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2019 (11) TMI 146 - AT - Income TaxAddition u/s 68 - unsecured cash credit - shift of the onus on to the Department to prove addition - HELD THAT:- We should not forget the fact that out of the said four parties, one party namely M/s Radhey Krishna Gems Pvt. Ltd. filed copy of confirmation along with copy of ITR and relevant pages of the bank statement, in response to the notice u/s 133(6) issued by the AO. As is crystal clear from the above, there was no sufficient time before the AO to establish the ingredients contained in section 68 of the Act in respect of the remaining three parties. It is well settled that in order to discharge the onus, the assessee must prove the following (i) the identity of the creditor, (ii) the capacity of the creditor to advance money ; and (iii) the genuineness of the transaction. After the assessee has adduced evidence to establish prima facie the aforesaid, the onus shifts to the Department as held in Shankar Ind v. CIT [1985 (1) TMI 104 - ITAT CALCUTTA-D] The mere furnishing of particulars as held in CIT v. Precision [1993 (6) TMI 17 - CALCUTTA HIGH COURT] or the mere fact of payment by an account payee cheque as held in CIT v. United [1989 (5) TMI 18 - CALCUTTA HIGH COURT] or the mere submission of a confirmatory letter by the creditor as held in CIT v. Mahim [1994 (11) TMI 88 - KERALA HIGH COURT] is, by itself, not enough to shift the onus on to the Department, although these facts may, along with other facts, be relevant in establishing the genuineness of the transaction. As mentioned hereinabove, the new address along with full compliance was made by the assessee before the AO vide letter dated 22.03.2016. The AO completed the assessment u/s 143(3) on 30.03.2016 as it was getting time-barred. The Ld. CIT(A) should have appreciated the paucity of time before the AO to conduct further inquiries. Out of the said four parties, one party namely M/s Radhey Krishna Gems Pvt. Ltd. filed copy of confirmation along with copy of ITR and relevant pages of the bank statement, in response to the notice u/s 133(6) issued by the AO. The onus shifted to the AO. The AO failed to conduct any enquiry to verify the genuineness of the transactions with the above party. The addition made by the AO in respect of M/s Radhey Krishna Gems Pvt. Ltd is hereby deleted. However, following the ratio laid down in NRA Iron & Steel (P.) Ltd. [2019 (3) TMI 323 - SUPREME COURT] & Jansampark Advertising & Marketing (P.) Ltd. [2015 (3) TMI 410 - DELHI HIGH COURT] we set aside the order of the Ld. CIT(A) in part and restore the matter to the file of the AO to make an order afresh in respect of the remaining three parties, after allowing reasonable opportunity of being heard to the assesse. We direct the assessee to file the relevant documents/evidence before the AO - Revenue appeal is partly allowed for statistical purposes.
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