TMI Blog2014 (6) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... nuineness of the transaction was not established by the assessee and the addition was deleted by the CIT(A) – revenue could not bring any material on record to show that any of the deposits out of Rs 68,97,100/- was not genuine – thus, there was no reason to interfere with the order of the CIT(A) – Decided against Revenue. - ITA No. 255/Ahd/2013, CO No. 61/Ahd/2013 - - - Dated:- 30-5-2014 - Shri D. K. Tyagi And Shri N. S. Saini,JJ. For the Petitioner : Sh. O. P. Batheja, Sr. DR For the Respondent : Sh. S. N. Divatia, AR ORDER Per Shri N. S. Saini, Accountant Member: This is an appeal filed by the Revenue and cross-objection filed by the assessee against the order of the CIT dated 14.11.2012. 2. The sole issue involved in the appeal of the Revenue is that the CIT(A) erred in law and on facts in deleting the addition of Rs 68,97,100/- made by the Assessing Officer u/s 68 of the Act on account of unverified depositors. 3. In the cross-objection of the assessee, the grievance of the assessee is that the CIT(A) erred in confirming addition of RS 2,17,200/- as unexplained cash credit. 4. The brief facts of the case are that the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 29.11.2011. Accordingly, your appellant had submitted letter dated 21.11.2011 in response to the notice dated 15.11.2011 explaining facts and nature of transaction and accounting treatment with a statement Containing names, addresses and amount received together With PAN of some of some the parties and requested A.6., to give some more time to enable your appellant to submit required data. 6. But the learned A.O. in his 2eal to frame a case arid raise huge tax demand arid not adhering to his words of assurance given to our Authorized Representative Mr. Atul Dalal C.A., framed an assessment order in the back date of November 30, 2011 and asked your appellant to file the copy of letter dated 21.11.2011 with the desk clerk which was stamped on 1.12.2011 (copy enclosed) and make addition of entire amount of Rs. 7114300 received from parties against booking as income of your appellant from undisclosed source, without taking on record, the fact that your appellant has submitted details of some of the parties worth Rs. 2434050 such as names, addresses, PAN and confirmation. It was also explained to learned A.6. that in case of construction industry it is the normal practice to acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that when the confirmatory letter are filed and the identity or creditors are known, it is the duty of A.O. to summon the creditors and to record their statement. The onus is on the Department to prove that the deposits were not genuine. This onus has not been discharge by the A.O. and hence the addition has been made without making any proper enquiries. 9. In view of what is stated above, it appears that nowhere A.O. has put on record that information about creditors such as names, addresses, confirmation and PAN are not genuine, but are bogus, as well as confirmation of account by M/s. Adinath Non Trading Corporation in not genuine and without placing on record any concrete evidence or reasons for treating the amount received as advance for booking from customers being bogus, and treating the same as income of your appellant from undisclosed source is not justified and is only on presumption/assumption, hence, your appellant request your honour to delete the additions. 6. The CIT(A) observed that the assessee during the appeal proceedings furnished confirmation from all the persons from whom security deposits were received. As many of the confirmations were not filed duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are not aware about the identity or the whereabouts of the owners as they know only the broker. Despite his best efforts, he could contact only five of the parties so far. Thus in all, 22 persons who have been contacted, have confirmed to have given advance for booking the property. 7. Thereafter, the CIT(A) confronted the assessee with the remand report on 02.11.2012 in response to which the assessee submitted a letter dated 02.11.2012 as a rejoinder, the contents of which were as under: With reference to the above, the appellant begs to submit that it has been furnished on 2.11.2012 with the copy of Remand Report dt. 11.10.2012 submitted by ITO,Wd-5(3), Abad in connection with the additional evidence submitted by the appellant during the course of appellate proceeding. 2.1 On going through the afore said remand report, it is noticed that AO has not disputed about the additional evidence admitted in the appellate proceedings. 2.2 Perusal of par a-3 4 of the remand report shows that AO had carried out independent enquiries by way of deputing ward inspector in respect of 21 parties and he could contact only five, whereas the others being tenant of the shops taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.O. in the assessment order. During the appellate proceedings the appellant has furnished confirmations from 48 parties along with proofs of identity like copies of PAN Card, copy of Election card, copy of driving license etc. Perusal of the copies of accounts of these persons reveals that the security deposits were received through banking channels. Since the appellant has filed sufficient evidences to prove identity of the creditor, genuineness of transaction and creditworthiness of the creditor, accordingly I am inclined to agree with the contentions of Ld. A.R. 4.5 The facts available on record clearly prove that the appellant has discharged his primary onus of establishing identity, genuineness of transaction and the creditworthiness of the creditor. Since the appellant has discharged the initial onus cast upon him by the provisions of sec.68, it is for the revenue to discharge their burden 6y conducting further enquiries. Since the A.O. has not conducted further enquiries, accordingly, addition made u/s.68 is unwarranted. Reliance in this regard is made on Swagat Synthetics Pvt. Ltd. (2002) 77 TTJ 987 (Jodh.). In the instant case the appellant has furnished confirmed co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer has identified persons by name as well as amount received as security deposit from them. The said letter reads as under: GOVERNMENT OF INDIA INCOME-TAX DEPARTMENT Income-Tax Officer, Ward 5(3), Ahmedabad 4th Floor, B-403, Pratyaksh Kar Bhavan, Ambawadi, Nr. Panjrapole, Ahmedabad. Ph-26304839, E-mail- AHMEDABAD_ITO-W5-3@incometax.gov.in F. No.Wd-5(3)/RDPL/ITA No.255/2013-14 Date: 14/08/2013 The Senior Departmental Representative, A-Bench, ITAT-IV, 2nd Floor, Neptune Tower, Opp. Nehru Bridge, Ashram Road, Ahmedabad Sir, Sub: ITA N0.255/Ahd/2013 in the case of M/s Rajlaxmi Development (P) Ltd - A.Y.2008-09-Reg. Kindly refer to your letter No. Sr. D.R./ITAT-IV/RDPL/'A' Bench/2013-14 dated 12.08.2013 on the subject mentioned above. 2. The desired information is as under in separate tables: 3. Case record accompanies. (in three volumes) Yours faithfully (R.C. Yadav) Income-tax Officer Ward-5(3), Ahmedabad Copy to: The Addl. CIT, Range-5, Ahmedabad. 10. He submitted that as will be seen from the letter of the Assessing Officer filed that the 17 persons complied with summons and replied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which remand report was called from the Assessing Officer. After considering the materials and remand report, the CIT(A) observed that out of Rs 71,14,300/-, Rs 68,97,100/- was received by the assessee through banking channels and the same was supported by the bank statement of the payee. The identity of the payee was also established by furnishing copy of PAN Card, Voter ID Card etc. Therefore, on being satisfied that the deposits of Rs 68,97,100/- were genuine, the CIT(A) deleted the addition to the extent of Rs 68,97,100/-. In respect of balance amount of Rs 2,13,200/-, the CIT(A) observed that the assessee could not furnish confirmation from the parties from whom deposits were received and therefore, confirmed the addition to the extent of Rs 2,14,200/-. 14. Before us, the Revenue is in appeal in respect of deletion of Rs 68,97,100/- and the assessee is in cross-objection for confirmation of addition of Rs 2,17,100/-. 15. The DR could not point out any specific error in the finding of the CIT(A). The DR could not point out any case where the identity or genuineness of the transaction was not established by the assessee and the addition was deleted by the CIT(A). Furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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