TaxTMI 
TaxTMI 
2023 (4) TMI 748
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...., that the Tribunal via the impugned order had disposed of the respondent/assessee's appeal, concerning not only AY 2011-12, but also AY 2012-13. 6. The appellant/revenue has proposed the following questions of law for consideration, which are contained in paragraph 3.1 to 3.6 of the appeal: "3.1 Whether the ITAT is correct in deleting the addition of Rs. 1,83,00,000/- made U/s 68 of the Income Tax Act, 1961 despite the fact that neither creditworthiness of lender and genuineness of transaction was proved by Assessee. 3.2 Whether the ITAT is correct in deleting the addition of Rs. 5,62,81,575/- made U/s 68 of the Act as creditworthiness and genuineness of transaction was proved by Assessee. 3.3 Whether the ITAT is correct in deleting the addition of Rs. 1,90,64,516/- made U/s 68 of the Act, despite the fact that the Assessee company failed to offer satisfactory explanation as to how the above mentioned amount qualifies for writing off. 3.4 Whether the finding of ITAT on the services and facilities offered by the Assessee to the hirers of the office space, the income should be assessed as business income, is based on any relevant evidence or ar....
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....assessee has not been able to establish the credentials of loan shown from M/s. Binaguri Tea Company and advance received from M/s. Searock Developers Pvt. Ltd. Neither genuineness of transaction nor the creditworthiness of the lender companies, the onus which rested on the assessee has been discharged. He, therefore upheld the impugned additions. xxx xxx xxx 8.8 The onus of proving the source of a sum of money found to have been received by the assessee is on him as held by the Hon'ble Supreme Court in Kale Khan Mohammad Hanif vs. Commissioner of Income-Tax (1963) 50 ITR 1 (SC) and Roshan Di Hatti VS. crT (1997) 107 ITR 938 (SC). 8.9 It is also well settled that in the case of cash credit entry it is necessary for the assessee to prove not only the identity of the creditors but also to prove the capacity of the creditors to advance the money and the genuineness of the transaction. In C. Kant & Co. vs Commissioner Of Income-Tax (1980) 126 ITR 63 (Cal), the Hon'ble Calcutta High Court held that on whom the onus of proof lies in a particular case is a question of law. But whether the onus has been discharged in a particular case is a question of fac....
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....Apart from issuing notices under section 131 at the instance of the assessee, the revenue did not pursue the matter further. In those circumstances, the Hon'ble Supreme Court held that if the Tribunal came to the conclusion that the assessee has discharged the burden which lay on him, then it could not be said that such conclusion was unreasonable or perverse or based on no evidence. 9.3 Secondly, according to the Ld. AO there is deposit of Rs.5,85,00,000/- on 25.05.2010 just three days earlier in the account of the creditor in HDFC bank. In this regard , the submission of the assessee is that the said deposit is through clearance of a cheque. It is not a deposit in cash. 9.4 Thirdly, as per Ld. AO the account of the creditor reflected few transactions, the submission of the assessee is that the Ld. AO overlooked the fact that the said account was only one of the account and not all (page 274 of the Paper Book). 9 .5 Lastly, the Ld. AO observed that income of the creditor for AY 2011-12 as per return is NIL. The assessee stated that during appellate proceeding the Ld . CIT(A)- 1 directed to file further details. In response thereto, the assessee filed wri....
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....nts. Furthermore, the PAN of the creditor was also furnished. The statement of accounts of the subject bank account, which reflected the credit entry was also placed on record. The acknowledgement of the creditor's return concerning the very same AY was also placed before the AO. The return of the creditor disclosed, that advance tax, withholding tax and self-assessment tax had been paid. 11. In our view, the second issue does not arise for consideration. 12. As regards the first issue which is proposed, the AO raised the very same concern, which is that there was no response received from the entity i.e., M/s Searock Developers Pvt. Ltd., which had advanced Rs.2 crores to the respondent/assessee. The respondent/assessee had demonstrated, that out of Rs.2 crores, Rs.17 lakhs had been returned. The respondent/assessee also conveyed to the AO, that because of the disruption in relationship, there was, perhaps, non-cooperation by the said entity, with regard to the notice issued under Section 133(6) of the Act. 13. The AO, it appears, drew an adverse inference, and made an addition under Section 68 of the Act. This was confirmed, as noticed above, by the CIT(A). 14. The Tr....
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.... off of outstanding credit balance of Rs.1,90,64,516/- in the account of M/s. Bell Ceramics Ltd. The Ld. AO made the disallowance holding that its nexus with income earned during the year is not established (page 14 of the Assessment Order). Before the Ld. CIT(A)-1 the assessee submitted that the impugned sum has been claimed by the assessee as having written off out of interest claimed from the said company. He, however, confirmed the disallowance observing that the assessee did not tender satisfactory explanation as to how the amount qualifies for writing off. 15.1 The assessee is now before us. It is submitted that the amount of Rs.1,90,64,516/ - is interest accrued and offered to tax in the preceding year. Since the said sum could not be recovered from the debtor M/s. Bell Ceramics Ltd. the assessee has written it off during the year in its account. The contention of the assessee is that the write off of an income which has not been realised is an allowable deduction which the assessee had claimed. On being asked by the Ld. CIT(A)-l, the assessee submitted before him account of M/s. Bell Ceramics Ltd. in the books of the assessee along with details of amounts paid on l....
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....Greater Kailash II, a premises owned by it. In the course of carrying on such a business activity it provides office space as also the infrastructure such as facilities of security, facility of receptionist etc. During the year the assessee entered into an agreement with three space holders namely, Aten Capital Pvt. Ltd., Eminent Networks Pvt. Ltd. and Country Development & Management Services Pvt. Ltd. 6.8.2 It is stated that income from such activity has been assessed as 'Business income' since inception i.e. AY 2002-03 till AY 2015-16 except AYs 2010-11,2011-12 and 2012-13 when it has been held by the Ld. AO as assessable under the head 'Income from house property' which has been upheld by the Ld. CIT(A). It is emphasised that in assessment framed under section 143(3) of the Act for subsequent AY 2013-14 and 2014-15 the Ld. AO has accepted that income derived from Business Centre is Business income. Therefore, the principle of consistency applies as in the preceding and subsequent assessment years the income from Business Centre has been assessed as Business income. Reliance is placed on the judgement of the Apex Court in CIT vs. Excel Industries Ltd . (....
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....so the infrastructure such as facilities of security, receptionist etc.. 6.10 We have perused the Business Centre Agreement ("Agreement") entered into between the assessee company and three space holder companies appearing at pages 72-90 of the Paper Book. The Agreement mentions that the licensor assessee is owner and in possession of commercial building situated in Greater Kailash-II, New Delhi and that it is authorised to utilise commercial space appx. 1852 sq. ft. located at Mezzanine Floor of the said complex for running Business-cum-Facility Centre therefrom. In pursuance of the same the assessee has set up a fully airconditioned Business-cum-Facility Centre in the said commercial space for providing temporary office and other secretarial services and-facilities to different individuals, companies and entities against payment of monthly Licence Fee and other charges to enable them to carry on their business operations within the basic structure and framework of the Business Centre. 6.10.1 In the backdrop of the above factual matrix, we find substance in the submission of the assessee that it was never the intention of the assessee to let out its comm....