TaxTMI 
TaxTMI 
2010 (1) TMI 856
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.... Rs.7781699/-." 3. The facts of the issue, in brief, are that the assessee - an individual and a citizen of China - was running a proprietary business - R V Exports [RVE] - in exporting of granite blocks. For the assessment year in dispute, the assessee had furnished a ROI, admitting a total income of Rs.4802407-in which he had shown a turnover of Rs.4.88 crores. 4. During the course of assessment proceedings, it was noticed by the AO that the assessee had introduced a capital of Rs.6711879/- which was explained that he had brought his own capital in foreign exchange through banking channels and produced copy of account with ABN Amro Bank. On a scrutiny, it was found that some amounts were also received from Far East Marbles of Thaila....
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....duce the tax liability. 5. Aggrieved, the assessee took up the issue with the Ld.CIT(A) for relief. After due consideration of the assessee's forceful contentions, the CIT(A) had observed thus- "6................It is observed that the AO disallowed' Rs.7781699/- the loan taken from M/s. Far East Marbles, Thailand as unexplained sales. The reasons are that the regular sale proceeds are credited to the accounts of RV Exports in HSBC Bank whereas the loan was in ABN Amro Bank. The second reason stated by the AO is that the amounts have been given on different dates and are not in round figures. Some of the receipts were received on or near the dates of receipt of sale proceeds. The third reason for disallowing the loan is that the Inwar....
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....with the finding of the Ld.CIT(A), the Revenue has come up with the present appeal. The Ld. D R's reiteration was more or less what has been reasoned in the impugned order of the AO. Furtherance to the above, strong reliance was placed on the ruling of the Hon'ble Apex Court in the case of Sumati Dayal vs. CIT reported in 214 ITR 801 and by the Hon'ble High Court of Allahabad reported in (2008) 304 ITR 239 in the case of Banarsi Prasad vs. CIT to drive home her point. 6.1. On his part, the Ld. A R's urge revolved around what was contended before the lower authorities. It was, further, contended that the Ld. CIT(A) had arrived at a conclusion after duly analyzing the issue in depth which requires no interference at this stage. 6.2. Dur....
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....Account statement, confirmation letter, ledger extract copy of FEM during the year 2007-08, copy of ROI for the AY 2008-09, copy of stock statement. In spite of all the relevant particulars, confirmation letters etc., were at the possession of the AO, the AO went ahead with a theory that the assessee had used a colourable devise to evade tax by showing receipt of sale proceeds as receipt of loan. 7.2. On a cursory verification of the evidences produced by the assessee, we are in total disagreement with the conclusion of the AO. 7.3. In an overall consideration of the facts and circumstances of the issue, we are of the unanimous view that the AO was not justified in treating the entire loan amount of Rs.7781699/- as unaccounted sales a....
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....reasonably, there is a prima facie evidence against the assessee and if assessee fails to rebut the same, such un-rebutted evidence can be used against him....." 7.4.1. With due regards, we would like to point out that the assessee had furnished confirmation letter from the creditor, the name and complete postal address and the identity of the creditor (established). Thus, the assessee has discharged his onus. However, the AO had neither discharged his onus nor established any prima facie evidence against the assessee and, thus, the Revenue cannot seek refuge in the said ruling. 7.4.2. Yet an another ruling, the Hon'ble High Court of Allahabad referred supra, had observed that "First part of s.68 only requires the assessee to disclose....