Taxworld Fashions Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-2(4), Ahmedabad

ITSSA 132/AHD/2013

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3118 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 18-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Keywords: Unexplained cash credit; Question of law
• Section: 143(3); 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) IT(SS)A. NO: 132/AHD/2013 (ASSESSMENT YEAR: 2009-10) TEXWORLD FASHIONS PVT. LTD. 63/2, NEW CLOTH MARKET, O/S. RAIPUR GATE, AHMEDABAD-380001 V/S ACIT, CENTRAL CIRCLE-2(4), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AACCT2582M APPELLANT BY: SHRI SHRI S.N. SOPARKAR & PARIN S HAH RESPONDENT BY : SHRI SURENDRA KUMAR, CIT/ D.R. ( )/ ORDER DATE OF HEARING : 05 -04-201 7 DATE OF PRONOUNCEMENT : 25 -04-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. AGGRIEVED BY THE ORDER OF THE LD. CIT(A)-III, AHMED ABAD DATED 18.01.2013 PERTAINING TO A.Y. 2009-10, THE ASSESSEE HAS PREFER RED THIS APPEAL BEFORE US. IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 2 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION OF RS. 47,00,000/- MADE BY THE A.O. U/S. 68 OF THE ACT. 3. RIVAL SUBMISSIONS HAVE BEEN HEARD AT LENGTH. THE AS SESSMENT ORDER IS FRAMED U/S. 153C/153A R.W.S. 143(3) OF THE ACT VIDE ORDER DATED 30.12.2011. 4. DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEE DINGS, THE A.O. FOUND THAT THE ASSESSEE HAS UNSECURED LOAN FROM M/S. LILY ENCLAVE PVT. LTD. ON FURTHER PROBE, THE A.O. FOUND THAT MOST OF THE DEPO SITS IN THE SAID COMPANY ARE FROM NON-DESCRIPT ENTITIES. ON FURTHER VERIFICA TION OF THE BANK ACCOUNTS OF M/S. LILY ENCLAVE PVT. LTD., THE A.O. FOUND THAT THE FOLLOWING ENTITIES HAVE ISSUED CHEQUES TO M/S. LILY ENCLAVE PVT. LTD: SR. NO. NAME ADDRESS DIRECTORS DURING THE PERIOD WHEN LOAN WAS GIVEN 1. M/S. TECH BUILD IMPEX PVT. LTD. 1, OLD COURT HOUSE COMER, 2ND FLOOR, KOLLCATA-700001 L.MAHENDRA SETHIA 2. GAUTAM GHOSH 2. M/S. LORD ENCLAVE PVT. LTD. 14-C, MAHARASHI DEVENDRA ROAD, KOLKOTA-700007 L.ANJANI BANKA 2. GAUTAM GHOSH 3. M/S. MAHABALI MERCANTILES PVT. LTD. 1, OLD COURT HOUSE CORNER, 2ND FLOOR, KOLKATA-700001 1 . JOYANTA MAJUMDAR 2. GAUTAM GHOSH IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 3 4. M/S. NAHARVINIYOG PVT. LTD. 1, OLD COURT HOUSE CORNER, KOLKATA- 700001 1 . MANISH KUMAR DAGA 2. JOYANTA MAJUMDAR 5. M/S. ADISHWAR NIRMAN PVT. LTD. 1, OLD COURT HOUSE, KOLKATA-700001 1. MANGATTNAL . SETHIA 2. GAUTAM GHOSH 6. M/S. SAGAR FINTRADE PVT. LTD. 27, BRABOURNE ROAD, ROOM-512, 5TH FLOOR, KOLKATA- 700001 1 . MANISH KUMAR DAGA 2. JOYANTA MAJUMDAR 5. THE A.O. WAS OF THE OPINION THAT SINCE ALL THE PERS ONS WHO HAVE GIVEN MONEY TO M/S. LILY ENCLAVE PVT. LTD. HAVE COMMON AD DRESSES, COMMISSIONS WERE ISSUED TO ADIT (INV.), UNIT-III (4), KOLKATA T O MAKE ENQUIRIES IN SOME CASES AND ON THE BASIS OF THE REPORT DATED 10.11.20 09. THE A.O. FOUND THAT THESE CONCERNS DO NOT EXIST AT THE GIVEN ADDRESSES. 