TMI Blog2005 (7) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... hough several opportunities were allowed, the assessee failed to furnish desired information despite several opportunities allowed. The AO, therefore, by relying on the judgment of Hon'ble Supreme Court in the case of Roshan Di Hatti vs. CIT 1977 CTR (SC) 200 : (1977) 107 ITR 938 (SC), judgment of Hon'ble Madras High Court in the case of V. Datchinamurthy Anr. vs. Asstt. Director of Inspection (Intelligence) IT Deptt. Anr. (1982) 27 CTR (Mad) 106 : (1984) 149 ITR 341 (Mad) and Hon'ble Calcutta High Court in the case of CIT vs. United Commercial Industrial Co. (P) Ltd (1991) 187 ITR 596 (Cal) held that the assessee failed to discharge the onus of proving the source and genuineness of these depositors. He, therefore, made an addition of Rs. 4,22,300 in respect of such deposits. 3.1 Being aggrieved, the assessee carried the matter in appeal before the CIT(A). It was stated before the CIT(A) that the assessee was engaged in the business of hire purchase and financing. The assessee accepted the deposits from public under the rules and regulations framed by the RBI and out of total deposits of Rs. 10,85,700, the AO made addition only of Rs. 4,22,300. It was submitted that during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 17th Dec., 1999, Sh. K.K. Sareen, chartered accountant appeared along with Sh. Rakesh Thapar, managing director of the company before the AO. However, neither any depositor was produced for recording of statement nor any written reply was filed. The AO has concluded that the assessee-company had no evidence to prove the source of cash credits. 3.5 A copy of the report of the AO was made available to the appellant and the case was fixed for hearing on 8th Feb., 2000. It was admitted by Sh. K.K. Sareen and Sh. Dheeraj Sehgal, director, that no evidence were produced before the AO in support of the credits. A written submission dt. 8th Feb., 2000 was also filed along with copies of certain documents. As none of these documents were produced before the AO. Neither during the assessment proceedings or during the remand proceedings, no cognizance is being taken in respect of these documents and this was brought to the notice of learned counsel during the appellate proceedings on 8th Feb., 2000. 3.6 In the light of above discussion, it is clear that the assessee-company had shown deposits in 35 names but required evidence was not produced before the AO to prove the genuineness of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sked the assessee to produce these depositors. He, therefore, submitted that the deposits in the names of 15 persons should be accepted. Since the learned counsel for the assessee strongly contested that the assessee was never asked to produce depositors by the AO or during the course of remand proceedings, the learned Departmental Representative was asked to produce the case records of CIT(A) for verifying this fact. These were produced and shown to the learned Authorised Representative and he was heard in the matter. As regards deposit of Rs. 70,000 in the case of Smt. Nirdosh Sareen, the learned counsel submitted that since she was not available, an affidavit of Sh. Parshotam Rai Bharti, her real brother was filed wherein it was stated that the amount of Rs. 70,000 was given out of sale proceedings of the property. A copy of the bank account was also filed and the amount was given by cheque. He submitted that the amount should have been accepted. He further argued that the case may be remanded to the AO for producing these 15 depositors who had confirmed the deposits of Rs. 2,40,000 by way of affidavits. 3.4 The learned Departmental Representative, on the other hand, heavily r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the case of Addl. CIT vs. Bahri Bros. (P) Ltd. (1984) 42 CTR (Pat) 66 : (1985) 154 ITR 244 (Pat), the assessee contended that since the amounts had been advanced by cheques and creditors were being assessed to tax and their permanent account numbers were given, there was no basis for making addition under s. 68. The AO rejected such submissions and made the addition on the ground that the creditors were not produced before him. However, the Tribunal deleted the addition. On further appeal, the Hon'ble Punjab Haryana High Court held that approach of the appellate authority was not correct because the assessee failed to produce the creditors before the AO for verification. It was further observed that mere fact that the amount was received by cheque does not by itself prove the genuineness of the transaction. Thus, the matter was remanded to the Tribunal for fresh adjudication. 3.7 In the case of Roshan Di Hatti vs. CIT, the Hon'ble Supreme Court has held that the law is well settled that the onus of proving the source of a sum of money found to have been received by an assessee is on him. If he disputes the liability for tax, it is for him to show either that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO as reported by the AO. The order-sheet entry dt. 8th Feb., 2000 is duly signed by these persons. However, the reply submitted in the letter dt. 8th Feb., 2000 is on record of CIT(A)'s folder at pp. 87 and 88. In the said letter, it has been mentioned that on 17th Dec., 1999, few depositors were asked to come to the office for recording their evidence, but they could not turn within official hours and as such three more persons appeared at about 9.30 p.m. and their affidavits were got signed from them and attested. The details for the same were given in the letter. These facts clearly show that the assessee could not produce the depositors despite opportunity allowed by the AO during the course of remand proceedings. The contentions of the learned Authorised Representative that the assessee was not asked to produce these depositors is untenable and incorrect in view of the facts placed on record. In fact, the assessee has miserably failed, both during the course of appellate proceedings and assessment proceedings, to produce these depositors or furnish any worthwhile evidence inspite of the fact that ample opportunities were allowed. 3.10 I have also gone through the detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cash) -------------------------------------------------- 8. Parshotam Rai 47 70,000 Out of sale No Bharti (Cheque) proceeds S/o late Sant of Ram [Deposit property in the name of Mrs. Nirdosh Sareen (Sister)] -------------------------------------------------- 9. Pinki Dada alias 46 10,300 Out of No Arvind Dada (By current a/c S/o V.D. Dada cheque) of firm -------------------------------------------------- 10.Prem Astha 45 30,000 Withdrawal No W/o Vijay Kumar -------------------------------------------------- 11.Astha Guardian (10,000 from father of Master each) in-law's 12.Sachin Astha, cash accounts Pooja Astha Aman Astha -------------------------------------------------- 13.Payal Sehgal 44 10,000 Encashment No W/o Satinder Sehgal (Cheque) of NSCs of Husband -------------------------------------------------- 14.Satinder Sehgal 43 10,000 -do- Yes S/o late Sh. (Cheque) (emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposits with a direction to allow one more opportunity to produce these parties and reconsider the claim after examination of the same. Apart from these cases, no other deposits could be accepted because the assessee failed to establish the identity of the creditors, creditworthiness of the creditors and genuineness of transactions despite ample opportunities allowed by the AO and the learned CIT(A). Therefore, the remaining additions are upheld. Thus, these grounds are partly allowed for statistical purposes. 3.11 Before parting with this ground, I wish to mention that the learned counsel has relied on certain judgments stating that the averments made in the affidavit should be accepted until there is a contrary material brought on record. I am unable to agree with such proposition for the simple reason that there is no universal proposition of law that a statement given in the form of an affidavit should be accepted as true. I have already discussed in detail that in case of cash credits, the onus of proving the source and genuineness is entirely on the assessee and mere filing of confirmations or affidavits without there being any corroborative evidence does not by itself pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Departmental Representative, on the other hand, relied on the orders of the authorities below. 4.3 Having considered the rival contentions, I find that the assessee did not file any affidavit of the creditor. However, the amount in this case has been received by account payee cheque. A copy of the statement of bank account is also placed at pp. 1 and 2 of the paper book. The same shows credit of Rs. 60,000 on 4th March, 1996 by way of bank transfer. The amount was given to the assessee on 17th March, 1996 and this amount also appears in the said bank account. A copy of the cheque by which money was returned by the assessee on 11th Sept., 1997 is also placed on file. However, she was not produced before the AO for the reasons that she was not co-operating with the assessee due to strained family relation. Since the order of the CIT(A) has been set aside for reexamination of some of the deposits, this issue is also restored to the file of the CIT(A) for deciding the same afresh as per law and after allowing reasonable opportunity to the assessee. Since the assessee has given permanent account number and the name of the officer with whom the creditor was being assessed, the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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