TMI Blog2015 (7) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... during the second round of proceeding cannot be held as sustainable and in accordance with letters and sprit of Section 68 of the Act specially when the assessee has shown by substantial evidence that the loans have been returned to the respective creditors then the addition u/s 68 of the Act cannot be held as correct and justified. Accordingly sole ground of the assessee is allowed. - ITA No. 2021/Del/2013 - - - Dated:- 24-7-2015 - J. S. Reddy (Accountant Member) And Chandra Mohan Garg (Judicial Member) For the Assessee : K. R. Manjani, Advocate For the Respondent : Vikram Sahay, Sr. D.R. ORDER Chandra Mohan Garg (Judicial Member) 1. This appeal by the assessee has been directed against the order of the CIT(A)-IV, New Delhi dated 26.02.2013 in Appeal No. 137/12-13 for AY 2002- 03. 2. The sole ground raised by the assessee in this appeal reads as under:- Learned CIT(A) has erred on facts as well as in sustaining addition of ₹ 700,000/- in respect of two loans. Inspite of the fact that loans are through banking channel, from existing assessee, returned through bank, creditors are not related and their identity is not in doubt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the same. 6. Ld. counsel for the assessee pointed out that the confirmations and all relevant bank statements and copies before the AO, but the AO insisted to present creditors in person which was not possible as Shri Om Prakash Gupta died before assessment proceeding and Smt. Radha Goyal, was old cancer lady died in October, 2011. Ld. counsel submitted that summons issued by the AO during the reassessment proceeding could not be complied because both the creditors were died and the AO was properly informed about their legal heirs who could be summoned for the purpose. The Ld. counsel further pointed out that the summon issued to the legal heirs were not complied which is not fault of the assessee. Ld counsel also pointed out that in the confirmation PAN number and addresses of both the creditors were submitted and the AO could have verified the amount of loan from their respective creditor record about verification. The Assessing Officer proceeded to make addition in the similar line which was done during the original assessment proceeding. 7. Ld counsel of the assessee has placed reliance on the various decisions of the Hon ble jurisdictional High court of Delhi in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The AO also asked the appellant to produce the depositors which was not done. The AO issued summons to the creditors on 25.3.2011 and to their legal heir on 14.12.2011 which remained uncomplied. The AO confronted this fact to the assessee on 22.12.2011 that the summons issued by him have not been complied to which the appellant stated that they have no power to enforce their attendance. This submission of the appellant is not acceptable as the depositors were appellant's witnesses and not of the AO. Section 68 casts an obligation on the assessee who claims to have received cash credits to discharge the identity of the creditor, creditworthiness of the creditors and genuineness of the transaction. These 3 requirements are cumulative and if any of these conditions is not fulfilled, the amount can be added u/s 68. In the case under consideration, the appellant has failed to discharge its onus of establishing the identity of the creditor, creditworthiness of the creditor and genuineness of the transaction, inspite of repeated opportunities given by the AO. The submission that the undersigned may issue summons is devoid of any merit as the AO has already issued/ summons to the depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of loans through banking channels, which were placed by the assessee before the authorities below during the second round of proceeding which were held in pursuance to the direction of the Tribunal in the order dated 03.11.2010 (Supra). 11. From papers and documents submitted by the assessee specially copy of statement of accounts of the ICICI Bank available at pages 6 7 we clearly observe that the assessee receipt loans of ₹ 3,50,000/- from Smt. Radha Goyal on 15.10.2001 and from Shri Om Prkash Gupta HUF on 15.01.2002 during FY 2001-02. From copies of the Bank statement of the assessee in the Bank of Rajasthan Ltd. Kamla Nagar, Delhi Branch available at page 8 of the assessee paper book we note that the loan of Smt. Radha Goyal was returned through cheque no.403425, which was debited to the bank account of the assessee on 04.11.2004 and in similar manner, the assessee also returned loan from Shri Om Prakash Gupta through cheque no. 403427, which was debited to the assessee s bank account on 23.11.2004. From the affidavit of the assessee sworn on 17.12.2009 available at pages 9 and 10 of the assessee s paper book we observe that the assessee also submitted details a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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