6. THE ASSESSEE WAS REQUIRED TO SHOW CAUSE WHY THE AMO UNT OF LOAN SHOULD NOT BE CONSIDERED AS UNEXPLAINED CASH CREDIT. THE A SSESSEE FILED A DETAILED REPLY GIVING DETAILS OF PARTIES FROM WHOM LOANS WER E TAKEN ALONG WITH COMPLETE NAME, ADDRESS, PAN AND ACCOUNT CONFIRMATIO N COPIES WERE ALSO ENCLOSED. THE SAME CAN BE SUMMARIZED BY THE FOLLOWI NG CHARTS:- IN THIS REGARD, THE DETAILS OF PARTIES FROM WHOM LO ANS ARE TAKEN ALONG WITH COMPLETE NAME ADDRESS, PAN AND ACCOUNT CONFIRMATION COPIES ARE ENCLOSED. ALL THE TRANSACTIONS OF ACCEPTING AMOUNTS ARE THROUGH A /C. PAYEE CHEQUE ONLY, SUMMARY OF UNSECURED LOAN PARTY IS AS UNDER: IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 4 NAME, ADDRESS & PAN DATE OF RECEIPT CHEQU E NOS. AMT CREDITWORTHINESS/ SUPPORTINGS LILY ENCLAVE PVT. LTD.14/C, MAHARISHI DEBENDRA ROAD, KOLKATA - 700 007 PAN: AAACL9905C 29-04- 08 38061 200000 0 L.COPY OF BALANCE SHEET OF 2008- 09, WHERE THE COMPANY IS HAVING SHARE CAPITAL 24.08 LACS AND FREE RESERVES OF RS. 555.74 LACS, WHEREAS THE LOAN IS GIVEN OF RS. 47 LACS. 13-06- 08 38063 150000 0 DATE OF INCORPORATION 24- 05-2004 21-06- 08 38064 120000 0 2. COMPANY MASTER DATA FROM THE SITE OF MINISTRY OF COMPANY AFFAIRS SHOWS THAT THE COMPANY IS FILING ITS BALANCE SHEET AND FINANCIAL PAPERS WITH GOVT. OFFICES. COPY OF BALANCE SHEET ENCLOSED EXB-L II). NAME, ADDRESSES AND OTHER DETAILS OF THE DIREC TORS/ MAIN PERSONS OF M/S. LILY ENCLAVE PVT. LTD IS AS UNDER: NAME, ADDRESS & PAN NAME OF DIRECTORS ADDRESS OF DIRECTORS DIN NO. ASHOKKUMAR AGARWAL 38, PANCHANAN GHOSH LANE, AMHERSTREET ,KOLKATA?700009 00203575 LILY ENCLAVE PVT. LTD. 14/C, JOYANTA MAJUMDER 24/1E/1/7, DANESH SHEKH LANE, GOVERNMENT HOUSING COMPLEX, SHIBPUR, HOWRAH- 700039 00222834 IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 5 MAHARISHI DEBENDRA ROAD, KOLKATA - 700 007 PAN: AAACL9905C SHREY PRAKASH SEKHANI 5-A, VIKRAMNAGAR SOCIETY, OPP. AMBICA SOCIETY, USMANPURA, AHMEDABAD- 380013 02432579 HUNUMANMAL S. SEKHANI 201-HARIDARSHAN APARTMENTS, VISHVAKUNJ SOCIETY, JUNA DHOR BAJAR, KANKARIA, MANINAGAR, AHMEDABAD-380028 02638759 7. SO FAR AS THE OBSERVATIONS OF THE A.O., THAT ALL TH E DEPOSITS ARE FROM NON- DESCRIPT ENTITIES, THE DIRECTORS AND ADDRESS OF COM PANIES ARE COMMON, THE ASSESSEES REPLY CAN BE UNDERSTOOD BY THE FOLLOWING CHART:- NAME, ADDRESS & PAN NAME OF DIRECTORS ADDRESS OF DIRECTORS TECH BUILD IMPEX PVT. LTD. 1, OLD COURT HOUSE CORNER, 2ND FLOOR, KOLKATA - 700001 PAN - AABCT1877A DATE OF INCORPORATION: . 