9911796707
TMI Blog2024 (12) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case. 2. On the facts and circumstances of the case and in law the NATIONAL FACELESS APPEAL CENTRE NEW DELHI, C.I.T. (APPEAL) has erred in confirming the addition of Rs. 15,00,000/-made to the returned income of the appellant, under section 68 of the Act, without appreciating the facts of the case and correct nature of transaction. 3. On the facts and circumstances of the case and in law the NATIONAL FACELESS APPEAL CENTRE - NEW DELHI, C.I.T. (APPEAL) has erred in confirming the addition of Rs. 27,740/- under section 69C, being an interest paid on the loan borrowed for the purpose of business, without appreciating facts of the case, evidence available on the record. Ground no.1-Validity of action u/s 147 3. The assessee has pleaded that the Assessing Officer incorrectly assumed jurisdiction u/s 147 of the Act as it is a not a case of reasons to believe, rather reasons to suspect. He merely received certain information on which no preliminary enquiries were conducted enabling him to form an opinion that income had escaped assessment. Therefore, reopening is bad in law. 4. The Ld.CIT(A) has deliberated on this aspect on page 10/11, paras 5.2 to 5.4 and has conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the AO has not relied on the information and sworn statements supplied by the Investigation wing. He made all possible attempts to directly verify the genuineness of the creditor. After making all attempts to directly verify the genuineness of the creditor the AO has passed the ball to the Court of the appellant to enable the appellant to produce the creditor. The AO mentioned in the order that opportunity was given to the appellant to produce the creditor for verification. The evidence filed copy of PAN, ITR, confirmation and bank statements are filed are documents that any person will maintain correctly for any bogus transactions. As held by Courts these evidences are enough to prove the genuineness of a regular ordinary transaction. But when there is some tangible evidence or even reason for suspicion that this is a bogus or sham transaction some fresh evidence or confirmation of the creditor before the AO is required to prove the genuineness of transaction. The AO has given enough opportunities to the appellant to do this but it seems that the appellant is not able to obtain fresh evidence and has relied on the existing evidence and claiming that I have done my part and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the factual material and documentary evidences placed by the appellant during the assessment proceeding and he could not bring anything contrary on record to negate the documentary evidences furnished by the appellant. * The Appellant requested the Learned Assessing Officer time and again to take necessary action/ Issue summon u/s. 131 to the lenders Company for the attendance and due legal compliances. The request of the Appellant was not considered by the Learned Assessing Officer. 8.1 It is further stated assessee had submitted the confirmation, bank statement, Acknowledgement, ITR and financial statements of the lender and affidavit during the scrutiny proceeding before the A.O. Further, stated that the AO has not brought any material on records to prove the loan taken by the appellant as accommodation entry. On the contrary, the appellant has proved the transaction of loan as genuine loan with evidence on records. The AO has made the disallowance u/s 68 in spite of all the conditions satisfied by the appellant. 8.2 It is further stated that as far as the question of validity of the transaction done through are concerned, even if some of the transactions entered into by S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation is probable, the onus will shift to the Revenue. 9. Before us the Ld. AR has further claimed that the AO relied upon the statement of a third party which was adversely used again it. However, no cross-examination of the said persons was allowed to the assessee. Besides, even the statement of Sri Gautam Jain was not provided to it. It is also stated that the AO did not take into account an important aspect of the submission whereby it was pleaded that the assessee had taken loan from the Marine Gems P.Ltd which was received on 17.01.2012 duly repaid to it on 24.9.2012. In this regard, the assessee has placed strong reliance on the case certain decisions of Hon'ble Bombay and Gujarat High Courts discussed in succeeding paras. 10. We have carefully gone through all the relevant facts of the case, rival submission as also the provisions of law and cases relied upon. On going through the detailed submissions, it is found that the main reason for making the addition by the AO was the source of the loan taken by the assessee from certain company alleged to having links with an accommodation entry provider who admitted such act on his part during search and seizure. The AO based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reassessment. This not having been done, the denial of such opportunity goes to root of the matter and strikes at the very foundation of the reassessment and therefore renders the orders passed by the CIT (A) and the Tribunal vulnerable. In our view the assessee was bound to be provided with the material used against him apart from being permitting him to cross examine the deponents. Despite the request dated 15th February, 1996 seeking an opportunity to cross examine the deponent and furnish the assessee with copies of statement and disclose material, these were denied to him. In this view of the matter we are inclined to allow the appeal. 10.2 In the case of PCIT vs Ambe Tradecorp P.Ltd (2022) 145 Taxmann.com 27(Gujarat) -It is also pertinent to note that there was a response from the loan parties in response to the notice issued under Section 133(6) of the Act wherein it was confirmed that these companies have advanced loan to the assessee. This reply of the loan parties cannot be brushed aside merely on the ground that the directors were not produced by the assessee during the assessment proceedings. It was the revenue which wanted to verify the directors of the loan compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we hold that there is no infirmity in the order of the Ld. CIT-A. Hence, the ground of appeal of the revenue is hereby dismissed. In the result, the appeal filed by the Revenue is hereby dismissed." 10.3 The co-ordinate bench of ITAT, Ahmedabad DCIT Vs Asit Surendrabhai Shah (ITAT Ahmedabad) Appeal Number : ITA No. 945/Ahd/2018 Date of Judgement/Order : 02/08/2023 held that provisions of section 68 of the Income Tax Act don't attract as unsecured loan availed was repaid in the next financial year through cheque payments to the creditor and bank statement thereof was filed. 10.4 In this case, even the lender companies in their reply to notice u/s. 133(6) of the Act has submitted the requisite information and have admitted of giving the loans to the assessee company. There is nothing on record from the lender company admitting the loans given in the nature of accommodation entries to the company or the same have been channelized out of the undisclosed income of the appellant company. Nowhere it has been proved that the lender company was in chain in the accommodation entry cycle and the final beneficiary was the assessee company. As per the allegation of the AO, had the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
