Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2021 (8) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (8) TMI 897 - ITAT MUMBAIAssessment u/s 153A - Addition u/s 68 - unsecured loan treated as unexplained cash credit - HELD THAT:- Indisputably the assessment in the instant year has not abated on the date of search. Keeping in view the said facts and circumstances, we are of the considered view that addition to the income of the assessee can only be made on the basis of incriminating record found during the course of search. In the present case, there is no such incriminating material and therefore, the AO has no jurisdiction to make addition in the unabated assessment. Addition u/s 68 - Assessee has discharged its burden by furnishing documents to establish the identity, creditworthiness of the lender, genuineness of the transaction and source of funds of the lender etc. It is a well settled proposition that with regard to burden of proof viz., the claim for deduction and/or exemption is upon an assessee - in matters of addition and disallowance, the same is on Revenue. Subsequently, once the assessee has submitted evidences, the burden on the assessee stood discharged and the onus to disprove lies and shifts to the revenue or on the other side by way of onus of proof. Therefore, in absence of any evidence, addition made merely on the basis of presumption and assumption cannot be sustained. The case of the assessee finds support from the decision in the case of Umacharan Shaw & Bros. [1959 (5) TMI 11 - SUPREME COURT]wherein it was held that there was no material on which the Income-tax Officer could come to the conclusion that the firm was not genuine. There are many surmises and conjectures, and the conclusion is the result of suspicion which cannot take the place of proof in these matters. We also find merits in the without prejudice contention of the ld AR that under Section 68 assessee has no onus to explain the source of source as the 1st Proviso to section 68 of the Act was introduced via the Finance Act, 2012, w.e.f. 1st April 1, 2013. The provisions are applicable where the sum so credited consists of share application money, share capital, share premium. The impugned addition is made on account of not proving source of source of the alleged bogus loan entries. Therefore, the provision doesn’t apply in the case of the assessee. Hence, the assessee only has to prove the source of the funds and not the “source of source”. - Decided in favour of assessee.
|