Jagmohan Kaur Bajwa Legal Heir of Lt.Jaskiran Singh Bajwa, Chandigarh V. ITO, W-3(1), Chandigarh

ITA 962/CHANDI/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9875 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 28-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANVEET SINGH SEHGAL CI T
• Assessee Lawyers: SUDHIR SEHGAL SHRI AMAN PARTI
• Keywords: Unexplained investment; Opportunity of being heard; Source of fund; Reasonable cause; Corroborative evidences; Onus to prove
• Section: 142(1); 143(1); 69A; 191; 64; 48; 13; 153; 131; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL COURT) .., !' .. , # $% BEFORE: SHRI N.K. SAINI, VP & SHRI R.L. NEGI, JM ITA NO. 962/CHD/2019 ASSESSMENT YEAR : 2014-15 SMT. JAGMOHAN KAUR BAJWA LEGAL HEIR LT. JASKIRAN SINGH BAJWA H.NO. 3077, SECTOR 19-D, CHANDIGARH THE ITO WARD 3(1), CHANDIGARH PAN NO: ACRPB9826E APPELLANT RESPONDENT !' ASSESSEE BY : SHRI SUDHIR SEHGAL, ADVOCATE SHRI AMAN PARTI, ADVOCATE #!' REVENUE BY : SHRI MANVEET SINGH SEHGAL, ADDL. CI T $ %! & DATE OF HEARING : 10/05/2021 '()*! & DATE OF PRONOUNCEMENT : 23/07/2021 $&/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE LEGAL HEIR OF THE DECEASED ASSESSEE AGAINST THE ORDER DT. 26/04/2019 OF LD. CIT(A)-1, CHANDIGARH. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE COMMISSIONER OF INCOME TAX(APPEALS) E RRED ON FACTS AND IN LAW IN UPHOLDING THE ADDITION OF RS. 99,84,046/- U/S 69A O F THE INCOME TAX ACT, 1961 IN RESPECT OF THE ADDITIONS MADE IN APPELLANT'S CAPITAL ACCOUNT WHICH ALREADY STOOD DISCLOSED IN THE BOOKS OF ACCOUNTS. 2. THAT THE COMMISSIONER OF INCOME TAX(APPEALS) ERR ED ON FACTS AND IN LAW IN TREATING THE AMOUNTS RECEIVED BY THE APPELLANT FROM HIS MATERNAL COUSIN (THROUGH HIS SON'S ACCOUNT) FOR INVESTING THE SAME IN PURCHASE OF AN I MMOVABLE PROPERTY ON HIS BEHALF AS UNSECURED LOAN AND THEREBY UPHOLDING THE ADDITION M ADE BY THE ASSESSING OFFICER AMOUNTING TO RS. 99,84,046/- AS UNEXPLAINED INVESTM ENT. 3. THE ASSESSEE CRAVES LEAVE TO ADD/ALTER ANY OF TH E GROUND OF APPEAL ON OR BEFORE THE DATE OF HEARING OF APPEAL. FROM THE AFORESAID GROUNDS IT IS GATHERED THAT THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO THE SUSTENANCE OF ADDITION OF R S. 99,84,046/- MADE BY THE A.O. UNDER SECTION 69A OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S ACT). 2 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE EL ECTRONICALLY FILED THE RETURN OF INCOME ON 29/11/2014 DECLARING AN INCOME OF RS. 8,87,340 /- WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT, LATER ON THE CASE WAS S ELECTED FOR SCRUTINY. 3.1 DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE A.O . NOTICED THAT THERE WAS A SUBSTANTIAL INCREASE IN THE CAPITAL ACCOUNT OF THE ASSES SEE AMOUNTING TO RS. 1,19,44,047/-. THE A.O. ASKED THE ASSESSEE TO FURNISH T HE SOURCE OF INCREASE IN THE CAPITAL ACCOUNT WITH SUPPORTING EVIDENCE. THE ASSESSEE SUBMITTE D THAT HE HAD INTRODUCED CAPITAL FROM THE FUNDS RECEIVED FROM SHRI HARDEV SING H SAHI IN INDIAN RUPEES AND CANADIAN DOLLAR AND ALSO FURNISHED THE COPY OF THE LEDGE R ACCOUNT. THE ASSESSEE ALSO FURNISHED ADVICE OF INWARD REMITTANCE FROM CANADA IN INDIAN RUPEES ISSUED FROM AXIS BANK, SECTOR-16, CHANDIGARH AND THE RELEVANT PAGE OF HIS HD FC BANK STATEMENT WHEREIN RS. 19,00,000/- WAS REFLECTED AS RECEIVED FRO M SHRI HARDEV SINGH. ACCORDING TO THE A.O. THE AFORESAID DOCUMENTS DID NOT PROVE THE IDENT ITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTIONS. HE ASKED THE ASSESSEE TO FURNISH THE BANK STATEMENT OF THE PERSONS FROM WHOM THE ASSESSEE RECEIVED MONEY FROM CANADA IN INDIAN RUPEES AND PROVE THE IDENTITY AND CREDITWORTHINESS OF THE PERSON S. THE A.O. INCORPORATED THE COPY OF THE LEDGER ACCOUNT OF CAPITAL ACCOUNT FURNISHED BY THE ASSESSEE IN PARA 4 OF THE ASSESSMENT ORDER DT. 26/12/2016 WHICH READ AS UNDER: BAJWA CONSTRUCTION CO. 2013-14 FINAL 3027 SECTOR 19-D CHANDGIARH JASKARNA SINGH BAJWA LEDGER ACCOUNT 1-APR-2013 TO 31-MAR-2014 PAGE 1 DATE PARTICULARS VCH TYPE VCH NO. / EXCISE INV. NO. DEBIT CREDIT 1-4-2013 BY OPENING BALANCE 2,05,27,337.94 9-5-2013 BY HDFC BANK FUND TRF FROM HARDEV SINGH- A/C NO. 13911050011664 CH NO. 053753 RECEIPT 23 19,00,000.00 14-5-2013 BY AXIS BANK-A/C NO. 912010066869615 AMT RECD FROM CANADA $70000 @ 53.6 FROM HARDEV SINGH SAHI RECEIPT 29 37,55,262.40 22-11-2013 BY AXIS BANK-A/C NO. 912010066869615 AMT RECD IN CAD 105000@59/- RECEIPT 129 62,28,784.63 10-1-2014 BY CANARA BANK-2479101003230 CH.NO: 497794 RECEIPT 153 60,000.00 31-3-2014 BY PROFITS LOSS A/C JOURNAL 46 59,47,565 .72 BY LIC DEPOSITED JOURNAL 47 4,87,197.00 3,89,06,147.69 TO CLOSING BALANCE 3,89,06,147.69 3,89,06,147.69* 3,89,06,147.69 3 3.2 THE A.O. WAS NOT SATISFIED FROM THE SUBMISSIONS OF THE ASSESSEE AND AGAIN ASKED TO FURNISH THE INFORMATION VIDE LETTER DT. 28/11/2016 WHI CH READ AS UNDER: ' YOU HAVE MADE AN ADDITION OF RS. 1,18,84,046/- IN YOUR CAPITAL DURING THE YEAR UNDER CONSIDERATION THE DETAILS OF WHICH ARE AS UNDER:- 09.05.2013 SH. HARDEV SINGH 19,00,000/- 15.05.2013 SH. HARDEV SINGH ($ 70000@53.6 ) 37,55,262/- 22.11.2013 -- (105000 @ 59/-) 62,28,784/- TOTAL 1,18,84,046/- YOU ARE AGAIN REQUESTED TO PLEASE FURNISH THE IDENT ITY, CREDITWORTHINESS AND GENUINENESS. THE NATURE OF THE ABOVE SAID TRANSACTIONS/PAYMENTS RECEIVED, SOURCES OF THEIR INCOME, RELATIONSHIP WITH YOU AND CONFIRMATION OF THE LENDE RS ON OR BEFORE 06.12.2016 . PLEASE ALSO STATE WHETHER THESE ARE INTEREST FREE LOAN OR GIVE THE DETAILS OF INTEREST PAID ON THESE LOANS'. 3.3 THE ASSESSEE SUBMITTED THAT SHRI HARDEV SINGH S/O S HRI JOGINDER SINGH WAS HIS MATERNAL COUSIN. IN RESPECT OF HIS CREDITWORTHINESS AN D GENUINENESS OF THE TRANSACTIONS, IT WAS STATED THAT HE (SHRI HARDEV SINGH) WAS A RETIRE D OFFICER FROM A GOVERNMENT ORGANIZATION AND AT THE RELEVANT TIME WAS RESIDING IN CAN ADA, HE TRANSFERRED RS. 19,00,000/- INTEREST FREE OUT OF HIS PERSONAL SAVING S AND RETIREMENT FUND. IT WAS FURTHER STATED THAT THE BALANCE AMOUNT WAS TRANSFERRED BY HIM THROUGH HIS SONS ACCOUNT. IT WAS ALSO STATED THAT SHRI MANINDER SINGH SAHI S/O SHRI HA RDEV SINGH SAHI, HAD WELL ESTABLISHED SET UP OF HIS OWN. THE ASSESSEE ALSO FURN ISHED COPIES OF SELF DECLARATION OF SHRI HARDEV SINGH AND SHRI MANINDER SINGH SAHI. 3.4 THE ASSESSEE SUBMITTED BEFORE THE A.O THAT ADVANC E MONEY WAS GIVEN TO HIM WITH MOTIVE OF MAKING SOME PROPERTY INVESTMENT IN INDIA , BUT SINCE NO DEAL COULD GOT MATERIALIZED, THE ADVANCE AMOUNTING TO RS. 1,18,84,046/ - WAS TO BE REFUNDED. THE ASSESSEE ALSO FURNISHED IDENTITY OF BOTH LENDERS AND HI S SELF DECLARATION IN THE FORM OF AFFIDAVIT. ACCORDING TO THE A.O. THE ASSESSEE WAS FREQ UENTLY CHANGING HIS STATEMENT WITH REGARD TO THE ADDITION IN HIS CAPITAL. HE REBUTTED POINT WISE, REPLY FILED BY THE ASSESSEE ON 14/12/2016 AS UNDER: A) 'AS PER YOUR BALANCE SHEET AS ON 31.03.2014 OF M /S BAJWA CONSTRUCTION COMPANY YOUR PROPRIETORSHIP CONCERN, YOUR UNSECURED LOANS W AS AT RS. 1,43,07,185/- AND AS PER SCHEDULE C OF THIS LIABILITY THE NAME OF THESE TWO PERSONS I.E. SH. HARDEV SINGH AND MANINDER SINGH SAHI WAS NOT RECORDED. HENCE, THESE ARE NOT ACCEPTABLE AS 'INTEREST FREE UNSECURED LOAN'. 