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2015 (12) TMI 449 - ITAT MUMBAI

2015 (12) TMI 449 - ITAT MUMBAI - TMI - Unexplained cash credit under section 68 - Held that:- As is evident, during the relevant previous year, as per assessee's books of account, there is a credit entry showing cash receipt of ₹ 1,03,000 from Shri Hemnani. However, concerned person when confronted by the Assessing Officer admitted of having paid amount of ₹ 48,000, and denied of having paid the balance amount of ₹ 55,000. In support of such claim, he also produced the account .....

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ee to furnish any documentary evidence in support of cash received of ₹ 1,03,000, however, the assessee admitted before the Assessing Officer that he will not be able to furnish any evidence.

Thus, when Shri Hemnani, himself stated before the Assessing Officer that he has paid only ₹ 48,000 in cash to the assessee and which is also as per his books of account, the claim of the assessee that he has received ₹ 1,03,000 from the creditor cannot be accepted. In these cir .....

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bility due to the assessee admitted by these two persons or show any correspondence by the assessee with the concerned persons demanding payment of outstanding liability. Thus, in absence of any corroborative evidence to prove the fact that the credits appearing in books of account in relation to the concerned persons are genuine, assessee's claim of having received cash payment cannot be believed on mere face value. Therefore, the assessee having failed to establish the genuineness of the credi .....

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of the credits. That being the case, we do not find any reason to interfere with the order of the learned Commissioner (Appeals) on this issue. - Decided against assessee - ITA No. 4091/Mum/2011 - Dated:- 9-10-2015 - Rajendra, AM And Saktijit Dey, JM For the Appellant : Shri S C Tiwari For the Respondent : Shri M Rajan ORDER Per Saktijit Dey, JM The present appeal preferred by the assessee is directed against the order dated 30th March 2011, passed by the learned Commissioner (Appeals)-18, Mumba .....

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As far as grounds no.12 and 10 are concerned, these grounds being general in nature, do not required any specific adjudication. 4. In grounds no.3 and 6, the assessee has challenged the addition of ₹ 55,000, as unexplained cash credit under section 68 of the Act. 5. Briefly the facts are, the assessee, a company, engaged in the activity of sub-broker and dealing in shares. For the assessment year under consideration, the assessee filed its return of income on 18th October 2001, declaring .....

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sing Officer with a direction to decide the issue afresh after examining the additional evidence filed by the assessee. In pursuance to the direction of the Tribunal, the Assessing Officer took up the assessment proceedings again by calling upon the assessee to produce the creditors personally along with the documentary evidence such as bank pass book, copy of I.T. return, Profit & Loss account, Balance Sheet, Permanent Account Number for verifying the genuineness of the transaction as well .....

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referred appeal before the first appellate authority. Before the learned Commissioner (Appeals), the assessee took a specific plea that the Assessing Officer has completed the assessment without verifying the contents of the explanation filed in the form of affidavit before the Tribunal and also confirmations received from the parties. Upon considering the submissions of the assessee, the learned Commissioner (Appeals) remanded the matter to the Assessing Officer for fresh verification. After co .....

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ke the additions when there are material on record to prove the transactions. However, in respect of three parties namely Shri Hemnani, proprietor of H.P. Investments, Premji Maroo and Jaidev Patel, the learned Commissioner (Appeals) confirmed the additions by holding that not only there are no confirmations, but, in case of two of the parties, they have denied the transaction totally. 7. As far as cash credit relating to Shri Hemnani, is concerned, the learned Counsel for the assessee submitted .....

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ough the assessee may not be having other documentary evidence to prove the transaction apart from the entries made in its own books of account but the circumstantial evidence and other relevant factors would certainly give the benefit of doubt to the assessee. 8. The learned Departmental Representative, on the other hand, relying upon the reasoning of the Assessing Officer and the learned Commissioner (Appeals), submitted that when the assessee has failed to prove the cash credit with sufficien .....

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alance amount of ₹ 55,000. In support of such claim, he also produced the account copy in the name of the assessee in his books of account as per which the amount paid to him was ₹ 48,000. Though the assessee has claimed that as per his books of account, the amount received in cash from Shri Hemnani, was ₹ 1,03,000, such entries in assessee's books of account without any other corroborative evidence, cannot be considered to be genuine or authentic. It is to be noted in the .....

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,000 in cash to the assessee and which is also as per his books of account, the claim of the assessee that he has received ₹ 1,03,000 from the creditor cannot be accepted. In these circumstances, we agree with the learned Commissioner (Appeals) that the credit for the balance amount of ₹ 55,000, as appearing in the name of Shri Hemnani, has to be treated as unexplained cash credit under section 68 of the Act. Grounds no.3 and 6, are dismissed. 10. In grounds no.8 and 9, the assessee .....

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the learned Commissioner (Appeals) confirmed the addition. 12. The learned Counsel for the assessee submitted before us that in spite of the fact that the concerned parties have denied of advancing any cash to the assessee but fact remains they were doing share transactions through the assessee. The learned Counsel for the assessee referring to the written submissions filed before the first appellate authority submitted that the transactions have been carried out through assessee as sub-broker a .....

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rned Counsel for the assessee submitted, when the assessee has established the identity of the persons and their existence has been proved with other details like PAN, etc., the assessee's claim of having received amount in cash from them towards share transaction cannot be disbelieved and credits appearing cannot be treated as unexplained. He further submitted, only because the assessee was not in a position to submit further evidence to prove the credit entries and the concerned persons ha .....

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597 (SC). 13. The learned Departmental Representative, on the other hand, strongly relied upon the observations of the Assessing Officer in the remand report as well as the findings of the learned Commissioner (Appeals). 14. We have considered the rival submissions, perused the order of the authorities below and the material available on record. As is evident, assessee has shown the aforesaid credit amount in respect of Shri Premji Maroo and Shri Jaideep Patel, but during the remand proceedings .....

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d any share transaction with the assessee. He confirmed that he had only opened account with the assessee but he stated that some of the columns in account opening form were not filled by him. And he further stated that as per SEBI's rule the broker needs to take confirmation of account from client, in his case the broker note shown by the assessee are its own and he has not confirmed countersigned the same, and also that the affidavit of Shri Mahendra Gosar is false. Shri Premji Maru: He ap .....

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e." It is further evident from the remand report, the assessee has no other documentary evidence to prove the aforesaid credits. As far as the contention of the learned Counsel for the assessee that Shri Jaideep Patel, has filled up the client registration application form with the assessee, it is to be noted that during the remand proceedings when this fact was confronted to Shri Jaideep Patel, he stated before the Assessing Officer that on request of Shri Mahindra Gosar, he signed the for .....

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the transaction. In fact, the concerned parties have denied of having paid any amount appearing as credit in their name in assessee's books of account. It will be pertinent to mention here, in the course of hearing when the learned Counsel for the assessee was asked by the Bench to explain the reason why the person concerned denied of having paid any money, he submitted that to avoid payment of outstanding liability due to the assessee, they have adopted such an approach. However, on further .....

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