TMI Blog2017 (2) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... he very outset, it would be pertinent to mention that this is the second round of litigation. In the first round of litigation, additions were made u/s. 68 of the Act in respect of deposits of ₹ 3.20 lacs and share application money /capital of ₹ 12.50 lacs totaling to ₹ 15.70 lacs. The litigation travelled up to the Tribunal and the Tribunal vide order dated 07.12.2012 in ITA No. 1517/Ahd/2009 restored the matter to the files of the A.O. The relevant findings of the Tribunal read as under:- We have examined the evidences but the share holder/depositor have not proved the creditworthiness and genuineness in all the cases. Further, the assessee did not furnish whatever confirmation on 13.09.2007 but furnished on 26.12.2007 whereas the assessment was completed on 31.12.2007. The case law cited by the assessee are not squarely applicable on assessee's case as there no time remained with A.O. to issue the summons to the loanee or share holders. Therefore, we set aside the order to verify the creditworthiness and genuineness of transaction of the above share holders/cash creditors. The appellant is directed to co-operate with A.O. and produce the share holder/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Confirmation letter of depositor Confirmation letter of depositor's father Form 7/12 and Form 8-A of land owned by father Agricultural bill of father Relevant part of statement of depositor: Q. 1 0 Statement of depositor PAN Card Bank of Saurashtra Pay in slip Pethaljibhai Jadavbhai Kalsariya Particulars Affidavit of depositor Confirmation letter of depositor B/S of depositor Ledger of appellant in depositor's books Statement of depositor Amounts paid through Mahuva Nagrik Sahkari Bank Source of income in statement of depositor: Q.I 7 Manjulaben manoharkumar Kalsariya Particulars Affidavit of depositor Confirmation letter of depositor Extract of Bank Pass Book Ledger of appellant in depositor's books Statement of depositor Amounts paid through State Bank of Saurashtra Source of income in statement of depositor: Q.I 4 Manojkumar Jadavbhai Kalsariya Particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Source of investment in statement of depositor: Q.12 13. A perusal of the aforementioned chart goes to prove that the assessee has discharged the initial burden. The Hon ble High Court of Gujarat in the case of Rohini Builders in 256 ITR 360 had the occasion to consider a similar issue and the relevant findings of the Hon ble High Court reads as under:- We have considered the rival submissions and have also gone through the order passed by the Assessing Officer, the relevant portion of which we have also extracted in para. 2 above. The Commissioner of Income-tax (Appeals)-more or less confirmed the addition on the reasoning given by the Assessing Officer in the assessment order. A perusal of the chart given by us in para 3 above indicates that out of 21 creditors the Assessing Officer has recorded the statements of only six creditors, viz., creditors at serial Nos. 1, 2, 3, 4, 6 and 7. However, in respect of all the 21 creditors the assessee has furnished their complete addresses along with GIR numbers/permanent account numb well as confirmations along with the copies of assessment orders passed cases of creditors at se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the principles laid down by the Supreme Court in the case of Orissa Corporation [1986] 159 ITR 78. In the said decision the Supreme Court has observed that when the assessee furnishes names and addresses of the alleged creditors and the GIR numbers, the burden shifts to the Department to establish the Revenue's case and in order to sustain the addition the Revenue has-to pursue the enquiry and to establish the lack of creditworthiness and mere non-compliance, of summons issued by the Assessing Officer under section 131, by the alleged creditors will not be sufficient to draw an adverse inference against the assessee. In the case of six creditors who appeared before the Assessing Officer and whose statements were recorded by the Assessing Officer, they have admitted having advanced loans to the assessee by account payee cheques and in case the Assessing Officer was not satisfied with the cash amount deposited by those creditors in their bank accounts, the proper course would have been to make assessments in the cases of those creditors by treating the cash deposits in their bank accounts as unexplained investments of those creditors under section 69. Further, we may po ..... X X X X Extracts X X X X X X X X Extracts X X X X
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