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2023 (9) TMI 845 - GUJARAT HIGH COURTPenalty u/s. 271(1)(c) - Addition u/s.68 - assessee miserably failed to discharge initial onus to prove the identity of the creditor so also the genuineness of the transactions - HELD THAT:- What is evident is that the Tribunal found on facts that the amount of loan received by the assessee was returned to the loan party during the year itself and all transactions were carried out through banking channel. ITAT on the decision of Rohini Builders [2001 (3) TMI 9 - GUJARAT HIGH COURT] held in favour of the assessee. The phraseology of section 68 is clear. The Legislature has laid down that in the absence of a satisfactory explanation, the unexplained cash credit may be charged to income-tax as the income of the assessee of that previous year. In this, case the legislative mandate is not in terms of the words "shall be charged to income-tax as the income of the assessee of that previous year". The Supreme Court while interpreting similar phraseology used in section 69 has held that in creating the legal fiction the phraseology employs the word "may" and not "shall". Thus the unsatisfactoriness of the explanation does not and need not automatically result in deeming the amount credited in the books as the income of the assessee as held by the Supreme Court in the case of CIT v. Smt. P. K. Noorjahan [1997 (1) TMI 6 - SUPREME COURT]
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