TMI Blog2016 (5) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... under consideration, all the loans are of earlier years, as stated earlier. In the cases of Manju Bafna, Praveen Bafna, Shailesh Bafna additions were made in earlier year . Therefore, in our opinion no addition can be made for the year under appeal, as it would result in double addition of the same amount. As far as the provisions of section 28 (iv) of the act is concerned we are of the opinion that the FAA had wrongly applied the section. The provisions of the section can be invoked if the benefit or perquisite is not in form of cash. It cannot be said that the loan received by the assessee could be termed as benefit/perquisite. No justification in invoking the provisions of section 68 - Decided in favour of assessee - I. T. A. 6086/Mum/2010 - - - Dated:- 6-5-2016 - Sh. Rajendra, Accountant Member And Amit Shukla, Judicial Member For the Petitioner : Shri B. S. Bist-Sr. A. R. For the Respondent : Shri J. D. Mistry ORDER Per Rajendra, AM Challenging the order, dtd. 24/05/2010 of the CIT (A)-23, Mumbai the assessee has filed the present appeal. Assessee-firm, engaged in the business of building construction, filed its return of income on 01/12/2003, declari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the information called for by the AO, that he had made addition in respect of 14 parties out of which the AO had communicated names of only the 8 parties in respect of whom no summons could be served, that assessee had made adequate attempts to discharge it liability to prove the genuineness of the loans. It was further argued that in the case of Anand Mangal Fintrade Ltd. (AMFL)an amount of ₹ 2 lakhs has already been deleted in the appellate proceedings of the A. Y. 1989-90, that the Tribunal, vide its order date 29. 06. 2001, had deleted the addition, that AO was not justified in disallowing the amount in question, that the amount of loans of three parties namely Pravin Bafna, Shailendra Bafna and Manju J. Bafna(Rs. 3 lakhs, ₹ 6 lakhs and ₹ 3 lakhs respectively) were disallowed in the A. Y. 2001- 02 by the AO, that the FAA upheld the disallowance vide its order dated 07. 03. 2006, that the disallowance of the above amount would lead to double disallowance. The assessee, vide its letter dated 07. 11. 2008, forwarded confirmation letter in respect of 5 parties namely Pravin Bafna(Rs. 3 lakhs), Raj Enterprise(Rs. 3 lakhs)Sanwanchand Uday Chand Bafna(Rs. 2 lakhs), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unities were provided by the AO. The FAA referred to the case of Sumati Dayal (214 ITR 801), Nanakchand Laximdas (104 ITR 151) and held that the assessee had failed to prove the genuineness of the transaction and the creditworthiness of the lender, that the AO had made a detailed effort. Finally, he held that the assessee had failed to prove the genuineness of the loan from Arvind Enterprises(Rs. 25, 000/-)Jasbir Sing Manektala (Rs. 9, 63, 600/-), Neeta Enterprises(Rs. 2lakhs), Prime Constructions (Rs. 1, 25, 000/-), Vinod Mehra (Rs. 8. 50lakhs), Bhagyalakshmi Trading Corporation(Rs. 2 lakhs), Mastana Investment and Trading Co. Pvt. Ltd. (Rs. 2lakhs)and Gunvant Steel(Rs. 6. 10 lakhs). He concluded that cash credit in the name of above nine parties amounting to ₹ 33, 76, 000/- remained unexplained. With regard to amount of ₹ 2, 00, 000/- showed as unsecured loan AMFL, the FAA observed that Tribunal had restored back the matter to the file of the AO, that the Tribunal had not deleted the addition outright, that during the year under consideration the amount remained outstanding, that the assessee had not furnished any evidence before the AO or him to support the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Corporation, Mastana Investment and Trading Co. Pvt. Ltd. and Gunvant Steel. In other five cases of Pravin Bafna, Raj Enterprises, SUB, Shaiesh Bafna and Manju J. Bafna, the FAA invoked the provisions of section 28(iv)of the Act, that in the last case i. e. in case of AMFL an addition of ₹ 2. 00 lakhs was made by the AO while passing the order of AY 1989-90, that the Tribunal had deleted the disallowance vide its order date 29. 6. 2001. We further find that in the list of unsecured loans of the balance sheet of 31. 3. 2003 of the assessee (Pg No. 178-179 of the PB), the names of Arvind Enterprises, Bhagyalaxmi Trading Corpn. , Gunvant Steel, Jasbir Singh Manektala, Manju J. Bafna, Mastana Investment Trading Co. , Nita Enterprises, Praveen P. Bafna, Prime Construction, SUB, Shailesh P. Bafna and Vinod Mehra are appearing. Pg. No. 132-134 of the PB are the confirmation letters of Mastana Investment and Trading Co. Ltd. for the AY. s1988-89 to 1990-91. The assessee had given its GIR No. of the lender also. It is found that in the order giving effect to the ITAT s order (ITA/4319/Bom/93 and 2872/Mum/97 dated 29. 6. 2001)a relief of ₹ 13. 13 lakhs for the AY. 89-90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the loan of ₹ 3. 00 lakhs of Jasbir Singh Manektala. He had also issued a confirmation letter for the AY. 2000-01 and had confirmed the loan transaction (page No. 35). Confirmation letter of Nita Enterprise Arvind Enterprise issued for the AY. 1993-94 are available in the paper book. From the above discussion, it is clear that the assessee had not received any fresh loan during the year under consideration, that all the loans were appearing on the first date of the assessment year are older loans. In the earlier years, the assessee had filed confirmation letters or other documentary evidences to show the genuineness of the transaction. In those years, the AO. s had dealt the loans independently. Either they had not made any addition u/s. 68 of the Act by holding that the loan transactions were fictitious or they have made additions in that particular year. In our opinion, the AO can invoke the provisions of section 68 of the Act for the loans taken during a particular assessment year. But, if a loan is received in earlier years and accepted by him in those year/(s) or not doubted in those year/(s), then in the subsequent years, he cannot add said amount, while computing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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