TMI Blog2016 (5) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is required to discharge the initial burden of proof placed on his shoulders. In the instant case, we are of the view that the assessee has discharged the initial onus placed upon it. Hence the burden of proof gets shifted to the assessing officer. Tax authorities have not discharged the burden of proof shifted upon their shoulders by bringing any material on record to disprove the claim of the assessee - Decided against revenue - I.T.A. No. 2034/Mum/2014, I.T.A. No. 2491/Mum/2014 - - - Dated:- 9-5-2016 - S/Shri B.R. Baskaran (AM) Pawan Singh (JM) Assessee by Shri Prakash K. Jotwani Department by Shri Vachaspati Tripathi CORRIGENDUM The above said appeal was disposed of by us on 09.05.2016. Later it came to our notice that we have not disposed of the issues urged in the revised grounds of appeal filed by the revenue, which is filed along with the prayer to admit certain additional evidence, even though lengthy argument took place on the above said matter during the course of hearing. Hence we issue this corrigendum to dispose of the matters relating to the above said items. Accordingly, after paragraph 11 of the order, following paragraphs shall be ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure has been designed to adjudicate the matters that were originally framed in the assessment order. Hence, in our considered view, it may not be correct an altogether new material at this stage. Further, the Ld A.R has submitted that Shri Jagdish Prasad Purohit has not implicated the assessee in the statement and he has retracted from the statement by filing an affidavit. He has also furnished a copy of retraction statement. These limited facts show that the statement given by Shri Jagdish Prasad Purohit and its reliability are debatable. Since the additional evidence sought to be relied upon by the revenue is a debatable one; since the same was not considered or relied upon by the AO and since alternative course of action is available to the revenue under the Act to deal with the same, in our view, it should not be admitted at this stage. Accordingly we are of the view that the grounds urged by placing reliance on the same are also liable to be dismissed. Accordingly we decline to admit the additional evidence filed by the revenue and the revised grounds urged by the revenue in connection there with are also dismissed. Ordered accordingly on 10-05-2016. S/Shri B.R. Baska ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. 3. Before the Ld CIT(A), the assessee furnished confirmation letters obtained from these creditors along with the copies of letters addressed by these parties to ADIT (Inv) confirming their existence in the address given by them. Further the assessee also furnished various documents to prove the identity and credit worthiness of the parties and also the genuineness of the transactions. Hence the Ld CIT(A) called for a remand report from the assessing officer. The Ld CIT(A) also requested the Investigation wing of Kolkatta to conduct certain enquiries. The DDIT (Inv) reported that these companies were represented by an authorised representative named Shri S.K. Purohit. He further reported that these companies have received funds from other group companies and it has been used to give unsecured loans to the assessee company. All the companies have common address, common chambers and common directors. The sources were reported to be the sale proceeds of shares of certain Private Limited Companies, which in turn were related to the same group. All the other companies were also represented by Shri S.K. Purohit only. In view of these facts, the DDIT expressed the view that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablish the credit worthiness of these companies (Para x in page 24). He further held that the identity of these companies cannot be disputed (Para xii in page 25). Even though the assessee contended that the genuineness of the transactions cannot be disputed, since they have been routed through banking channels (para xiii in page 25), yet the Ld CIT(A) expressed doubt about the same for the reasons discussed infra. 7. Having observed so, the Ld CIT(A) went on further to analyse each creditors separately. He noticed that the assessee has repaid the loans taken from M/s ACPL on various dates in March 2012 together with a lump sum compensation of ₹ 1.00 crore. Hence the Ld CIT(A) took the view that the loan transactions of M/s ACPL stands substantiated and accordingly directed the AO to delete the addition of loan amount of ₹ 9.85 crores taken from M/s ACPL. The revenue is aggrieved by this decision of Ld CIT(A). 8. In respect of loan taken from M/s NVPL, the Ld CIT(A) noticed that it was a NBFC and the assessee has repaid the loan amount to M/s NVPL without interest. Since it was a NBFC, the Ld CIT(A) took the view that it was beyond ordinary commercial prudence tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and credit worthiness of the creditors. There is no dispute with regard to the fact that the funds have been routed through banking channels. Hence the Ld CIT(A) himself has observed that the identity of the creditors and credit worthiness of the creditors have been established by the assessee. 14. The Ld CIT(A) has accepted the genuineness of the transactions in respect of loan obtained from M/s ACPL. However with regard to the other two loans, the Ld CIT(A) has gone a step further and expressed doubt as to how these companies, being NBFC, could have given loan interest free, as the same is not in accordance with their objectives. 15. We have earlier noticed that the provisions of sec. 68 places initial burden of proof upon the assessee. In the instant cases, there is no dispute between the parties that the identity of the loan creditors has been established. Even though the assessing officer has expressed doubt about the credit worthiness of the creditors on the basis of low income reported by them, yet the Ld CIT(A) has rightly appreciated the fact that these companies have used their own capital funds for advancing loan to the assessee company. The quantum of own funds ..... X X X X Extracts X X X X X X X X Extracts X X X X
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