TMI Blog2023 (1) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... , there was no reason to also question the creditworthiness. No question of law even otherwise arises for this Court to consider and hence the question (B) is not entertained. Question (C) being only the explanation to question (B), the same is also not entertained. - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MR. JUSTICE SANDEEP N. BHATT Appearance: For the Appellant(s) No. 1 Mr. Dev D Patel With Mr Varun K. Patel(3802) For the Opponent(s) No. 1 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. This appeal under Section 260-A of the Income Tax Act, 1961 (`IT Act hereinafter) is preferred questioning the order dated 13.1.2022 made by the Income Tax Appellate Tribunal (`ITAT hereinafter), Ahmedabad in ITA/Ahd No.194 of 2019 for the assessment year 2014-15 raising the following substantial questions. 2 (A) Whether on the facts and circumstances of the case and in law, the Appellate Tribunal is justified in upholding the decision of the Ld.CIT(A) in deleting the addition of Rs.1,35,00,000/- made by the Assessing Officer on account unexplained investment under Section 69B of the Act, without considering that the addition was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer concluded that since the cheque payments were made before the date, even the cash payments must have been made as per the schedule. The Assessing Officer taxed a sum of Rs.5.68 crores as unexplained investment under Section 69B and had made an addition of Rs.1.35 crores. 2.5 The CIT (Appeals), when this was challenged, had closely examined and also had admitted the additional evidence furnished by the assessee. After calling for the remand reports from the Assessing Officer had held that there was no evidence found during the survey in the case of appellant and, during the course of search, in the case of Directors of the company. 2.6 The CIT (Appeals) held that Rs.1.35 crores for the assessment year 2014-15 cannot be sustained as the amount was not transacted and accordingly deletion was directed. 2.7 The Appellate Tribunal, ITAT was approached by the revenue which has been dismissed endorsing the reasonings and conclusion given by the CIT (Appeals). 3. Learned Senior Standing Counsel Mr.Varun Patel appearing for the department has emphatically pointed out before this Court that for the year 2012-13 and 2013-14, the very piece of document has been admitted and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant has discharged its onus of proving identities, the sources of the loans and the genuineness of the transactions in accordance with the provisions of section 68, and thereafter the onus has shifted to the AO to prove the transactions to be otherwise. The same has not been done by the AO. Relying upon the decision of the Hon ble High Court of Gujarat in CIT vs Chanakya Developers (supra) and in absence of any contrary evidence brought on record, I hold that the addition of Rs.1,62,44,073/- cannot be upheld. The AO is directed to delete the addition and the appeal on this ground succeeds. 8. When challenged before the Tribunal, it has also for the assessment year under question 2014-15, concurred with the findings of the CIT (Appeals). 90. We have heard the rival contentions of both the parties and perused the materials available on record. The provision of section 68 of the Act fastens the liability on the assessee to provide the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. These liabilities on the assessee were imposed to justify the cash credit entries under section 68 of the Act by the Hon ble C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques. 93. Thus there remains no doubt that the transaction of the advance received by the assessee from the parties was genuine. In our considered view, once the assessee is able to prove that the money received by it was returned in the subsequent assessment year in the account of the parties, then there remains no doubt that the advances received by the assessee were unexplained cash credit. 8. Much had been emphasized by the learned senior Standing Counsel with regard to the creditworthiness. According to him, return of the lower income through the bank channel also raised a serious doubt and the assessing officer had rightly made the additions by cogent reasons. He also pointed out that there are two remand reports called for by the CIT (Appeals). We are not in agreement with the submissions on the ground that both the CIT (Appeals) and the Tribunal have concurrently held against the revenue by giving cogent reasons. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed inquiry which had revealed that there was no material on record to prove or even remotely to suggest the share application money was received from any independent legal entities. The entire transactions seemed bogus and lacked credibility. The field inquiry conducted by the Assessing Officer revealed that in several cases investor companies were found to be non-existent and the onus to establish the identity of the investor companies was not discharged by the assessee. 11. Here that does not appear to be the case. Initially, in inquiry under Section 133(6) of the IT Act, in the remand reports which have been tendered by the Assessing Officer pursuant to the directions issued by the CIT Appeals, he does not dispute the identity as well as the genuineness of the transactions. The only question was with regard to the creditworthiness. We are in agreement with both the authorities which have concurrently held that the initial burden, even if not discharged at the level of the assessing officer, but by production of documents before the CIT (Appeals) where two remand reports have been called for, every transaction having been made through banking channel, there was no reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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