TMI Blog2012 (7) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... This appeal has been preferred by the Revenue against the order of CIT, Delhi-I dated 23.1.2012 on the following grounds of appeal:- 1.(a) The ld. CIT(A) has erred on facts and in law in deleting addition of Rs.45,00,000/- made by the AO on account of unexplained cash credit. (b) The CIT(A) has ignored the fact that the assessee has not filed the bank statement and copy of the return of income of Shri Y.V. Rama Raju from whom the amount of Rs.45,00,000/- is shown as receipt. As such the identity of the creditor and his creditworthiness has not been established. While deleting the addition, the CIT(A) has taken note of a criminal case filed against the assessee by the creditor. The CIT(A) has however not examined as to what was the result of the criminal case. The final decision on this matter cannot be taken unless the findings of the Hon ble Court in the criminal case are ascertained. 2. Briefly stated, the facts of the case are that the return of the assessee declaring income of Rs.11,73,051 was processed u/s 143(3) of the I.T.Act 1961 (hereinafter referred to as the Act) and this case was selected for scrutiny under CASS. Accordingly, a notice u/s 143(2) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoking 68 in relation to the credit entry of Rs.45,00,000/- is not legally sustainable. Without prejudice to above submission, it was submitted that the assessee has furnished the following documents to discharge his primary onus of explaining the nature and source of the above credit entries. (i) Name and address of the loan creditor in question (ii) Confirmation of the above loan creditor (iii) Address of the loan creditor (iv) Assessment particulars of the above loan creditor (v) To prove genuineness of the loan, the copy of the legal notice served by the above loan creditor on the appellant as result of default of the later in making repayment of the loan. The above evidences are sufficient to discharge its primary onus of the appellant as provided u/s 68 of the Income Tax Act as has been held in the case of CIT vs Sahibganj Electric Cables Pvt. Ltd. (1978) 115 ITR 408 (Cal) that where amounts of loans received by cheques and repayment also through cheques and there are confirmation letters submitted wherein income tax file number also mentioned, the assessing officer could not make addition without making further enquiry disbelieving t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idences, it is abundantly clear that the repayment of loan made by the appellant of the above unsecured loan through account payee cheques could not materialize due to dishonor of cheques issued by the appellant. This evidence is confirmation in further support of the legal notice already submitted during assessment proceedings and these evidences confirmed that the loan transaction had taken place between the appellant and above loan creditor. The copy of the summon and criminal complaint have been placed for the first time and it was submitted that this evidence has come into the possession of the assessee after completion of the assessment proceedings, therefore, this evidence may kindly be accepted u/s 46A under sub clause (c) of the above Rule as there is a sufficient cause preventing the appellant from producing the above evidence before the AO as this evidence came to the possession of the appellant after conclusion of the assessment proceedings. As the summon and the criminal complaint are only in furtherance of the legal notice already placed before the AO, the documents are being considered for adjudication of this ground. As seen above, the repayment of loan could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion or decision on this matter could not be taken unless the findings of the court in the criminal case are ascertained. Supporting the assessment order, ld. DR finally submitted that the appeal of the Revenue be allowed, setting aside the impugned order. 6. On bare reading of the impugned order, we observe that the ld. CIT(A) noted that the assessee has furnished the relevant documents to discharge his primary onus of explaining the nature and source of credit entries of Rs.45,00,000 i.e. (i) name and address of the creditor (ii) confirmation of loan from the said creditor (iii) address of the creditor (iv) assessment particulars of the creditor and (v) the copy of legal notice served by the above loan creditor on the appellant, as the assessee failed to repay the loan. Relying on the judgement of Hon ble High Court of Calcutta in the case of CIT vs Sahibganj Electric Cables Pvt. Ltd. reported as (1978) 115 ITR 408 (Cal), the ld. CIT(A) held that where the amount of loan received by cheques and repayment was also made through cheques and there are confirmation letters submitted wherein income tax file number is also mentioned, the assessing officer could not make addition witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worthiness of the creditor and genuineness of the transaction and we have no reason to interfere with the above findings of the ld. CIT(A). 9. In view of above facts and circumstances of the present case, we respectfully take the ratio of the judgment of Hon ble Supreme Court in the case of CIT vs Orissa Corporation Pvt. Ltd. reported as (1986) 159 ITR 78(SC), the observation of the Hon ble Apex Court and the ratio is respectfully reproduced 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 assesses. 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 socalled 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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