TMI Blog2010 (5) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... hat assessee has raised a fresh unsecured` loan of ₹ 2,00,000/- from one Shri Dinesh Goel. In order to examine the veracity of the loan, the Assessing Officer examined the issue and observed as under:- 3 In order to examine the genuineness of the loan creditworthiness of the creditor, the assessee was required to produce the creditor for examination on oath. On 02.08.2007, the creditor Shri Dinesh Goyal, was produced and his statement was recorded on oath. In his statement, Shri Dinesh Goyal deposed that he has no independent source of income. However, he admitted having advanced a sum of ₹ 2,00,000/- to the assessee during the year. On being required to explain the source of advancing such loan, the creditor deposed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rusal of the bank account of the creditor gives the following interesting glimpse: Balance as on 7.6.2004 after making gift of ₹ 2,00,000/-: ₹ 260 Balance 1.7.2007 after deduction of penalty of ₹ 5/- for not maintaining minimum balance required: ₹ 255/- Balance 02.08.2007 after deduction of penalty of ₹ 5/- for not maintaining minimum balance required: ₹ 250/- Interest credited on 10.8.2004: ₹ 2/- Balance 02.09.2007 after deduction of penalty of ₹ 5/- For not maintaining minimum balance required: ₹ 247/- .. and so on. In the background of above findings, the Assessing Officer held that loan in question is nothing but unaccounted money of the assessee bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. Against the CIT(A) s order, the assessee is in appeal before us. 4. Ld. Counsel for the assessee submitted that assessee had proved the identity, creditworthiness and genuineness of the loan. Assessee had received the loan through banking channels. Assessee had duly produced the creditor who had confirmed that he had given the gift. Gift had been received through banking channels. The ld. Counsel in this regard also placed reliance on the decision of Hon'ble Supreme Court in the case of CIT v. Daulat Ram Rawatmull, 87 ITR 349 (SC). He claimed that assessee is being asked to substantiate the source of source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not at all been established. The circumstances clearly warrants a conclusion that it is assessee s own money in the garb of loan. 7. In the case of Daulat Ram Rawatmull, supra, relied upon by the ld. Counsel for the assessee, the Hon'ble Supreme Court held as under:- The respondent-firm had opened an overdraft account with a limit of ₹ 10 lakhs against the collateral security of two fixed deposit receipts of ₹ 5 lakhs each, one of which was in the name of B, son of a partner of the firm, and the other in the name of A, son of another partner. The fixed deposit receipt in the name of B had been issued on November, 21, 1944, by the Jamnagar branch of a bank against the sum of ₹ 5 lakhs tendered on November, 15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not whether the amount of ₹ 5 laksh belonged to B, but whether it belonged to the respondent-firm. The fact that B had not been able to give a satisfactory explanation regarding the source of ₹ 5 lakhs would not be decisive even of the matter as to whether B was or was not the owner of that amount. A person could still be held to be owner of a sum of money even though the explanation furnished by him regarding the source of that money was found to be not correct. From the simple fact that the explanation regarding the source of money furnished by X, in whose name the money was lying in deposit, had been found to be false, it would be remote and far-fetched conclusion to hold that the money belonged to Y. There would be in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re and source of the sums found credited in the books is not satisfactory there is, prima facie, evidence against the assessee, viz., the receipt of money. The burden is on the assessee to rebut the same, and, if he fails to rebut it, it can be held against the assessee that it was a receipt of an income nature. The burden is on the assessee to take the plea that, even if the explanation is not acceptable, the material and attending circumstances available on record do not justify the sum found credited in the books being treated as a receipt of income nature. We find that the decision of the Hon'ble Supreme Court in the case of Daulat Ram Rawatmull, supra, relied upon by the ld. Counsel of the assessee, was on different fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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