TMI Blog2021 (6) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed the rejoinder also. In our considered opinion, the assessee should make the true and correct statement during the virtual hearing, and it is not expected from the the assessee to make any incorrect submissions. 34. We have also noted that the assessee had filed the additional document /evidence in support of his case to prove the creditworthiness , genuineness and identity of all the six creditors .We also noticed from the persual of the record, that the assessing officer had not given the sufficient opportunity to the assessee to produce the 4 creditors and therefore the assessee failed to produce four creditors before the assessing officer in the remand proceedings. The additional evidence filled by the assessee in respect to the following four depositors is required to be allowed and therefore we admi the same qua these four persons. Further we have noticed that the assessee was not given the sufficient time to produce these depositor before the assessing officer in the remand proceedings . In the result Ground no2 is required to be remanded back In respect to Smt Sarita Goel and Arvind Gel . we foud that sufficient opportunity was given by the AO in remand p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e set off of loss from derivative and share trading under section 43(5) of the income tax act 1961 alleging it has loss from speculative business. 1. At the outset the Ld.AR for the assessee had submitted that the assessee is not pressing the ground 1, on account of smallness of the amount, raised before the tribunal and the same kindly be dismissed. However he had submitted that same a precedent against the assessee or acceptance of any liability. The Ld.DR had no objection for dismissing the ground is not pressed. 2. In the light of the withdrawal of the ground by the Ld.AR for the assessee we, dismissed the groundno. 1 raised book by the assessee before us is not pressed. The withdrawal of the ground will not be treated as a acceptance of the liability by the assessee and shall not be a ground to tax the assessee in subsequent years. 3. In respect of ground No. 4, of the assessee appeal Ld.ARhad drawn our attention to the order passed by the assessing officer to the following effect: The assessee derives income from trading of stock/shares, future option on BSE NSE through SERI. . 4. Further he had drawn our attention to the following paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rival contention of the parties and perused the material available on record, including the judgments cited at bar during hearing by both the parties. During the course of argument, the Ld.DR was confronted with the order passed by the tribunal, in the case of the assessee for the assessment year 2006 07 on the same issue ,which was also mentioned by the assessing officer, in his order. . He had fairly considered that, the above said order has not been brought to the notice of the Commissioner appeal. . In our view once the issue has been attained finality, no fresh adjudication is required. Further we are of the opinion that the assessee is regularly showing the income from the share trading as business income, therefore the finding recorded by the AO and the CIT(A) are without any basis and are accordingly dismissed. In the light of the above, respectfully Following the decision of the tribunal for the assessment year 2006-07, we allow this ground no 4 raised by the assessee before us. 11. In respect to ground no 3 Pertaing to SmtSita Devi ,the addition made by the assessing officer and confirmed by the CIT(A) for an amount of Rs. ₹ 600528.0Q, the Ld.AR f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- on account of unsecured loan from Smt Sita Devi Gupta is devoid of any merit and is liable to be deleted. 18. Per contra DR for the revenue had vehemently relied upon the order passed by the assessing officer as well as by the CIT (A).. He had drawn our attention to the following paragraph of the order passed by the Commissioner appeal The facts of the case as well as submissions made by the appellant have been carefully considered. It is observed that the AO had made addition of ₹ 6,00,000/- being unexplained deposit from Smt. Sita Gupta on the ground that the aforesaid depositor was not assessed to tax for last 3 4 years. Further, the nature and terms conditions for advancingmoney was not furnished. On the other hand the appellant has emphasied that PAN, complete postal address, ITR, and confirmation of the aforesaid depositor were furnished and as such onus u/s 68 of the Act had been discharged. However, merely filing of the aforesaid documents is not enough to discharged onus u/s 68 of the Act. Reliance is placed on the decision of the Hon'ble Calcutta High Court in the case of CIT vs. Korlay Trading Co. Ltd. 232 ITR 820. Cash credit can be assessed eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. That the unsecured loan of ₹ 6.00 Lacs taken from six persons in the books of Umesh Co. (Food grain business) of which appellant is proprietor was withdrawn by debiting the capital account of the appellant in the books of Umesh Co. and crediting the capital account in M/s Umesh Gupta ( Share Trading business) of the appellant. 23. The confirmation from all six persons were submitted before CIT (Appeals) which were also remanded to A.O. by the CIT (Appeals). 