TMI Blog2022 (8) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... den lies upon the assessee to explain the credit entry, through the onus might shift to the AO under certain circumstances. Where the assessee shows that entries regarding cash credit in a third party s account are genuine and the sums were in fact received from the third party as loans or deposits, he has discharged the onus. In that case it is for the third party to explain the source of the moneys, and they cannot be charged as the assessee s income in the absence of any material to indicate that they belong to the assessee. Here in this case assessee has established the identity, capacity and genuineness of the transaction so far as it relates to all the share applicant. Based on the above facts and precedents applicable to these facts, as narrated above, we are of the considered view that the primary onus is discharged by the assessee so far as the share application money received in the year under consideration. Therefore, we are not inclined to accept the contention of the AO in any manner and hence the addition so made by the assessing officer is not sustainable and therefore, we vacate the addition so made based on the evidences placed before us and we hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adding Rs. 18,25,000/- u/s 68 ITA No. 434/JP/2018 Morani Motors Private Ltd, Jaipur vs. ACIT, Circle-06, Jaipur 3 out of share application money without considering evidences, which is unjustified and liable to be quashed. 9. On the facts and in the circumstances of case ld. ACIT erred and ld. CIT (A) sustained in disallowing Rs. 10,83,521/- out of various expenses based on assumptions and presumptions, which is illegal, grossly unjustified and liable to be deleted. 10. On the facts and in the circumstances of case Id. ACIT erred and ld. CIT (A) sustained in disallowing Rs. 21,378/- for want of TDS in spite of expenses below threshold limit, which is unjustified and liable to be deleted. 2. The appeal was numbered as ITA No. 434/JP/2018 and this appeal was decided by the Coordinate Bench vide order dated 28.02.2020. 3. Against that order the assessee moved Misc. Application (MA) which was numbered as MA No. 53/JP/2020 dated 20.07.2020. In this MA assessee contended that there is mistake apparent on record in the order passed by the Coordinate Bench on 28.02.2020. The ld. AR contended in the MA that while dealing with the various grounds raised bench thorough over sight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75000 0 75000 2 Smt. Vinita Morani 10000 10 100000 0 100000 3 Mr. Lakshya Morani 7500 10 75000 0 75000 4 Ms. Khushi Morani 5000 10 50000 0 50000 5 Mr. N.R. Morani 92500 10 925000 0 925000 6 Smt. Durga Devi Morani 17500 10 175000 0 175000 7 Smt. Laxman Das Morani 2500 10 25000 0 25000 8 Shri T.M. Morani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- 3. Mr. Lakshya Morani Rs. 75,000/- 4. Ms. Khushi Morani Rs. 50,000/- 5. Mr. N.R. Morani Rs. 9,25,000/- 6. Smt. Durga Devi Morani Rs. 1,75,000/- 7. Smt. Laxman Das Morani Rs. 25,000/- 8. Shri T.M. Morani Rs. 5,00,000/- During the course of appellate proceedings, the appellant insisted that it should be provided copy of the statements of the share applicants recorded by the AO. The copies of the statements were provided to the appellant but no further submission has been made on this issue by the appellant but no further submission has been made on this issue by the appellant after receipt of the copies of the statements. As far as the credit of Rs. 1 lac received from Smt. Vinita morani is concerned, I am of the considered view that the no addition was required to made by the AO in respect of the amount of Rs. 1 lac received from Smt. Vinita as she h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urga Dei Morani Rs. 175000.00 Being expired, her son stated on oath before Ld. AO and accepted the subscription of share capital. Laxman Das Morani Rs. 25000.00 Confirmation was filed. He is regular income tax payer and man of high means. He appeared and stated on oath, explained the subscription of share capital. Ld. AO accepted the creditworthiness. Only genuineness was in doubt due to cash transaction. Ld. AO in no circumstances accepts the genuineness if deposits were in cash. T.M. Morani Rs. 500000.00 Confirmation was filed. He is regular income tax payer and man of high means. He appeared and stated on oath, explained the subscription of share capital. Ld. AO accepted the creditworthiness. Only genuineness was in doubt due to cash transaction. Ld. AO in no circumstances accepts the genuineness if deposits were in cash. Your honour, in most of the case identification and creditworthiness were proved as held by assessing officer himself page no 21 and 22 of AO order. Ld AO did not accepted genuineness, being the receipts were from cash. He added all the amount treating cash deposit as unlawful, without having held where were it is unlawful. I fully accept and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nishan Indo Commerce Ltd. (2014)101 DTR 413 (Calcutta High Court). It was held in another case that when two conditions had to be satisfied. First the transaction should be genuine, true and not a camouflaged, and secondly the transaction should be duly recorded in the books of the share applicants. In case any of the two conditions were not satisfied, it would be open to the A.O to act in accordance with the law and make appropriate additions if justified and mandated by Statute (AY. 200 1-02). CIT vs. Kansal Fin cap Ltd. (2014)221 Taxman 151 (Mag.) (Delhi High Court). Your honour, in all the above cash credit against share application money, assessee produces, confirmations, Name Addresses of depositors, PAN and bank accounts of them and the most important all have been produced and stated on oath and confirm the transaction. In view of above the addition based on preponderance of human probability is unjustified and' liable to be quashed. 9. In respect of this ground the ld. AR of the assessee relied upon the written submission filed by him as extracted here in above. He also submitted that against the share application money, assessee produces the depositor, conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stated to be of past savings. In case of T. M. Morani he has sold the TVS dealership. All these parties have also invested in Morani Cars and in that case also the amount is invested in cash. So, the capacity of investors is not clearly established. 11. We have heard the rival contentions, perused the submission made before us, orders of the lower authorities and also the decision relied upon on the issue on hand. It is not disputed in this case that all the 8 share applicants compliance to confirm the credit worthiness were made. The same is tabulated here in below: Sr. No. Name of share applicant Amount Rs. Documents submitted 1 Master Love Morani 75,000/- Confirmation and statement of father to prove genuineness and creditworthiness. 2 Smt. Vinita Morani 1,00,000/- Ld. CIT(A) has already accepted her investment and the same is not disputed. 3 Mr. Lakshya Morani 75,000/- Confirmation and statement of father ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cash when the bank account transaction is possible in all most all the share application subscribers. 13. In this case assessee has filed to sufficient details to prove satisfactorily the source of cash received the assessing Officer is entitled to draw the inference that the receipts are of an income nature and it is not necessary for him to locate their exact source. As the Supreme Court laid down in Kalekhan Mohammed Hanif v CIT, the onus is on the assessee to explain the nature and source of cash credits, whether they stand in the assessee s account or in the account of a third party. The question of burden of proof cannot be made to depend exclusively upon the fact of a credit entry in the name of the assessee or in the name of a third party. In either case, the burden lies upon the assessee to explain the credit entry, through the onus might shift to the Assessing Officer under certain circumstances. Where the assessee shows that entries regarding cash credit in a third party s account are genuine and the sums were in fact received from the third party as loans or deposits, he has discharged the onus. In that case it is for the third party to explain the source of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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