TMI Blog2021 (3) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... d the details to show that all the loan amounts have been utilised towards objects of the assessee society. Also loans have been later on returned to the parties. Initial onus upon the assessee to prove identity of the creditors, their creditworthiness and genuineness of the transaction have been discharged by the assessee. The decisions relied upon by the Learned Counsel for the Assessee before the authorities below clearly supports the explanation of assessee that assessee received genuine loans into the matter which were later on returned to the concerned parties. It may also be noted here that assessee has registration under section 12AA which is in force in assessment year under appeal and A.O. has also computed the income of the assessee as per Section 11 of the Income Tax Act, 1961 and accepted the NIL returned income filed by the assessee because the amount more than 85% have been incurred by the assessee towards its objects. Since assessee came into existence in part of the assessment year under appeal and it was the first year of charitable activities conducted by the assessee, therefore, it is highly unbelievable that assessee would earn huge undisclosed income in ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pported with ITR, confirmation, B/s and bank a/c of said parties and even after verifying repayment of loan in case of one party while other parties confirmed the loans in response to direct enquiries conducted by AO and all the parties are assessed at Ghaziabad itself. 4. That learned CIT(A) has recorded wrong findings in sustaining the additions that assesse has failed to discharge the shifted onus lay upon, identities/ creditworthiness etc. of parties not proved (para 15), verification latter remained uncomplied (Page41) identity in dispute (Page 42) etc. by wrongly applying the ration of the cases of Sumati Dayal/Nova promoters etc. 5. That without prejudice to above and without any dilution in above grounds but in alternative, learned CIT(A) failed to follow the ratio of jurisdictional/other courts holding that provisions of s. 68 has no applicability where deemed income u/s 68 is applied for charitable purposes . 6. That in addition to above, learned C1T(A) failed to appreciate that loans were taken within 2-3 months of constituting the society, hence neither there was any possibility to have earned so much of income nor assessee u/s 12A had any advantage to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r appeal of Prop. Shri Sachin Goel, which shows return income of ₹ 1,70,620/-. The A.O, therefore, noted that capacity and creditworthiness is not proved, therefore, addition was accordingly made. 3.3. Shri Satish Chand Jain [₹ 6.78 lakhs]. The assessee has filed complete details i.e., copy of Bank statement, Confirmation, copy of Income Tax acknowledgement for the assessment year under appeal as well as preceding assessment year along with copy of computation of incomes of both years and balance sheet of the lender as well as Shri Risab Jain and Ms. Vandana Jain. The A.O. noted that as per balance sheet loan was taken in the name of Shri Satish Jain, but above submission would show that it is in the name of Sh. Satish Chand Jain, Shri Risab Jain and Ms. Vandana Jain, and bank statement reveal that this amount is given to the assessee society in cash. The A.O, therefore, noted that creditworthiness of the lender is not proved. The addition is accordingly made. 3.4. M/s. Diwakar Commercial Pvt. Ltd., [₹ 30 lakhs], (2) M/s. Ras Raj Marketing Pvt. Ltd., [₹ 57 lakhs] and (3) M/s. Atoll Vypaar Pvt. Ltd., [₹ 8 lakhs]. The A.O. discussed all the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee as regards genuineness of the loans. The loans are verifiable from the bank statement of the assessee as well as of the creditors. The loans were temporary and interest is paid to the creditors and ultimately the loan amount have been returned to the creditors. TDS is also deducted. In subsequent year, scrutiny assessment have been made and A.O. accepted the repayment of loan in those years. It was submitted that merely because Shri Sunil Kumar Gupta is a common Director or having common address is no ground to reject the explanation of assessee. All the creditors are having source to give loan to the assessee and are man of means and their balancesheets shows their worth to give loan to the assessee. Two loans are taken from the individuals and rest of the amounts have taken from the corporate entities. All the parties have confirmed giving of loan to the assessee, therefore, assessee proved identity of the creditors, their creditworthiness and genuineness of the transaction in the matter. The assessee relied upon the following decisions in support of the contention that assessee received genuine loans. 1. CIT vs., Surendra Chand Bansal [2014] 42 taxmann.com 201 (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were already part of income and expenditure account and assessee declared the same as income. But, in the case of the assessee addition have been made by the A.O. on account of unverifiable loans under section 68 of the I.T. Act, 1961, therefore, such decision cannot be relied upon in favour of the assessee. The Ld. CIT(A) confirmed the addition and dismissed the appeal of assessee. 4. Learned Counsel for the Assessee reiterated the submissions made before the authorities below. He has submitted that it is first year of registration of the assessee society as the assessee society was registered with the Registrar of Societies, U.P. vide letter Dated 09.07.2009. The assessee has been granted registration under section 12AA of the I.T. Act, 1961 by the CIT, Ghaziabad vide Order Dated 02.07.2012 w.e.f. 23.12.2009 as per directions of the Tribunal. The Registration under section 12AA of the I.T. Act, 1961 is in force in assessment year under appeal, copy of which is filed at page-14 of the PB. He has submitted that in the case of all the creditors assessee filed copy of their ITR, confirmations, bank statements, ledger account and in the case of Company its balance-sheets and list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ination were not responded by the creditors and even if the amount in question have been utilised towards objects of the assessee society, it would not have any impact on the income of the assessee. The balancesheet of the creditors are on similar line, therefore, addition have been rightly made by the authorities below. 6. We have considered the rival submissions and perused the material on record. The assessee has taken the loans from the above 05 parties out of which 03 are the Companies. The assessee admittedly filed confirmation of all the creditors, their ITRs, bank statements, ledger accounts and wherever balance-sheets of the companies were prepared have been filed, copies of the same are also filed in the paper book. In the case of Diwakar Commercial Pvt. Ltd., it has shown gross income of ₹ 31,82,358/- as per return of income. The creditors have confirmed giving loan to the assessee through banking channel and their bank accounts shows sufficient balance with them to give loan to the assessee. In the balance-sheet of 03 creditors sufficient balances are available to show their net worth to give loan to the assessee. The loans are subject to payment of interest ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, it is highly unbelievable that assessee would earn huge undisclosed income in assessment year under appeal. Thus, no addition could be made against the assessee of such nature in assessment year under appeal particularly when the nature of the activities of the assessee is admittedly mentioned in the assessment order to run an Educational Institution. In support of the above finding we rely upon the Judgment of the Hon ble Supreme Court in the case of CIT vs., Bharat Engineering Construction Co. [1972] 83 ITR 187 (SC) in which it was held as under : The assessee, an engineering-construction company, commenced its business in May, 1943. In its accounts there were several cash credit entries in the first year of its business totalling ₹ 2,50,000. Though the explanation regarding the cash credit entries was found to be false, the Appellate Tribunal held that these cash credits could not represent the income or profits of the assessee as they were all made very soon after the company commenced its activities : Held, that the inference drawn from the facts proved was a question of fact and the Tribunal s finding on that question was final. A construction comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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