TMI Blog2015 (9) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... count of commission to the extent of ₹ 35,000/- was also rightly deleted. Since the Ld. CIT(A) has passed a well reasoned order and therefore, no interference is called for in the impugned order on our part, hence, we uphold the impugned order dated 03.12.2010 passed by the Ld. CIT(A) and accordingly dismiss the appeal of the Revenue. - Decided in favour of assessee. Treating the interest earned on Margin Money Deposits as income from other sources - denial of deduction u/s. 80IB - Held that:- We have seen that the decision of the Hon’ble Delhi High Court for the Assessee in the case CIT vs. Jaypee DSC Ventures Ltd. (2011 (3) TMI 309 - Delhi High Court) has not been considered by the Ld. CIT(A) while deciding the issue involved in ground no. 1, therefore, we are of the view that the Hon’ble Delhi High Court has considered all the decisions mentioned by the Ld. CIT(A) in the impugned order and decide the issue in favor of the assessee. As submitted by the Ld. DR that the issue may be set aside to the file of the Ld. CIT(A) to decide the same afresh, after considering the decision of the Hon’ble Delhi High Court. In view of the above, we think it proper that request of the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cross objection at the time of hearing. REVENUE S APPEAL 4. The facts narrated by the Revenue Authorities are not disputed by both the parties, therefore, no need to repeat here for the sake of brevity. 5. Ld. DR relied upon the order passed by the AO. 6. On the other hand Ld. Counsel for the assessee relied upon order of the Ld. CIT(A) and stated that the same may be upheld. 7. We have heard both the counsel and perused the records available with us, especially the orders of the revenue authorities, we are of the view that Ld. CIT(A) has adjudicated the issue in dispute vide para no. 6.4 to 6.7. The same are reproduced hereunder to facilitate ready reference:- 6.4 I have carefully considered the written submission made on behalf of the appellant, the findings of the AO in the assessment order as well as in the remand report and the facts and circumstances under which the said addition was made by the AO. It is observed that the addition on account of unexplained cash credits has been made without any material available on record. No material facts have been brought on record in this regard by the A.O. Since the addition has been made as unexplained ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Supreme Court in Kalekhan Mohammad Hanif v. CIT [1963] 50 ITR 1. The same principle has been reiterated by the Hon'ble Supreme Court in CIT v. Devi Prasad Vishwanath Prasad [1969] 72 ITR 194, by Calcutta High Court in Shankar Industries Ltd. v. CIT [1978] 114 ITR 689, C. Kant Co. v. CIT [1980] 126 ITR 63, Oriental Wire Industries (P.) Ltd. v. CIT [1981] 131 ITR 688, Prakash Textile Agency vs. CIT (1980) 121 ITR 890 CIT vs. Korlay Trading Company Ltd. (1999) 232 ITR 820 by Orissa High Court in CIT Vs. B. C. Mohanty (1995) 212 ITR 199 and by Gauhati High Court in Jalan Timbers Vs. CIT (1997) 223 ITR 11 (Gau.). In view of above, the entire burden is upon the assessee and the assessee has to prove the following three conditions:- (i) identity of the creditor; (ii) capacity of such creditor to advance money (iii) genuineness of the transaction. If all the aforesaid three conditions are proved the burden shifts on the Revenue to prove that the amount belonged to the assessee. [CIT vs. United Commercial Industrial Co. (P) Ltd. (1991) 187 ITR 596 (Cal.); M. A. Unneeri Kutty vs. CIT (1992) 198 ITR 147 (Ker.); CIT Vs. Precision Finance P. Ltd. (199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2009. 6.7 In view of the discussion made above, I am of the considered view that the A.O. was not justified in making addition on account of unsecured loans to the extent of ₹ 17,50,000/- from the three (3) loan creditors listed in Para 6 above. Therefore, the addition of ₹ 17,50,000/- made on account of unsecured loans from the loan creditors is deleted. As a natural consequence, the additions on account of (a) commission to the extent of ₹ 35,000/- and (b) interest amounting to ₹ 77,269/- on the loan amount are also deleted. As a result, Grounds No. 4,5 7 are allowed. 8. In the background of the aforesaid discussions and precedent relied upon by the Ld. CIT(A) in his impugned, we do not find any merit in the action of the Assessing Officer, in coming to the conclusion that the impugned sum was liable to be taxed as unexplained cash credit in the hands of the assessee. We further note that the assessee had provided the PAN of the loan creditors but no effort seems to have been made to obtain relevant information from the respective AOs, though all loan creditors are being assessed at Delhi itself. Even, in the remand proceedings, the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order on our part, hence, we uphold the impugned order dated 03.12.2010 passed by the Ld. CIT(A) and accordingly dismiss the appeal of the Revenue. Assessee s Cross Objection 9. With regard to ground no. 2 relating to confirming of withdrawal of deduction u/s. 80IB raised in the cross objection is concerned, the same was not pressed by the Ld. Counsel of the assessee during the hearing, hence, the same is dismissed as not pressed. 10. As regards the ground no. 1 relating to treating the interest earned on Margin Money Deposits of ₹ 7,77,656/- as income from other sources and therefore denying the deduction u/s. 80IB thereon is concerned, Ld. Counsel for the assessee stated that the issue in dispute is squarely covered in favour of the assessee by the decision of the Hon ble Delhi High Court in the case of CIT vs. Jaypee DSC Ventures Ltd. (2011) 335 ITR 132 (Del). He requested that the issue in dispute may be decided in favor of the assessee, in view of the decision of the aforesaid decision of the Hon ble Delhi High Court. 11. Ld. DR stated that this decision of the Hon ble Delhi High Court in the case of CIT vs. Jaypee DSC Ventures Ltd. (2011) 335 ITR 132 (De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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