TMI Blog2022 (10) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ratap Mall, Advocate For the Revenue : Shri Anuj Garg, Sr. DR ORDER This appeal filed by the assessee is directed against the order dated 16.07.2019 of the CIT(A)-34, New Delhi, relating to Assessment Year 2012-13. 2. Briefly stated facts of the case are that the assessee is a company and e-filed it s return of income on 29.09.2012 declaring loss of Rs.1,24,94,251/-. The case of the assessee company was selected for scrutiny and notice under section 143(2) dated 27.09.2013 was issued and duly served upon the assessee. In response to the said notice, the Authorised Representative of the assessee company appeared before the A.O. and filed requisite details which are noted by the A.O. in the assessment order. During the course of assessment proceedings, the A.O. noted that the assessee company has received unsecured loans from Associates of the companies i.e., Rs.19,55,000/- received Shamken Spinners Ltd., on various dates through A/c payee cheques and Rs.13,12,859/- received from Shamken Multifab Ltd., on various dates through A/c payee cheques and Rs.10,000/- from Mr. Sanjay Chaturvedi on 05.12.2011 vide A/c payee cheque No.048463, totalling to Rs.32,77,859/-. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected in the audited financials of M/s Shamken Spinners Ltd. 4. That the learned Commissioner of Income Tax (Appeals) has grossly erred in failing to appreciate that both the creditors are public limited companies and are listed on stock exchanges and since the payments had been made through banking channels, as such, addition made u/s 68 of the Act is unsustainable in law. 5. That the learned Commissioner of Income Tax (Appeals) has grossly erred in failing to appreciate that appellant has furnished complete particulars of both the creditors, and before making the addition, no enquiry what so ever was made from such creditors, and hence, the addition made is unsustainable in law. 4. During the course of hearing, the Learned Counsel for the Assessee submitted that the authorities below made addition under section 68 of the I.T. Act, 1961 on account of unsecured loans received by the assessee company from it s Associate companies viz., M/s. Shamken Multifab Ltd., of Rs.13,12,859/- and M/s. Shamken Spinners Ltd., of Rs.19,55,000/- from which are listed companies in the Stock Exchange and having sufficient funds to advance funds in the assessee company and Rs.10,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the funds from listed companies on Stock Exchange which are very much available in public domain. From the careful perusal of the paper book containing pages 1 to 144, I have noticed that the assessee company has filed sufficient documentary evidences before the authorities below such as acknowledgment of return of income, balance sheet as on 31.03.2012 for the impugned A.Y. 2012-13, bank statements, PAN etc., in respect of both the companies and, thus, the assessee company has discharged it s initial onus upon it by proving the creditworthiness and genuineness of the transaction in the matter and meet the requirements of Section 68 of the I.T. Act, 1961. It is a settled position of law, when the assessee discharged it s initial onus lay on it by proving the creditworthiness and genuineness of the lenders, no addition is warranted under section 68 of the I.T. Act, 1961. In support of this view, I rely upon the following decisions. 6.1. The Hon ble jurisdictional High Court in the case of CIT vs. Vrindavan Farms Pvt. Ltd., etc. ITA.No.71 of 2015 dated 12th August, 2015 (Del.), in which it was held as under : The sole basis for the Revenue to doubt their creditworthiness wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HC), in which it was held as under : In any matter, the onus of proof is not a static one. Though in section 68 of the Income Tax Act, 1961, the initial burden of proof lies on the assesses yet once he proves the identity of the creditors/share applicants by either furnishing their PAN number or income-tax assessment number and shows the genuineness of transaction by showing money in his books either by account payee cheque or by draft or by any other mode, then the onus of proof would shift to the Revenue. Just because the creditors/share applicants could not be found at the address given, it would not give the Revenue the right to invoke section 68. One must not lose sight of the fact that it is the Revenue which has all the power and wherewithal to trace any person. Moreover, it is settled law that the assessee need not to prove the source of source . The assessee-company was engaged in the business of financing and trading of shares. For the assessment year 2001-02 on scrutiny of accounts, the Assessing Officer found an addition of Rs.71,75,000 in the share capital of the assessee. The Assessing Officer sought an explanation of the assessee about this addition in the shar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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