TMI Blog2014 (6) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... harge the onus of proving the cash credit which lay upon him - the assessee has discharged the initial onus of proving the cash credit which lay upon him – Decided against Revenue. - ITA No. 3773/Del/2011, ITA No. 3774/Del/2011 - - - Dated:- 23-5-2014 - Shri G. D. Agrawal And Shri Chandra Mohan Garg,JJ. For the Petitioner : Shri S. N. Bhatia, Sr.DR. For the Respondent : Shri R. S. Ahuja, CA. ORDER Per G. D. Agrawal, VP : ITA No.3773/Del/2011 Revenue s appeal in the case of M/s Land Mark Exim (P) Ltd. :- This appeal by the Revenue is directed against the order of learned CIT(A)-III, New Delhi dated 13th May, 2011 for the AY 2006-07. 2. Ground No.1 of the Revenue s appeal reads as under:- On the facts and in the circumstances of the case the ld.CIT(A) has erred in law and on facts in deleting the addition of Rs.4,00,00,000/- made by the Assessing Officer u/s 68 of the Income Tax Act, 1961 on account of unexplained unsecured loan. 3. The other grounds are only arguments in support of above ground No.1. 4. The facts of the case are that during the year under consideration, the assessee received fresh unsecured loans amounting to Rs.25,29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is in appeal before us. 6. At the time of hearing before us, learned DR relied upon the order of the Assessing Officer and he stated that the assessee only produced the confirmation of the creditors but despite the Assessing Officer s specific direction, the creditors were not produced. He stated that the loan taken was huge, i.e., Rs.3 crores from one creditor and Rs.1 crore from another. When such a huge loan is taken, the burden upon the assessee is heavy and he has to establish the creditworthiness of those parties so as to prove that those parties were capable of giving such a huge loan. 7. Learned counsel for the assessee, on the other hand, stated that both the creditors are company and both are assessed to tax. During assessment proceedings, the assessee has duly produced their confirmations which contained their permanent account numbers. The loan has been received through cheque. Before the learned CIT(A), the assessee produced their assessment order as well as bank statement as a fresh evidence. Learned CIT(A) called for the remand report from the Assessing Officer and, in the remand report, after verification, the Assessing Officer has not found any material aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of law as such arose. The High Court was right in refusing to state a case. 9. We find that the ratio of the above decision of Hon ble Apex Court would be squarely applicable to the case of the assessee. In fact, the facts of the assessee s case are better than the facts before the Hon ble Apex Court in the case of Orissa Corporation P.Ltd. (supra). In the case under appeal before us, the assessee not only produced the confirmation of the creditors, their permanent account numbers but also the copy of their assessment order and bank accounts. Since there were certain fresh evidences furnished before the CIT(A), he called for the remand report from the Assessing Officer. Copy of the remand report is placed at pages 15 to 17 of the assessee s paper book. From the remand report, it is evident that during remand proceedings, enquiries were conducted by the Assessing Officer by deputing the Inspector of Income Tax and also calling for the information under Section 133(6). After such enquiry, he submitted the remand report. The relevant portion of the remand report is reproduced below for ready reference:- The assessee has, in its application before your goodself, furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings) Filed (called for u/s 133(6) and placed on record) Filed (with application under Rule 46A and verified by this office) Not produced 10. From the above, it is evident that in this case, the assessee produced the confirmation, copy of bank account, copy of income tax return of the creditors and, on verification by the Assessing Officer, by calling the information under Section 133(6) and also through the Inspector of Income-tax, no adverse material was found. On the other hand, the assessee was found at the address and submitted the details called for by the Assessing Officer. Therefore, merely because the creditors were not produced by the assessee, it cannot be said that the assessee was not able to discharge the onus of proving the cash credit which lay upon him. That in the case of Orissa Corporation P.Ltd. (supra), the assessee was unable to produce the creditors and even on enquiry by the Assessing Officer, the persons were not available at the given address. Despite these facts, since the creditors were assessed to income tax, Hon ble Apex Court upheld the order of the ITAT wherein the ITAT has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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