22-12-1993 SHARE CAPITAL: RS. 179,17,0007- RISHABH GUPTA 2/245, VIDHADHAR NAGAR, SECTOR-2, WARD NO.69, JAIPUR-302023 ANUSH SHARAM D-73,SHIV HIRA PATH, CHOMU HOUSE, C-SCHEME JAIPUR- 302001 GAUTAM GHOSH 12/20, ASHWATHATLA LANE, BALLY, HOWRAH-711201 LORD ENCLAVE PVT. LTD. 14-C, MAHARASHI DEVENDRA ROAD, KOLTATA - 700 007 PAN - AAACL9906B DATE OF INCORPORATION: 26-05- 2004 SHARE CAPITAL: RS. 24,00,0007- MOHAN SUNDERJI DAMA FLAT NO.13, 7 TH FLOOR, KHATAU APARTMENT CHS, JOSHI LANE, TILAK ROAD, GHATKOPAR (E), MUMBAI-400077 IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 6 PREMJI SUNDERJI HEMANI PAYAL MORDEN CO.OP.SOC. PLOTNO.273, GIDCVAPILE PARDI,VALSAD-396195 MAHABALI MERCANTILES PVT. LTD. 63, RADHA BAZAR STREET 3RD FLOOR,KOLKATA-700072 PAN- AAFCM2890J DATE OF INCORPORATION: 08-10- 2007 SHARE CAPITAL: RS. 91,40,000/- INDRABHAN I. SINGH L/9-6, BANGUR NAGAR, GHREGAON (WEST), MUMBAI- 400090 USHA VINAY SINGH 101, CAS BLANCA CHS LTD, OPP OXFORD TOWER, YAMUNAGAR ANDHARI (W), MUMBAI-400058 NAHAR INIYOG PVT. LTD. 1, OLD COURT HOUSE CORNER, 2ND FLOOR, KOLKATA - 700001 PAN- AABCN0539P GAUTAM GHOSH 12/20, ASHWATHATLA LANE, BALLY, HOWRAH-711201 DATE OF INCORPORATION: 25-05-1993 SHARE CAPITAL: RS. 117,47,5007- BIJAY SINGH SETHIA A-138, VIDHYUT NAGAR, AJMER ROAD,JAIPUR-302021 ADISHWAR NIRMAN PVT. LTD 1, OLD COURT HOUSE CORNER, 2ND FLOOR, KOLKATA - 700001 PAN- AAECA7715R DATE OF INCORPORATION: 18-06- 2004 SHARE CAPITAL: RS. 27,42,000/- ARUN KUMARAGRAWAL 237,SHREE RAM BHAWAN, SONKHION KA RASTA, KISHAN POLE BAZAR, JAIPUR-302001 AJAY AGRAWAL REETA AGRAWAL MANSAROVER VISHNU GARSEN, TOKE ROAD,JAIPUR-302017 SAGAR FINTRADE PVT. LTD. 16B,SHAKESPEARE SARANI, 2ND FLOOR, KOLKATA-700071 PAN: AADCS9405K DATE OF INCORPORATION: 04-01- 1996 SHARE CAPITAL: RS. 150,66,000/- RATHI BINOD PAL D-301,LSHWAR APARTMENT, SECTOR-12, PLOT NO.4, DWARKA, NEW DELHI-110075 KAMAL KIMARJAIN 63B, MIG FLATS, SHIVAM ENCLAVE, JHILMIL POCKET-C PHASE-11, DELHI-110032 IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 7 8. A PERUSAL OF THE AFOREMENTIONED CHART SHOWS THAT TH E DIRECTORS OF THE COMPANY AND ADDRESS OF COMPANIES ARE NOT THE SAME A ND THE DIRECTORS OF THE COMPANIES ARE DIFFERENT AND THEY ARE WORKING FR OM DIFFERENT PREMISES. 9. THE ASSESSEE FURTHER POINTED OUT TO THE A.O. THAT T HE STATEMENT WHICH HAS BEEN RELIED UPON BY THE OFFICER OF SHRI JOYANTA MAJ UMDAR DOES NOT HAVE ANY EVIDENTIARY VALUE AS THE ASSESSEE HAS NOT BEEN GIVEN ANY OPPORTUNITY TO CROSS-EXAMINE SHRI JOYANTA MAJUMDAR. 10. THE A.O. SIMPLY RUBBISHED THE ABOVE FACTUAL MATRIX AND THE SUBMISSIONS OF THE ASSESSEE. THE A.O. PROCEEDED BY EXAMINING THE S OURCE OF LILY ENCLAVE PVT. LTD. AND, FURTHER PROCEEDED BY EXAMINING THE S OURCE OF THE SOURCE OF THE SOURCE. 