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2015 (3) TMI 809 - GUJARAT HIGH COURT

2015 (3) TMI 809 - GUJARAT HIGH COURT - TMI - Addition under section 68 - assessee failed to prove the genuineness of the transaction - Tribunal deleted addition - Held that:- The attempt made to contend that the burden is upon the assessee to prove the identity of the person, creditworthiness of the person and the genuineness of the transaction are to be examined in context to the existence of the person concerned, the factum of actual money in possession of the person and having paid to the as .....

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was only by way of an eye wash. Such could be proved by the Revenue in the present case through the statement of the persons, but unfortunately, they were not made available for crossexamination and therefore, the statements could be used as an evidence against the asseessee. No other evidence was available with the Revenue.

Under these circumstances, if the Tribunal has found that the explanation under section 68 of the Act was acceptable in absence of nondischarge of the burden upo .....

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as under:- Whether the appellate Tribunal has substantially erred in deleting the addition of ₹ 70 Lakhs made under section 68 of the Act despite the fact that the assessee failed to prove the genuineness of the transaction? In Tax Appeal No.127/15, similar is the question but there is change in the amount, i.e., ₹ 2 Crores instead of ₹ 70 Lakhs. 2. We have heard Mr.Manish Bhatt, learned Senior Counsel for the appellant Revenue. 3. It appears that as per the AO, since he found .....

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peal before the Commissioner (Appeals), the order of the AO was confirmed. In the further appeal before the Tribunal, at paras 17 and 18, it was observed thus "17. We find that in the instant case, the addition is made u/s. 68 of the Act on the ground of unexplained cash credit. As per the provisions of section 68, the initial onus lies upon the assessee to prove the nature and source of amount credited in his books of account. We find that this initial onus was discharged in the instant ca .....

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the Department has endeavoured to discharge its burden on the basis of statements recorded by it of the persons mentioned above. 18. We find that the assessee requested for crossobjection of the maker of the statement. Further, we find that the Assessing Officer also made an attempt to allow the assessee opportunity to crossexamine the makers of the statement by issuing summons to them. However, the crossexamination could not take place because of failure on the part of the makers of the stateme .....

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gainst the assessee. Our above view finds support from the decision of the Hon'ble Jurisdictional High Court in the case of (i) Heirs and Legal Representatives of Late Laxmanbhai S. Patel Vs. Commissioner of Income Tax (supra) (ii) CIT Vs. Indrajit Singh Suri (supra) (iii) DCIT Vs. Mahendra Ambalal Patel (supra) (iv) CIT Vs. Kantibhai Revidas Patel (supra) In view of the above settled position of law, we find force in the argument of the assessee that the statements of the persons mentioned .....

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eliable material and therefore addition so made cannot be sustained. We, therefore, delete the addition of ₹ 2,00,00,000/- made in the case of M/s Charted Motors Pvt. Ltd. as well as addition of ₹ 70,00,000/- made in the case of M/s. Chartered Speed Private Limited." Under the circumstances, the present Tax Appeals before this Court. 4. Mr.Bhatt, learned counsel appearing for the Revenue contended that three aspects were required to be proved. One was the identity of the person .....

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rror in accepting the explanation as sufficient and thereby deleting the amount as income of the assessee concerned. He also relied upon the decision of this Court in the case of Umesh Krishnani Vs. ITO in Tax Appeal No.800/12 decided on 15.12.2013 and he contended that as the preliminary burden was not discharged by the assessee, the Tribunal has not considered the said aspect and hence, the matter deserves consideration on the question raised. 5. As recorded by the Tribunal, the Tribunal found .....

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t made available for crossexamination, may be for one reason or another inspite of the attempts made by the department. Therefore the Tribunal has rightly found that the statement of those persons cannot be read against the assessee. 6. The attempt made to contend that the burden is upon the assessee to prove the identity of the person, creditworthiness of the person and the genuineness of the transaction are to be examined in context to the existence of the person concerned, the factum of actua .....

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