TMI Blog2023 (2) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of section 68 - Accordingly, we set aside the finding of the CIT-A and direct the AO to delete the addition made by him. Appeal of the assessee is allowed. - ITA No. 1259/AHD/2019 - - - Dated:- 31-1-2023 - Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Mukund Bakshi, A.R For the Revenue : Shri Sanjaykumar, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax(Appeals)-3, Vadodara, dated 22/05/2019arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2012-13. 2. The assessee has raised the following grounds of appeal: 1. The Ld.CIT(Appeals) has erred in not considering the documents and evidences submitted during the course of appeal proceedings with respect to Unsecured Loans available during the year under consideration. 2. The Ld.CIT(A), (Appeals) erred in law and in facts in upholding the addition of Rs.15,00,00/- u/s.68 of the Act without considering the facts of the case and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been accepted by him through banking channel. To prove the genuineness of loan, the confirmation containing the name, address, bank account and cheques nos. were filed along with the copy of return of income and bank statement. 8. The assessee is not under the obligation to justify the source of source in the hands of the loans parties. Had there been any doubt about the genuineness of the loan, the AO was entitled to issue summons u/s131 of the Act to the loan parties but he has not done so. However, the Ld.CIT(A), dis-regarded the contention of the assessee by observing that no prudent person will advance money without charging any interest and will carry risk of loan without any rewards. Accordingly, the circumstantial evidences suggest that the genuineness of loan is not reliable. In fact,the loan creditor namely K.C. Shah, only bank statement reflecting transfer of loan of Rs.5,00,000/- was furnished instead of detailed statement. Thus, the availability of money with K.C Shah cannot be relied upon. In the case of loan party namely shri BhavnaJ Sharma and Jagdishchandra Natvarlal Sharma, there were cash deposits before transferring the loan to the assessee. Same was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the documentary evidence. However, what we find is this that the revenue has not pointed out any flaw in the details filed by the assessee. As regard to principles laid down by the Hon ble SC in the case of NRA Iron Steel Pvt. Ltd. (Supra), we note that the facts are distinguishable from the present facts of the case. For this purpose, we refer the order of Pune Tribunal in the case of Deputy Commissioner of Income Tax Central Circle, Aurangabad v. Mahalaxmi TMT (P.) Ltd. Reported in 190 ITD 582 wherein it was held as under: 12. Now proceeding to examine whether the principles laid down by the Hon'ble Supreme Court in the case of Pr. CIT v. NRA Iron Steel (P.) Ltd. [2019] 103 taxmann.com 48/262 Taxman 74/412 ITR 161 are applicable to the present facts of the case. In that case, the assessee-company received share capital and premium of Rs. 17.60 crores in all from nineteen parties (six from Mumbai, eleven from Kolkata and two from Guwahati). The shares had a face value of Rs. 10 and were subscribed by the investor-companies at a premium of Rs. 190 per share. The AO made the addition of Rs. 17.60 crores after carrying out various inquiries as under- (i) To ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses having similar facts and circumstances and not other cases having different facts and circumstances. In this regard, we draw support and guidance from the judgment of Hon'ble Calcutta High court in the case of CIT v. Peerless General Finance Investment Co. Ltd. [2006] 154 Taxman 179/282 ITR 209- wherein it was observed that the binding nature of a decision is of two kinds-one is in relation to the facts and the other is in relation to the principles of law. A principle of law declared would be treated as precedent and binding on all. The finding of facts would bind only the parties to the decision itself and it is the ultimate decision that binds. Where facts are distinguishable, such as assessee has replied and clarified all the doubts like non-service of summons on the directors of the investing companies due to change of address, existence of the investing companies on the portals of MCA/ROC and with the Income-tax Department long after investment, providing DIN of directors of investing companies and their other particulars, providing reasons for charging huge premium, adequate creditworthiness on the basis of assets, source of immediate availability of funds for inve ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
