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2013 (9) TMI 640 - ITAT MUMBAICash credit u/s 68 - determination of new credit - Difference in opening and closing balance - Held that:- In the original assessment order made under section 144, the Assessing Officer noted that unsecured loans had increased by ₹ 23,64,272 being difference of closing balance and opening balance of loans shown in the balance sheet. Since the assessee had not filed any confirmations, the Assessing Officer added the said sum under section 68 of the Act. The intention of the Assessing Officer was obviously to add the new credits during the year on account of loans but since it was an ex parte assessment and the assessee had not given details, the new credits were computed as the difference between the closing and opening balance - it is not a case that the Assessing Officer had not added a particular cash credit in the original assessment but the same was added in the fresh assessment. The Assessing Officer in this case in the original assessment had added new cash credits in the ex parte assessment which on verification in the fresh assessment was found to be more and, therefore, it cannot be said that any new addition has been made by the Assessing Officer - Following decision in case of Mcorp Global P. Ltd. [2009 (2) TMI 5 - SUPREME COURT] - Decided against assessee. Unexplained cash credit - Held that:- the claim of the assessee cannot be accepted or cash credit cannot be taken as explained satisfactorily only on the ground that loan had been received through banking channel. In case the assessee is not assessed to tax, the burden is on the assessee to show the source from which the loan had been received. But in this case no material has been produced to show creditworthiness of the creditor. The assessee must prove the identity and creditworthiness of the creditor and bank transactions are not sacrosanct - matter remanded back for verification and re-adjudication. Disallowance of loss - The dispute is regarding allowability of loss claimed by the assessee in the business on account of sale of shares. - Held that:- Normally the assessee is required to give distinctive numbers of shares sold for the purpose of verification but in this case since shares sold were purchased earlier and shown in the balance-sheet, in case, the assessee files reconciliation of shares sold with respect to the shares declared earlier in the years, the claim of loss in our view should be considered. However, we also make it clear that in the balance-sheet, the assessee had shown shares as investment and, therefore income/loss arising from sale of shares has to be con sidered as capital loss and not business loss. Further, since shares are shown as investment and loss has to be considered as capital loss, provisions of the Explanation to section 73 is not applicable in such cases. In our view matter requires fresh consideration at the level of the Assessing Officer - Decided partly in favour of assessee.
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