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TMI Blog2023 (9) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessing officer has clarified that on verification of the documents, he has found credible evidence of actual borrowings done by the appellant and not "potential" in nature. Further the learned Single Bench held that the assessing officer has held that the appellant assessee has availed cash loan to the tune of Rs. 40,70,00,000/- through finance broker Kaseras, other different lenders and it has also been recorded. There is huge unexplained expenditure within the meaning of Section 69C of the Act and that the cash loan and repayment in cash comes within the crux of the provisions of Section 269SS and Section 269T and other relevant provisions of the Act. Further the learned Single Bench observed that on perusal of the order impugned in the writ petition, it is evident that it was based on huge materials and evidence regarding the alleged transaction and the court in exercise of its writ jurisdiction cannot act as an assessing officer and scrutinize those facts and evidence and substitute the some with its own opinion. Further the learned writ court held that the order impugned before it is neither a non-speaking order nor there has been any violation of the principles of natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore was liable to be set aside. On the above grounds, the learned senior advocate sought for setting aside the order passed in the writ petition and consequently to set aside the reopening proceedings. 3. Mr. Tilak Mitra, learned senior standing counsel appearing along with Mr. Amit Sharma, learned junior standing counsel for the department submitted that the learned writ court after considering the factual position rightly held that the disputed questions of fact which was canvassed before it cannot be adjudicated in the writ petition and that there was sufficient evidence brought on record by the assessing officer while passing the order under Section 148A(d) of the Act and it will be well open to the appellant to agitate all the issues during the reopening proceedings, by placing documents and evidence in support of the claim and that the writ petition was rightly dismissed. 4. We have elaborately heard the learned advocates for the parties and carefully perused the materials placed on record. 5. The respondent assessing officer issued notice under clause (b) of Section 148A dated March 14, 2023 stating that he has information which suggests that income chargeable to tax fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of this transaction. In order to establish the creditworthiness, you are requested to explain the immediate source of funds out of which money had been transferred to you. * Please explain how such amount has been utilized by you after its receipt. If the money has been transferred to some other entity thereafter, mention the name of that person, the reasons, for such payment and its present address with all supporting documents. * Please furnish names and addresses of the Directors of your company who were holding that position at the time of receipt of such money. * Please furnish statement of your Bank A/c, for the relevant period showing receipts of such money and its subsequent transfer, if applicable. 7. The appellant was directed to explain as to why notice under Section 148 of the Act should not be issued in his case to reopen the assessment for the relevant year on the basis of adverse information received against the appellant. Along with the notice, the copy of the report of the Deputy Director of Income Tax Investigation Unit 2, (IV) Kolkata dated 15.11.2022 was enclosed wherein there is a reference to the statement recorded from the said Kaseras and to other d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsight Portal copy of which was shared with the assessee along with the show cause notice, the assessing officer holds that it is evident that the assessee has availed cash loan to the tune of Rs. 40.70 crores through the finance broker Kaseras from different lenders such as Uma Shankar Kasera and the said amount falls in the ambit of the case where any amount is borrowed only on or any amount thereon is repaid to, any person otherwise then through an account payee cheque drawn from a bank, the amount so borrowed or repaid shall be deemed to be income of the person borrowing and repaying the amount aforesaid for the previous year in which the amount was borrowed or repaid, as the case may be and the income generated from the application of the loan so taken as unexplained income. 9. Further the assessing officer pointed out that payment of interest on cash loan falls within the ambit of unexplained expenditure within the meaning of Section 69C of the Act. Further as regards, the cash amount and repayment of the same in cash, the relevant provisions which will stand attracted are Section 269SS and 269D apart from the provision for imposing penalty under Section 271D, 271DA are attr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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