TMI Blog2017 (12) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... on the dates discussed above, we accordingly do not find any merit for the addition of ₹ 15,81,000/- made in respect of Pradeep Dharmesh Poddar. Similarly , in respect of loan of ₹ 4,00,000/- taken from Shah Dhirajlal Harilal HUF and ₹ 1,50,000/- from Shah Dhirajlal Harilal HUF, the assessee has discharged its primary onus, accordingly, no addition is warranted. AO is directed to delete the addition in respect of above loan creditors. In respect of loan taken from Lala Ji, we found that assessee has not discharged its primary onus of proving the identity and genuineness of loan transaction. Accordingly, we confirm the same. - Decided partly in favour of assessee. Disallowance of brokerage paid to Mr.Jayesh Bhanshli - Held that:- We found that the Ld. Assessing Officer merely relying upon the statement of Mr.Vijay Bhanushali, brother of Mr. Jayesh Bhanushali, in which he has stated that Mr. Jayesh Bhanushali has not rendered any services to M/s. Tirupati Construction had disallowed the same. However, Mr. Vijay Bhanushali does not have any rights or locus-standi to comment on the transactions of the assessee with the third parties and also, the same is not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.17,00,000 2. Vishal Jain HUF ₹ 22,00,000 3. Lala Ji ₹ 4,21,000 4. Pradeep Dharmesh Poddar Rs.15,81,000 5. Shah Dhirajlal Harilal ₹ 4,00,000 6. Shah Dhirajlal Harilal HUF ₹ 1,50,000 Total Rs.64,52,000 5. It was argued by learned AR that assessee firm was formed on 01.12.2006 and became operational in the year under reference. The capital was introduced by the partners in the year under reference and then the business has commenced, with the project of Balaji Complex being undertaken at Virar (East). The said project commenced in November 2007. During the year under consideration, the assessee had taken unsecured loans amounting to ₹ 16,86,64,834/- from various parties as project had just commenced in the year. Also, the assessee filed details including loan confirmations vide submissions dated 09.08.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confirmations filed before the AO dated 09/08/2010, 16/12/2010 and 09/08/2011. In respect of loan payment from Ghisubhai Jain and Vishal Jain, our attention was invited to the order of Hon ble Bombay High Court against a criminal petition filed by the aforesaid parties who were not available when hearing was concluded by the CIT(A). As per High Court decision, the appeals so filed are of civil nature and has specified that the findings of the Police Officer are not conclusive and all contentions are open. In view of the High Court decision it was contended by learned AR that identity of these parties who are basically investors / customers in the project undertaken by the assessee are established and also genuineness of their total investment of ₹ 39 lakhs in the project of the assessee firm was approved. 10. As per learned AR, assessee has discharged his burden of proving identity of the loan creditors and genuineness of the loan transaction by furnishing the complete details as Name, PAN No., Address, Bank Statement and also fact of repayment made subsequently of these parties. 11. Our attention was also invited to letter dated 28/12/2010 furnished to the AO duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence . 14. In view of the above discussion, it was contended that assessee has duly discharged its onus in respect of the alleged loans and therefore, the addition was requested to be deleted. 15. On the other hand, learned DR relied on the order of the lower authorities. 16. We have considered rival contentions and carefully gone through the orders of the authorities below. We had also deliberated on the judicial pronouncements referred by lower authorities in their respective orders as well as cited by learned AR and DR during the course of hearing before us in the context of factual matrix of the case. 17. From the record, we found that in respect of loan payment from Ghisubhai Jain and Vishal Jain HUF, the assessee has filed confirmation letter dated 09/08/2011. The full particulars was given. Out of the loan of ₹ 17,00,000/- taken from Ghisubhai Jain, assessee has repaid loan of ₹ 5,00,000/- on 14/10/2009, ₹ 5,00,000/- on 02/11/2009 and ₹ 7,00,000/- on 21/11/2009. Loan of ₹ 10,00,000/- was repaid to Vishal Jain HUF. First ₹ 5, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sulal Jain Vishal Jain (HUF) to the assessee. The documents also reveal repayment of ₹ 27 lacs and the intention of the assessee to repay ₹ 12 lacs. The officer noticed no criminal intent. Accordingly, No FIR was registered. 21. In view of the above documents, the Hon ble High Court held that appeal is of civil nature. The Court has specified that findings of Police Officer are not conclusive and all the contentions are open, the petition was accordingly disposed of by the Hon ble High Court. 22. In view of the above discussion, we observe that identity of these parties who were basically investors / customers of the project undertaken by the assessee are clearly proved and also genuineness of the total investment of ₹ 39 lakhs in the project of the assessee firm was proved. Under these circumstances, considering the totality of facts and circumstances of the case, we do not find any merit in the addition of ₹ 39,00,000/- so made with respect to the amount taken from Ghisubhai Jain and Vishal Jain HUF. 23. In respect of loan payment from Pradeep Dharmesh Poddar, the assessee has filed confirmation dated 16/12/2010 and 09/08/2011. The full particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income. d. Audited accounts along with the Audit report under the Companies Act, 1956. e. Tax Audit report along with details in Form No.3CD 30. We found that during the year under reference, the assessee had sold flat nos. 504, 202, 203, 204, 301 in Block No. 13-C with the help of the services of broker Mr. Jayesh Bhanushali. Accordingly, the brokerage of ₹ 1,26,000/- was paid, and TDS of ₹ 12,978/- was also deducted by the assessee on the payment of the brokerage amount reflects on the 26AS too. Complete details of the brokerage paid and deducted thereon along with the genuine brokerage bill were already submitted before the Ld. Assessing Officer. 31. We found that the Ld. Assessing Officer merely relying upon the statement of Mr.Vijay Bhanushali, brother of Mr. Jayesh Bhanushali, in which he has stated that Mr. Jayesh Bhanushali has not rendered any services to M/s. Tirupati Construction had disallowed the same. However, Mr. Vijay Bhanushali does not have any rights or locus-standi to comment on the transactions of the assessee with the third parties and also, the same is not reliable. The statement of Mr. Vijay Bhanushali can be relied upon o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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