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TMI Blog2013 (12) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... Agra Bench, Agra for the assessment year 2005-06. The Tribunal has confirmed the orders of the AO and the CIT (A), by which they have added Rs. 13,00,000/- in the income of the assessee disbelieving the genuineness of the transactions of the unsecured loan of the six individual creditors, and thereby adding Rs. 17, 70, 990/- in the income of the assessee-appellant out of the total unsecured loans of Rs. 78, 75, 249/-. 3. The appeal has been preferred on the following substantial questions of law, as follows:- "(i) Whether the ITAT, was correct to confirm the addition of Rs. 11 lacs under Section 68 of the Act, which was taken as loan from 5 lenders without summoning the lenders under Section 131 of the Act or 133 (6) of the Act despite re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 159 ITR 78 (SC); DCIT v. Rohini Builders (2002) 256 ITR 360 (Guj); Nemi Chand Kothari v. CIT (2003) 264 ITR 254 (Guh); CIT v. Divine Leasing and Finance Ltd (2008) 299 ITR 268 (Del); CIT v. Dwarikadish Investment (P) Ltd (2011) 330 ITR 298 (Del) and CIT v. Oasis Hospitalities (P) Ltd (2011) 333 ITR 199 (Del), that the appellant-assessee discharged its burden under Section 68 of the Income Tax Act by giving the names, PAN numbers, and producing the assessment orders & accounts books of the unsecured creditors. The loans were taken by the banking channels. It is submitted that once the burden was discharged by the assessee, it was open to the Assessing Officer to have called the creditors by issuing notices under Section 131 of the Act to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable it to subscribe to the share capital. This judgment further holds that once these documents are produced, the assessee would have satisfactorily discharged the onus cast upon him. Thereafter, it is for the Assessing Officer to scrutinize the same and in case he nurtures any doubt about the veracity of these documents to probe the matter further. However, to discredit the documents produced by the assessee on the aforesaid aspects, there have to be some cogent reasons and materials for the Assessing Officer and he cannot go into the realm of suspicion." 6. In the present case, we find that after the initial burden was discharged by the appellant-assessee, the AO did not accept the application to summon the creditors and proceeded to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- (PB-71). In the case of Smt. Keerti Maheshwari, in her bank account, there was balance of Rs. 4688/- only prior to issue of cheque to the assessee and equivalent amount of cash credit was deposited for the purpose of issue of cheque in favour of the assessee. For the assessment year under appeal, she has filed return of income at Rs. 1, 01, 000/- only. In the case of Smt. Mithlesh Maheshwari, the bank balance before issue of cheque was Rs. 10, 794/- and equivalent amount of cash credit was deposited in her bank account for issue of cheque in favour of assessee. For assessment year under appeal, she filed return of income at Rs. 1, 02, 476/- only. In the case of Sh. Rampal Singh, it is already noted above that the deposit entry in his cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or advancing loan to the assessee through genuine source. It is well settled law that burden is upon the assessee to prove ingredients of section 68 of the Act by proving identity and creditworthiness of the creditors and genuineness of the transactions. The assessee has, however, failed to prove the creditworthiness of the creditors who were having only meager income. No details of their savings have been filed. The assessee has never shown his willingness to produce the remaining creditors for examination before the AO. Therefore, the genuineness of the transaction could not have been examined by the AO. The smallness of the bank balance in the bank accounts of the creditors prior to issue of cheques would clearly reveal that they were no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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