24. The appellant obtained the copies of the summons from the office of the AO after the assessment for the purpose of preparing appeal before CIT(A). Summons dated 29/05/2013 were issued and dispatched on 30/05/2013 to all the six lenders of unsecured loans by the Ld. AO during the remand proceedings who required certain documents and personal presence was not at all made compulsory as per summons. The compliance was required to be made with in short period till 07/06/2013. (Refer PB- 81-92 for copy of summons ). As per order sheet entries of the remand proceedings (Refer PB-2-3) it is proved that AO did not gave opportunity to the appellant to produce the lenders. Therefore the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Devendra Kumar Goel, 128/1196,Y Block, Kidwai Nagar, Kanpur PAN-AEJPG7276B ₹ 50000/- though cheque no. 231567 dated 23/03/2008 of State Bank of India, Kidwai Nagar, Kanpur credited on 24/03/2008 in SBI account no. 11233381841 of M/s Umesh Co. (proprietor is appellant Refer PB-120 1. Confirmation of account refer PB-103- 104 2. Income tax return with computation of income for the AY 2008-09 showing GTI of 2,87,051.00. Lender is a pensioner of central excise . Refer PB- 110 to111 3. Copy of Bank Accout PB-105 to 109 4. Gauri Goel, 128/1195-96,Y Block, Kidwai Nagar, Kanpur PANALVPG3865H ₹ 50000/- though cheque no. 713894 dated 23/03/2008 of HDFC,Kanpurredited on 24/03/2008 in SBI account no. 11233381841 of M/s Umesh Co. (proprietor is appellant Refer PB-120 1. Confirmation of account refer PB-112 2. Income tax return with computation of income for the AY 2008-09 showing GTI of 1,34,340.00. Refer PB-113-114 5. Arvind Kumar Goel, Railway Road, Prithvi Darwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of SBI Cash Withdrawn(PB- 120 and deposited in PNB on 02/02/2008 (₹ 100000 +₹ 200000) (PB-124 4. 2/2/2008, 200000.00 Refer PB-120 Cash Withdrawn and deposited in PNB on 2/2/2008 (₹ 100000 + 200000)PB-124 5. 26/2/2008 100000.00 Refer PB-120 Cheque from Arvind Goyal credited 6. 26/2/2008 100000.00 Refer PB-120 Cheque from Sarita Goyal credited 7. 29/02/2008 200000.00 Refer PB- Cash withdrawn and deposited in PNB Account on 1/03/2008,PB-124 27. Along with the application for additional evidence, your humble appellant had submitted the copy of confirmation from Brokers who as arranged the unsecured loan of ₹ 6 lacs from six persons. Confirmation from State Bank of India showing that out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auri Goyal, Kanpur; on 29-05-2013 fixing the date of compliance for 07-06-2013: However, only Shri Arvind Goyal and Smt. Sarita Goyal attended on the due date and .filed their written submissions and their statements were recorded. Neither any written communication/adjournment application was received from the remaining four parties/creditors nor any representative of the aforesaid remaining creditors attended on the due date. Copies of the recorded statements of Shri Arvind Goyal and Smt. Santa Goyal along with their written submissions are enclosed for your kind perusal. 1. Thus, it can be inferred from the above that the remaining 4 creditors remained doubtful hence, rightly treated by AO as unexplained and added to the returned income. 2. As regards, the cash being deposited in the bank accounts just before giving cheque to the appellant, the two creditors who appeared during the remand proceeding have submitted that the aforesaid amount is their business income earned by them over a period of time, duly disclosed by them in their ITRs 3.2.1 The appellant has furnished rejoinder in which he has reiterated the facts as narrated in the earlier submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding ₹ 30,000/- except a clearing entry of ₹ 2,04,000/-which shows that her net balance was ranging from ₹ 3,000/- to ₹ 30,000/-. The cash flow submitted by Smt. Sarita Goel reflects on an ad hoc basis generation of cash on 30-04-2007, 31-05-2007, 30-06-2007, 30-09-2007, 30-10-2007, 30-11-2007 and 30-12-2007 to create a cash in hand of more than ₹ 1 lac. All this is an afterthought. No such income has been shown in the subsequent months. The tax paid by Snit. Sarita Goel is ₹ 1714/-. The return for AY 2008-09 has been filed on 26-03-2010 which is a belated return. Sh. Arvind Goel has not paid any taxes just filed a return on 26--03- 2010 in his case also the situation is similar. He has no capacity to advance a loan of ₹ 1 lac. In the cash flow statement, the amount shown to have been received on 06-06-2007 is from his wife and other than that, cash in hand is also limited to ₹ 4,000/- to 7,000/- etc. In order to establish the cash deposit in the account, this cash flow has been created which does not justify his capability to advance loan. Thus in the light of the above facts it is held that the AO was justified in making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Garg (loan of ₹ 1,00,000/-), Gauri Goyal (loan of ₹ 50,000/-) and Devendra Goyal (loan of ₹ 50,000/-) the assessee had filled the additional evidence to prove the genuineness, creditworthiness of these four creditors. 36. In our considered opinion the additional evidence filled by the assessee in respect to the following four depositors is required to be allowed and therefore we admi the same qua these four persons. Further we have noticed that the assessee was not given the sufficient time to produce these depositor before the assessing officer in the remand proceedings . In the result Ground no2 is required to be remanded back limited to Raja Ram Ramchandra (loan of ₹ 2,00,000/-), Ajay Kumar Garg (loan of ₹ 1,00,000/-), Gauri Goyal (loan of ₹ 50,000/-) and Devendra Goyal (loan of ₹ 50,000/-) to the file of the CIT(A) for fresh adjudication after affording opportunity of hearing to the assessee. The assessee is also directed to file the necessary document before the CIT(A) as and when called upon and the assessee is also directed to produce these four persons for examination of the assessing officer along with relevant documents , ..... X X X X Extracts X X X X X X X X Extracts X X X X
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