TaxTMI 
TaxTMI 
2017 (8) TMI 919
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.... 4. That in facts and circumstances of the case, the Assessing Officer has incorrectly invoked the provision of section 68 and sustained by the CIT(A) in the absence of any incriminatory document found during the course of search. 5. That the addition to the returned income as sustained by the Ld. CIT(A) may please be deleted. 6. That in fact and circumstance of the case, appellant be permitted to add or delete any grounds of appeal." 2. Facts of the case in brief are that the assessee is an individual and derives income from business and other sources. During the year he has shown gross receipts of Rs. 59,26,000/- from contract and net profit @ 12%. He has also shown Rs. 1,20,000/- as deemed profit u/s 44AE of the Income Tax Act, 1961 (the Act) on the total receipts of Rs. 19,83,167/- having two heavy vehicles. During the year the assessee had received unsecured loans of Rs. 4 lakhs from Sri Vivek Batra on 19.3.2011 and Rs. 50,00,000/- from Sri Rakesh Kumar on 22.3.2011. The A.O. asked the assessee to file confirmations of the parties from whom loans are received. Thereafter A.O. has concluded that the credit worthiness has not been proved and made an additi....
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.... a Contract Business as well as also derive income from truck. The return of income was filed in accordance to the provisions of Income Tax Act i.e. for the contract business the appellant has shown the income u/ s 44 AD and from the truck business u/ s 44AE whereas he is a partner in a firm M/ s Kohli Filling Station and a member of AOP in M/ s M.L.Juyal & co., wherefrom the profit is exempt but was duly reflected in the Capital account filed before the AO. The appellant also derives income from interest i.e. deposits with the company wherefrom the TDS has been deducted and accordingly shown. That the return of income was filed declaring net income after deductions of Rs. 14,00,000/- u/s 139, which was assessed by making huge additions at Rs. 78,93,520/-. The appellant do not maintain any books of account as he is not carrying on any Trading Business whereas the income from Contract and Transport has been declared as per provision of section 44AD and 44AE respectively of the Income Tax Act, 1961. It is important to note that in the remand report dated 20.02.2015 at Para 2(1), the Dy. Commissioner, Income Tax has admitted as under: 1. 111 this connection,....
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....ed at Page 9. The appellant have returned the amount through RTGS of SBI Bank on 15.04.2011 and credited to the ICICI Bank account, Moahli Account number 005 01560706 of Shri Rakesh Kumar on 15.04.2011. Page 10-12 The amount was taken after search and was duly refunded within 23 days prior to the date of filing of return. Shri Rakesh Kumar have given the confirmation dated 06.03.2013 where he admit to have given the amount as well as received back the amount, he has also given his copy of ICICI Bank account statement A/ c No. 005801560706 wherein at the time of giving the amount he had sufficient balance of Rs. 58,70,867/- and in the ICICI Bank statement, name of the appellant is also reflected with cheque no. as "RTGS Desh 264823 Rs. 50,00,000/ -", Page 9 The same amount is reflected in the appellant SBI Bank, Saharanpur Road, Dehradun bearing account no. 10140070121 on 22.03.2011 it is clearly mentioned RTGS ICICI1108105036 i.e. Bank account no. of Shri Rakesh Kumar Rs. 50,00,000/- when the appellant received the amount. Similarly when the appellant refunded the amount on 15.04.2011 it is mentioned RTGS SBI NH11101350371 Rs. 50,00,000/ - and in....
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....nts of A.Y. 2011-12 * The creditor has also given copy of his bank account from where the amount has been debited and the same is credited to the appellant's bank account. It is also worth to mention that in the subsequent assessment year i.e 2012- 13 during the scrutiny of the case, the same AO asked to submit the details of bank account entries above Rs. 50,000/ - and source thereof. The details were duly filed vide letter dated 19.06.2014 the AO. The copy of the said detail is enclosed herewith. From the perusal of the same your goodself will find that it is clearly mentioned on 15.04.2011 sum of Rs. 50,00,000j - was giver from SBI to Shri Rakesh Kumar of Chandigarh and bank has also charged Rs. 50/ - as RIG expenses at page 16. The copy of the said statement is enclosed. Page 15 - 21 The AO has accepted the bank account as well as the income declared by the appellant. The copy of the Assessment order is enclosed herewith at Page 22 - 23 That the copy of the Balance Sheet for the year ending 31.03.2011 wherein the name of Shri Rakesh Kumar is appearing and the copy of the Balance Sheet for 31.03.2012 is enclosed herewith, it does not conta....
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....y discharged the onus by furnishing the confirmations, copies of Income tax returns, and copy of bank pass book of his creditors, which tally with the bank account of appellant, the burden stands shifted to the Assessing Officer to rebut the same by bringing cogent evidence on the record, particularly when he has not disputed the aforesaid documents so furnished by the assessee. The Assessing Officer has the ample power to summon the aforesaid creditors of the assessee which he has apparently not exercised rather again shifted the burden on the assessee without disputing the genuineness of the documents, as such the addition made to his income is not sustainable. Income Tax Appellate Tribunal- Delhi "H" Bench in appeal no. ITA No. 2501/Delj2013 Dy, CIT Vs. Vivek Nagpal, New Delhi Order dated 9 February, 2016 At para 5.1 while dismissing the department appeal held;- (6) I further find that the AD in his order has not brought any material on record to show that the confirmation filed by the creditor is not genuine, here I would like to place reliance in the case of CIT vs. Gangour Investment Ltd. (Income Tax, Act No. 34/2007) date....
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.... We hereby affirm those findings and dismissed this ground of the revenue. In the case under appeal the amount was paid much before the due date of filing of the income tax return. Your kind reference is also drawn to the case of Saraogi Credit Corporation vs CIT 103 ITR 344 and Tularam Daga Repoted in 59 ITR 632 wherein it has been held that the assessee has not to explain the source of the source or the origin of the origin, this cannot be the basis to invoke section 68 of the Income Tax Act. The Honorable Delhi High Court in the case of CIT vs Gangeshwari Metal (P) Ltd. in IT Appeal No. 594 of 2012 have held no addition u/s 68 be made if the assessee prove the genuineness of the transaction. In case CIT vs. Khoobsurat Resorts (P) Ltd. (2012) 211 Taxman 510 (Del). Burden of Proof - PAN number and material particulars of the director (of the assessee) and his proprietorship concern, were made available and even the IT returns concerned, were filed and therefore CIT(A) and Tribunal were justified in deleting addition. BHAGAWANDAS SHARDA vs. ACIT ITAT, HYDERABAD (2004) 82 TT] 0982 Loan cleared by assessee before....