11. IT IS A SETTLED PROPOSITION OF LAW THAT WHILE EXAMI NING THE CASH CREDITS U/S. 68 OF THE ACT, ALL THAT IS REQUIRED IS TO VERIFY TH E SOURCE OF THE CREDIT ENTRIES, PRIMA FACIE. HOWEVER, IN THE CASE IN HAND, WE FIND THAT THE ASSESSING OFFICER PROCEEDED BY DEMOLISHING THE SOURCE OF THE SOURCE O F THE SOURCE. NOWHERE, THE OFFICER HAS POINTED OUT THAT THE TRANS ACTIONS HAVE NOT BEEN ROUTED THROUGH BANKING CHANNELS. THE LOAN HAS BEEN RECEIVED UNDISPUTEDLY BY ACCOUNT PAYEE CHEQUES, DETAILS OF WHICH HAVE BEE N FILED BY THE ASSESSEE BY FILING THE COPY OF THE BANK ACCOUNT. THE ASSESSE E HAS UNDOUBTEDLY PROVED AND ESTABLISHED THE IDENTITY OF THE CREDITOR . ONCE THE IDENTITY OF THE CREDITOR IS PROVED, NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE EVEN IF THE SOURCE OF THE SOURCE HAS BEEN FOUND PER SONS OF NO MEANS. IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 8 12. THE HONBLE SUPREME COURT IN THE CASE OF LOVELY EXP ORTS PVT. LTD. 319 ITR (STATUTE) 5 HAS HELD THAT THE A.O. IS FREE TO TAKE APPROPRIATE ACTION AS MAY BE PERMISSIBLE UNDER THE LAW IN THE CASES OF VARIOU S SHAREHOLDERS ALLEGED TO BE ENTRY PROVIDER . 13. THE HONBLE JURISDICTIONAL HIGH COURT OF GUJARAT IN THE CASE OF CHARTERED SPEED PVT. LTD. IN TAX APPEAL NO. 126 & 127 OF 2015 WAS SEIZED WITH THE FOLLOWING QUESTION OF LAW:- WHETHER THE APPELLATE TRIBUNAL HAS SUBSTANTIALLY E RRED IN DELETING THE ADDITION OF RS. 70 LAKHS MADE UNDER SECTION 68 OF THE ACT DE SPITE THE FACT THAT THE ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE TRA NSACTION? 14. AND THE HONBLE HIGH COURT, INTERALIA, OBSERVED AS UNDER:- AS RECORDED BY THE TRIBUNAL, THE TRIBUNAL FOUND TH AT THE INITIAL BURDEN WAS DISCHARGED BY THE ASSESSEE. IN OUR VIEW, ONCE THE T RIBUNAL UPON THE APPRECIATION OF THE MATERIAL FOUND AD RECORDED THE FINDING OF TH E FACT THAT THE ASSESSEE HAD DISCHARGED INITIAL BURDEN, SUCH A FINDING OF FACT W OULD BE OUTSIDE THE JUDICIAL SCRUTINY IN THE APPEAL BEFORE THIS COURT UNLESS THE FINDING OF FACT IS PERVERSE TO THE RECORD. IT IS AN UNDISPUTED POSITION THAT THE S TATEMENT OF THE PERSONS CONCERNED WHICH WERE RECORDED BY THE DEPARTMENT, TH OSE PERSONS WERE NOT MADE AVAILABLE FOR CROSS-EXAMINATION, MAY BE FOR ON E REASON OR ANOTHER INSPITE OF THE ATTEMPTS MADE BY THE DEPARTMENT. THEREFORE T HE TRIBUNAL HAS RIGHTLY FOUND THAT THE STATEMENT OF THOSE PERSONS CANNOT BE READ AGAINST THE ASSESSEE. 