TMI Blog2007 (10) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... scharged his burden, the onus got shifted on the Assessing Officer to prove that the evidence filed by the assessee are not correct. No cogent material or evidence has been brought on record, which may prove that the Assessing Officer had discharged his burden in this regard. Since we have already held in the preceding paragraph that the assessee had duly discharged his onus of the creditors were the income- tax assessee s. The permanent account numbers were in the file of the revenue. Payments were received by the assessee through account payee cheque and refunded through account payee cheque. The assessee requested for the issuance of notice u/s 131 but the Assessing Officer did not pursue the matter further by issuing notice u/s 131. Therefore in our opinion in the present case the proposition of law laid down by the Hon ble Supreme Court in the case of Orissa Corpn. (P.) Ltd.[ 1986 (3) TMI 3 - SUPREME COURT] is clearly applicable. Thus, we delete the addition. Thus, ground Nos. 2 and 3 of the assessee s appear are allowed. We, directed the Assessing Officer to recompute the interest u/s 234A and 234B in accordance with law after giving effect to our order in the prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. 6,00,000 Total 16,25,000 Neither the amount was received in cash nor cash was deposited in the account of the parties from whom the assessee has received the loan. He invited our attention towards page 4 of the assessment order in which the Assessing Officer has observed as under: "1. M.S. Leasing P. Ltd. - This company has issued Cheque No. 234249 of Rs. 6,00,000 - to the assessee-company. But before this there is a credit of Rs. 6,00,000 - from the Oriental Bank of Commerce, Panchsheel Park, New Delhi. This amount has been received from M/s. Vipul Motors. It is interesting to note that on the same day M/s. Vipul Motors has received an amount of Rs. 25,00,000 by transfer from the account in the same branch belonging to Global Corporate Consultants which in turn has received the money from Deustch Bank. 2. Nimantran Leasing (P.) Ltd. - This company has issued Cheque No. 306442 of Rs. 7,00,000 to the assessee-company. But on the same day there is a credit of Rs. 7,00,000 in the account of this party by fund transfer from account No. 831 of the same bank. Account No. 831 belongs to M/s. Adhunik Systems (P.) Ltd., one of the company f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely on the basis of the statement of the third party. It was also pointed out that the assessee has filed the certificate incorporation, balance sheet, audit report, and copy of the annual report of each of the parties from whom the assessee has received the money. For this, our attention was drawn towards pages 39 to 114 of the paper book. 4. The ld. Departmental Representative on the other hand vehemently contended that the cash credit were the bogus cash credit. The assessment has been re-opened under section 148 on the basis of the survey operation undertaken by the Investigation Wing at the business premises of Shri Sanjay Rastogi. The Additional DIT (Investigation) informed the Assessing Officer that the assessee-company was involved in taking/giving bogus entries and this fact has also been admitted by Shri Sanjay Rastogi that he had given bogus entries to some of the companies through number of companies registered at bogus addresses. These companies were used as front companies in giving such entries. The assessee is one of such companies whose name is appearing in the list of such companies receiving bogus entries, received from the investigation wing. Reliance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96] 57 ITD 295 (Delhi). 2. CIT v. P. Mohanakala [2007] 291 ITR 278 (SC) Thus it was contended that the additions made by the Assessing Officer must be sustained. 5. We have carefully considered rival submissions along with the order of the Tax Authorities below. We find that in this case the additions has been made by the Assessing Officer for a sum of Rs. 16,25,000 received by the assessee from the following three parties through account payee Cheques: S. No. Name Amount 1. M/s. Nimantran Leasing Ltd. 8,25,000 2. M/s. Kush Leasing Pvt. Ltd. 2,00,000 3. M/s. Leasing Pvt. Ltd. 6,00,000 Total 16,25,000 6. The assessee has duly filed the confirmation in respect of each of the parties along with their permanent account number. The assessee even filed the copy of the bank account to prove the amount received by him and the re-payment made to each of the party through account payee Cheque. The assessee even requested the Assessing Officer to summon each of the party under section 131 but the Assessing Officer did not call for any of the parties from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. In the present case we find, that the assessee has duly filed the confirmations in respect of each parties from whom the amount has been received through account payee Cheque. Each of the party is a regular assessee having permanent account number. Each of the party is incorporated body. Their corporate veil has not been lifted by the Assessing Officer. The payment has been made by the assessee to each of the party through account payee Cheque and the same has duly been confirmed by each of the party. The assessee has filed the copy of the Bank Account, which clearly denotes that none of the party has deposited cash in their respective bank account. There is no evidence on record, which may prove that the assessee has ever given cash or received back the cash relating to this transaction. In our opinion the assessee had duly discharged his burden of proof, which a person of ordinary prudence could have discharged. The Assessing Officer even did not ask for the production of these parties. The assessee had its own requested the Assessing Officer to issue summons under section 131 but the Assessing Officer has not done anything further. Once the assessee has discharged his bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve identity, creditworthiness and genuineness of the transaction, therefore this case will not assist the revenue. 9. We have also gone through the decision in the case of Orissa Corpn. (P.) Ltd. ( supra ) it was held as under: " Held , that in this case the respondent had given the names and addresses of the alleged creditors. It was in the knowledge of the revenue that the said creditors were income-tax assessees. Their index numbers were in the file of the revenue. The revenue, apart from issuing notices under section 131 at the instance of the respondent, did not pursue the matter further. The revenue did not examine the source of income of the said alleged creditors to find out whether they were creditworthy. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the respondent could not do anything further. In the premises, if the Tribunal came to the conclusion that the respondent had discharged the burden that lay on it, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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