4 B) AS PER YOUR BALANCE SHEET AS ON 31.03.2014 OF M /S BAJWA CONSTRUCTION COMPANY YOUR PROPRIETORSHIP CONCERN, THE ADVANCE RECEIVED F ROM CUSTOMERS WAS SHOWN AT RS.45,00,000/- ONLY AND WHICH WAS THE BUSINESS ADVA NCES BUT YOU HAVE RECEIVED AMOUNT OF RS. 1,18,84,046/- FROM SH. HARDEV SINGH AND MANI NDER SINGH SAHI AND INTRODUCED IT IN YOUR CAPITAL ACCOUNT. HENCE, THESE ARE NOT ACCEPTAB LE AS 'ADVANCE RECEIVED FROM CUSTOMERS'. TILL 06.12.2016, YOU HAVE SIMPLY STATED THAT THE RECEIPTS REGARDING INCREASE IN CAPITAL WAS THROUGH BANK AND TRANSFERRED THROUGH RT GS OR CANADIAN DOLLOR AND PROVIDE BANK STATEMENT. BUT BANK STATEMENT ITSELF IS NOT A AUTHENTIC DOCUMENT TO PROVE THE GENUINENESS OF ANY PAYMENT/RECEIPTS. ON 06.12.2016 YOU HAVE STATED THAT SH. HARDEV SINGH IS YOUR MATERNAL COUSIN AND IS A RETIRED OFFI CER FROM A GOVT. ORGANISATION AND FUNDS TRANSFER BY HIM IS OUT OF HIS SAVINGS AND RETIREMEN T FUND. BUT YOU HAVE NOT FURNISHED ANY SUPPORTING DOCUMENTS IN RESPECT OF THE RETIREMENT F UND OR SAVINGS. REGARDING MANINDER SAHI YOU HAVE STATED THAT HE HAS WELL ESTABLISHED S ET UP OF HIS OWN AND FURNISHED A DECLARATION ON PLAIN PAPER. NOTHING WAS INFORMED AB OUT HIS SOURCES OF INCOME, NATURE OF BUSINESS BANK STATEMENT WHICH ESTABLISH THE GENUINE NESS AND CREDITWORTHINESS OF THE PERSON. NOW VIDE YOUR REPLY RECEIVED THROUGH ASK LE TTER DATED 14.12.2016, YOU HAVE STATED THAT YOU HAVE TAKEN AN ADVANCE MONEY IN FORM OF INTEREST FREE UNSECURED LOAN. YOU ARE CHANGING YOUR STAND ON EVERY HEARING. C) REFLECTING THE RECEIPTS OF ANY AMOUNT IN YOUR BA NK STATEMENT DOES NOT PROVE THE CREDITWORTHINESS AND GENUINENESS OF THE RECEIPTS. T HE DECLARATION SUBMITTED BY YOU ON 06.12.2016 ON A SIMPLE PLAIN PAPER WAS NOT PROPER A ND YOU WERE AGAIN ASKED TO FURNISH AN AUTHENTIC CONFIRMATION TO PROVE ITS GENUINENESS. BU T ON 14.12.2016 YOU HAVE AGAIN SUBMITTED THE SAME COPY OF DECLARATION. THE PHOTOCO PY OF DECLARATION BY SH. MANINDER SAHI SUBMITTED AFTER CUTTING IN IT. THE DECLARATION S ARE PHOTOCOPIES ON THE PLAIN PAPER THUS THE AUTHENTICITY AND GENUINENESS IS NOT ESTABLISHED . SH. HARDEV SINGH, WHO WAS RETIRED FROM HIS SERVICE IN APRIL, 2012 AND HAS RECEIVED PE NSION OF RS. 11,050/- ONLY BUT HE HAS GIVEN RS. 19,00,000/- TO YOU ON 09.05.2013. THIS DO CUMENT DOES NOT PROVE THAT THE AMOUNT RECEIVED AS PENSION BENEFITS IS THE SOURCES OF LOAN GIVEN TO YOU AS NO SUCH SUPPORTING BANK STATEMENT PLACED ON RECORD. THIS IS NOT CONFIR MING THE GENUINENESS OF THE TRANSACTION. D) VIDE NOTICE U/S 142(1) DATED 29.04.2016, YOU WERE ASKED TO FURNISH THE SOURCES OF INCREASE IN CAPITAL DURING THE YEAR WITH SUPPORTING EVIDENCE. SINCE THEN, YOU ARE TIME AND AGAIN ASKED THE SOURCES OF INCREASE IN CAPITAL BUT YOU ARE UNABLE TO PROVE THE GENUINENESS AND AUTHENTICITY OF THE SAME. YOU ARE R EPEATEDLY AFFORDING OPPORTUNITIES TO PROVE THE INCREASE IN CAPITAL BUT AFTER A LAPSE OF ALMOST 8 MONTHS YOU ARE FAILED TO PROVE THE GENUINENESS OF INCREASE IN CAPITAL. SO IT IS NO T CORRECT TO SAY THAT SUFFICIENT TIME NOT ALLOWED TO YOU TO COLLECT THE EVIDENCE. YOU HAVE TA KEN CONTRADICTORY STAND. E) THE AFFIDAVIT SUBMITTED BY YOU IS A SELF SERVING DOCUMENT. THE ONUS TO PROVE THE GENUINENESS OF THE LOANS RAISED IS UPON YOU WHICH M AY BE DISCHARGED FAILING WHICH I SHALL BE CONSTRAINED TO COMPLETE THE ASSESSMENT EX-PARTE. THIS MAY PLEASE BE TREATED AS FINAL OPPORTUNITY'. 3.5 IN RESPONSE TO THE ABOVE THE ASSESSEE VIDE REPLY DT . 20/12/2016 SUBMITTED THAT THE MONEY RECEIVED FROM SHRI HARDEV SINGH AND SHRI MANINDER SINGH SAHI WAS ADVANCE MONEY RECEIVED IN PERSONAL CAPACITY, AS A RESULT OF W HICH THEIR NAME HAD NOT BEEN SHOWN IN THE LIST OF UNSECURED LOAN AND ADVANCE RECEIVE D FROM CUSTOMERS. IT WAS FURTHER SUBMITTED THAT THE BANK STATEMENT OF BOTH LENDERS AND COPY OF AFFIDAVIT DULY NOTARIZED FROM CANADA PROVING THE CREDITWORTHINESS, IDE NTITY OF THE PERSONS AND GENUINENESS OF THE TRANSACTIONS WERE FURNISHED. HOWEVER T HE A.O. ACCEPTED ONLY RS. 5 19,00,000/- RECEIVED FROM SHRI HARDEV SINGH AND DID NOT ACCEPT THE REMAINING AMOUNT OF RS. 99,84,046/- RECEIVED FROM SHRI MANINDER SINGH S AHI FOR THE FOLLOWING REASONS: I) THE ASSESSEE WAS CHANGING HIS EXPLANATION FREQUE NTLY AND WITHOUT ANY BASIS WITH REGARD TO ADDITION IN CAPITAL FOR RS.99,84,046/-. II) THE ASSESSEE HAS SUBMITTED THE PHOTOCOPY OF A DOCUMENT PURPORTED TO BE AN AFFIDAVIT OF THE LENDER AS PER HIS REPLY DATED 20.1 2.2016, WHEREAS HE WAS ASKED TO EXPLAIN THE SOURCES OF CAPITAL ADDITION WITH EVIDENCE FROM BEGINNING OF THE ASSESSMENT PROCEEDINGS I.E. QUESTIONNAIRE DATED 29.04.2016. III) NO COGNIZANCE CAN BE TAKEN, AS IT HAS NOT BEEN STATED THAT FOR WHICH PROPERTY THE ADVANCES OF RS. 99,84,046/- HAD BEEN PAID BY HI M. HE HAD GIVEN ADVANCE FOR RS. 37,55,262/- ON 14.05.2013 AND AGAIN ON 22.11.2013. IF IT PRESUMED THAT HE HAD GIVEN ADVANCE FOR PURCHASE OF PROPERTY, AN AGREEMENT MUST BE EXECUTED, WHICH WAS NOT FURNISHED. IF THE DEAL COUL D NOT MATERIALIZED THEN WHERE WAS THE OCCASION TO GIVE A FURTHER PAYMENT OF RS. 62,28,784/- ON 22.11.2013. THIS EXPLANATION IS MERELY AN AFTERTHOU GHT AND CANNOT BE ACCEPTED. NO SUCH COPY OF THE AGREEMENT HAS BEEN PR ODUCED FOR VERIFICATION OF THE AUTHENTICITY OF THE REPLY SO FURNISHED. IV) THE LETTER HEAD OF 'SAHI CONSTRUCTIONS' SUBMITT ED IN RESPECT OF SH. MANINDER SAHI IS A PHOTOCOPY AND ON A SIMPLE PLAIN PIECE OF PAPER. T HE LETTER HEAD OF A CONCERN MUST HAVE THE DETAILS OF ITS HEAD OFFICE E.G. CONTACT NO ., E-MAIL ID, FAX NO. ITS PAN OR TAN NUMBER TO FACILITATE ITS CUSTOMER. BUT NO DETAILS A RE PRINTED ON IT. THE DOCUMENT IS NOT A REGISTERED DOC UMENT WITH ANY AUTHORITY OF CANADA AND NOT WITNESSED. V) NO DOCUMENTARY EVIDENCE REGARDING HIS BEING A 'T AX PAYER' IS FURNISHED TO SHOW THAT HE HAD SUFFICIENT SOURCES OF INCOME TO GI VE THIS AMOUNT. VI) THE BANK STATEMENT SUBMITTED IS ALSO NOT ACCEPT ABLE AS IT HAS NEITHER THE NAME OF THE ACCOUNT HOLDER NOR NAME OF BANK/BRANCH. AS PER THE ASSESSEE'S STATEMENT SH. MANINDER SAHI HAS GIVEN LOAN OF RS. 3 7,55,262/- ON 14.05.2013 AND RS. 62,28,784/- ON 22.11.2013 FROM CANADA IN IN DIAN RUPEES. BUT FROM PERUSAL OF THE BANK STATEMENT, THERE IS NO DEBIT OR CREDIT ENTRY IN THE MONTH OF MAY, 2013 THEN HOW MONEY OF RS.37,55,262/- WAS GIVE N BY HIM TO THE ASSESSEE. FURTHER, IT IS NOTICED THAT ON 18.11.2013 , THERE WAS A CREDIT ENTRY OF 1,04,975 CANADIAN DOLLAR IN THIS ACCOUNT AND ON THE SAME DAY 1,05,000 CANADIAN DOLLAR WAS TRANSFERRED TO THE ASSESSEE. TH E CREDIT ENTRY OF CANADIAN DOLLAR 1,04,975 WAS NOT EXPLAINED. VII) MOREOVER, PERUSAL OF BANK STATEMENT, REVEALS T HAT THERE ARE PERIODIC SMALL DEBIT AND CREDIT ENTRIES IN THIS ACCOUNT EXCEPT BIG CREDI T ENTRY ON 18.11.2013 . CANADIAN DOLLAR 1,04,975 AND LATER ON IT WAS TRANSFERRED TO THE ASS ESSEE. IT IS IMPROBABLE THAT SH.MANINDER SAHI HAD ADVANCED SUCH A HUGE INTEREST FREE AMOUNT WITH SMALL SOURCES OF INCOME. HENCE, THE CREDITWORTHINESS OF SH.MANINDER SAHI SUB MITTED BY THE ASSESSEE IS NOT PROVED. ACCORDINGLY, THE ADDITION OF RS. 99,84,046/- WAS MADE UNDER SECTION 69A OF THE ACT TREATING THE SAME AS UNEXPLAINED INVESTMENT MADE B Y THE ASSESSEE. 6 4. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSIONS WHICH ARE INCORPORATED IN PARA 5.1 OF THE IMPUGNED ORDER AND ARE REPRODUCED VERBATIM AS UNDER: '2. SUBMISSIONS BASED ON GROUND NO. 4 OF APPEAL, WHICH STATES AS UNDER THAT: 'THE LEARNED AO, HAS ERRONEOUSLY REJECTED PART OF T HE ASSESSEE CLAIM MADE VIDE SUBMISSION DATED 14.12.2016 AND 20.12.2016 BASED ON MERE PRESUMPTIONS WHICH WERE NEVER OFFERED FOR ANY FURTHER CLARIFICATION OR REBU TTAL FROM THE ASSESSEE, HENCE, GIVING NO FURTHER OPPORTUNITY OF BEING HEARD TO REBUT OR CROS S THE MERE AMBIGUOUS PRESUMPTIONS OF THE LEARNED AO, BEFORE PRONOUNCING THE IMPUGNED ORD ER DATED 26.12.2016.' IN REGARDS TO ABOVE STATED GROUND, WE WOULD LIKE TO HUMBLY SUBMIT THAT: THE ASSESSEE VIDE HIS REPLY DATED 20/12/2016 SUBMITTED THE REQUISITE DOCUMENTARY EVIDENCE TO ESTABLISH THE CREDITWORTHINESS, IDENTITY OF THE LENDERS AND GENUI NENESS OF TRANSACTIONS. IN RESPECT TO THE SAME THE LD. AO HELD THAT THE SUBMISSIONS OF ASSESS EE FOR CAPITAL INTRODUCTION OF RS. 19,00,000/- (FROM SH HARDEV SINGH) IS ACCEPTABLE HO WEVER THE EXPLANATIONS PROVIDED REGARDING THE BALANCE CAPITAL RECEIVED FROM SH. MAN INDER SINGH SAHI AMOUNTING TO RS. 99,84,046/- WAS NOT SUBSTANTIATED. IT IS HEREBY HUMBLY SUBMITTED THAT THE LD. AO ERRON EOUSLY REJECTED PART OF THE ASSESSEE'S CLAIM BASED ON MERE PRESUMPTIONS WITHOUT OFFERING T HE ASSESSEE AN OPPORTUNITY OF BEING HEARD TO REBUT THESE ERRONEOUS AND AMBIGUOUS PRESUM PTIONS OF LD. AO BEFORE PRONOUNCING THE IMPUGNED ORDER. IT IS ALSO BROUGHT TO NOTICE THAT THE SAID PROCEEDINGS WERE TIME BARRED AS ON 31/12/2016 AND THE LD. AO PA SSED THE ASSESSMENT ORDER IN HASTE WITHOUT AFFORDING THE ASSESSEE AN OPPORTUNITY OF BE ING HEARD TO REBUT THE ERRONEOUS REASONS BASED ON WHICH THE LD. AO FRAMED THE ASSESS MENT ORDER AND MADE AN IMPUGNED ADDITION OF RS. 99,84,046/- U/S 69A OF THE INCOME T AX ACT, 1961. THE REASONS STATED BY THE LD. AO FOR NOT ACCEPTING THE SUBMISSIONS OF THE ASSESSEE IN RESPECT TO THE FUNDS RECEIVED FROM SH. MANINDER SIN GH SAHI ARE WELL COVERED AND REBUTTED BY THE MERITS OF THE CASE IN FAVOUR OF THE ASSESSEE WHICH ARE TAKEN UP IN GROUND NO. 3 OF THE SUBMISSIONS. 3. SUBMISSIONS BASED ON GROUND NO. 3 OF APPEAL, WHI CH STATES AS UNDER THAT: 'THE LEARNED AO, AS PER AS ASSESSMENT ORDER IS BELIEVED TO BE CO NVINCED BASED ON THE EVIDENCE SUBMITTED BY THE ASSESSEE ON THE GENUINENESS OF THE CLAIM OF TRANSACTION OF UNSECURED LOAN RECEIVED BY THE ASSESSEE AND IDENTITY OF THE S AID LENDER, SH. MANINDER SINGH SAHI. BUT, SOMEHOW HAS AMBIGUOUSLY REJECTED THE CREDITWORTHINE SS OF THE SAME, LENDER, SH. MANINDER SINGH SAHI, WITHOUT ANY REASONABLE CAUSE O R EXPLANATION.' IN REGARDS TO ABOVE STATED GROUND, WE WOULD LIKE TO HUMBLY SUBMIT THAT: THE ASSESSEE ON ENQUIRY MADE BY THE LD. AO REGARDIN G THE INCREASE IN CAPITAL DULY EXPLAINED THAT THE ASSESSEE HAD TAKEN AN ADVANCE MO NEY FROM SH. HARDEV SINGH AND SH. MANINDER SINGH SAHI (FATHER AND SON) HAVING PRESENT RESIDENCE AT #6792, 146B STREET, SURRE, BC CANADA AMOUNTING TO RS. 19,00,000/- AND RS. 99,84,046/- RE SPECTIVELY. SINCE THE SAID FUNDS WERE GIVEN BY AFOREMENTIONED PERSONS IN PERSO NAL CAPACITY TO THE ASSESSEE FOR MAKING SOME INVESTMENT IN PROPERTIES IN INDIA AND T HE LENDERS BEING RELATIVES TO THE ASSESSEE, THE SAID FUNDS THOUGH BEING INTEREST FREE ADVANCES FOR MAKING INVESTMENT WERE NEITHER RECORDED AS UNSECURED LOANS NOR AS INTEREST FREE ADVANCES IN THE BALANCE SHEET OF THE ASSESSEE OWING TO THE PERSONAL NATURE OF TRANSA CTION. THE ASSESSEE THEREFORE INTRODUCED THE SAID FUNDS AS HIS OWN CAPITAL IN THE BUSINESS. TO FURTHER ESTABLISH THE CREDITWORTHINESS, IDENTITY & GENUINENESS OF THE LENDERS THE ASSESSEE SUBMITTED ALL THE REQUISITE DOCUMENTS IN FORM OF HI S BANK STATEMENT, SELF DECLARATION, BANK 7 STATEMENTS OF THE LENDERS, ID AND ADDRESS PROOFS OF THE LENDERS LAND AFFIDAVITS (DULY ATTESTED BY THE CANADIAN AUTHORITIES) TESTIFYING TO THE FACTS EARLIER SUBMITTED BY THE ASSESSEE. IN ADDITION TO THIS THE ASSESSEE FURTHER CLARIFIED THAT THE LENDER MR. HARDEV SINGH HAD ADVANCES THE SAID FUNDS TO THE ASSESSEE THROUGH HIS REGULAR BANK ACCOUNT AND THE BALANCE FROM HIS SON MR. MANINDER SINGH SAHI'S BANK ACCOUNT, A FACT CLEARLY TAKEN INTO ACCOUNT BY THE LD. AO IN ASSESSMENT ORDER DATED 26/ 12/2016 IN PARA NO. 5. THEREFORE, THE LD. AO ASKED THE ASSESSEE TO PROVE T HE CREDITWORTHINESS OF THE LENDERS, IN RESPONSE TO WHICH THE ASSESSEE SUBMITTED THAT SH. H ARDEV SINGH IS THE MATERNAL COUSIN OF THE ASSESSEE AND IS A RETIRED OFFICER FROM GOVERNME NT ORGANIZATION AND AT PRESENT LIVING IN CANADA AND THE FUNDS TRANSFERRED ARE FROM HIS PERSO NAL SAVINGS AND RETIREMENT FUND. THE ASSESSEE ALSO SUBMITTED THAT SH. MANINDER SINGH SAH I WAS ALSO WELL ESTABLISHED ON HIS OWN. THE ASSESSEE HAD ALSO FURNISHED THE COPY OF THE SEL F DECLARATION BY BOTH SH. HARDEV SINGH AND SH. MANINDER SINGH SAHI DULY ATTESTED BY CANADI AN AUTHORITIES TESTIFYING TO THE FACTS STATED BY THE ASSESSEE DURING THE PROCEEDINGS TO ES TABLISH THE CREDITWORTHINESS OF THE ASSESSEE. THEREAFTER, THE LD. AO WHILE FRAMING THE ASSESSMENT ORDER ACCEPTED THE IDENTITY & GENUINENESS OF BOTH THE LENDERS. WHILE DETERMINING THE CREDITWORTHINESS AND SOURCE OF INCOME OF BOTH THE LENDERS THE LD. AO ACCEPTED THE SUBMISSIONS OF THE ASSESSEE IN RESPECT OF CAPITAL INTRODUCTION OF RS. 19,00,000/- FROM MR. HARDEV SINGH WHEREAS QUASHING/ DISAPPROVING THE SUBMISSIONS MADE BY THE ASSESSEE T O PROVE THE CREDITWORTHINESS OF MR. MANINDER SINGH SAHI. IN RESPECT TO THE SAME IS HEREBY HUMBLY SUBMITTED T HAT THE LD. AO HAD ACCEPTED THE SUBMISSION OF THE ASSESSEE THAT 'THE FUNDS USED IN CAPITAL INTRODUCTION AMOUNTING TO RS. 1,18,84,046/- WAS RECEIVED FROM SH. HARDEV SINGH TH ROUGH HIS REGULAR BANK ACCOUNT (RS. 19,00,000) AND THE BALANCE (AMOUNTING TO RS. 99,84, 046/-) WAS TRANSFERRED BY HIM FROM HIS SON MR. MANINDER SINGH SAHI'S BANK ACCOUNT WITHOUT ASKING ANY FURTHER QUESTIONS OR MAKING ANY ENQUIRIES REGARDING THE SAME. THEREFORE, IT IS CLEAR FROM THE AFOREMENTIONED SUBM ISSION THAT THOUGH THERE WERE TWO LENDERS AS PER THE RECORDS, THE TOTAL FUNDS TRANSFE RRED WERE CLEARLY BELONGING TO MR. HARDEV SINGH AND A PART OF THEM WERE MERELY WIRED THROUGH HIS SON'S BANK ACCOUNT. THEREFORE, IN THIS CASE THE CREDITWORTHINESS OF MR. HARDEV SINGH IS REQUIRED TO BE ESTABLISHED SINCE THE FUNDS BELONGED TO HIM AND THE CREDITWORTHINESS OF M R. MANINDER SINGH SAHI IS NOT RELEVANT. IN ASSESSMENT ORDER, THE LD. AO HAS ALREADY ACCEPTE D THE CREDIT WORTHINESS OF MR. HARDEV SINGH BY APPROVING THE CAPITAL INTRODUCTION OF RS. 19,00,000/- AND NOW THAT THE FACT IS ESTABLISHED THAT THE WHOLE FUNDS BELONGED TO MR. HA RDEV SING, THE LD. AO IS BOUND TO ACCEPT THE CREDIBILITY OF REMAINING FUNDS AMOUNTING TO RS. 99,84,046/-. 4. SUBMISSIONS BASED ON GROUND NO. 2 OF APPEAL, WHI CH STATES AS UNDER THAT: 'THE LEARNED AO, HAS ERRONEOUSLY REJECTED ALL THE P OSSIBLE EVIDENCE SUBMITTED ON RECORD, BY ASSESSEE, TO SUBSTANTIATE THE CREDITWORTHINESS O F THE LENDER OF THE INTEREST FREE ADVANCE OF RS. 99,84,046/-, SH. MANINDER SINGH SAHI, AND HA S ALSO FURTHER FAILED TO CALL FOR THE SUBSTANTIAL INFORMATION UNDER PROVISIONS OF SECTION 131 OF THE INCOME TAX ACT, 1961, DIRECTLY FROM SH. MANINDER SINGH SAHI, AS WAS NEEDED, SINCE THE LEARNED AO WAS NOT CONVINCED ON HIS CREDITWORTHINESS, DESPITE SUCH REQUEST WAS ALRE ADY MADE BY THE ASSESSEE IN HIS SUBMISSION MADE ON DECEMBER 2016.' WE DRAW OUR SUPPORT FROM THE FOLLOWING JUDGEMENT: 8 ITAT AHMEDABAD IN THE CASE OF KARIM K. LAKHANI, SUR AT VS. DEPARTMENT OF INCOME TAX ON 28 NOVEMBER, 2013 IS QUOTED AS UNDER FOR YOUR KIND REFERENCE: ......... 