15. THE HONBLE JURISDICTIONAL HIGH COURT OF GUJARAT IN ANOTHER CASE OF RANCHHOD JIVABHAI NAKHAVA IN TAX APPEAL NO. 50 OF 2 011 WAS SEIZED WITH A SIMILAR SET OF FACTS AND THE HONBLE HIGH COURT HEL D AS UNDER:- IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 9 ONCE THE ASSESSEE HAS ESTABLISHED THAT HE HAS TAKEN MONE Y BY WAY OF ACCOUNT PAYEE CHEQUES FROM THE LENDERS WHO ARE ALL INCOME T AX ASSESSEE WHOSE PAN HAVE BEEN DISCLOSED, THE INITIAL BURDEN UNDER SECTION 68 WAS DISCHARGED. IT FURTHER APPEARS THAT THE ASSESSEE HAD ALSO PRODUCED CONFIRM ATION LETTERS GIVEN BY THOSE LENDERS. [PARA 15] ONCE THE ASSESSING OFFICER GETS HOLD OF THE PAN OF THE LENDERS, IT WAS HIS DUTY TO ASCERTAIN FROM THE ASSESSING OFFICER OF THOSE LENDE RS, WHETHER IN THEIR RESPECTIVE RETURNS THEY HAD SHOWN EXISTENCE OF SUCH AMOUNT OF MONEY AND HAD FURTHER SHOWN THAT THOSE AMOUNT OF MONEY HAD BEEN LENT TO T HE ASSESSEE. IF BEFORE VERIFYING OF SUCH FACT FROM THE ASSESSING OFFICER O F THE LENDERS OF THE ASSESSEE, THE ASSESSING OFFICER DECIDES TO EXAMINE THE LENDER S AND ASKS THE ASSESSEE TO FURTHER PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTION, THE ASSESSING OFFICER DOES NOT FOLLOW THE PRINCIPLE LAI D DOWN UNDER SECTION 68. [PARA 16] IF ON VERIFICATION, IT WAS FOUND THAT THOSE LENDERS DID NOT DISCLOSE IN THEIR INCOME TAX RETURN THE TRANSACTION OR THAT THEY HAD NOT DIS CLOSED THE AFORESAID AMOUNT, THE ASSESSING OFFICER COULD CALL FOR FURTHER EXPLAN ATION FROM THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION OR CREDITWORTHIN ESS OJ THE SAME. HOWEVER, WITHOUT VERIFYING SUCH FACT FROM THE INCOME TAX RET URN OF THE CREDITORS, THE ACTION TAKEN BY THE ASSESSING OFFICER IN EXAMINING THE LEN DERS OF THE ASSESSEE WAS A WRONG APPROACH. MOREOVER, THOSE LENDERS HAVE MADE I NCONSISTENT STATEMENTS AS POINTED OUT BY THE COMMISSIONER (APPEALS) AND IN SU CH CIRCUMSTANCES, BOTH THE COMMISSIONER (APPEALS) AND THE TRIBUNAL, WERE JUSTI FIED IN SETTING ASIDE THE ADDITION AS THE ASSESSING OFFICER, WITHOUT TAKING S TEP FOR VERIFICATION OF THE INCOME TAX RETURN OF THE CREDITORS, TOOK UNNECESSAR Y STEPS OF FURTHER EXAMINING THOSE CREDITORS. IF THE ASSESSING OFFICERS OF THOSE CREDITORS ARE SATISFIED WITH THE EXPLANATION GIVEN BY THE CREDITORS AS REGARDS THOSE TRANSACTIONS, THE ASSESSING OFFICER IN QUESTION HAS NO JUSTIFICATION TO DISBELI EVE THE TRANSACTIONS REFLECTED IN THE ACCOUNT OF THE CREDITORS. IN OTHER WORDS, THE A SSESSING OFFICER HAD NO IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 10 AUTHORITY TO DISPUTE THE CORRECTNESS OF ASSESSMENTS OF THE CREDITORS OF THE ASSESSEE WHEN A CO-ORDINATE ASSESSING OFFICER IS SA TISFIED WITH THE TRANSACTION. [PARA 1 7] THUS, THE TRIBUNAL RIGHTLY SET ASIDE THE ADDITION M ADE BY THE ASSESSING OFFICER, BASED ON ERRONEOUS APPROACH BY WRONGLY SHIFTING THE BURDEN AGAIN UPON THE ASSESSEE WITHOUT VERIFYING THE INCOME TAX RETURNS O F THE CREDITORS. THE POSITION, HOWEVER, WOULD HAVE BEEN DIFFERENT IF THOSE CREDITO RS WERE NOT INCOME TAX ASSESSEES OR IF THEY HAD NOT DISCLOSED THOSE TRANSA CTIONS IN THEIR INCOME TAX