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TMI Blog2019 (1) TMI 1847X X X X Extracts X X X X X X X X Extracts X X X X ..... para-6.10 (page-44) of the impugned order. On the other hand, the ld. counsel for the assessee, Shri Vishnu Agarwal along with Shri Ankush Agarwal, contended that original assessment was framed by the Ld. Assessing Officer under section 143(3) of the Act on 06/11/2009, wherein, on due enquiry by the ld. Assessing Officer, the claim of the assessee was accepted. Our attention was further invited to pages 127, 129 and 131 of the paper book. It was pleaded that the addition was made by the ld. Assessing Officer merely on the basis of statement recorded on 01/10/2013, which was retracted by him. It was explained that the addition of Rs. 15 lakhs was made on the basis of statement obtained from Shri Pawan Kumar Jain and there is no mention of remaining addition. It was pleaded that out of the three parties, two parties duly responded to the notices issued to them and the third party also filed the application with respect to change of address on 27/10/2009. The order of the Ld. Commissioner of Income Tax (Appeal) strongly defended. So far as the cases relied upon by the Ld. DR is concerned, it was contended that these decisions are on different facts as there was no reply to the notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of section 68, there should be credit entry in the books of account whereas in the case of 69 there may not be an entry in such books of account. The law is well settled, the onus of proving the source of a sum, found to be received/transacted by the assessee, is on him and where it is not satisfactorily explained, it is open to the Revenue to hold that it is income of the assessee and no further burden lies on the Revenue to show that income is from any other particular source. Where the assessee failed to prove satisfactorily the source and nature of such credit, the Revenue is free to make the addition. The principle laid down in Ganpati Mudaliar (1964) 53 ITR 623/A. Govinda Rajulu Mudaliar (34 ITR 807)(SC) and also CIT vs Durga Prasad More (72 ITR 807)(SC) are the landmark decisions. The ratio laid down therein are that if the explanation of the assessee is unsatisfactory, the amount can be treated as income of the assessee. The ratio laid down in Daulat Ram Rawatmal 87 ITR 349 (SC) further supports the case of the assessee. In the case of a cash entry, it is necessary for the assessee to prove not only the identity of the creditor but also the capacity of the creditor and g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the issuance of notices under section 133(6) of the Act and called information from three parties. Out of this three parties, two parties, vide letter dated 24/03/2015, furnished the requisite documents/information and one party M/s Alka Securities Pvt. Ltd. filed application with respect to change of address. It is noted that during original assessment necessary details and documents were filed by the assessee with respect to receipt of share capital from eighteen parties. Even in the original assessment order framed under section 143(3) of the Act (pages 1 & 2 of the paper book), the ld. Assessing Officer himself has observed/mentioned as under:- "................subsequently the case was selected for scrutiny and notice under section 143(2) of the Act was issued on 26/09/2008 and duly served on the assessee. Later on, notice under section 142(1) of the I.T. Act, 1961 and subsequent reminders along with questionnaire calling for various details was issued. 2. In response to the above notices, Shri Dinesh Kumar Pachauri, Chartered Accountant, assessee's authorized representative appeared on behalf of the assessee and filed details and explanation of records. The case was d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order, there is no allegation of cash transaction by the Investing company and the Ld. Commissioner of Income Tax (Appeal) found that the assessee also discharged the primary onus cast upon it by offering complete explanation of the transaction of the share application money and proved the identity, genuineness and creditworthiness of investing companies, which are the essential conditions provided under section 68 of the Act. It is also noted that the ld. Assessing Officer made independent enquiry by issuing notices under section 133(6) of the Act to the share applicant and they have complied with the same by submitting necessary details, meaning thereby, the assessee also explained the source of funds. Thus, we are in agreement with the conclusion drawn by the Ld. Commissioner of Income Tax (Appeal) and find no infirmity in the same. So far as, the cases relied upon by ld. DR is concerned, the one case relied upon is from Ahmedabad Bench of the Tribunal in Pavan Kumar M. Sanghavi (2017) 81 taxmann.com 308 (Ahd. Trib.), wherein, the assessee received unsecured loans but could not produce the lenders for verification and further these lenders were found to be shell companies, thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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