5. ... SUBMISSIONS BASED ON GROUND NO. 5 OF APPEAL, WHICH STATES AS UNDER THAT: IN REGARDS TO ABOVE STATED GROUND, WE WOULD LIKE TO HUMBLY SUBMIT THAT: THE LD. AO MADE THE IMPUGNED ADDITION OF RS. 99,84,046/- U/S 69A OF THE INCOME TAX ACT, 1961. IN RESPECT OF THE SAME IT IS HEREBY HUMBLY SUBMITTED THAT THE GRO UNDS AND CIRCUMSTANCES ON THE BASIS OF WHICH THE LD. AO HAS MADE THE IMPUGNED ADDITION IS IN CONTRADICTION TO THE PROVISIONS OF SECTION 69A. SECTION 69A OF THE INCOME TAX ACT IS QUOTED AS UNDE R FOR YOUR KIND REFERENCE:- 1. IT IS CLEAR FROM THE AFOREMENTIONED SUBMISSION THAT THOUGH THERE WERE TWO LENDERS AS PER THE RECORDS, THE TOTAL FUNDS TRANSFERRED WERE C LEARLY BELONGING TO MR. HARDEV SINGH AND A PART OF THEM WERE MERELY WIRED THROUGH HIS SON'S BANK ACCOUNT. THEREFORE, IN THIS CASE THE CREDIT WORTHINESS OF MR. HARDEV SINGH IS REQUIR ED TO BE ESTABLISHED SINCE THE FUNDS BELONGED TO HIM AND THE CREDIT WORTHINESS OF MR. MA NINDER SINGH SAHI IS NOT RELEVANT. 2. IN ASSESSMENT ORDER, THE LD. AO HAS ALREADY ACCEPTE D THE CREDIT WORTHINESS OF MR. HARDEV SINGH BY APPROVING THE CAPITAL INTRODUCTION OF RS. 19,00,000/- AND NOW THAT THE FACT IS ESTABLISHED THAT THE WHOLE FUNDS BELONGED T O MR. HARDEV SINGH, THE LD. AO IS BOUND TO ACCEPT THE CREDIBILITY OF REMAINING FUNDS AMOUNT ING TO RS. 99,84,046/-. 3. THE LD. AO ERRONEOUSLY REJECTED PART OF THE ASSESSE E'S CLAIM BASED ON MERE PRESUMPTIONS WITHOUT OFFERING THE ASSESSEE AN OPPOR TUNITY OF BEING HEARD TO REBUT THESE ERRONEOUS AND AMBIGUOUS PRESUMPTIONS OF LD. AO BEFO RE PRONOUNCING THE IMPUGNED ORDER. 4. THE LD. AO HAS ERRONEOUSLY REJECTED ALL THE POSSIBL E EVIDENCE SUBMITTED ON RECORD, BY ASSESSEE, TO SUBSTANTIATE THE CREDIT WORTHINESS OF THE LENDER. THE ASSESSEE HAS ALSO FURTHER FAILED TO CALL FOR THE SUBSTANTIAL INFORMATION UNDE R THE PROVISIONS OF SECTION 131 OF THE INCOME TAX ACT, 1961 AND THEREFORE FAILED TO CARRY OUT HIS ONUS TO DISPROVE THE SUBMITTED DOCUMENTARY EVIDENCE THE REASONS STATED BY THE LD, AO FOR NOT ACCEPTING THE SUBMISSIONS OF THE ASSESSEE IN RESPECT TO THE FUNDS RECEIVED FROM SH. MANINDER SIN GH SAHI ARE REBUTTED POINT WISE AS UNDER: I) THE ASSESSEE WAS CHANGING HIS EXPLANATIONS FREQU ENTLY AND WITHOUT ANY BASIS WITH REGARD TO ADDITION IN CAPITAL FORRS. 99,84,046/- IN REGARDS TO THE SAME IT IS HEREBY HUMBLY SUBMITTE D THAT THE ASSESSEE HAD FROM THE INITIATION OF THE PROCEEDINGS KEPT SAME STAND IN RE GARDS TO BOTH THE CAPITAL INTRODUCTIONS AMOUNTING TO RS. 19,00,000/- AND RS. 99,84,046/- AN D IT IS ERRONEOUS OF THE LD. AO TO REJECT THE CLAIM OF THE ASSESSEE ON ONE TRANSACTION WHILE ACCEPTING THE EXPLANATION ON THE OTHER, WHEN THE EXPLANATION PROVIDED IN BOTH THE CA SES HAVE BEEN SIMILAR. II) THE ASSESSEE HAS SUBMITTED THE PHOTOCOPY OF A D OCUMENT PURPORTED TO BE AN AFFIDAVIT OF THE LENDER AS PER HIS REPLY DATED 20.1 2.2016, WHEREAS HE WAS ASKED TO EXPLAIN THE SOURCES OF CAPITAL ADDITION WITH EVIDENCE FROM BEGINNING OF THE ASSESSMENT PROCEEDINGS I.E. QUESTIONNAIRE DATED 29.04.2016 THE AFOREMENTIONED REASON IS NOT A VALID GROUND TO REJECT THE SUBSTANTIVE EVIDENCE PROVIDED BY THE ASSESSEE TO ESTABLISH THE IDENTITY AND GENUINENESS OF THE LENDER SH. 9 MANINDER SINGH SAHI JUST BECAUSE THE ASSESSEE HAD N OT FURNISHED THE SAME DURING THE BEGINNING. FURTHERMORE, THE LD. AO HAS ACCEPTED THE SIMILAR AFFIDAVIT OF SH. HARDEV SINGH BUT HAS SOMEHOW REJECTED THE AFFIDAVIT OF MR. MANIN DER SINGH SAHI S/O SH. HARDEV SINGH. THEREFORE, THE AFOREMENTIONED REASON OF THE LD. AO IS ERRONEOUS IN NATURE. III) NO COGNIZANCE CAN BE TAKEN, AS IT HAS NOT BEEN STATED THAT FOR WHICH PROPERTY THE ADVANCES OF RS. 99,84,046/- HAD BEEN PAID BY HIM. H E HAD GIVEN ADVANCE FOR RS. 37,55,262/- ON 14.05.2013 AND AGAIN ON 22.11.2013. IF IT PRESUMED THAT HE HAD GIVEN ADVANCE FOR PURCHASE OF PROPERTY, AN AGREEMENT MUST BE EXECUTED, WHICH WAS NOT FURNISHED. IF THE DEAL COULD NOT MATERIALIZED THEN WHERE WAS THE OCCASION WAS NOT FURNISHED. IF THE DEAL COULD NOT MATERIALIZED THEN WHERE WAS THE OCCASION TO GIVE A FURTHER PAYMENT OF RS. 62,28,784/- ON 22.11.2013. THIS EXPL ANATION IS MERELY AN AFTERTHOUGHT AND CANNOT BE ACCEPTED. NO SUCH COPY OF THE AGREEMENT H AS BEEN PRODUCED FOR VERIFICATION OF THE AUTHENTICITY OF THE REPLY SO FURNISHED. IN RESPECT TO THE SAME IT IS HEREBY HUMBLY SUBMITTE D THAT DURING THE PROCEEDINGS THE ASSESSEE HAS CLARIFIED TO THE LD. AO TIME AND AGAIN THAT THE SAID FUNDS WERE GIVEN IN PERSONAL CAPACITY TO THE ASSESSEE BY HIS RELATIVES FOR PROSPECTIVE INVESTMENT IN PROPERTY SINCE THE ASSESSEE IS INTO THE BUSINESS OF THE SAME . THE SAID FUNDS WERE NOT FOR A PARTICULAR PROPERTY FOR WHICH THE AGREEMENT WAS OUGHT TO BE EN TERED INTO. FURTHERMORE, IN THE AFFIDAVIT FURNISHED BY THE ASSESSEE HE HAD CLEARLY STATED THAT THE FUNDS WERE ADVANCED WITH THE MOTIVE OF MAKING SOME INVESTMENT IN PROPER TIES IN INDIA HOWEVER NO DEAL WAS MATERIALIZED DUE TO POOR MARKET CONDITIONS. THEREFO RE THE FUNDS EXTENDED WERE NOT FOR ANY PARTICULAR PROPERTY ALREADY SIGNED FOR BUT FOR THE PURPOSE OF PROSPECTIVE INVESTMENTS AND LD. AO REFUSING TO ACCEPT THE EXPLANATION GIVEN BY THE ASSESSEE MERELY ON PRESUMPTIONS AND BASELESS GROUNDS ACTED IN BAD FAIT H. IV) THE LETTER HEAD 'SAHI CONSTRUCTION' SUBMITTED I N RESPECT OF SH. MANINDER SINGH SAHI IS A PHOTOCOPY AND ON A SIMILE PLAIN PIECE OF PAPER . THE LETTER HEAD OF A CONCERN MUST HAVE THE DETAILS OF ITS HEAD OFFICE E.G. CONTACT NO , E-MAIL ID, FAC NO. ITS PAN OR TAN NUMBER TO FACILITATE ITS CUSTOMER. BUT NO DETAILS A RE PRINTED ON IT. THE DOCUMENT IS NOT A REGISTERED DOCUMENT WITH ANY AUTHORITY OF CANADA AN D NOT WITNESSED. THE ASSESSEE HAD DULY SUBMITTED ALL THE REQUISITE DOCUMENTS/ INFORMATION AS DESIRED BY THE LD. AO. THE AFOREMENT IONED ASSERTION OF THE LD. AO IS ON ERRONEOUS GROUNDS SINCE THE LETTERHEAD OF THE COMPANY OR AN ENTITY IS AS PER THE DISCRETION OF GOVERNING BODY. IT IS ERRONEOUS O N THE PART OF THE LD. AO TO REJECT THE EVIDENCE PROVIDED ON SUCH INVALID GROUNDS. FURTHERM ORE, IT HAS BEEN ALREADY ESTABLISHED THAT SINCE THE ENTIRE FUNDS BELONGED TO MR. HARDEV SINGH, THEREFORE, THE CREDIT WORTHINESS OF SH. MANINDER SINGH SAHI IS IRRELEVANT TO THE CAS E OF THE ASSESSEE AND THEREFORE THE CONTENTIONS RAISED AGAINST THE AFOREMENTIONED DOCUMENT TOO ARE NOT RELEVANT. V) NO DOCUMENTARY EVIDENCE REGARDING HIS BEING A 'T AX PAYER' IS FURNISHED TO SHOW THAT HE HAD SUFFICIENT SOURCES OF INCOME TO GIVE TH IS AMOUNT AS HAS BEEN PROVE IN THE POINT NO. 2 OF THE SUBMISSIONS, THE ENTIRE FUNDS TR ANSFERRED BELONGED TO MR. HARDEV SINGH AND A PART OF IT WAS WIRED THROUGH THE BANK ACCOUNT OF HIS SON SH. MANINDER SINGH SAHI. THEREFORE, AS PER THE FACTS AND CIRCUMSTANCES OF TH E CASE THE CREDIT WORTHINESS OF SH. HARDEV SINGH WAS REQUIRED TO BE ESTABLISHED. SINCE THE CREDIT WORTHINESS OF SH. MANINDER SINGH SAHI IS NOT RELEVANT TO THE CASE AND THEREFOR E DOCUMENTARY EVIDENCE REGARDING HIS BEING 'TAX PAYER' WAS NOT REQUIRED TO BE FURNISHED TO SHOW THAT HE HAD SUFFICIENT SOURCES OF INCOME TO GIVE THIS AMOUNT. VI) THE BANK STATEMENT SUBMITTED IS ALSO NOT ACCEPT ABLE AS IT HAS NEITHER THE NAME OF THE ACCOUNT HOLDER NOR NAME OF THE BANK/ BRANCH. AS PER THE ASSESSEE'S STATEMENT SH. MANINDER SINGH SAHI HAS GIVEN LOAN OF RS. 37,55,262/- ON 14.05.2013 AND RS. 62,28,784/- ON 22.11.2013 FROM C ANADA IN INDIAN RUPEES. BUT FROM PERUSAL OF THE BANK STATEMENT, THERE IS NO DEB IT OR CREDIT ENTRY IN THE MONTH OF MAY, 2013 THEN HOW MONEY OF RS. 37,55,262/- WAS GIVEN BY HIM TO THE ASSESSEE. 