RETURNS OR IF : SUCH RETURNS WERE NOT ACCEPTED BY T HEIR ASSESSING OFFICER. [PARA 18] THERE WAS NO MERIT IN THE APPEAL AND SAME WAS TO BE DISMISSED. [PARA 19] 16. IN YET ANOTHER CASE, THE HONBLE JURISDICTIONAL HIG H COURT OF GUJARAT IN CHANAKYA DEVELOPERS IN TAX APPEAL NO. 691 OF 2013 W AS, INTERALIA, SEIZED WITH THE FOLLOWING QUESTION OF LAW:- (A) WHETHER IN FACTS AND IN LAW THE TRIBUNAL WAS J USTIFIED IN DELETING THE ADDITION OF RS. 23,00,000/- MADE ON ACCOUNT OF UNEX PLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT? 17. AND THE HONBLE HIGH COURT HELD AS UNDER:- 4. AS FAR AS QUESTION (A) IS CONCERNED, IT PERTAINS TO DELETION OF ADDITION OF RS. 23.00.000/- MADE ON ACCOUNT OF 'UNEXPLAINED CASH CRE DIT' UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 ['ACT' FOR SHORT]. 5. IT APPEARS THAT THE ASSESSING OFFICER, IN SCRUTI NY ASSESSMENT OF THE RETURN FILED BY THE ASSESSEE-RESPONDENT FOR THE ASSESSMENT YEAR 2008-09. HAD MADE AN ADDITION OF CASH CREDIT OF RS. 23,00,000/- UNDER SE CTION 68 OF THE ACT. 6. THE TOTAL DEPOSITS REFLECTED BY THE ASSESSEE WER E TO THE TUNE OF RS. 42,76,000/- . OUT OF THIS AMOUNT, A SUM OF RS. 23,00,000/- WERE RECEIVED FROM FIVE DIFFERENT PERSONS; NAMELY, RAJESH GANDHI; NARESH ATHWAWIA; PO KHRAJ BHANDARI; SOBHA IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 11 MALHOTTRA: AND VINODBHAI SHETH - A SUM OF RS. 16,00 .000/-; RS. 3,00,0007-; RS. 1,00,000/-; RS. 2,00,000/- AND RS. 1.00.000/- RESPE CTIVELY. 7. ON ISSUANCE OF NOTICE, THE ASSESSEE CLAIMED THAT THESE WERE NOT DEPOSITS, BUT, WERE BOOKING AMOUNT OF FLATS PURCHASED. THE IDENTIT Y WITH THE ADDRESS AND PAN NUMBERS HAD BEEN SUPPLIED TO THE ASSESSING OFFICER. THE ASSESSING OFFICER, NOT BEING SATISFIED, CHOSE TO MAKE ADDITION OF THE ENTI RE AMOUNT. ASSESSEE, AGGRIEVED BY THE SAME, CHALLENGED SUCH ADDITIONS BEFORE THE C 1T (A). 8. CIT(A) DEALT WITH THIS ISSUE EXTENSIVELY AND HEL D THAT THE ASSESSING OFFICER FAILED TO APPRECIATE THE SUBMISSIONS OF THE ASSESSE E THAT THIS WAS BOOKING DEPOSITS AND THERE WAS NO QUESTION OF PRODUCING THE REGISTRATION OF AGREEMENTS OF SALE. IT FURTHER EMPATHETICALLY HELD THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHEN THE ASSESSEE HAD INSISTED THAT THE DEPOSITORS CAN BE VERIFIED UNDER SECTION 133(6) OF THE ACT, IT WAS AN ERRONEOU S STEP ON THE PART OF THE ASSESSING OFFICER NOT TO HAVE MADE ANY INQUIRY UNDE R SUCH PROVISION AND ADDED THE AMOUNT OF RS. 23,00,000/- UNDER SECTION 68 OF T HE ACT. CIT (A) ALSO WAS OF THE OPINION THAT THE ASSESSEE HAD FURNISHED PAN NUMBERS , ADDRESSES OF THOSE PERSONS AND ALSO A COPY OF THE SALE-DEED SUBSEQUENT LY EXECUTED WITH THE BUYERS. THEREFORE, SUCH AMOUNT NEED TO BE DELETED. WHEN CHALLENGED BEFORE THE TRIBUNAL, IT HELD THUS 