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TMI Blog2019 (1) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case, the addition can be made u/s 68 despite 'request before the AO' for getting the statement of the creditor & none action by the AO, can be construed as the denial of the assessee's right of opportunity in-built u/s 68 of the Act available to it? III.Whether under the facts & circumstances of the case, the addition can be made even 'identity', 'creditworthiness' and 'genuineness of the transaction' has been substantiated and the 'onus' stands discharged by the assessee u/s 68 of the Act and the same shifted on the revenue? 3. The brief facts necessary for adjudication of the present appeal are that the assessee filed return declaring an income of `8,03,170/-. The case was selected for scrutiny. The Assessing Officer (AO), inter-alia, made additions of `30,91,580/- vide order dated 30.12.2014. Aggrieved of the assessment order, the assesee filed an appeal before the Commissioner of Income Tax (Appeals) [for short 'CIT(A)']. The CIT(A) partly allowed the appeal vide order dated 14.10.2016. The additions made amounting to `10,70,000/- and `4,00,000/- were upheld. Further appeal was filed before the Tribunal. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar. 9. The assessee had raised unsecured loan of `4,00,000/- from his wife. In order to prove the genuineness and creditworthiness, the assessee produced details of bank account and copy of return. From the bank account, it was evident that cash deposit of `4,00,000/- was made in the account of wife on 09.12.2012 and on the same very day the cheque was issued to the assessee. The assessee was asked to produce Urmila Devi (his wife) for recording the statement but it was replied that she is out of station and cannot be produced for recording the statement. 10. The CIT(A) while partly allowing the appeal of the assesee upheld only two additions of `10,70,000/- and `4,00,000/-. The CIT(A) noted that creditworthiness and genuiness of Ishwar Singh making payment of `10,70,000/- to the assessee for purchase of ancestral property was not proved. He had no Permanent Account Number (PAN). He had not filed Income Tax Return. Neither the agreement to sell nor sale deed was produced and even the property allegedly sold by the assessee had not been reflected in his books of account. The unsecured loan of `4,00,000/- taken from the wife of the assessee was not accepted as the bank statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO, it is found that the fact remains that cash was deposited on the same date on which cheque was issued to the appellant on 09.12.2012. In such circumstances, the onus is on the appellant to prove the genuineness of the transaction and the creditworthiness of the creditor. AO has recorded that opportunity to prove the creditworthiness of the creditor was granted to the appellant. However, the appellant failed to avail of such opportunity. The appellant has not produced any additional evidence to prove the genuineness of creditworthiness of the creditor during appeal proceedings as well. In the light of the fact, that cash was deposited in the account of the creditor on the same date on which cheque was issued and also the fact that income declared by the creditor is only Rs. 64,007/-, it is held that the creditworthiness of the creditor is not established. The action of the AO in adding Rs. 4,00,000/- received from Smt. Urmila Devi as unexplained cash credit u/s. 68 is therefore, confirmed. This ground of appeal is dismissed." 11. The Tribunal also upheld both the additions. The Tribunal held that the creditworthiness of Ishwar Singh was not proved and the assessee failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to prove the genuineness of the transaction and the creditworthiness of the creditor. AO has recorded that opportunity to prove the creditworthiness of the creditor was granted to the assessee. However, the assessee failed to avail of such opportunity. The assessee has not produced any additional evidence to prove the genuineness or creditworthiness of the creditor during appeal proceedings as well. In the light of the fact, that cash was deposited in the account of the creditor on the same date on which cheque was issued an also the fact that income declared by the creditor is only Rs. 64,007/-, it was held that the creditworthiness of the creditor is not established. The action of the AO in adding Rs. 4,00,000/- received from Smt. Urmila Devi as unexplained cash credit u/s 68 was rightly confirmed by the Ld. CIT(A), which does not need any interference on my part, hence, I uphold the order of the Ld. CIT(A) on the issue in dispute and dismiss the issue in dispute raised by the assessee." XX XX XX 12. The contention of the learned counsel for the assessee that identity of and capacity to pay of Ishwar Singh and Urmila Devi was duly proved deserves rejection in view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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