10 FURTHER, IT IS NOTICED THAT ON 18.11.2013, THERE WA S CREDIT ENTRY OF 104975 CANADIAN DOLLAR IN THIS ACCOUNT AND ON THE SAME DAY 105000 CANADIAN DOLLAR WAS TRANSFERRED TO THE ASSESSEE. THE CREDIT ENTRY OF CA NADIAN DOLLAR 104975 WAS NOT EXPLAINED. IN RESPECT TO THE SAME IT IS HEREBY HUMBLY SUBMITTE D THAT IN POINT NO. 2 OF OUR SUBMISSION IT IS ALREADY ESTABLISHED THAT ENTIRE FUNDS TRANSFERRE D BELONGED TO SH. HARDEV SINGH AND A PART OF THEM WERE WIRED TO THE ASSESSEE THROUGH MR. MANINDER SINGH SAHI'S (S/O SH. HARDEV SINGH) BANK ACCOUNT. THEREFORE THE CREDIT ENTRY OF 104975 CANADIAN DOLLAR WERE TRANSFERRED BY SH. HARDEV SINGH TO SH. MANINDER SIN GH SAHI'S BANK A/C WHO IN TURN TRANSFERRED THE SAID FUNDS TO THE ASSESSEE ON BEHALF OF SH. HARDEV SINGH. VII) MOREOVER, PERUSAL OF BANK STATEMENT, REVEALS T HAT THERE ARE PERIODIC SMALL DEBIT AND CREDIT ENTRIES IN THIS ACCOUNT EXCEPT BIG ENTRY ON 18.11.2013 CANADIAN DOLLAR 104975 AND LATER ON IT WAS TRANSFERRED TO TH E ASSESSEE. IT IS IMPROBABLE THAT SH. MANINDER SINGH SAHI HAD ADVANCED SUCH A HUGE IN TEREST FREE AMOUNT WITH SMALL SOURCES OF INCOME. HENCE, THE CREDITWORTHINES S OF SH. MANINDER SINGH SAHI SUBMITTED BY THE ASSESSEE IS NOT PROVED. IN RESPECT TO THE SAME IT IS HEREBY HUMBLY SUBMITTE D THAT IN POINT NO. 2 OF OUR SUBMISSION IT IS ALREADY ESTABLISHED THAT ENTIRE FUNDS TRANSFERRE D BELONGED TO SH.HARDEV SINGH AND A PART OF THEM WERE WIRED TO THE ASSESSEE THROUGH MR. MANI NDER SINGH SAHI'S (S/O SH. HARDEV SINGH) BANK ACCOUNT. THEREFORE THE CREDIT ENTRY OF 104975 CANADIAN DOLLAR WERE TRANSFERRED BY SH. HARDEV SINGH TO SH. MANINDER SIN GH SAHI'S BANK A/C WHO IN TURN TRANSFERRED THE SAID FUNDS TO THE ASSESSEE ON BEHAL F OF SH. HARDEV SINGH.' 4.1 THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE A.O. HAD ACCEPTED THE EXPLANATION OF THE ASSESSEE FOR RS. 19,00,000/- RECEIVED FROM SHRI HARDEV SINGH AS FUNDS FROM PENSION FUNDS BEING RETIRE D GOVERNMENT EMPLOYEE, BUT THE ADVANCES RECEIVED FROM HIS SON COULD NOT BE ACCEPTE D FOR THE FOLLOWING REASONS : (I) IN THE BALANCE SHEET AS ON 31.03.2014 OF M/S BA JWA CONSTRUCTION COMPANY- PROPRIETORSHIP CONCERN OF THE APPELLANT THE UNSECUR ED LOANS APPEAR AT RS.1,43,07,185/-. HOWEVER IN THE 'SCHEDULE C OF THIS LIABILITY THE NA ME OF THESE TWO PERSONS I.E. SH. HARDEV SINGH AND SH. MANINDER SINGH SAHI AND INTRODUCED IT IN THE CAPITAL ACCOUNT HAS NOT BEEN RECORDED. NO EVIDENCE OF SH. MANINDER SINGH SAHI BE ING HAVING WELL ESTABLISHED SET UP OF HIS OWN IN CANADA HAS BEEN FILED BEFORE THE AO OR D URING APPELLATE PROCEEDINGS. THAT IS WHY THE AO HELD THAT ONLY BANK STATEMENT DOES NOT E STABLISH THE GENUINENESS AND CREDITWORTHINESS OF SH. MANINDER SINGH. LATER ON TH E APPELLANT CONVENIENTLY CHANGED THE STANCE THAT HE HAS TAKEN AN ADVANCE MONEY IN THE FO RM OF INTEREST FREE UNSECURED LOAN FORM SH. MANINDER SINGH THROUGH HIS FATHER, (II) TH E APPELLANT HAS JUST SUBMITTED A COPY OF SIMPLE DECLARATION FROM SH. MANINDER SINGH AND HIS FATHER AND COPY OF AFFIDAVITS FROM THESE TWO PERSONS AND COPY OF PASSPORT, BANKS STATE MENT AND ALSO AFFIDAVIT OF THE APPELLANT. THESE DOCUMENTS DO NOT ESTABLISH THE CRE DITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THE PHOTOCOPY IS NOT AN ADMISSIBLE EVI DENCE IN THE COURT OF LAW. REFERENCE IN THIS REGARD BE MADE TO JUDGEMENT DELIVERED BY THE H ON'BLE SUPREME COURT IN THE CASE OF MOOSA S.MADHA & AZAM S.MADHA VS.CIT 89 ITR 65 (SC) ACCORDING TO WHICH PHOTOCOPIES HAVE VERY LITTLE EVIDENTIARY VALUE. THIS ISSUE WAS ALSO EXAMINED BY THE JURISDICTIONAL ITAT CHANDIGARH BENCH IN THE CASE OF SIMRANPAL SINGH GIL L VS. DCIT, CIRCLE-VI, LUDHIANA IN ITA NO.119/CHD/2010 FOR AY 2008-09 DATED 29 TH APRIL 2011 WHEREIN IT IS HELD THAT IT IS WELL SETTLED PRINCIPLE OF LAW OF EVIDENCE THAT COPY OF A DOCUMEN T SHOULD NOT BE ADMITTED IN EVIDENCE IN THE ABSENCE OF ORIGINAL , (III) THE EMPHASIS OF THE APPELLANT THAT HE HAS DIS CHARGED HIS ONUS AND ONUS IS SHIFTED TO THE AO IS MISCONCEIVED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. HERE, APPELLANT IS CHANGING HIS PLEAS BEFORE THE AO. FURTHER, SH. MANINDER SINGH IS RESIDENT OF CANADA AND THE APPELLANT CONVENIENTLY E XPECTING FROM THE AO THAT HE SHOULD CALL SH. MANINDER SINGH U/S 131 OF THE ACT. IT IS T RITE LAW THAT IT IS THE ASSESSEE WHO HAS TO 11 EXPLAIN BONAFIDE OF HIS CLAIM BEYOND DOUBT BEFORE T HE INCOME TAX AUTHORITIES. THE APPELLANT HAS MISERABLY FAILED TO ESTABLISH CREDITW ORTHINESS AND GENUINENESS OF SH. MANINDER SINGH WITH ANY SUPPORTING EVIDENCE. THE CA SE LAW RELIED BY THE APPELLANT IS ON DIFFERENT FACTS, (IV) THE PERTINENT POINT WHICH IS CONVENIENTLY MISSING IN THE ARGUMENTS OF THE APPELLANT IS THAT THE THIS PAYMENT WAS MADE TO THE APPELLANT FOR SOME PROPERTY WHICH PROPERTY IS ONLY KNOWN THE APPELLANT OR SH. HARDEV SINGH AND HIS SON] AND AMOUNT WILL BE PAID BACK IF DEAL IS NOT STRUCK . ON THIS ISSUE BOTH THE PARTIES ARE SILENT. NEITHER ANY DEAL HAS COME TO LIGHT TILL DISPOSAL OF THIS APPEAL NOR HAS MONEY BEEN PAID BACK. THIS SMOKESCREEN HAS NOT BEEN TOUCHED BY THE APPELLANT. IT IS STRANG E THAT MORE THAN ONE CRORE RUPEES HAVE JUST BEEN THROWN AWAY BY THE FATHER AND SON DU O THAT TOO WHEN FATHER IS RETIRED GOVERNMENT EMPLOYEE WHO MUST BE KNOWING THE VALUE O F HIS MONEY. THIS ACT DEFIES HUMAN PROBABILITY. AS LAID DOWN IN CIT VS. DURGA PR ASAD MORE [(1971)] 82 ITR 540], THE APPARENT MUST BE CONSIDERED AS REAL UNTIL IT IS SHO WN THAT THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL AND THE TAX AUTHORITIE S ARE ENTITLED TO LOOK AT THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITIES AND THE MAT TER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILITIES. SIMILAR VIEW HAS B EEN HELD IN THE CASE OF SUMATI DAYAL VS. COMMISSIONER OF INCOME-TAX [1995] 80 TAXMAN 89 (SC) . IT IS IN THESE FACTS AND CIRCUMSTANCES THAT THE EXPLANATION GIVEN BY THE APP ELLANT IS MERELY AN AFTERTHOUGHT AND CANNOT BE ACCEPTED. 4.2 THE LD. CIT(A) OBSERVED THAT THE A.O. WAS GENEROUS ENOUGH TO ACCEPT THE EXPLANATION OF THE FATHER I.E; SHRI HARDEV SINGH FOR RS . 19,00,000/- AND THIS ACT OF THE A.O. COULD NOT BE SAID PRECEDENCE TO EXPLAIN THE ADVANCE S RECEIVED FROM HIS SON SHRI MANINDER SINGH SAHI. ACCORDINGLY THE ADDITION MADE BY THE A. O. WAS SUSTAINED. 5. BEING AGGRIEVED THE ASSESSEE FILED THE PRESENT APPEA L. 6. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMIS SIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE DECEASE D ASSESSEE WAS ENGAGED IN THE BUSINESS OF SALE AND PURCHASES OF HOUSES, AFTER PUR CHASE OF THE OLD HOUSES SOME RENOVATION, IF REQUIRED WAS CARRIED OUT AND THEN THE SAM E WAS SOLD OFF. IT WAS STATED THAT THE DECEASED ASSESSEE RECEIVED A SUM OF RS. 19,0 0,000/- FROM SHRI HARDEV SINGH, HIS MATERNAL UNCLE WHO HAD BEEN IN THE GOVERNMENT SERVICE AND AFTER HIS RETIREMENT, HE WAS SETTLED IN CANADA WHERE HIS SON SHRI MANINDER SINGH SAHI WAS CARRYING ON CONSTRUCTION BUSINESS AND WAS THE RESIDENT & CITIZEN OF CANADA. SHRI HARDEV SINGH HAD GIVEN THE SUM OF RS. 19,00,000/- FROM HIS REGULAR BANK ACCOUNT AND FURNISHED THE COPY OF BANK ACCOUNT. IT WAS FURTHER STATED THAT THE A.O. A CCEPTED THAT THE SAID AMOUNT HAD BEEN GIVEN BY SHRI HARDEV SINGH TO THE DECEASED ASSES SEE FOR PURCHASE OF SOME PROPERTY. 6.1 IT WAS SUBMITTED THAT SHRI MANINDER SINGH SAHI S/O SHRI HARDEV SINGH ALSO SENT CERTAIN AMOUNTS I.E; RS. 37.55 LACS AND RS. 62.28 LAC S WHICH WERE CREDITED IN THE CAPITAL 12 ACCOUNT OF THE DECEASED ASSESSEE. THE SAID AMOUNT WAS A LSO GIVEN FOR PURCHASE OF THE PROPERTY AND THE ASSESSEE FURNISHED NUMEROUS EVIDENCES S HOWING THE IDENTITY & CREDITWORTHINESS OF THE DEPOSITOR AND GENUINENESS OF T HE TRANSACTIONS, A REFERENCE WAS MADE TO PAGE NO. 20-22 OF THE ASSESSEES PAPER BOOK TO SUBSTANTIATE THAT THE AMOUNT OF RS. 19,00,000/- WAS SENT BY SHRI HARDEV SINGH FOR PU RCHASE OF PROPERTY. A REFERENCE WAS ALSO MADE TO PAGE NOS. 23-25 WHICH IS THE COPY OF THE LETTER DT. 07/10/2016 ALONGWITH PROOF OF INWARD REMITTANCES OF THE AMOUNT SENT BY SHRI MANINDER SINGH SAHI FROM CANAA FOR THE PURCHASE OF SOME PROPERTY. IT WAS CONTENDED THAT ALL THE TRANSACTIONS WERE THROUGH REGULAR BANKING CHANNELS, A REFER ENCE WAS MADE TO PAGE NO. 26 OF THE ASSESSEES PAPER BOOK WHICH IS THE COPY OF LETTER DT. 06/12/2016 DESCRIBING THE CAPACITY AND IDENTITY OF SHRI HARDEV SINGH. THE LD. C OUNSEL DREW OUR ATTENTION TOWARDS PAGE NOS. 30 TO 32 WHICH IS THE DECLARATION OF S HRI MANINDER SINGH SAHI ALONGWITH PROOF OF THE REMITTANCES, A REFERENCE WAS AL SO MADE TO PAGE NO. 33 TO 34 WHICH IS THE COY OF LETTER WHEREIN THE SOURCES OF SHRI HAR DEV SINGH AND SHRI MANINDER SINGH SAHI HAD BEEN SHOWN IN THE BANK STATEMENT, THE ID ADDRES S HAD BEEN FURNISHED AND THE PURPOSE OF SENDING THE MONEY BY FATHER AND SON I.E SHRI HARVINDER SINGH & SHRI MANINDER SINGH SAHI HAD BEEN MENTIONED WHICH WAS TO MAKE SO ME INVESTMENT IN PROPERTY IN INDIA. IT WAS STATED THAT BOTH OF THEM WERE RESIDING OUTSIDE INDIA, IN CANADA BUT HAD GIVEN COMPLETE ADDRESS. IT WAS STATED THAT THE ASSESS EE MADE A REQUEST THAT IF THE A.O. WANTED SOME MORE INFORMATION, HE MAY WRITE TO THEM OR MAY HAVE ISSUED SUMMONS, A REFERENCE WAS MADE TO PAGE NO. 74 OF THE ASSESSEES P APER BOOK. IT WAS SUBMITTED THAT THE DECEASED ASSESSEE FURNISHED THE DULY ATTESTED AFFIDAVIT BEFORE THE A.O. COPY OF WHICH IS PLACED AT PAGE NO. 36 TO 37 WHEREIN THE DETAI LS OF AMOUNT RECEIVED, PURPOSE AND THEN AS TO WHY THE SAME COULD NOT BE INVESTE D IN THE PROPERTY BECAUSE OF POOR SENTIMENTS, HAD BEEN MENTIONED AND IT HAD ALSO BEEN S TATED THAT THE TOTAL AMOUNT RECEIVED WAS REFUNDED. REFERENCE WAS ALSO MADE TO PAGE NO. 44 TO 46 OF THE ASSESSEES PAPER BOOK FOR THE EXPLANATION THAT SINCE TH E AMOUNT WAS RECEIVED IN A PERSONAL CAPACITY FROM THE RELATIVES SO IT WAS DISCLO SED IN THE CAPITAL ACCOUNT AND NOT AS AN ADVANCE FROM CUSTOMERS. 13 6.2 IT WAS FURTHER EXPLAINED THAT SHRI MANINDER SINGH SAH I WAS A RESIDENT AND CITIZEN OF CANADA DOING CONSTRUCTION BUSINESS FOR THE PAST MANY YEARS AND THE AMOUNT SENT BY HIM HAD BEEN EARNED ABROAD. IT WAS EMPHASIZED THAT NOT ARIZED AFFIDAVIT FROM CANADA OF SHRI MANINDER SINGH SAHI HAD ALSO BEEN FURNISHED , A REFERENCE WAS MADE TO PAGE NO. 47 WHICH IS COPY OF SELF DECLARATION BY SHRI MA NINDER SINGH SAHI. IT WAS SUBMITTED THAT THE COPY OF THE AFFIDAVIT OF SHRI HARD EV SINGH IS PLACED AT PAGE NO. 48 AND NOTARIZED AFFIDAVIT FROM CANADA BY SHRI MANINDER SIN GH SAHI IS PLACED AT PAGE NO. 49 OF THE ASSESSEES PAPER BOOK. IT WAS SUBMITTED THA T IN THE BANK STATEMENT, COPY OF WHICH IS PLACED AT PAGE NO. 51 OF THE ASSESSEES PAPER BOOK WHICH REVEALED THAT THE AMOUNT IN QUESTION HAD BEEN DEBITED. IT WAS STATED THAT T HE AFFIDAVIT HAD BEEN FILED, THE SAME SHOULD BE ACCEPTED UNLESS OR UNTIL THERE WAS S OME CONTRARY EVIDENCE, THE RELIANCE WAS PLACED ON THE JUDGMENT OF THE HON'BLE APEX C OURT IN THE CASE OF MEHTA PARIKH VS. ITO REPORTED IN 30 ITR 181. 6.3 IT WAS REITERATED THAT THE ASSESSEE REQUESTED TO THE A.O. VIDE A LETTER (COPY OF WHICH IS PLACED AT PAGE NO. 34 OF THE ASSESSEES PAPER BOOK) FOR ISSUING THE SUMMONS TO SHRI HARDEV SINGH AND SHRI MANINDER SINGH SAHI FOR CALLI NG MORE INFORMATION AS THE A.O. MAY DESIRE AND THAT COMPLETE ADDRESSES OF THE AFO RESAID PERSONS WERE GIVEN BUT THE A.O. HAD DONE NOTHING THEREFORE THE ADDITION MADE BY T HE A.O. AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. RELIANCE WAS PLACE ON THE FOLLOWING CASE LAWS : CIT VS. ORISSA CORPORATION (P) LTD. [1986] 159 ITR 78 (SC) ADD. CIT VS. HANUMAN AGGARWAL [ 1985] 151 ITR 150 ( PATNA) DCIT VS. ROHINI BUILDERS [2002] 256 ITR 360 (GUJ) M/S SURAJ STONES CORPORATE LTD. VS. ITO, BENGALURU IN ITA NO. 52/BANG/2020 VIDE ORDER DT. 18/02/2021 (ITAT BANGLORE) ORIENT TRADING CO. LTD. VS. CIT REPORTED IN 49 ITR 723 (MUM) SHRI CHUNNI LAL REPORTED IN 211 ITR 11 (STATUE) (P& H) 6.4 IT WAS SUBMITTED THAT THE DECEASED ASSESSEE APART FROM DECLARATION FROM THE DEPOSITORS HAD ALSO FURNISHED EVIDENCES IN THE FORM O F BANK PASS BOOK OF SHRI MANINDER SINGH SAHI IN CANADA COUPLED WITH THE REMITTANCE ADVICES W HICH WERE NOT DOUBTED, THEREFORE THE RELIANCE PLACED BY THE LD. CIT(A) UPON THE JUDGMENT OF HUMAN PROBABILITY DID NOT HOLD GOOD WHEN DOCUMENTARY EVIDENCES IN THE FORM OF REMITTANCE 14 CERTIFICATES, BANK PASS BOOK, COPY OF PASSPORT WERE FURNISHED BY THE ASSESSEE AND ALSO A REQUEST WAS MADE TO ISSUE SUMMONS UNDER SECTION 13 1 OF THE ACT, IF THE A.O. HAD ANY DOUBT. THE RELIANCE WAS PLACED ON THE FOLLOWING CASE LAW S: DAULAT RAM RAWAT MAL REPORTED IN 87 ITR 349 (SC) SAROGI CREDIT CORPORATION VS. CIT [1976] 103 ITR 34 4 (PATNA) 6.5 IT WAS FURTHER STATED THAT THE ADDITION UNDER SECTI ON 69A OF THE ACT COULD HAVE BEEN MADE IF UNEXPLAINED INCOME WHICH WAS NOT RECORDED I N THE BOOKS OF ACCOUNT BUT IN THE PRESENT CASE AMOUNT HAD BEEN RECORDED IN THE BO OK OF ACCOUNT AND EVEN THE SOURCE HAD BEEN EXPLAINED, THEREFORE THE ADDITION MAD E BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. RELIAN CE WAS PLACED ON THE FOLLOWING CASE LAWS : DCIT VS. M/S. HIMLAND AGRO FOODS LTD., & OTHERS IN ITA NO. 743, 745 & 747/CHD/2013 (CHD TRIB) ORDER DT. 17/01/2017 ITO VS. SUKAMAL SIKDAR IN ITA NO. 146/KOL/2012 (KOL KATA TRIB) ITO WARD 3(3), SURAT VS. SHRI KARIM K. LAKHANI IN I TA NO. 220/AHD/2010 (AHD TRIB) ORDER DT. 13/12/2013 SAROGI CREDIT CORPORATION VS. CIT [1976] 103 ITR 34 4 (PATNA) JAYPEE TIMBER & VENEER MILLS (P.) LTD. VS. CIT (198 3) 12 TAXMAN 191 (GAUHATI) SMT. SARIKA JAIN VS. CIT, BAREILLY (2017) 84 TAXMAN N.COM 64 (ALLD) SURAJ STONES CORPORATION LTD. VS. ITO IN ITA NO. 52 /BANG/2020 ORDER DT. 18/02/2021 OF SMC C BENCH, BANGALORE. COPIES OF THE AFORESAID ORDERS WERE FURNISHED WHICH AR E PLACED ON RECORD. 7. IN HIS RIVAL SUBMISSIONS THE LD. DR STRONGLY SUPPORT ED THE ORDERS OF THE AUTHORITIES BELOW AND REITERATED THE OBSERVATIONS MADE BY THE LD. CIT(A) IN PARA 5.2 OF THE IMPUGNED ORDER. IT WAS FURTHER SUBMITTED THAT THE EVIDE NCES IN THE FORM OF BANK STATEMENT WAS NOT SUFFICIENT TO PROVE THE CREDITWORTHI NESS PARTICULARLY WHEN THE SIMPLE DECLARATION HAD BEEN FURNISHED. IT WAS SUBMITTED THAT S INCE THE ASSESSEE FAILED TO ESTABLISH THE CREDITWORTHINESS AND THE GENUINENESS OF T HE TRANSACTION, THE LD. CIT(A) WAS JUSTIFIED IN SUSTAINING THE ADDITION MADE BY THE A. O. 8. IN HIS REJOINDER THE LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE AMOUNT RECEIVED BY THE DECEASED ASSESSEE WAS CREDITED IN THE CAPITAL ACCOUNT AND SINCE THE 15 FIRM IN WHICH THE DECEASED ASSESSEE WAS DOING THE BUSI NESS, WAS A PARTNERSHIP CONCERN, IT WAS IMMATERIAL WHETHER THE AMOUNT WAS CREDITE D IN THE CAPITAL ACCOUNT OF THE PROPRIETOR OR WAS SHOWN SEPARATELY AS AN ADVANCE FO R INVESTMENT, REFERENCE WAS MADE TO PAGE NO. 19 OF THE ASSESSEES PAPER BOOK WHICH I S THE COPY OF THE CAPITAL ACCOUNT OF THE DECEASED ASSESSEE. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIE S AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE I T IS NOT IN DISPUTE THAT THE ASSESSEE RECEIVED RS. 19,00,000/- FROM HIS RELATIVE SHRI HARDEV SINGH THROUGH BANKING CHANNELS AND ALSO RECEIVED RS. 99.84 LACS ( RS. 37.55 LAC + RS. 62.29 LACS ) FROM SHRI MANINDER SINGH SAHI S/O SHRI HARDEV SINGH THROUGH BANKING CHA NNEL. THE AFORESAID AMOUNTS WERE CREDITED IN THE CAPITAL ACCOUNT OF THE DECE ASED ASSESSEE, COPY OF WHICH IS PLACED AT PAGE NO. 19 OF THE ASSESSEES PAPER BOOK. THE A.O. ACCEPTED THE AMOUNT OF RS. 19,00,000/- RECEIVED FROM SHRI HARDEV S INGH BUT HAD NOT ACCEPTED THE AMOUNT OF RS. 99.84 LACS RECEIVED FROM HIS SON SHRI MA NINDER SINGH SAHI ALTHOUGH BOTH OF THEM WERE RESIDING IN CANADA, WERE RELATED TO THE ASS ESSEE AND SENT THE AMOUNT THROUGH BANKING CHANNEL. 9.1 IN THE PRESENT CASE THE A.O. INVOKED THE PROVISIONS OF SECTION 69A OF THE ACT WHILE MAKING THE IMPUGNED ADDITION. THE PROVISIONS CONTAI NED IN THE SAID SECTION READ AS UNDER: 69A. WHERE IN ANY FINANCIAL YEAR THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE AND SU CH MONEY, BULLION, JEWELLERY OR VALUABLE ARTICLE IS NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOU T THE NATURE AND SOURCE OF ACQUISITION OF THE MONEY, BULLION, JEWELLERY OR OTH ER VALUABLE ARTICLE, OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESS ING OFFICER, SATISFACTORY, THE MONEY AND THE VALUE OF THE BULLION, JEWELLERY OR OTHER VALUAB LE ARTICLE MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE FOR SUCH FINANCIAL YEAR. 9.2 IN THE INSTANT CASE THE ENTRIES RELATING TO THE ADVAN CES RECEIVED FROM SHRI HARDEV SINGH AND HIS SON SHRI MANINDER SINGH SAHI FROM CANADA WERE RE CORDED IN THE BOOKS OF ACCOUNTS AND THE ASSESSEE ALSO EXPLAINED THAT THIS AMOUNT WAS RECEIVED AS AN ADVANCE FOR MAKING THE INVESTMENT IN THE PROPERTY BY T HE SAID PERSONS AND THE ASSESSEE WAS ENGAGED IN THE PROPERTY BUSINESS. THE A.O. THEREFORE WAS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SECTION 69A OF THE ACT PART ICULARLY WHEN THE ENTRIES WERE 16 RECORDED IN THE BOOKS OF ACCOUNTS MAINTAINED BY THE ASSE SSEE AND THE EXPLANATION RELATING TO THE PURPOSE OF RECEIVING THE ADVANCES WAS GI VEN, IDENTITY OF THE PERSON FROM WHOM AMOUNT WAS RECEIVED, WAS NOT IN DOUBT, THE ENTRIES W ERE THROUGH BANKING CHANNEL AND IT IS NOT THE CASE OF THE A.O. THAT THE ASSES SEE WENT TO CANADA THEN PUT HIS MONEY IN THE ACCOUNT OF THE DEPOSITOR I.E; SHRI HARD EV SINGH AND SHRI MANINDER SINGH SAHI WHICH WAS REMITTED BACK, THEREFORE, THE ADDITION MA DE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED PARTICULARLY WHEN T HE CREDIT OF RS. 19,00,000/- IN THE SIMILAR CIRCUMSTANCES FROM SHRI HARDEV SINGH HAD BEEN AC CEPTED BUT THE ADVANCE AMOUNTING TO RS. 99,84,046/- RECEIVED FROM HIS SON SHRI MANINDER SINGH SAHI WAS DOUBTED AND ADDED TO THE INCOME OF THE ASSESSEE. IN OUR OPINION THE A.O. WAS NOT JUSTIFIED IN BLOWING HOT AND COLD IN THE SAME WIND PIPE. 9.3 ON A SIMILAR ISSUE THE ITAT CHANDIGARH BENCH B CHAND IGARH IN ITA NO. 825/CHD/2007 FOR THE A.Y. 2004-05 IN THE CASE OF SHRI AS HOK KUMAR PROP. M/S SHREE SHANKERJEE RICE & GENL. MILLS, SANGRUR VS. ACIT, CIRCLE , SANGRUR VIDE ORDER DT. 18/11/2009 HELD AS UNDER: 19. THE ONUS ON THE ASSESSEE IN RESPECT OF ANY CASH LOAN RECEIVED DURING THE YEAR IS TO ESTABLISH THE IDENTITY, CREDITWORTHINESS AND GENUIN ENESS OF THE TRANSACTIONS U/S 68 OFHTE ACT. THE ASSESSEE BEFORE US HAS DISCHARGED HIS ONUS OF COMPLYING WITH THE THREE CONDITIONS IN RESPECT OF LOAN RECEIVED DURING THE YEAR. THE ID ENTITY OF THE PERSON BEING FATHER OF THE ASSESSEE STANDS ESTABLISHED IN VIEW OF THE STATEMEN T RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE CREDIT WORTHINESS OF TH E PERSON IS ALSO ESTABLISHED BY THE SERIES OF EVIDENCE FILED, WHEREIN IN ADDITION TO TH E AGRICULTURE INCOME EARNED BY HIM, THE FATHER OF ASSESSEE HAS SHOWN THE RECEIPT OF MONEY B Y WAY OF RETURN OF LOANS, WHICH WERE ADVANCED AS PER REGISTERED MORTGAGE DEED, PLACED BE FORE US IN THE PAPER BOOK. FURTHER, THE SAID AMOUNT THEN BEING TRANSFERRED TO THE BANK ACCOUNT OF THE FATHER OF THE ASSESSEE FROM WHERE THE CHEQUES HAVE BEEN ISSUED TO THE PROP RIETY CONCERN OF THE ASSESSEE ESTABLISHES THE GENUINENESS OF TRANSACTION. IN THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE GENUINENESS OF TRANSACTIONS STANDS ESTABL ISHED. THE MAOUNTS HAVE BEEN ADVANCED THROUGH ACCOUNT PAYEE CHEQUES AND WE FIND NO MERIT IN THE ADDITION BEING MADE ON THIS ACCOUNT. THEIR LORDSHIPS OF HON'BLE SU PREME COURT IN CIT VS. CHUNI LAL [211 ITR (8T) 11] HAD HELD THAT CASH CREDITS RECEIVED THROUG H BANK ACCOUNT OF WIFE, SON AND DAUGHTER IN LAW COULD NOT BE ADDED UNLESS IT IS PRO VED THAT THEY WERE BENAMIDARS OF THE ASSESSEE. IN THE FACTS OF PRESENT CASE, FATHER OF A SSESSEE HAS PROVED THE AVAILABILITY OF CASH IN HANDS. THE REQUIREMENT OF LAW IS NOT TO PROVE TH E SOURCE OF SOURCE OF CASH CREDIT. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO DEL ETE THE ADDITION OF RS. 35 LAKHS CREDITED TO THE BOOKS OF THE ASSESSEE, BEING ON ACCOUNT OF L OAN RECEIVED FROM THE FATHER OF THE ASSESSEE. THUS THE GROUNDS NO. 8 & 9 RAISED BY THE ASSESSEE ARE ALLOWED. 9.4 IN THE PRESENT CASE ALSO THE ASSESSEE FURNISHED THE DETAILS RELATING TO THE SOURCE OF ADVANCE RECEIVED BY HIM, THE AMOUNT IN QUESTION WAS RECEIVED FROM SHRI MANINDER SINGH SAHI S/O SHRI HARDEV SINGH OF CANADA WHICH WAS RECEI VED THROUGH BANKING 17 CHANNEL, THE ASSESSEE FURNISHED ALL THE DETAILS AND INFOR MED THE ADDRESS OF THE PERSON FROM WHOM THE AMOUNT WAS RECEIVED AND ALSO REQUESTED T HE A.O. TO SUMMON THE PERSON IF THERE WAS ANY DOUBT. BUT THE A.O. HAD NOT TAK EN ANY STEP FOR ISSUANCE OF THE SUMMON UNDER SECTION 131 OF THE ACT, THEREFORE THE ADDITI ON MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. A SIMILAR VIEW HAS BEEN TAKEN BY THE ITAT, BANGLORE SMC BENCH IN THE CASE OF M/S SURAJ STONES CORPORATION LTD. VS. ITO IN ITA NO. 52/BA NG/2020 ORDER DT. 18/02/2021 WHEREIN THE RELEVANT FINDINGS HAVE BEEN GIVEN AS UNDER: 9. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S. IT IS CLEAR FROM THE ORDERS OF THE REVENUE AUTHORITIES THAT THEY NOT MADE ANY REFERENCE TO THE DOCUMENTARY EVIDENCE FILED BY THE ASSESSEE. THE CASE OF THE REVENUE APPEARS TO BE THA T M/S. SNEHA INTERNATIONAL WAS ROTATING CASH BY TRANSFERRING FUNDS TO VARIOUS ENTI TIES. M/S. SNEHA INTERNATIONAL RECEIVED CASH AND THEREAFTER TRANSFERRED FUNDS TO M/S. SHERA WALI CORPORATION AND M/S. VENKATA INDUSTRIES WHO IN TURN TRANSFERRED FUNDS TO THE ASS ESSEE IN THE FORM OF RTGS BANK TRANSFER. THE CLAIM OF THE ASSESSEE WAS THAT THE RECEIPTS BY THE ASSESSEE FROM THE AFORESAID TWO PARTIES WAS FOR SALE OF SHARES OF A COMPANY BY NAME MAG IMPEX LTD., WAS NOT DISBELIEVED EITHER BY THE AO OR THE CIT(A). AS FAR AS THE ASSES SEE IS CONCERNED, HE HAS FILED CONFIRMATION OF SHERAWALI CORPORATION AND VENKATA I NDUSTRIES. COPIES OF WHICH ARE AT PAGES 32 AND 33 OF THE PAPER BOOK. THE CIT(A) HAS I GNORED THIS CONFIRMATION ON THE GROUND THAT THE SIGNATURE OF THE CONFIRMING PARTIES WERE BARELY VISIBLE. THE ADDRESS OF THE CONFIRMING PARTIES ARE VERY MUCH AVAILABLE IN THE C ONFIRMATION AND IF ANY DOUBT PERSISTED ON THE VERACITY OF THE CONFIRMATION, THEN THE PROPE R COURSE WOULD HAVE BEEN TO ISSUE SUMMONS TO THE CONFIRMING PARTIES TO FIND OUT THE T RUTH OR OTHERWISE OF THE TRANSACTIONS ON SALE OF SHARES ON ACCOUNT OF WHICH MONIES WERE RECE IVED BY THE ASSESSEE THROUGH BANKING CHANNELS. WITHOUT RESORTING TO SUCH PROCESS , I AM OF THE VIEW THAT THE CIT(A) HAS CONFIRMED THE ADDITION MADE BY AO IGNORING THE EVID ENCE AVAILABLE ON RECORD. IN MY VIEW THE EVIDENCE FILED BY THE ASSESSEE SATISFACTOR ILY EXPLAINS THE CREDITS IN QUESTION AND THE IMPUGNED ADDITION HAS BEEN MADE IGNORING THE MA TERIAL ON RECORD ON THE BASIS OF SURMISES AND CONJECTURES. THERE IS AN ALLEGATION TH AT IT IS ASSESSEES MONEY WHICH WENT TO SNEHA INTERNATIONAL AND THAT WAS DEPOSITED BY SNEHA L INTERNATIONAL IN A BANK ACCOUNT AND FROM THAT BANK ACCOUNT FUNDS WERE TRANSFERRED T O M/S.SHERWALI CORPORATION AND M/S.VENKATA INDUSTRIES, BUT THERE IS NO EVIDENCE TO SUBSTANTIATE SUCH ALLEGATION. 10. AS FAR AS THE DECISION CITED BY THE LEARNED DR IS CONCERNED IN THE DECISION RENDERED IN THE CASE OF MOHANA KALA (SUPRA), THE HONBLE SUPREM E COURT HAS EMPHASIZED THAT THE ASSESSEE DID NOT CONTEND WITH THE MATERIAL AND CIRC UMSTANCES AVAILABLE ON RECORD NOT JUSTIFYING CREDIT BEING TREATED AS INCOME. IN THE P RESENT CASE, I AM OF THE VIEW THAT THE ASSESSEE HAS PRODUCED MATERIAL EVIDENCE TO SHOW THA T THE SUM IN QUESTION WAS RECEIVED ON ACCOUNT OF SALE OF SHARES AND NO EVIDENCE HAS BE EN BROUGHT ON RECORD TO COUNTER THE PLEA OF THE ASSESSEE. IN THE CASE OF VIKRAM SINGH ( SUPRA), THE HONBLE DELHI COURT HELD THAT THE FACTS AND CIRCUMSTANCES OF THE CASE ESTABLISHED THAT TRANSACTIONS WERE DUBIOUS. AS ALREADY STATED, NO SUCH EVIDENCE HAS BEEN BROUGHT O N RECORD IN THE PRESENT CASE EXCEPT TO MAKE AN ALLEGATION THAT SNEHA INTERNATIONAL WAS INVOLVED IN ROTATING CASH AND THE BANK TRANSACTIONS IN QUESTION HAD BEEN MADE BY SNEHA INT ERNATIONAL IN FAVOUR OF M/S. SHERWALI CORPORATION AND M/S. VENKATA INDUSTRIES AFTER DEPOS ITING SUCH CASH IN THEIR BANK ACCOUNT. THE LEARNED COUNSEL HAS RIGHTLY PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF ORISSA COPORATION PVT . LTD., 159 ITR 78 (SC) AND HONBLE PATNA HIGH COURT IN THE CASE OF ACIT VS. HANUMAN AG ARWAL 151 ITR 150 (PATNA) FOR THE PROPOSITION THAT WITHOUT ISSUING SUMMONS UNDER SECT ION 131 OF THE ACT TO A PARTY WHO FILED CONFIRMATION, NO ADVERSE INFERENCE CAN BE DRAWN BY THE AO. IN THE LIGHT OF THE FACTS AND 18 CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT TH E ADDITION MADE BY THE AO AND SUSTAINED BY THE CIT(A) DESERVES TO BE DELETED AND THE SAME IS DIRECTED TO BE DELETED. APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLOWED. 9.5 IN THE PRESENT CASE ALSO THE ASSESSEE RECEIVED THE IMPUGNED AMOUNT THROUGH BANKING CHANNEL FROM SHRI MANINDER SINGH SAHI OF CANADA FOR M AKING THE INVESTMENT IN THE PROPERTY. THE ASSESSEE ALSO FURNISHED THE RELEVANT DETAILS TO THE A.O. AND ALSO REQUESTED TO SUMMON THE CONCERNED PARTIES UNDER SECTION 131 OF THE ACT BUT THE A.O. DID NOT ACCEDE TO THE REQUEST OF THE ASSESSEE AND MAD E THE ADDITION, THEREFORE, THE ADDITION MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A ) WAS NOT JUSTIFIED. MOREOVER THE ASSESSEE FURNISHED AN AFFIDAVIT DT. 01/12/2016 BEF ORE THE A.O. COPY OF WHICH IS PLACED AT PAGE NO. 36 TO 37 OF THE ASSESSEES PAPER B OOK AND READ AS UNDER: I, JASKIRAN SINGH BAJWA, S/O LATE SH. JOGINDER SING H BAJWA, HAVING A PERMANENT RESIDENCE AT # 3077, SECTOR 19D, CHANDIGARH, PAN: AHDPB1S73D, DO HEREBY SOLEMNLY AFFIRM & DECLARE AS UNDER THAT - 1. I HAVE TAKEN AN ADVANCE MONEY IN FORM OF INTEREST FREE UNSECURED LOAN FROM FATHER AND SON NAMELY SH. HARDEV SINGH S/O SH. JOGINDER SINGH SAHI, RESIDENT OF VILLAGE - PAMBRA, P.O- BHUNGA, DISTRICT-HOSHIARPUR (PB), HAVING PRESENT RE SIDENCE AT #6792, 146B STREET, SURREY, BC, CANADA OF RS 19,00,000 /- IN MY HDFC ACCOUNT NO 05971000013800 ON 9 TH MAY 2013 AND FROM SH. MANINDER SINGH SAHI S/O SH. HARDEV SINGH, OF RS 99,84,046/- VIA AXIS BANK ON FOLLOWING DATE AND TRANSACTION ID'S. DATE TRANSACTION ID AMOUNT 14/05/2013 S84376008 37,55,262 22/11/2013 S86406704 62,28,784 TOTAL 99,84,046/- 2. FURTHER, THE ABOVE SAID ADVANCE MONEY WAS GIVEN BY THE ABOVE MENTIONED FATHER AND SON, NAMELY SH. HARDEV SINGH AND MANINDER SINGH SAHI, TO ME, WITH THE MOTIVE OF MAKING SOME INVESTMENT IN PROPERTIES IN INDIA.BUT S INCE, NO DEAL COULD GOT MATERIALIZED BECAUSE OF THE POOR MARKET SENTIMENTS & CONDITIONS AND HENCE, I SHALL BE REPAYING BACK THE ABOVE SAID ADVANCE OF THE TOTAL AMOUNT OF RS 1, 18,84,046/-TO SH. HARDEV SINGH AND MANINDER SINGH SAHI, SOON AS PER THE AVAILABILITY O F FUNDS. 3. FURTHER, THE ABOVE SAID ADVANCE MONEY WAS GIVEN TO ME BY SH. HARDEV SINGH AND MANINDER SINGH SAHI, OUT OF FREE-WILL AND WITHOUT A NY INTENTION EVADE ANY KIND OF TAXES. I HAVE TAKEN AN ADVANCE MONEY IN FORM OF INTEREST TREE UNBT5O ULT , LOAN FROM FATHER AND SON NAMELY SH. HARDEV SINGH S/O SH. JOGINDER SINGH SAHI, RESIDENT OF VILLAGE - PAMBRA, P.O- BHUNGA, DISTRICT-HOSHIARPUR (PB), HAVING PRESENT RE SIDENCE AT #6792, 146B STREET, SURREY, BC, CANADA OF RS 19,00,000 /- IN MY HDFC ACCOUNT NO 05971000013800 ON 9 TH MAY 2013 AND FROM SH. MANINDER SINGH SAHI S/O SH. HARDEV SINGH, OF RS 99,84,046/- VIA AXIS BANK ON FOLLOWING DATE AND TRANSACTION ID'S. DATE TRANSACTION ID AMOUNT 14/05/2013 S84376008 37,55,262 22/11/2013 S86406704 62,28,784 19 TOTAL 99,84,046/- 2. FURTHER, THE ABOVE SAID ADVANCE MONEY WAS GIVEN BY THE ABOVE MENTIONED FATHER AND SON, NAMELY SH. HARDEV SINGH AND MANINDER SINGH SAHI, TO ME, WITH THE MOTIVE OF MAKING SOME INVESTMENT IN PROPERTIES IN INDIA. BUT SINCE, NO DEAL COULD GOT MATERIALIZED BECAUSE OF THE POOR MARKET SENTIMENTS & CONDITIONS AND HENCE, I SHALL BE REPAYING BACK THE ABOVE SAID ADVANCE OF THE TOTAL AMOUNT OF RS 1, 18,84,046/-TO SH. HARDEV SINGH AND MANINDER SINGH SAHI, SOON AS PER THE AVAILABILITY O F FUNDS. 3. FURTHER, THE ABOVE SAID ADVANCE MONEY WAS GIVEN TO ME BY SH. HARDEV SINGH AND MANINDER SINGH SAHI, OUT OF FREE-WILL AND WITHOUT A NY INTENTION EVADE ANY KIND OF TAXES. 9.6 THE ASSESSEE ALSO FURNISHED THE DECLARATION FROM SHR I MANINDER SINGH SAHI ALONGWITH COPY OF THE PASSPORT (COPIES OF WHICH ARE PLA CED AT PAGE NO. 52 AND 53 OF THE ASSESSEES PAPER BOOK). THE ASSESSEE ALSO FURNISHED THE CONFIRMATION FROM AXIS BANK LTD. TO SUBSTANTIATE THAT THE DEPOSITS IN THE BANK ACCO UNT OF THE ASSESSEE WAS RECEIVED IN FOREIGN CURRENCY FROM SHRI MANINDER SINGH OF CANADA ( C OPY OF WHICH IS PLACED AT PAGE NO. 55 AND 56 OF THE ASSESSEES PAPER BOOK). THE A .O. DID NOT DOUBT THE CONTENTS OF THE AFFIDAVIT FURNISHED BY THE DECEASED ASSESSEE W HEN HE WAS ALIVE BEFORE THE A.O. AND DECLARATION FROM THE DEPOSITOR AS WELL AS CONFIRMAT ION FROM THE BANK, THE CONTENTS OF THE AFORESAID DOCUMENTS WERE NOT DOUBTED, THEREFORE , THE IMPUGNED ADDITION MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED, IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF MEHTA PARIKH & CO. VS. ITO [1956] 30 ITR 181 HELD AS UNDER : AS THE CASH BOOK OF THE APPELLANT WAS ACCEPTED, A ND THE ENTRIES THEREIN WERE NOT CHALLENGED, AND NEITHER FURTHER ACCOUNT NOR VOUCHER WERE CALLED FOR, AND THE PERSONS WHO GAVE THE AFFIDAVIT WERE NOT CROSS EXAMINED, IT WAS NOT OPEN TO THE REVENUE TO CHALLENGE THE CORRECTNESS OF THE CASH BOOK ENTRIES OR THE STATEMENT MADE IN THE AFFIDAVIT. 9.7 IN THE PRESENT CASE ALSO THE ENTRIES WERE MADE IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE AND THE ENTRIES IN QUESTION AP PEARED IN THE LEDGER ACCOUNT OF THE ASSESSEE, THOSE WERE APPEARING IN THE BANK ACCOUNT. THE ASSESSEE ALSO FURNISHED AN AFFIDAVIT, THE STATEMENT MADE THEREIN WAS NO T DOUBTED, THEREFORE BY KEEPING IN VIEW THE RATIO LAID DOWN BY THE HON'BLE APEX C OURT IN THE AFORESAID REFERRED TO CASE, THE ADDITION MADE BY THE A.O. AND SUSTAINED B Y THE LD. CIT(A) WAS NOT JUSTIFIED. WE THEREFORE, DELETE THE ADDITION OF RS. 99 ,84,046/- MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A). 20 10. IN THE RESULT, THE APPEAL OF THE LEGAL HEIR OF THE DECEASED ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 23/07/2021) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) # $%/ JUDICIAL MEMBER / VICE PRESIDENT AG DATE: 23/07/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE