TMI Blog2012 (5) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... 68 of the Income Tax Act, 1961 on account of unexplained credit. 2. The appellant craves leave to add, alter or amend any of the grounds of appeal before or during the course of hearing of the appeal . 2. The brief facts of the case are that for assessment year 1996-97, the assessee declared long term capital gain on sale of property as well shares and same was claimed exempted u/s 54F of the Act. The case of the assessee was reopened on the basis of a report from DDIT (inv.) wherein it was alleged that the claim of the assessee with respect to gain on sale of share is bogus. The Assessing Officer after issuing notices u/s 147/148 of the Act proceeded to add an amount of ₹ 8,97,950/- which was claimed as long term capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,35,00,000/- had also escaped assessment. ii) The assessee may produce or furnish any such evidence or material on which she may rely in support of her case. 5. Before Ld CIT(A), the Ld AR took pleadings against the impugned addition based upon legal as well as facts based upon the merits of the case. The following pleadings were made before Ld CIT(A):- a) Legal Objections: That impugned addition has been made by Ld Assessing Officer by throwing the burden to prove the credit appearing in the books of accounts of the assessee instead of leading positive evidence to prove that this sum represented the applicant s income from undisclosed sources. The Ld AR had relied upon the case of CIT v. Pradeep Gupta reported in 303 ITR 95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession to believe that the income with respect of these loans has escaped assessment. The Authorized Representative of the appellant during the proceedings before the undersigned has not raised this issue apparently because of amendment in the Statute of Finance (no.2) Act, 2009 with retrospective effect from 1.4.1989, by which an Explanation-3 has been added to section 147, which reads as under:- Explanation 3 For the purpose of assessment or reassessment under this section, the Assessing Officer may assess or re-assess the income in respect of any issue which has escaped assessment and such issue comes to his notice subsequently in the course of the proceedings under this section, notwithstanding that the reasons for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence was brought on record by the verification proceedings to be conducted by the Assessing Officer. It was premature on the part of the Assessing Officer to conclude that the transaction of loan was not genuine merely because assessee failed to produce the lenders for cross verification. After considering the facts of the case as detailed above and the judgment of Hon'ble Delhi High Court in the case of CIT v. Pradeep Kumar, it becomes abundantly clear that onus cast upon the appellant stands discharged as the Assessing Officer did not bring on record any adverse evidence to prove that the transaction of loan taken from entities of M/s Kuber Group was in fact, income of the assessee. Further the assessee has submitted the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een made the basis to treat the transaction of loans raised from M/s Kuber Group as suspicious and non genuine. I don s agree with this illogical conclusion from the given facts as the assessee has sufficiently discharged the onus cast upon her even during the normal assessment proceedings u/s 68 to prove the identity, creditworthiness and the genuineness of the lender. Therefore, there is no reason to apply the provisions of section 68 and treat the amounts received from the Kuber Group of entities as income of the assessee, as such, the addition made by the Assessing Officer to the tune of ₹ 1.35 crore is deleted. 7. Aggrieved, the Department filed appeal before the Tribunal. 8. We have heard the rival parties and has gone th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is to further prove the source from which creditors could have acquired money to be deposited with him. The fact that depositor s explanation about the source where from they acquired the money is not acceptable to the Assessing Officer, it cannot be presumed that the deposit made by such creditor is the money of the assessee himself. There is no warrant for such presumption. In such event, if the creditor s explanation is found to be not acceptable about such deposit, the investment owned by such person may be subjected to the proceedings for inclusion of such investment as their income from undisclosed sources and if they have been found benami the real owner can be brought to tax net./ But in order to fasten liability on the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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