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2014 (10) TMI 692 - AT - Income TaxUnexplained credits u/s 68 – Onus to prove - Held that:- Whatever compliance was asked by AO, assessee has duly filed the same - onus cast u/s 68 is primary in nature – there is no infirmity in the order of CIT(A) that as a per the first requirement of sec 68 assessee discharged its primary onus – relying upon COMMISSIONER OF INCOME TAX DELHI - II Versus KINETIC CAPITAL FINANCE LTD. [2011 (9) TMI 289 - DELHI HIGH COURT] - each instance of cash credit is to be identified and a bunch of transaction without specifying the details cannot be added u/s 68 - assessee has explained each credit entry in both the bank a/cs along with the source thereof i.e. cash available in books - Bank a/cs are disclosed and part of the regular recording of assesses real estate business - They have not been rejected, therefore, the books of accounts and generation of cash is thus impliedly accepted by AO - There is total lack of appreciation of facts and material available on record and the assessing officer’s observations suffer from self-contradictions - CIT(A) after verification has given clear findings of facts that AO failed to properly considered the material produced by the assessee in discharge to it’s primary onus - due to non-appreciation of assesses explanation and evidence in a proper manner, AO has made contradictory observations – the order of the CIT(A) is upheld as the assessee duly discharged its primary onus in terms of sec 68 to explain the entries in SBI and ABN Amro bank A/cs – Decided against revenue. Unconfirmed creditors – Held that:- Assessee has filed sufficient evidence which are detailed above and claims to have discharged its primary onus in terms of sec 68 - CIT(A) has rightly held that in income tax proceedings attested photocopies duly signed are admissible as evidence in income tax proceedings - the assessee has been able to demonstrate that due to name change of Taral Vincom to Link point Infrastructure Pvt. Ltd w.e.f. 6.5.2009, the notice u/s 133(6) remained unserved - AO has to ascertain the facts and discharge of primary onus on the basis of material available on record after giving adequate opportunity of hearing - He cannot brush aside the entire evidence on the pretext that party is not physically produced more so when it is apparent that it was physically impossible for assessee to ensure production of Kolkata party in one day’s short time. Regarding other sundry creditors, assessee discharges its primary onus in terms of sec. 68 which is attempted to be rebutted by AO on assumptions and sweeping observations - They are all parts of books of accounts which are accepted by AO without raising iota of doubt - The due confirmation, explanation of entries and source thereof emanating from books of accounts is duly explained by the assessee – relying upon COMMISSIONER OF INCOME TAX-IV Versus M/s. DWARKADHISH INVESTMENT (P) LTD. and M/s. DWARKADHISH CAPITAL (P) LTD. [2010 (8) TMI 23 - DELHI HIGH COURT] - assessee has discharged it’s onus in terms of sec 68 – thus, the order of the CIT(A) is upheld – Decided against revenue.
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