'THE A.O GAVE SHOW CAUSE NOTICE ON THIS ISSUE, WHICH WAS REPLIED BY THE APPELLANT ALSO. THE APPELLANT HAS CLAIMED THAT THES E ARE NOT DEPOSITS BUT BOOKING AMOUNT OF FLAT PURCHASES. THEIR NAMES, ADDRESS AS W ELL AS PAN NUMBER HAD BEEN GIVEN TO THE A.O. IF THE AO HAS ANY REASON TO DOUBT ON THIS DEPOSITS, HE CAN ISSUE NOTICE U/S. 133(6) OF THE I.T ACT TO VERIFY THE GEN UINENESS. THE LEARNED AO DID NOT ISSUE ANY NOTICE TO THESE DEPOSITORS BUT CONCLUDED THAT THESE CASH CREDITORS ARE UNEXPLAINED AND ADDED U/S. 68 OF THE I.T. ACT.' 9. WE ARE IN COMPLETE AGREEMENT WITH CIT (A) AND TH E TRIBUNAL BOTH, WHO HAVE CONCURRENTLY HELD THAT THE ONUS WHICH WAS REQUIRED TO BE DISCHARGED ON THE PART OF THE ASSESSEE RESPONDENT WAS DULY DONE. NOT ONLY THE IDENTITY OF THE PERSONS IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 12 CONCERNED BUT ALSO THE PAN NUMBERS WERE BEFORE THE ASSESSING OFFICER. IN THE EVENT OF ANY FURTHER INQUIRY, IT WAS OPEN TO THE AS SESSING OFFICER TO MAKE INQUIRY UNDER SECTION 133(6) OF THE ACT. ON ITS CHOOSING NO T TO EXERCISE SUCH POWERS, IT WAS ERRONEOUS ON THE PART OF THE ASSESSING OFFICER TO MAKE ADDITION OF A SUM OF RS. 23,00,000/-, DESPITE SUCH COGENT EVIDENCES HAVI NG BEEN PUT-FORTH BY THE ASSESSEE. BOTH THE AUTHORITIES HAVE CONCURRENCY HEL D THE ISSUE IN FAVOUR OF THE ASSESSEE AND MOREOVER, THE ENTIRE ISSUE IS ESSENTIA LLY IN THE REALM OF FACTS. NO QUESTION OF LAW, THEREFORE, ARISES AND HENCE THIS I SSUE DESERVES NO FURTHER CONSIDERATION. 18. IF WE ANALYZE THE FACTS OF THE CASE IN HAND IN THE LIGHT OF THE JUDICIAL DECISIONS MENTIONED HEREINABOVE, WE FIND SIMILARITY IN FACTS. 19. THERE IS NO DISPUTE THAT THE IMPUGNED TRANSACTIONS HAVE BEEN DONE THROUGH PROPER BANKING CHANNELS. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS FURNISHED ALL THE NECESSARY EVIDENCES TO PROVE THE IDENTITY, GENUINENESS OF THE TRANSACTION. THE ASSESSEE HAS AL SO FURNISHED THE NECESSARY BANK DETAILS OF M/S. LILY ENCLAVE PVT. LT D. THE ASSESSING OFFICER HAS SIMPLY DOUBTED THE SOURCE OF THE SOURCE OF M/S. LILY ENCLAVE PVT. LTD. AS MENTIONED ELSEWHERE, THE A.O. IS NOT BARRED BY TAKI NG ANY ACTION AGAINST THE SOURCE OF M/S. LILY ENCLAVE PVT. LTD BUT THE A. O. CANNOT MAKE ADDITIONS IN THE HANDS OF THE ASSESSEE U/S. 68 OF THE ACT. 20. THE ASSESSEE HAS SUCCESSFULLY DISCHARGED THE INITIA L ONUS CAST UPON IT AND, THEREFORE, WE DO NOT FIND ANY MERIT IN THE ORDER OF THE FIRST APPELLATE IT(SS)A NO. 132/AHD/2013 . A.Y.2009-10 13 AUTHORITY. WE SET ASIDE THE SAME AND DIRECT THE A.O . TO DELETE THE ADDITION OF RS. 47 LACS. 21. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 25 - 04- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 25 /04/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD