TMI Blog2008 (2) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... There are four members in his family including his brother who drives auto. The following facts are concluded from the above points: (a) the loanee has no sufficient income and even the earning is not sufficient to meet his day-to-day expenses and not assessed to income-tax as such the amount of loan is out of untaxed income, cannot be treated as explained. 4(ii) Shri Anil Kumar Dabral: Admitted that he has not his own agricultural land but he drives tractor of his neighbours in cultivating process of the agricultural land of other persons, no evidence could be produced of the agricultural activities done by him. He has no bank account, money was stated to be advanced as cash. From these facts it is concluded that— (a) He has no c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by the assessee in any of the three cases. In view of the above discussion it is clear that loans advanced by all the three persons as above are not genuine, as much as all the persons did not have the capacity to advance the loan. Mere filing of confirmation letter does not discharge the onus that lies on assessee, in view of CIT v. Precision Finance (P) Ltd. [1994] 121 CTR (Cal) 20 : [1994] 208 ITR 465 (Cal.). CIT v. W.J. Walker Co. [1979] 117 ITR 690 (Cal.) and CIT v. United Commercial Industrial Co. (P) Ltd. [1991] 187 ITR 596 (Cal.), Shankar Industries v. CIT [1978] 114 ITR 689 (Cal.). Jalan Timbers v. CIT [1997] 137 CTR (Gau.) 649 : [1997] 223 ITR 11, 17 (Gau.) have not been proved. Since these loans have not been proved ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of Swadeshi Cotton Mills v. Union of India AIR 1981 SC 818. 7. Learned CIT (A) did not find force in the appeal and confirmed the addition. 8. The assessee is aggrieved and has brought the issue in appeal before the Tribunal. We have heard both the parties. Learned1 counsel for the assessee Shri Ashwani Taneja read out orders of lower authorities and pointed out that on the other hand, cash creditors had confirmed credits and genuineness of entry was proved. Sufficient evidence was placed on record to show that cash creditors had sufficient income to advance meagre loan of Rs. 19,000. Shri Ashwani Taneja also brought to my notice following observation from the decision of CIT v. Metachem Industries [2000] 161 CTR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entry related to a third party and that credit was that of that third party, the burden would shift to the ITO in such a case to establish that the entry was not real but was pseudonymous." 10. He accordingly submitted that cash credits were proved in accordance with law. It was further pointed out that AO at no stage provided copies of statement of the cash creditors to the assessee nor provided them any opportunity to cross-examine them or file any evidence in rebuttal. Therefore, either the cash credit should be accepted as genuine or alternatively the matter should be remitted back to the file of the AO for supply of copies of statement of creditors as also opportunity to cross-examine them. 11. Learned Departmental Representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not shown as to on what basis and on what answers of creditors, the conclusion was being drawn that creditor did not have capacity to advance loan. Further, information given and case pleaded before the CIT (A) has not been dealt with or refuted in accordance with law. The Revenue authorities are not justified in not furnishing copies of statement of the creditors on which they had relied to draw adverse inference against the assessee. Thus, principle of natural justice was clearly violated in this case. The explanation of the assessee has not been considered in accordance with law. The amounts involved are quite small and, therefore, on peculiar facts and circumstances of the case, it is to be held that assessee discharged its onus to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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