TMI Blog2015 (9) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... nd - HELD THAT:- We find that the CIT(A) in his order has deleted the addition on the ground that the I.T.A.T., Indore Bench has passed the order in the case of Narmada Extrusions Limited[ 2011 (12) TMI 702 - ITAT INDORE] and other family members of the Mittal Group and the assessee is also one of the beneficiaries of Mittal Group and in the appeal for assessment year 2003-04 and 2006-07, the Tribunal has decided the appeal and the Tribunal has analyzed all the documents. Thereafter, the matter was restored to the AO by the Tribunal and after that in set-aside proceedings, the ld. CIT(A) has accepted that these loans are genuine. Therefore, the ld. CIT(A) has deleted the addition on account of unsecured loans. In the result, the departmental appeal is dismissed. - A.No. 155/Ind/2013, C.O.No.110/Ind/2013 (Arising out of I.T. (SS). A.No. 155/Ind/2013), I.T. (SS). A. No. 156/Ind/2013, C.O. No. 111/Ind/2013 (Arising out of I.T. (SS). A.No. 156/Ind/2013), I.T. (SS). A.No. 157/Ind/2013, C.O. No. 112/Ind/2013 (Arising out of I.T. (SS). A.No. 157/Ind/2013), I.T. (SS). A.No. 158/Ind/2013, C.O. No. 113/Ind/2013 (Arising out of I.T. (SS). A.No. 158/Ind/2013) Shri D.T. Garasia, J.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding sale of shares at a higher rate. 3. On the facts and the circumstances of the case the ld. CIT(A) has failed to appreciate that order of Hon ble High Court of Madhya Pradesh Indore in the case of Darpan Anand, dismissing the departmental appeal, in a summary manner by observing that no substantial questions of law arose in this case warranting interference by the court was at variance with the order in the case of Agrawal Coal Corporation and others, on assessee s appeal, by admitting the same on the ground that substantial questions of law do arise from the finding of Hon ble ITAT on issue of existence of M/s Hindustan Continental Ltd. on paper to provide accommodation entries to the beneficiaries 4. On the facts and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of Rs. 12,00,000/- made by the AO u/s 68 of Income-tax Act, 1961, on account of unsecured loan of Rs. 6,00,000/- each from M/s Parkson Securities Ltd. and M/s Lunkad Media and Entertainment Ltd. GROUND NOS. 1, 2 3 : 5. There was a search and seizure u/s 132 of the Income-tax Act, 1961, were conducted at assessee s residence business premises and consequent upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinentals Limited. 2. Copy of bank account from which payment towards purchases of shares were made. 3. Copy of D-Mat account with MPSE Securities Limited. 4. Copy of sale bills as issued by the broking firm. The appellant during the course of appellate proceedings relied on the following direct decisions :- S.No. Reference Citation 1. Naveen Gupta 005 SOT 94 (Del. Bench ) 2. Smt. Memo Devi 007 DTR 158 (Agra Bench) 3. Smt. Neelam Chawla 006 DTR 141 (Del Bench) 4. Rajiv Agrawal 089 TTJ 1095 ( Del.Bench) 5. Shripal Singh Gulati 009 DTR 564 (Agra Bench ) 6. Mukesh R. Marolla 006 SOT 247 (Mumbai Bench ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e survey huge cash receipt and payments were found and which is discussed in the assessment order and there was list of banks and commission on this entry. The AO has verified the modus operandi of Lunkad Group and he was of the view that the assessee has made investment in these Lunkad group of companies and Rs. 12 lakhs was assessed in this year and the AO has made the addition of Rs. 12 lakhs in the hands of the assessee. Moreover, the AO has also made the addition of Rs. 6 lakhs each from Parksons Securities Limited to the total income of the assessee. 9. The matter carried to ld. CIT(A) and the ld. CIT(A) deleted the addition by observing as under :- 2.3 That during the year under consideration the assessee has taken unsecured Loan to the tune of Rs. 12,00,000/-. Detail of Loans taken during the year of Rs. 12,00,000/- is as under however the addition u/s 68 was made by the Assessing Officer ld. A.O. by restricting the amount up to the extent of peak credit of Rs. 6,00,000/- only. S.No. Name of the Company Amount of Unsecured loan taken during the A.Y. 04-05 Peak credit taken by AO in asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.K.Jain 002 SOT 579 (Agra Bench) 5. S.Kamaljeet Singh 147 Taxman 18 (Allahabad) 6. Ashok Pal Daga 220 ITR 452 (MP) 7. Sarogi Credit Corporation 103 ITR 344 (Patna) 8. Nemi Chand Kothari 264 ITR 254 (Gau) 9. Mehrotra Brothers 270 ITR 157 (MP) 2.4.5) That in the present case the assessee has properly discharged onus lying on him by proving the identity, capacity and creditworthiness of the loan creditors which stand proved. The said amounts of loans were received by account payee cheques and were also repaid through account payee cheques only. Since, the entire loan transactions were executed through account payee cheques, hence there is no reason for the assessing officer to have any doubt about the genuineness of the loan transaction. If the assessing officer has any doubt about the creditworthiness of the loan taken by the assessee , in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of loan by assessee to Lunkad Group. Under these circumstances and in the interest of justice, one more opportunity should be given to assessee for producing the loan creditor for confirming the contents of confirmation and affidavits so filed. Keeping in view incriminating documents found during the course of survey at Lunkad Group for the period 1.4.2006 to 1.5.2006 pertaining to the assessment year 2007-08, even though related to one month only, the Department was justified in making addition in the hands of the assessee company in the assessment year 2007-08 by disbelieving the loan transactions. As per our considered view, addition should be made with respect to the amount of cash found to be given by the assessee to the Lunkad Group as per incriminating documents so found at Lunkad Group during survey after giving opportunity to assessee for cross examination. Mere presumptions without any material on record to the effect that even in respect of all the earlier years, the assessee might have given cash to the Lunkad Group for getting unsecured loan, is not justified. All the loans were received by assessee through account payee cheques and also repaid through account paye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2007-08, even though related to one month only, the Department was justified in making addition in the hands of the assessee company in the assessment year 2007-08 by disbelieving the loan transactions. 2.6.5) That from the above paras of the order of Hon'ble Tribunal, it is quite clear that though the case was set-aside for confirming the contents of confirmation and affidavits so filed by the creditors in respect of incriminating documents found during the course of survey at its premises, however with a limited direction and period pertaining to the period 01.4.2006 to 01.05.2006 only. Thus, even in case if the loan creditor is not produced in person, in that case also the amount related to said period i.e from 01.04.2006 to 01 05.2006 can only be added to the income of the assessee and not beyond it. Further the said amount be added only after proving the name NARMADA as relates to M/s Narmada Extrusions P Limited. 2.6.6) The assessee has sought clarification by filing an M.A. in this regard as to what will be the position in this regard in the case of other assessee since the appeal was commonly decided by the Hon'ble Bench. 2.6.7) The Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up of companies now requires to be accepted. It is therefore submitted that addition of Rs 6,00,000/ - made to the income of the assessee u/s 68 of the Income Tax Act is deleted. 10. We have heard the rival contentions of both the parties. Looking to the facts and circumstances of the case, we find that the CIT(A) in his order has deleted the addition on the ground that the I.T.A.T., Indore Bench has passed the order in the case of Narmada Extrusions Limited and other family members of the Mittal Group on 13.12.2011 and the assessee is also one of the beneficiaries of Mittal Group and in the appeal for assessment year 2003-04 and 2006-07, the Tribunal has decided the appeal and the Tribunal has analyzed all the documents. Thereafter, the matter was restored to the AO by the Tribunal and after that in set-aside proceedings, the ld. CIT(A) has accepted that these loans are genuine. Therefore, the ld. CIT(A) has deleted the addition of Rs. 12 lakhs and Rs. 6 lakhs on account of unsecured loans. In the result, the departmental appeal is dismissed. C.O.No.107/Ind/2013 : 11. During the course of hearing the ld. Authorized Representative submitted that if the Department s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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