TMI Blog2004 (7) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... ted against the order of CIT(A)-I, Meerut dated 25th July, 2000 for assessment year 1992-93 on the following grounds : 1. The Ld. CIT(A) has erred in law and on facts in deleting the addition of ₹ 4,88,000 [Rs. 3,70,000 + 1,18,000] on account of unexplained loans ignoring the fact that the assessee during the assessment proceedings could not explain loans satisfactorily. Dr. P.N. Singhal who was produced before the Assessing Officer was unable to explain that M/s. Nath Resources Co. and M/s. Om Lessors and Financiers were genuine concerns. The Assessing Officer was, therefore, justified in making above addition on the facts and circumstances of the case. 2. The Ld. CIT(A) has erred in law and on facts in deleting the addition of ₹ 1,30,000 on account of unexplained loan from Smt. Maya Rani ignoring the fact that the assessee could not explain this loan during the assessment proceedings. The Assessing Officer was, therefore, justified in making above addition on the facts and circumstances of the case. 5. Briefly, the facts are that earlier original assessment was completed under section 143(3) on 15th December, 1993 which was challenged before the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to the file of Assessing Officer for consideration of whole of the issue. It was also submitted that the copy of the bank account of M/s. Nath Resources Company bearing Account No. 1436 and Bank Account of M/s. Om Lessors and Financiers bearing No. 1256 was also filed which clearly shows that both the creditors were having sufficient funds in their bank account through whom cheques were issued to the assessee for loan. 7. As far as Smt. Maya Rani Gupta's case is concerned, the loans were made through an order and ₹ 10,000 was given in cash which was from past savings. It was also explained that the Assessing Officer recorded statement of Shri P.L. Singhal under section 131 of the Income-tax Act in which the identity of the creditor, creditworthiness and genuineness of the transaction was proved. It was also submitted that affidavit of Sh. P.L. Singhal and Smt. Maya Rani Gupta was also filed before the CIT(A) in earlier proceedings which was referred to the Assessing Officer for verification in the set aside proceedings. But the Assessing Officer did not examine Smt. Maya Rani Gupta. Therefore, her affidavit remained unrebutted and as such Assessing Officer was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also argued that TDS was deducted on the interest payment and all the relevant copies of the accounts were filed before the authorities below along with the affidavit of the creditors and all the creditors were assessed to income-tax in Meerut. Therefore, CIT(A) rightly deleted the addition. 11. We have considered rival submission and material available on record. The earlier order of the CIT(A) dated 25-11-1999 by which the additions on the issues were restored to the Assessing Officer shows that the assessee filed affidavit of the creditors, confirmatory letters and copies of the bank account of two of the creditor firms along with other material before the CIT(A) for admission of the additional evidence along with application under Rule 46A of the Income-tax Rules. The CIT(A) gave an opportunity to the Assessing Officer to examine the evidence and file his comments. But Assessing Officer did not rebut the evidence of the assessee and as such, the additions on the issues were deleted and matter was restored to the file of Assessing Officer to redo the assessment considering the evidence of the assessee. The CIT(A) also gave liberty to the Assessing Officer to examine Sh. P.N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, Assessing Officer was not justified in rejecting the statement of Shri P.N. Singhal as he could not answer certain questions of the Assessing Officer to his satisfaction. It is a settled law that the documentary evidence has to be given preference over the oral evidence. Since on the basis of documentary evidence assessee has been able to discharge his preliminary onus, therefore, it was the duty of the Assessing Officer to bring some material on record to reject the case of the assessee but the Assessing Officer could not do anything except by criticizing some part of the statement of Shri P.N. Singhal. Hon'ble Calcutta High Court in 187 ITR 596 held that if the explanation of the assessee is probable, the onus will shift to the Revenue. Hon'ble Supreme Court in 230 ITR 580 held that the explanation of the assessee cannot be rejected on surmises. 13. In the above case, the assessee has been able to prove that the transaction as genuine and both the creditor firms were having sufficient source to advance the loan as well as assessee has proved identity of the creditors. Therefore, assessee has shifted his initial onus and the Assessing Officer was therefore no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The CIT(A) allowed the appeal of the assessee cancelling the penalty under section 271(1)(c) of the Income-tax Act on the basis of his appellate order of quantum on the deletion of the additions for cash credits. We have dismissed the departmental appeal in ITA 4113/Del./2000 above. Accordingly, the appeal of the Revenue is dismissed. 18. ITA 4116/Del./2000: This appeal by Revenue is directed against the order of CIT(A) I, Meerut dated 25th July, 2000 for assessment year 1993-94 on the following ground: The CIT(A) has erred in law and on facts in deleting the addition of ₹ 60,000 on account of unexplained loan from M/s. Nath Resources Co. by relying on his order dated 25-7-2000 in assessee's case for assessment year 1992-93 ignoring the fact that the order relied upon by him has not been accepted by the department. 19. The CIT(A) deleted the addition on the basis of his appellate order on identical facts in assessment year 1992-93. The Revenue preferred appeal against that order in ITA 4113/Del./2000 which we have discussed separately above. In this view of the matter, the departmental appeal fails and is dismissed. 20. ITA 4115/Del./2000: [Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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