TMI Blog2015 (6) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... ition is justified u/s 68 of the Act in respect of any of the cash credits. - Decided in favour of assessee. Disallowance of car expenses - Held that:- Element of personal use of car cannot be ruled out and disallowance is only 10% of the expenses and hence justified. It is not shown that the assessee was having any personal vehicle for personal use, expenses of which were not claimed as business expenses. - Decided in favour of assessee. - ITA No.184/LKW/2010, ITA No.185/LKW/2010, ITA No.239/LKW/2010 - - - Dated:- 12-6-2015 - SHRI SUNIL KUMAR YADAV AND SHRI A.K. GARODIA, JJ. For The Assessee : Shri P. K. Kapoor, C.A. For The Revenue : Shri Harish Gidwani, D.R. ORDER PER A. K. GARODIA, A.M. There are two cross appeals by the assessee and the Revenue in the case of Shri Suresh Chandra (Individual) and the remaining appeal is assessee s appeal in the case of Shri Suresh Chandra, HUF. All these appeals were heard together and are being disposed of by way of this common order for the sake of convenience. In the assessee s appeal, in the case of Shri Suresh Chandra, Individual, i.e. I.T.A. No.184/Lkw/2010, in ground No. 1 to 7, the dispute is regarding ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was also placed on the judgment of Hon'ble Allahabad High Court rendered in the case of CIT vs. Kamaljeet Singh [2005] 147 Taxman 18 (All). He also placed reliance on a judgment of Hon'ble Allahabad High Court rendered in the case of CIT vs. Jauharimal Goel [2006] 201 CTR (All) 54. Regarding various judgments cited by learned D.R. in the written submissions dated 10/07/2012, he submitted that these judgments are not applicable in the facts of the present case. 3. Learned D.R. of the Revenue submitted that the written submissions filed by him on 10/07/2012 may be considered for deciding these appeals. 4. We have considered the rival submissions. First of all we reproduce the written submissions dated 10/07/2012 filed by learned D. R., which is as under: 1. The assessee could not prove the creditworthiness of the depositors which has been dealt in detail by the CIT(A) in the order. 2. The following case laws are relied upon:- (a) In the case of Banarsi Prasad Vs. CIT 304 ITR 239 (All.) Hon'ble High Court held as under as per head note:- It is well-settled that under section 68 of the Income-tax Act, 1961, the assessee has to prove three conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion of the Assessing Officer is not satisfactory, ft is only them the sum so credited may be charged to income-tax as the income of the assessee of that previous year. The expression the assessee offer no explanation means where the assessee offer no proper, reasonable and acceptable explanation as regards the sums found credited in the books maintained by the assessee. It is true the opinion of the Assessing Officer for not accepting the explanation offered by the assessee as not satisfactory is required to be based on proper appreciation of material and other attending circumstances available on record. The opinion of the Assessing officer is required to be formed objectively with reference to the material available on record. Application of mind is the sine qua non for forming the opinion. (d) In the case of CIT Vs. Orissa Corporate (P) Ltd., 159 ITR 78 (SC) the Hon'ble Supreme Court held as under:- 25. ... The doubtful nature of the transaction and the manner in which the sums were found credited in the books of account maintained by the assessee have been duly taken into considerations by the authorities below. The transaction though apparent were held to be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Allahabad High Court that this is not sufficient. In the present case, the facts are different. The assessee has not only stated that money was received from whom, the assessee has furnished the complete address, confirmation, PAN, bank statement etc. of each of the creditors and therefore, this judgment is not applicable in the facts of the present case. 5.2 The second judgment cited by learned D. R. is also the judgment of Hon'ble Allahabad High Court rendered in the case of Ram Lal Agarwal Vs. CIT (supra). In this case, it is noted by Hon'ble High Court that the assessee has failed to prove the creditworthiness of those persons who have given money to the assessee. It is also noted by Hon'ble Allahabad High Court that all the authorities found that both the persons who are alleged to have made the payment, have no capacity to make such payment. In the present case, the assessee has furnished various evidences regarding source of loan creditors and bank statements are brought on record and merely because there is cash deposit in the bank account of the creditor, it cannot be said that the creditor has no creditworthiness. Considering the facts of the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank statements. In fact, in the present case, not even a notice was issued by the Assessing Officer to the creditors to examine and verify the case of the assessee regarding creditworthiness and identity of the creditors and therefore, as per this judgment of Hon'ble Apex Court, no addition is justified in the facts of the present case. 5.5 The next judgment cited by learned D. R. is also the judgment of Hon'ble Apex Court rendered in the case of Vijay Kunar Talwar V CIT (supra). In that case, the search took place in assessee s premises on 27/05/83 and in course of search, certain incriminating documents were recovered and seized. One of the registers, so examined, revealed cash receipt of ₹ 3,49,991/- in the name of 15 persons, from most of whom were perpetual receipts during the period April 1982 to October 1982. When the Assessing Officer sought explanation with regard to said cash credit, the assessee stated that the cash receipts were in the nature of realization from the past debtors of the erstwhile firm. In order to appreciate the said stand, the Assessing Officer called for the account books of the Calcutta Branch of the erstwhile firm for the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case are similar to the facts of the cases on which reliance was placed by Learned A.R. of the assessee. In the present case, confirmation of all creditors with full address and PAN, bank statement and assessment particulars are brought on record. Only adverse feature is that in some cases, there is cash deposit in the bank account of the creditor. Merely on this basis alone, it cannot be said that those creditors are not having credit worthiness particularly when these creditors are assessed to tax and their PAN, address and assessment particulars are furnished and the A.O. has not made any effort to call any detail from the creditors or to verify the details from the A.O. of the creditors. Therefore, respectfully following these judgments, we hold that in the facts of the present case, no addition is justified u/s 68 of the Act in respect of any of the cash credits. 8. In the result, the appeal of the Revenue is dismissed and both the appeals of the assessee are allowed. 9. There is no other issue in the revenue s appeal or in the assessee s appeal in the case of HUF. In the assessee s appeal in the case of individual i.e. in ITA 184/LKW/2010, Ground No. 8 9 are t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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