TMI Blog2013 (9) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax assessment orders of the relevant years and also wealth tax assessment orders - as the transactions of receiving and returning of loan have been routed through bank accounts, the genuineness of the transaction is also established - assessee established the genuineness of the transaction and the identity creditworthiness of the alleged creditors - addition made by the Assessing Officer in both assessment years is without any basis and it was merely based on surmises and conjectures, without bringing any adverse material on record - Decided in favour of assessee - I.T.A. No. 2029/Del/2011, I.T.A. No. 2030/Del/2011 - - - Dated:- 18-5-2012 - Order The order of the Bench was delivered by Chandra Mohan Garg (Judicial Member).-Both these appeals are preferred by the assessee against two separate orders of the learned Commissioner of Income-tax (Appeals)-XXV, New Delhi, both dated March 31, 2011, for the assessment years 2003A-04 and 2004-05. For the sake of convenience, both these appeals are being disposed of by this common order. I. T. A. No. 2029/Del/2011-assessment year 2003-04 The grounds of appeal in this appeal read as under : That on the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment order, the assessee preferred an appeal before the Commissioner of Income-tax (Appeals)-XXV, New Delhi, which was dismissed by him passing the impugned order dated March 31, 2011. The appellate authority considered the facts and circumstances of the case and took the view that there is no merit in the statements of the assessee as the alleged claim of loan is bogus and the entire transaction has been manipulated to create a bogus loan to cheat the Department and all facts and circumstances also show that there is no genuine transaction and he confirmed the addition made by the Assessing Officer. The assessee filed the present appeal against the said order of the Commissioner of Income-tax (Appeals). The brief facts regarding I. T. A. No.2030/Del/2011 pertaining to the assessment year 2004-05 are that the Assessing Officer noted that the assessee has received a cheque of ₹ 3 lakhs on July 12, 2003 from Mr. Bharat Bhushan Bansal. The Assessing Officer noted that the assessee has received a cheque of ₹ 3 lakhs on July 12, 2003 from Mr. Bharat Bhushan Bansal. The Assessing Officer called Mr. Bharat Bhushan Bansal and recorded his statement on oath in which he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s bank account of Bharatiya State Bank available on page 15 of the paper book which makes it clear that the assessee received ₹ 2 lakhs from Mr. Rajiv Kumar Aggarwal on August 9, 2002 through cheque and ₹ 3 lakhs on July 14, 2003 from Mr. Bharat Bhushan and further submitted that the assessee returned this amount to the said creditors by cheque. He drew our attention towards the bank statement of the assessee available on page 11 of the paper book of I. T. A. 2029/D/2011 where we observe that the assessee returned ₹ 2 lakhs on August 31, 2007 through cheque No. 21963 to Mr. Rajiv Kumar Aggarwal. The assessee's bank statement copy available in the paper book page 14 of I. T. A. No. 2030 shows that the assessee returned ₹ 3 lakhs to Mr. Bharat Bhushan Bansal on August 30, 2007 through cheque No. 21964 on Axis Bank and the same amount has been credited to the respective accounts of creditors. Therefore, it is clear that the assessee received amount through cheque and returned the same amount to the creditors through cheques of Axis Bank. The authorised representative submitted that on the basis of the above document, genuineness of the transactions are so e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Appellate Tribunal, Delhi Bench A (Special Bench) in the case of Manoj Aggarwal v. Deputy CIT [2009] 310 ITR (AT) 99 (Delhi) and noted that the entry operator Shri Rajiv Kumar Aggarwal is part of the scam which was unearthed during the course of search operation in the case of Manoj Aggarwal, Bishan Chand Aggarwal, Mukesh Kumar Aggarwal and M/s. Bishan Chand Mukesh Kumar and others. In I.T. A. No. 2029/Delhi/2011, the relevant paragraph 4.13 of the impugned orders read as under : 4.13. It may also be noted that the entry operator Shri Rajiv Kumar Aggarwal is part of the scam which was unearthed during the course of search operation in the case of Manoj Aggarwal. The main person Shri Manoj Aggarwal had admitted to have given bogus entries to various persons and had earned commission income out of the business of bogus entry/accommodation entry operation and the same has been upheld by the hon'ble Special Bench of Delhi in the case of Manoj Aggarwal v. Deputy CIT [2009] 310 ITR (AT) 99 (Delhi). In I. T. A. No. 2030/Del/2011, the relevant paragraph 4.13 of the impugned order reads as under: 4.13 It may also be noted that the entry operator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified and deserve to be