9911796707
TMI Blog2022 (6) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard are as under: 1.1 The order passed u/s.250 on 28.09.2016 for A.Y.2012-13 by CIT(A)-3, Baroda upholding the addition aggregating to Rs.33.75 lakhs as unexplained cash credit u/s.68 by AO is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned additions. 2.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming that the addition of Rs.10.75 lakhs as unexplained cash credit towards the loans received from Ramesh K Parmar. 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld the loans of Rs.10.75 lakhs received from Shri Ramesh Parmar as unexplained cash credit u/s.68. Even though the burden to prove the credit worthiness of the lender is not on the appellant/Assessee, the appellant has provided maximum information, including lender's source of receipt and bank his pass book. 3.1 The Ld.CIT(A) has erred in law and on facts in confirming the addition of Rs.21 lakhs as unexplained cash cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been repaid by the assesse also. The Ld. CIT(A) however was not convinced with the explanation of the assesse who noted that the explanation was not tenable for the reason that it was not explained as to on what account these amounts were to be received by M/s. Makhija Infrastructure Pvt. Ltd., that the nature of membership of the depositors was also not explained and nor any details vis-à-vis their name and complete address and creditworthiness furnished by the assessee. The ld. CIT(A) also noted that no confirmation from the depositors had also been field by the assessee. For the aforementioned reasons he rejected the explanation of the assessee and held the unsecured loan of Rs. 21,00,000/- to be not satisfactorily explained. The relevant findings of the ld. CIT(A) in this regard at para 5.1 of the order is as under: 5.1 But the submission of the appellant as discussed in just preceding paragraph of this appeal order is not found to be tenable. The fact is that the amounts of loan of Rs. 21,00,000/- has not been received by the appellant directly from the bank account of Makhija Infrastructure Pvt. Ltd. The argument of the appellant is that these amounts of Rs. 21,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that these depositors have directly deposited the amounts in the bank account of the appellant. Merely on the basis that these amounts of Rs. 21,00,000/- were received through cheques by the appellant from the members directly it cannot be said that these transactions of loan were genuine. Considering these facts, it is held that genuineness of transactions and credit worthiness of the lender are not established by the appellant with regard to this loan of Rs. 21,00,000/- and therefore the addition of this amount of Rs. 21,00,0007-as made by the AO to the total income of the appellant u/s 68 of the Act is hereby confirmed. 8. Before us, Ld. Counsel for the assessee reiterated the contentions made before the ld. CIT(A),emphasizing the fact that these amounts pertain to cheques received from the members of M/s. Makhija Infrastructure Pvt. Ltd. directly deposited in the account of the assessee and reflected as such in the books of both the parties. Before us, Ld.counsel for the assessee contended that the assessee had adequately discharged his onus of proving the genuineness of the unsecured loan of Rs. 21,00,000/- received from M/s. Makhija Infrastructure Pvt. Ltd. by filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her hand relied on the order of the ld. CIT(A). 12. We have heard the rival contentions and have also gone through the orders of the authorities below and after considering all the facts before us, we hold that the assessee had sufficiently discharged his onus of proving the genuineness of the unsecured loan of Rs.21 lacs received from M/s Makhija Infrastructure Pvt Ltd. The said transaction stood confirmed by the said party is a fact on record. The documents filed by the assessee establish the fact of the amount having been received by way of cheques from members of M/s Makhija Infrastructure. The confirmation of the said party reflects names of individuals, which individuals are found reflected as members/customers of Makhija enterprises in its financial statements, the accounts of the said individuals /members in the books of Makhija enterprises reflects the transaction of amounts advanced by them deposited in the bank account of the assessee. No infirmity in the above documents have been pointed out by the Revenue. Therefore for all purposes the assessee has established the fact that the amount has been received from M/s Makhija Infrastructure through banking channels though n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Bank statement was provided by the assessee. On the perusal of the bank statement of Mr. Ramesh K. Parmar, it was noticed that just before issuing cheque to M/s. J. S. Enterprises, there was a cash deposit entry of similar amount in the account. Some entries are being reproduced here: Sr. No. Amount Cash Deposit Date Cheque issued date 1. 4,00, OOO/- 27.03.2011 28.03.2011 2 3,75,000/- 31.12.2011 31.12.2011 3 4,00, OOO/- 27.03.2011 & 28.03.2011 28.03.2011 Assessee did not provide the Return of income or PAN of Mr. Ramesh K parmar and on perusal of the bank statement, it was clear that the party was not maintaining enough balance to provide the loan of Rs.lO,75,000/-. Cash was being deposited to issue cheques to M/s. J. S. Enterprise. As the assessee was already given a final opportunity to either provide the details or produce the parties vide note sheet entry dated 12.03.2015, and also informed that failing to comply will lead the assessment to be finalized on the basis on material available on record, the amount of Rs.31,75,000/-allegedly received from above mentioned parties is considered as unexplained cash credits of the assessee & the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given by Makhija Infrastructure Pvt. Ltd. to Shri Ramesh K. Parmar on 10/03/2012 which was deposited by Shri Ramesh K. Parmar in his saving bank account with Union Bank of India on 27/03/2012. As per the appellant out: of the said deposit, Shri Ramesh K. Parmar had further given Rs. 4,00,000/- to it, But this submission of the appellant is found to be unusual and untenable. It has not been explained by the appellant as to for what purposes the above various amounts were received by Shri Ramesh K. Parmar from Makhija Infrastructure Pvt. Ltd. If Shri Ramesh K, Parmar had received an amount of Rs. 5,27,000/- through cheque from Makhija Infrastructure Pvt. Ltd, on 23/12/2011 in its bank account then such amount or any part of this amount could have been advanced as loan to the appellant by Shri Ramesh K, Parmar from this bank account only. However, Shri Ramesh K. Parmar is stated to have received amount of Rs. 5,27,000/-from M/s. Makhija Infrastructure Pvt. Ltd. on 23/12/2011 and is stated to have withdrawn this amount of Rs. 5,27,000/~ on the same date i.e. on 23/12/2011, Shri Ramesh K. Parmar is further stated to have deposited this amount of Rs. 5,27,OOO/- along with some other a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the contention of both the parties. The reason for holding the unsecured loan received from Shri Ramesh Parmar as ingenuine, we find is on account of the fact that the creditworthiness of Shri Ramesh Parmar was not established by the assessee. But we have noted from the explanation and documents filed by the assessee to the lower authorities that it had been established by Shri Ramesh Parmar that it had received certain amount from M/s. Makhija Infrastructure Pvt. Ltd. which was withdrawn in cash, that subsequently cash was deposited in another bank account of Shri Ramesh Parmar which was advanced as unsecured loan to the assessee. All these transactions happened within a span of few days. The cheques Of Rs. 5,27,000/- and Rs. 4,00,000/-were received by Mr. Parmar on 23/12/11 and 10/03/12 respectively and the amounts rotated in cash and thereafter advanced to the assessee by by 28/03/12,i.e within a span of four months. The Revenue authorities have not disputed the fact of cheque received by Ramesh Parmar from Makhija Infrastructure and withdrawn subsequently by him in cash but has doubted the cash withdrawn as being redeposited and advanced as loan to the assessee in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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