TMI Blog2015 (8) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... ors is unsatisfactory. With regard to the argument of the ld. counsel for the assessee that the assessee has been called upon to explain the source of source, we are of the view that the said stand taken by the ld. counsel for the assessee is unsustainable. As already stated, the capacity of the creditor alone was questioned by the revenue authorities. This cannot be equated as calling upon the assessee to furnish source of source. The capacity of the creditors has not been prima facie established by the assessee. It is only when credible evidence is let in regarding capacity of the creditor that this argument of calling upon the assessee to explain source of source can be advanced. In this regard, the law laid down by the Hon’ble Calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities as above were confirmed by the Tribunal. The assessee preferred appeals before the Hon ble High Court of Karnataka. The Hon ble High Court by its judgment dated 28.1.2014 in ITA No.366 367 of 2012, remanded the matter in respect of merits of addition of above cash credits to the file of Tribunal. It is in these circumstances that these appeals were listed for hearing and were heard. 5. The assessee was an agriculturist and was running a rice mill. The assessee constructed a commercial complex at Koramangala, Near KSRTC Bus Stand. A sum of ₹ 33,50,000 was spent as investment in the construction. In the course of explaining the source of making the aforesaid investment in the construction, the gift as well as loans were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Shivanna on 26.7.2006. In answer to question No.10, Shri Shivanna had stated that he had given a loan of ₹ 1 lakh to Irshad Ali Khan, S/o. K.B. Khaleel by cash on 3.11.2003. In answer to Q.No.11, Shri Shivanna had stated that the said sum of ₹ 1 lakh was withdrawal out of his PF account and the withdrawal was for the purpose of performing his daughter s marriage. It was further stated that the loan given was interest free and no pro-notes/document was executed evidencing giving of the said loan. The alleged loan transaction had taken place in November, 2003. Shri Shivanna s daughter s marriage was conducted in the month of November, 2003. Shri Shivanna had taken a loan from his PF account to the extent of ₹ 2.5 lakhs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 1.1.05, the same was withdrawn by issuing a cheque of ₹ 1 lakh to Zakir Hussain and a DD for ₹ 1 lakh in favour of Smt. Fahimida Khatoon. Zakir Hussain is the son of the assessee and is not the same Zakir Hussain from whom Zafrullah Khan claimed to have availed of loan which was used for giving loan of 1 lakh to the assessee. Zakir Hussain (son of assessee) had utilized the said sum of ₹ 1 lakh for his business. This fact was confirmed by him when his statement was recorded on 17.7.06. 11. The above circumstances, according to the AO, clearly proved that the plea of Zafrullah Khan regarding source of funds out of which loan was given to assessee was false. This finding of the AO was also confirmed by the Tribunal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to him, in the present case, the AO has not called upon the assessee to prove the source of source, but only wanted the assessee to prima facie show the creditworthiness of the creditor. According to him, u/s. 68 of the Act, the onus is on the assessee to establish the identity and creditworthiness of the creditor and also the genuineness of the transaction. It was submitted by him that the additions made were justified and did not call for any review. He placed reliance on the decision in the case of K.C.N. Chandrashekar v. ACIT, 66 TTJ 355 (Bang), wherein the Bangalore Tribunal after making a reference to the decision of the Hon ble Calcutta High Court in Shankar Industries v. CIT, 114 ITR 689 (Cal) and the decision of Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion arrived at by the revenue authorities is correct and calls for no interference. 17. With regard to the argument of the ld. counsel for the assessee that the assessee has been called upon to explain the source of source, we are of the view that the said stand taken by the ld. counsel for the assessee is unsustainable. As already stated, the capacity of the creditor alone was questioned by the revenue authorities. This cannot be equated as calling upon the assessee to furnish source of source. The capacity of the creditors has not been prima facie established by the assessee. It is only when credible evidence is let in regarding capacity of the creditor that this argument of calling upon the assessee to explain source of source c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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