confirmed. The authorised representative replying to the above submissions of the Revenue placed his reliance on the judgment of the hon'ble Supreme Court in the case of CIT v. Orissa Corporation P. Ltd. [1986] 159 ITR 78 (SC) and submitted that once the assessee has submitted copies of the permanent account number card and ration card, wealth tax assessment and specially assessment orders of the relevant assessment years, i.e., 2003-04 and 2004-05 and the creditors, viz., Mr. Rajiv Kumar Aggarwal and Shri Bharat Bhushan Bansal and the transaction receipt of loan and return of the same have been routed through account payee cheques, then what further is left to be proved by the assessee and, on this very point, the onus shifts on the Revenue-Department to prove that the creditworthiness of the creditors and the genuineness of the transaction are doubtful and baseless. In the above case of Orissa Corporation P. Ltd. [1986] 159 ITR 78 (SC), the observation of the apex court and the ratio is respectfully reproduced as under (headnote) : Held, that in this case the respondent had given the names and addresses of the alleged creditors. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to discharge his burden of proof to establish not only identity and creditworthiness of the creditors but also the genuineness of the transactions. The authorised representative, replying to the above submissions, vehemently submitted that the facts of the above case of Nova Promoters and Finlease P. Ltd. [2012] 342 ITR 169 (Delhi) are different from the present case and in the above case, the entry providers admitted before the Director of Income-tax (Investigation Wing) confirming the fact that the assessee had obtained accommodation entries from these persons in the garb of share application monies during the relevant year and the assessee could not present these persons for examination before the Assessing Officer. The assessee submitted only the affidavits of entry providers which was not considered as truthful evidence but in the present case, the creditors appeared before the Assessing Officer and supported the fact that they provided loan to the assessee and received the same back and all these transactions were held through cheques. The authorised representative also submitted that the said creditors also furnished copies of their permanent account number card, ration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived by the Assessing Officer from the Investigation Wing of the Revenue on the basis of which it was found that six investors belong to one Mahesh Garg Group who were not carrying on any real business activity and were engaged in the business of providing accommodation entries. They were entry operators and the assessee in that case was alleged to be a beneficiary. While disposing of these appeals, this court observed (page 133) : The assessees filed copies of permanent account number, acknowledgment of filing income-tax returns of the companies, their bank account statements for the relevant period, i.e., for the period when the cheques were cleared. However, the parties were not produced in spite of specific direction of the Assessing Officer instead of taking opportunities in this behalf. Since the so-called directors of these companies were not produced on this ground coupled with the outcome of the detailed inquiry made by the Investigating Wing of the Department, the Assessing Officer made the addition. This addition could not be sustained as the primary onus was discharged by the assessee by producing permanent account number, bank account, copies of income-tax ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditworthiness and identity and also the documents showing genuineness of the transaction through bank, the assessee could not do anything further. He further observed that the assessee has discharged the burden that lay upon him. On the contrary, there was no effort by the Revenue to pursue the examination of source of income of the said creditors to find out whether they were creditworthy or not. On the basis of above, we are inclined to follow the judgment of the hon'ble apex court in the case of Orissa Corporation P. Ltd. [1986] 159 ITR 78 (SC) and we hold that in the present case, the assessee has discharged the burden which lay upon him and further, the assessee could not do anything. Hence, the addition made by the Assessing Officer in both relevant years cannot be sustained as we have already noted that the identity and creditworthiness of both these loan creditors was established in the form of said documents, i.e., copies of permanent account number card, ration card, income-tax assessment orders of the relevant years and also wealth tax assessment orders. We have also noted that as the transactions of receiving and returning of loan have been routed through b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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