EXPLAN ATION OF THE DONOR AND THE SAME CANNOT BE THUS REJECTED. IN ANY CASE, WE FIND THAT THERE WAS GAP OF SHORT SPAN OF TIME BETWEEN THE WITHDRAWA LS MADE BY THE DONOR AND THE REDEPOSIT OF CASH IN THE BANK ACCOUNT OF DONOR, WHICH IN TURN WAS GIFTED TO THE ASSESSEE. 8 16. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE WHERE THE ASSESSEE HAD ESTABLISHED THE IDENTITY OF THE DONOR AND HAD ALSO PROVED CREDITWORTHINESS, THE GENUINENESS OF THE TRANSACTIO NS STANDS ESTABLISHED. MERELY BECAUSE CERTAIN CASH WAS WITHDRAWN BY THE DO NOR WHICH WAS DEPOSITED IN THE BANK ACCOUNT PRIOR TO ISSUE OF CHE QUE OF GIFT TO THE DONEE, DOES NOT WARRANT ADDITION OF THE SAID GIFT A MOUNT IN THE HANDS OF THE ASSESSEE, IN THE ABSENCE OF ANY EVIDENCE FOUND THAT THE EARLIER CASH WITHDRAWN BY THE DONOR WAS NOT AVAILABLE WITH HER. 17. THE HON'BLE SUPREME COURT IN CIT VS. ORISSA COR PORATION P. LTD. (SUPRA) HAD HELD THAT WHERE THE ASSESSEE HAD FURNIS HED THE NAMES AND ADDRESSES OF THE ALLEGED CREDITORS, WHO WERE INCOME TAX ASSESSEES AND THE REVENUE APART FROM ISSUING NOTICES UNDER SECTIO N 131 OF THE ACT AT THE INSTANCE OF THE ASSESSEE, DID NOT PURSUE THE MA TTER FURTHER, IN SUCH CIRCUMSTANCES THE ASSESSEE COULD NOT DO ANYTHING FU RTHER. THE HON'BLE APEX COURT FURTHER HELD THE ASSESSEE TO HAVE DISCHA RGED THE BURDEN THAT LAY UPON IT AND THE SAID CREDIT WAS THUS HELD TO BE EXPLAINED IN THE HANDS OF THE ASSESSEE. APPLYING THE ABOVE SAID RATIO LAI D DOWN BY THE HON'BLE SUPREME COURT IN CIT VS. ORISSA CORPORATION P. LTD. (SUPRA) TO THE FACTS OF THE PRESENT CASE, WE FIND THAT THE ASSESSEE IN T HE PRESENT ASSESSEE HAD FURNISHED THE REQUISITE INFORMATION VIS--VIS THE D ONOR I.E. THE BANK ACCOUNT OF THE DONOR WAS PRODUCED AND EVEN THE ACKN OWLEDGEMENT OF FILING RETURN OF INCOME EXPLAINING THE SOURCE OF TH E SAID CREDIT BY THE DONOR WAS ALSO FURNISHED DURING THE COURSE OF ASSES SMENT PROCEEDINGS, COPIES OF WHICH ARE FILED BEFORE US ALSO. THE REVE NUE AUTHORITIES IN THE PRESENT CASE HAVE FAILED TO CARRY OUT ANY INVESTIGA TION IN THE HANDS OF THE DONOR AND MERELY BECAUSE THERE WAS CASH DEPOSIT S IN THE BANK ACCOUNT OF THE DONOR PRIOR TO ISSUING THE CHEQUES O F GIFTED AMOUNT TO THE ASSESSEE, THE SOURCE OF THE GIFTS COULD NOT BE HELD TO BE UNEXPLAINED ON 9 THE SURMISES THAT THE CASH WAS UNEXPLAINED IN THE H ANDS OF THE DONOR, WHO IS ASSESSED TO TAX. 18. IN ANY CASE, IT HAS BEEN LAID DOWN BY VARIOUS C OURTS THAT SOURCE OF SOURCE IS NOT TO BE EXPLAINED BY THE PERSON IN WHOS E ACCOUNT SUCH CREDIT APPEARS. THE LEARNED A.R. FOR THE ASSESSEE HAD PLA CED RELIANCE ON THE RATIO LAID DOWN IN CIT VS. DIAMOND PRODUCTS LTD. (S UPRA), UNDER WHICH IT HAS BEEN HELD THAT THE ASSESSING OFFICER IS NOT PERMITTED TO EXAMINE THE SOURCE OF THE SOURCE ONCE THE ASSESSEE HAD ESTA BLISHED THAT THE TRANSACTIONS WITH THE CREDITORS WERE GENUINE. IN T HE FACTS OF THE CASE BEFORE THE HON'BLE DELHI HIGH COURT IN CIT VS. DIAM OND PRODUCTS LTD.(SUPRA) THE ASSESSEE HAD FURNISHED THE CONFIRMA TION OF THE CREDITOR ALONGWITH THE COPIES OF HIS RETURN OF INCOME FILED FOR THE RELEVANT YEAR AND SUCH CREDITOR ALSO APPEARED BEFORE THE ASSESSIN G OFFICER AND FURNISHED ALL THE INFORMATION. THE BOOKS OF ACCOUN T OF THE CREDITOR WERE ALSO VERIFIED BY THE ASSESSING OFFICER AND AS PER T HE STATEMENT OF THE CREDITOR ADMITTED TO HAVE ADVANCED CERTAIN SUMS TO THE ASSESSEE, OUT OF HIS BANK ACCOUNT, STATEMENTS OF WHICH WERE FILED BE FORE THE ASSESSING OFFICER. THE DEPOSITS TO THE EXTENT OF AMOUNT ADVA NCED WERE ALSO EXPLAINED BEFORE THE ASSESSING OFFICER. HOWEVER, S AID AMOUNT WAS FOUND TO BE RECEIVED IN CASH TOWARDS REPAYMENT OF L OAN GIVEN EARLIER. THE ASSESSING OFFICER HAD MADE THE ADDITION ON ACCO UNT OF THE SAID DEPOSIT IN CASH IN THE BANK ACCOUNT OF THE CREDITOR . THE HON'BLE COURT HELD THAT IT WAS NOT OPEN TO THE ASSESSING OFFICER TO MAKE THE ADDITION AFTER ENTERING UPON THE EXAMINATION OF THE SOURCE O F SOURCE ONCE THE ASSESSEE HAD ESTABLISHED THAT THE TRANSACTION WITH THE CREDITOR WAS GENUINE AND THE IDENTITY AND CREDITWORTHINESS OF TH E CREDITOR HAD BEEN ESTABLISHED. SIMILAR VIEW HAS BEEN LAID DOWN BY DE LHI BENCH OF THE TRIBUNAL IN ACIT VS. BALDEV RAJ CHARLA & ORS. (2009 ) 18 DTR 10 (DEL)(TRIB) 413. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAVING DISCHARGED HIS ONUS OF PROVING THE GENUINENESS OF T HE TRANSACTION, WE FIND NO MERIT IN THE AFORESAID ADDITION OF RS.5 LAC S. THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION OF RS.5 LACS. GROUND NO.2 RAISED BY THE ASSESSEE IS THUS ALLOWED. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DAY OF SEPTEMBER, 2012. SD/- SD/- (MEHAR SINGH) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 TH SEPTEMBER, 2012 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH