Dinesh Kumar Laddha v. Assistant Commissioner Of Income-Tax , Circle Sawai Madhopur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 135/2018 Dinesh Kumar Laddha, Prop. M/s Laddha Ornaments ,Choumukha Bazar, Bundi, Rajasthan. ----Appellant Versus Assistant Commissioner Of Income-Tax , Circle Sawai Madhopur. ----Respondent For Appellant(s) : Mr. Gunjan Pathak with Mr. Aditya Bohra HON'BLE MR. JUSTICE KALPESH SATYENDRA JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS 02/07/2018 Judgment 1.By way of this appeal, the appellant has assailed thejudgment and order of the Tribunal whereby Tribunal has partlyallowed the appeal of the department and cross objection of theassessee is dismissed. 2.Counsel for the appellant has framed following substantialquestions of law:- (A) Whether in the facts and circumstances ofthe case, once the assessee has establishedthe identity of the creditors in whose namescash credit is found in the books of accountand the said creditors have admitted havingadvanced the aforesaid sum to the appellantassessee and the said creditors have alsobeen assessed to income tax, the tribunal wasjustified in holding that the assessee hasfailed to discharge his onus under Section 68of the Act of 1961? (B) Whether under the facts andcircumstances and in law, the ld. ITAT haserred in making the addition u/s 68 of theAct, 1961, treating the loan received asundisclosed income of the assessee, withouttaking into account that the Assessee hasdischarged its burden by placing (i)confirmation letter of the cash creditors; (ii)its affidavit; (iii) its full addresses and GIRnumbers and permanent account numbers;(iv) its Income Tax Return? (C) Whether in the facts and circumstances ofthe case the rejection of explanationfurnished by the appellant, explaining thecash credits of persons, for the reasons areperverse by ignoring the objective materialavailable to the assessee? 3.The facts of the case are that the appellant is engaged in thebusiness of trading of gold and silver ornaments under the name &style of M/s. Laddha Jewellers and is regularly assessed to taxunder PAN No. . The appellant has also income fromestate business. The appellant had filed his return of income forthe Assessment Year 2012-13 on 31.8.2012 declaring income ofRs.7,84,816/-. The case of the appellant was pricked up forscrutiny and notice u/s 143(2) of the Act was issued on23.9.2013. 3.1Thereafter, assessment u/s 143(3) of the Act of 1961 wasframed vide order dt. 27.3.2015 on the appellant. During theassessment proceedings, the AO assessed the income of theappellant amounting to Rs.58,98,350/- by making furtheradditions to the declared income of the appellant as under:- 4.Counsel for the appellant has relied upon the followingdecisions:- 4.1 In Kanhailal Jangid vs. Assistant Commissioner of Income Tax reported in (2008) 217 CTR 354, it has been held as under:- 3.1Thereafter, assessment u/s 143(3) of the Act of 1961 wasframed vide order dt. 27.3.2015 on the appellant. During theassessment proceedings, the AO assessed the income of theappellant amounting to Rs.58,98,350/- by making furtheradditions to the declared income of the appellant as under:- 4.Counsel for the appellant has relied upon the followingdecisions:- 4.1 In Kanhailal Jangid vs. Assistant Commissioner of Income Tax reported in (2008) 217 CTR 354, it has been held as under:- 6.Another Rs. 16,000 has been added to theincome of assessee as unexplained cash credit inthe name of Sri Ramulal. The assessee hasexplained that Ramulal who is a land tax inspectorhas advanced the loan of Rs. 16,000 to him.However, he has also furnished an affidavitpurporting to be by Sri Ramulal owning saidadvance to the assessee. However, the AO hasfound that said Ramulal was not produced forexamination when so required by the AO. He alsofound that the assessee has not given correct andcomplete address of the said Ramulal so that theefforts could be made through Inspector of circleto ascertain the genuineness of the creditor. Inother words, notwithstanding the filing of affidavitthe real existence of the creditor who could comeforward to own the deposit or advancement madeto the assessee was not proved. In suchcircumstances, the conclusion drawn by the AOthat the cash credit standing in the name of SriRamulal is not explained to the satisfaction of theAO and consequently additions made in theincome of assessee is a finding reached on therelevant material. We hasten to add that it maynot be taken that in all cases where a creditor isnot produced the explanation furnished by theassessee has to be discarded without anythingelse. For example, if the creditor is an Income Tax assessee and holds a PAN number, the mere non-production of the creditor may not by itself entailthe presumption about non-existence of thecreditor and non-advancement of the loan by him.It depends on facts and circumstances of eachcase whether the fact about advancement of theamount by a creditor to the assessee has beenexplained satisfactorily or not. Once the fact ofadvancement has been properly proved it is notfurther obligation of the assessee to prove thesource of source to reject the explanation aboutsuch credit with the assessee. 4.2In Labh Chand Bohra vs. Income Tax Officer (2010) 189Taxman 141, it has been held as under:- assessee and holds a PAN number, the mere non-production of the creditor may not by itself entailthe presumption about non-existence of thecreditor and non-advancement of the loan by him.It depends on facts and circumstances of eachcase whether the fact about advancement of theamount by a creditor to the assessee has beenexplained satisfactorily or not. Once the fact ofadvancement has been properly proved it is notfurther obligation of the assessee to prove thesource of source to reject the explanation aboutsuch credit with the assessee. 4.2In Labh Chand Bohra vs. Income Tax Officer (2010) 189Taxman 141, it has been held as under:- 8. Examining the present case even on theseparameters, first requirement is not relevant. Sofar as second requirement is concerned, there isno doubt about initial burden being on theassessee. So far as third requirement isconcerned, obviously if the explanation is notsatisfactory, then it is added. Then fourthrequirement is, that the firm has to establish thatthe amount was actually given by the lender. Fifthrequirement is about genuineness and regularity inmaintenance of the accounts, obviously of theassessee, and it is not the finding, that theaccounts were not regularly maintained. Thensixth requirement is that if the explanation is notsupported by any documentary or other evidence,then the deeming fiction created by Section68canbe invoked. In the present case, so far as 6threquirement is concerned, it is very much there inexistence, inasmuch as the amount has beenadvanced by account payee cheques, throughbank, and is duly supported by documentaryevidence, as well as the evidence of the twolenders, and that satisfies the 2nd requirementalso, about the discharge of burden on the part ofthe assessee to prove identity and genuineness ofthe transaction. So far as capacity of the lender isconcerned, in our view, on the face of thejudgment of Hon'ble Supreme Court, in DaulatRam's case (supra), and other judgments, capacityof the lender to advance money to the assessee,was not a matter which could be required of theassessee to be established, as that would amountto calling upon him to establish source of thesource. In that view of the matter, since this partof the judgment runs contrary to the Judgment of the Hon'ble Supreme Court, in Daulat Ram's case(supra), while this Court in a subsequentJudgment in Mangilal's case (supra) relying uponDaulat Ram's case (supra), has taken a contraryview, we stand better advised to follow the view,which has been taken in Mangilal's case (supra). 4.3In Aravali Trading Co. vs. Income Tax Officer (2010) 187Taxman 338, it has been held as under:- 10. The answer to us appears to be no more resintegra. Neither the provisions of Section 68 ofthe IT Act nor on general principle, it can be saidthat once the existence of persons in whose namecredits are found in the books of the assessee isproved and such persons own such credits withthe assessee still the assessee is to further provethe source from which the creditors could haveacquired money to be deposited with him. 4.3In Aravali Trading Co. vs. Income Tax Officer (2010) 187Taxman 338, it has been held as under:- 10. The answer to us appears to be no more resintegra. Neither the provisions of Section 68 ofthe IT Act nor on general principle, it can be saidthat once the existence of persons in whose namecredits are found in the books of the assessee isproved and such persons own such credits withthe assessee still the assessee is to further provethe source from which the creditors could haveacquired money to be deposited with him. 11. The fact that the depositors' explanation aboutthe sources where from they acquired the money isnot acceptable to the AO, it cannot be presumedthat the deposits made by such creditors is themoney of the assessee himself. There is no warrantfor such presumption. In such event if the creditorsexplanation is found to be not acceptable aboutsuch deposits, the investment owned by suchpersons may be subjected to the proceedings forinclusion of such investment as their income fromundisclosed sources or if they have been foundBenami, the real owner can be brought to the taxnet. But in order to fasten liability on the assesseeby including such credits as his income fromunexplained sources a nexus has to be establishedthat the sources of creditors' deposit flew from theassessee. In the absence of any such link,additions of cash credits found in the books ofaccount of the assessee cannot be considered to beunexplained income of the assessee, whereexistence of depositors of such credits isestablished and such deposits/advance/loan isowned by such existing person. On such proof theassessee's onus is discharged. 20. This principle is fully applicable to the presentcase. The fact that the explanation furnished by theaforementioned four creditors about the sourceswhere from they acquired the money was notacceptable by the Revenue could not providenecessary nexus for drawing inference that theamount admitted to be deposited by these four persons belonged to the assessee. The assesseehaving discharged his burden by proving theexistence of the depositors and the depositorsowing their deposits, he was not further required toprove source of source. 21. Accordingly the Tribunal, and the AO hadseriously erred and misdirected themselves in lawby not correctly appreciating the legal principleabout necessity of establishing such nexus once theassessee has discharged his onus by proving theexistence of the depositors and the depositorshaving accepted their deposits with the assessee.Once this onus is discharged the presumptionraised under Section 68 stands rebutted and itbecomes burden of Revenue to prove that source ofsuch deposits is traceable to assessee before thesame can be treated as undisclosed income of theassessee concerned. 4.4In Commissioner of Income Tax vs. Jai Kumar Bakliwal(2014) 366 ITR 217 (Raj.), it has been held as under:- 20. When we peruse the facts hereinabove, it isan admitted position that all the cash creditorshave affirmed in their examination that they hadadvanced money to the assessee from their ownrespective bank accounts. Therefore, when thereis categorical finding even by the AO that themoney came from the respective bank accountsof the creditors, which did not flow in the shape ofthe money, then, in our view, such an additioncannot be sustained and has been rightly deletedby both the two appellate authorities. There is noclinching evidence in the present case nor the AOhas been able to prove that the money actuallybelonged to none but the assessee himself. Theaction of the AO appears to be based on meresuspicion. 20. When we peruse the facts hereinabove, it isan admitted position that all the cash creditorshave affirmed in their examination that they hadadvanced money to the assessee from their ownrespective bank accounts. Therefore, when thereis categorical finding even by the AO that themoney came from the respective bank accountsof the creditors, which did not flow in the shape ofthe money, then, in our view, such an additioncannot be sustained and has been rightly deletedby both the two appellate authorities. There is noclinching evidence in the present case nor the AOhas been able to prove that the money actuallybelonged to none but the assessee himself. Theaction of the AO appears to be based on meresuspicion. 21. Accordingly, in our view, the Tribunal, afterappreciation of evidence has rightly come to theaforesaid conclusion and when there isappreciation of evidence, then it is purely afinding of fact and no question much lesssubstantial question of law can be said to emergeout of the said order of the Tribunal and we do notfind any infirmity or perversity in the order of theTribunal so as to call for any interference of thisCourt. In our view, no substantial question of lawarises out of the order passed by the Tribunal. 22. Consequently, the appeal, being devoid ofmerit, is hereby dismissed in limine. No order asto costs. 4.5In Sarogi Credit Corporation vs. Commissioner of Income Tax (1976) 103 ITR 344, it has been held as under:- It may be noticed from the facts of the NorthernBengal Jute Trading Company's case that thecredit entries in question in that case werestanding in the names of either employees of theassessee or an associate firm, Messrs. SurajmullNagarmull. That being the position, it was held, onthe facts of that case and the surroundingcircumstances obtaining therein, that the initialonus had not been discharged by the assessee. The last, but not the least, of all the situationsfavourable to the assessee, in which the Tribunal,by its appellate order, has placed it with regard tothe source of income of the creditors, is by partlyaccepting the source to the extent of Rs. 5,000and partly rejecting to the extent of Rs. 15,000.Having accepted the genuineness of the entries inthe books of account; having accepted theexplanation offered by the third parties withregard to their sources of money, in part at least,there was no material for the Tribunal to hold thatthe assessee had not discharged the onus, and thefinding to that effect must be held to be withoutany evidence and hence wholly illegal, andconclusions drawn perverse. For the foregoing reasons, I would answer the firstquestion referred to us in the affirmative and holdthat, on the facts and in the circumstances of thecase, the assessee discharged the onus within themeaning of Section 68of the Act, for the cashcredits. As a necessary corollary, the secondquestion also must be answered in favour of theassessee and against the department and it mustbe held that the Tribunal was not justified in law tomaintain the addition of Rs. 15,000 as theassessee's income from undisclosed sources. Theassessee will be entitled to its costs. Hearing feeassessed at rupees one hundred only. 4.6In Jalan Timbers vs. Commissioner of Income Tax (1997)223 ITR 11, it has been held as under:- For the foregoing reasons, I would answer the firstquestion referred to us in the affirmative and holdthat, on the facts and in the circumstances of thecase, the assessee discharged the onus within themeaning of Section 68of the Act, for the cashcredits. As a necessary corollary, the secondquestion also must be answered in favour of theassessee and against the department and it mustbe held that the Tribunal was not justified in law tomaintain the addition of Rs. 15,000 as theassessee's income from undisclosed sources. Theassessee will be entitled to its costs. Hearing feeassessed at rupees one hundred only. 4.6In Jalan Timbers vs. Commissioner of Income Tax (1997)223 ITR 11, it has been held as under:- 9.On the basis of the cases cited above, it is tobe seen whether in the present case the assesseecould discharge the onus regarding the receipt ofthe cash credit. The Tribunal in its judgmentindicated that the identity of the creditor was notenough. It is true that by proving the identity theassessee cannot be said to have discharged itsonus. In the instant case, the amounts were shownin the Income Tax return of the assessee. Besides,the creditors had also shown in the returns aboutthe giving of the loan to the assessee. Strangely,the Income Tax Officer while making theassessment in respect of the three creditors abovenamed accepted the returns. This itself will go toshow that the amount received by the assesseewas at least prima facie genuine. As the IncomeTax Officer had accepted the returns of the threecreditors it should go to mean that the amountsgiven by those creditors were also genuine. Ongoing through the Tribunal's judgment, we find thatthe Tribunal observed thus : " Of course, confirmation letter was filed but in theinstant case, the Income Tax Officer went furtherand verified the assessment records of that creditorfrom which he found various facts as mentioned inthe assessment order and as discussed by usabove. Thus, in our opinion, identity of the creditoralone is not sufficient. It has also to be shown thatthe creditor had the capacity to advance the loanand that the loan itself was genuine." 4.7In Commissioner of Income Tax vs. S. Kamaljeet Singh (2005) 147 Taxman 18, it has been held as under:- 4. The Tribunal has recorded a finding that theassessee has discharged the onus which was onhim to explain the nature and source of cash creditin question. The assessee discharged the onus byplacing (i) confirmation letters of the cash creditors; (ii) their affidavits; (iii) their full addresses and GIR numbers andpermanent account numbers. It has found that the assessee's burden stooddischarged and so, no addition to his total incomeon account of cash credits was called for. In viewof this finding, we find that the Tribunal was right 5.The CIT(A) while considering the ground no.5 held asunder:- Ground No.5 4- /kkjk 68 ds rgr vk; esa o`f)%& dj fu/kkZj.k dh dk;Zokgh dsnkSjku djnkrk dks voxr djk;k x;k Fkk fd ;g oR;kiu gsrqJh lqfuy vxzoky dks mifLFkr djk;s fdUrq djnkrk us lR;kiugsrq izLrqr ugha fd;kA rRi’pkr djnkrk dks fnukad 29-12-2014dks /kkjk 131 dk lEeu tkjh fd;k x;k ,oa fnukad 05-01-2015dks Jh lquhy vxzoky ds c;ku mlds }kjk djnkrk dks nh xbZjkf’k ds Jksr ds lR;kiu gsrq ntZ fd, x, ftudk fooj.k fuEuizdkj gS%& iz’u%& d`i;k viuk iw.kZ ifjp; nhft,\ mRrj%& esjk uke lqfuy dqekj vxzoky iq= Jh ';ke fcgkjhvxzoky fuoklh vtjk xyh] pkSeq[kk cktkj] cwUnh esa jgrk gwaAesjh vk;q 42 o"kZ gS o eSa d{kk X;kgjoha rd f’kf{kr gwaA 5.The CIT(A) while considering the ground no.5 held asunder:- Ground No.5 4- /kkjk 68 ds rgr vk; esa o`f)%& dj fu/kkZj.k dh dk;Zokgh dsnkSjku djnkrk dks voxr djk;k x;k Fkk fd ;g oR;kiu gsrqJh lqfuy vxzoky dks mifLFkr djk;s fdUrq djnkrk us lR;kiugsrq izLrqr ugha fd;kA rRi’pkr djnkrk dks fnukad 29-12-2014dks /kkjk 131 dk lEeu tkjh fd;k x;k ,oa fnukad 05-01-2015dks Jh lquhy vxzoky ds c;ku mlds }kjk djnkrk dks nh xbZjkf’k ds Jksr ds lR;kiu gsrq ntZ fd, x, ftudk fooj.k fuEuizdkj gS%& iz’u%& d`i;k viuk iw.kZ ifjp; nhft,\ mRrj%& esjk uke lqfuy dqekj vxzoky iq= Jh ';ke fcgkjhvxzoky fuoklh vtjk xyh] pkSeq[kk cktkj] cwUnh esa jgrk gwaAesjh vk;q 42 o"kZ gS o eSa d{kk X;kgjoha rd f’kf{kr gwaA iz’u%& vkidks eS- y<~<k ToSylZ ds izdj.k esa vk;dj vf/kfu;e1961 dh /kkjk 133¼6½ ds rgr uksfVl tkjh dj vkidh cfg;ksa esamuds [kkrs dh izfr o cSad [kkrs dh izfr o dj foojf.kdk dhizfr pkgh x;h Fkh] ks dh vkius izLrqr dh gSA vkids }kjk eSa-y<~<k ToSylZ@Jh fnus’k y<~<k dks :- 500000@& fnukad 11-11-2011 dks tfj;s pSd fn;k tkuk crk;k gS vkids }kjk izLrqrcSad [kkrs dks ns[kus ij Kkr gqvk fd vkids }kjk fnukad 08-11-2011 dks rFkk 9-11-2011 dks <kbZ~&<kbZ yk[k :i;s udn cSad eatek djk;k gS ,oa fnukad 11-11-2011 dks :- ikap yk[k Jhfnus’k y<~<k eS- fnus’k y<~<k ToSylZ dks pSd ls fn;k gSAvkidks bl [kkrs dh izfr iqu% fn[kk jgk gwa ftls ns[kus ij Kkrgksrk gS fd bruh cMh jkf’k lEiw.kZ foRr o"kZ esa cSad [kkrs esa tekugha djkbZ gS] d`i;k bl laca/k esa crk, fd bruh cMh jkf’kvkius dgka ls vftZr djds tek djkbZ gS] blds Jksr crk,a\ mRrj%& eSa- izksiVhZ Ø;%& foØ; dk dk;Z djrk gwa] ftlls eq>sdeh’ku dh izkfIr gksrh gS ¼nykyh deh’ku½] [ksrh tqvkjs ijystk gwa blls Hkh vk; gksrh gSA esjs iqjkuk xksMkmu gS mlls Hkhfdjk;s dh vk; gksrh gS] eSus] mDr xksMkmu dks nokbZ okys cksgjkdks fn;k gS ftlls eq>s ekfld 3000@& izfrekg fdjk;k vkrkgS] eSaus blds vfrfjDr vkSj Hkh iSls C;kt ij m/kkj fn;s gq, gSamlls Hkh eq>s vk; gksrh gSA tqvkjs ij Jh eFkqjk yky]xzke&Qtyiqjk] vkdksnk] rg0&fg.Mksyh ls 22 ch?kk Ñf"k Hkwfetqvkjs ij yh ¼;g Ñf"k Hkwfe blds dCts esa gS mlds uke½ftldk dksbZ lk{; esjs ikl miyC/k ugha gSA esjs }kjk fdu&fduO;fDr;ksa dks m/kkj ij iSlk fn;k gqvk gS mldk Hkh fooj.k ;kO;fDr;ksa dh lwph esjs ikl ugha gSA C;kt dh nj fdlh ls ,d izfr’kr] nks izfr’kr o fdlh ls ugha Hkh fy;k tkrk gS tksjkf’k;ka m/kj nh gS os udn esa gh nh xbZ gSa iz’u%& Ñi;k crk;s fd vkids ikl [ksrh ds D;k&D;k lk/ku gS]ftuls vki Ñf"k dk;Z djrs gS\ mRrj%& esjs ikl Ñf"k dk;Z djus ds dksbZ lk/ku ugha gS eSa nwljsls [ksrh djok ysrk gwa fdUrq blds dksbZ lk{; esjs ikl miyC/kugha gSa esjs ikl [ksrh dh mit cspus ,oa [kkn&cht vFkkZr~ [kpksaZds dksbZ lk{; miyC/k ugha gSA iz’u%& mijksDr c;kuksa ,oa miyC/k nLrkostksa ls cSad [kkrs dsvoyksdu ls ;g Li"V gksrk gS fd vkius eS- y<~<k ToSylZ lsikap yk[k :i;s ydn izkIr fd;s gS ftUgsa dze’k% fnukad 08-11-2011 ,oa 09-11-2011 dks cSad esa udn tek djk dj mUgsa ;kuhJh fnus’k y<~<k dks pSd fn;k gS] bl laca/k esa vkidks D;kdguk gSA mRrj%& esjs ikl iSlk Fkk] tks eSus fn;k FkkA iz’u 5%& mijksDr ls vkids }kjk nh xbZ jkf’k vFkok vkids }kjkvkidh Lo;a dh crkbZ xbZ jkf’k ds Jksr dh iq"Vh ugha gks ikbZ gS]vr% D;ksa ugh vk;dj vf/kfu;e 1961 dh /kkjk 147 ds rgrvkids izdj.k dks laoh{kk gsrq [kksyk tk;s] bl laca/k esa vkidksD;k dguk gSA mRrj%& tks Hkh mfpr dk;Zokgh le>h tk; oks dh tk;A iz’u%& mijksDr c;kuksa ,oa miyC/k nLrkostksa ls cSad [kkrs dsvoyksdu ls ;g Li"V gksrk gS fd vkius eS- y<~<k ToSylZ lsikap yk[k :i;s ydn izkIr fd;s gS ftUgsa dze’k% fnukad 08-11-2011 ,oa 09-11-2011 dks cSad esa udn tek djk dj mUgsa ;kuhJh fnus’k y<~<k dks pSd fn;k gS] bl laca/k esa vkidks D;kdguk gSA mRrj%& esjs ikl iSlk Fkk] tks eSus fn;k FkkA iz’u 5%& mijksDr ls vkids }kjk nh xbZ jkf’k vFkok vkids }kjkvkidh Lo;a dh crkbZ xbZ jkf’k ds Jksr dh iq"Vh ugha gks ikbZ gS]vr% D;ksa ugh vk;dj vf/kfu;e 1961 dh /kkjk 147 ds rgrvkids izdj.k dks laoh{kk gsrq [kksyk tk;s] bl laca/k esa vkidksD;k dguk gSA mRrj%& tks Hkh mfpr dk;Zokgh le>h tk; oks dh tk;A Jh lqfuy dqekj vxzoky }kjk djnkrk dks fnukad 11-11-2011dks : 500000@& fn;k x;k gSA Jh lqfuy dqekj ds cSad [kkrsdks ns[kus ij Kkr gqvk fd mlds }kjk fnukad 8-11-2011 dks250000@& ,oa 9-11-2011 dks 250000@& udn cSad esa tekdjk;s gSA lqfuy dqekj ds iwjs o"kZ ds cSad [kkrs dk voyksdu ijKkr gqvk fd lqfuy dqekj us dHkh Hkh bruh c<h jkf’k cSad esatek ugha djk;k tkuk ik;k x;kA Jh lqfuy dqekj ls djnkrkdks nh xbZ jkf’k ds Jksr ds ckjs esa iz’u la[;k&2 esa iwNk x;krks Jh lqfuy dqekj us deh’ku] [ksrh] tqvkjs ls vk; o xksnkjkfdjk;s dh vk; ls rFkk C;kt ij m/kkj fn, gq, C;kt jkf’k lsvkenuh gksuk crk;k gS Jh lqfuy dqekj }kjk 22 ch?kk Ñf"k Hkwfe1500@& izfr ch/kk ds fglkc ls tqvkjs ij ysuk voxr djk;kA,oa ¼;g Hkwfe fdlds dCts esa gS] dk½ dksbZ lk{; miyC/k u gksukcrk;kA ftu O;fDr;ksa dks m/kkj iSlk fn;k gS mudk fooj.k HkhmiyC/k u gksuk c;kuksa esa crk;kA mijksDr c;kuksa ,oa lqfuy dqekj ds }kjk izLrqr cSad [kkrs dsfooj.k dks ns[kus ls Kkr gksrk gS fd Jh lquhy dqekjvxzoky :- 500000@& ds Jksr crkus esa foQy jgk gSAblls ;g fl) gksrk gS fd ;g jkf’k djnkrk }kjk Jh lqfuydqekj dks nh xbZ gS ftls mlds }kjk cSad esa udn tek djkdjpSd djnkrk dks fn;k x;k gSA vr% djnkrk dh cqDl] esa lqfuydqekj ds uke ls tek jkf’k djnkrk dh /kkjk 68 ds rgr v?kksf"kr vk; gS tks fd mlus lqfuy dqekj ds uke ls tek dhgS ,oa 500000@& djnkrk dh dj ;ksX; vk; esa tksMs tkus;ksX; gSA djnkrk dks bl laca/k esa bl dk;kZy; ds i= fnukad18-2-2015 ds }kjk fy[kk x;k fd%& vkids izdj.k esa vkidh cfg;ksa esa vkids }kjk Jh lqfuy dqekjvxzoky ls vkyksP; o"kZ esa 500000@& tek, ysuk ik;k x;k gSAJh lqfuy dqekj vxzoky ls /kkjk 133¼6½ esa lwpuk,a pkgh xbZ rksmlds }kjk izLrqr lwpuk,a larks"kizn ugha ikbZ xbZA rRi’pkr Jhlqfuy vxzoky dks vk;dj vf/kfu;e 1961 dh /kkjk 131 dsrgr lEeu tkjh fd;k x;k ,oa fnukad 5-1-2016 dks mldsc;ku ntZ fd, x;sA ntZ c;kuksa ls ,oa mlds }kjk izLrqr cSad[kkrs ds fooj.k ,oa mldh dj fooj.kh dks ns[kus ij Kkr gqk fdJh lqfuy vxzoky 500000@& m/kkj nsus dh gSfl;r esa ugha gSvkSj u mlds ikl ,slk dksbZ lk{; gksuk ik;k x;k] ftlls ;gekudj /kkjk 68 ds rgr vkidh dj ;ksX; vk; esa tksM fn;ktkosA djnkrk us izR;qrj fnukad 24-2-2015 esa fuEu Li"Vhdj.k izLrqrfd;k%& Regarding Sunil Kumar I have taken Rs.500000/-through account payee cheque is regular assessee atBundi. He has no denied in his statement and further detailsmay be submitted after perusal of his statement whichis not provided by you. Therefore you are very kindlyrequested to accept the loan.” djnkrk dks bl laca/k esa Jh lqfuy dqekj ds fy, x;s c;kuksa dhQksVksizr fnukad 24-2-2015 dks miyC/k djkbZ xbZA bl laca/k esa djnkrk us fuEu izR;qRrj fnukad 26-3-2015 dksizLrqr fd;k gS%& “In reference to copy of statement of Sh. Sunil Agarwalprovided by your honor assessee begs t submit asunder:- That Sh. Sunil Agarwal has accepted payment of loanin his statement inspite of pressure of tax he hasadmitted in his statement that he has paid loan toassessee after depositing in his bank through accountpayee cheque. It is further submitted that Sh. SunilAgarwal is assessed to tax since long he has sufficientcapital to provided loan. He has submitted his PANbefore your honor therefore only due to deposition justbefore providing loan is not sufficient to consider hasentry not genuine. In this connection I Am submittingfollowing decisions: Sh. Kamal Kishore Beheti, Jodhpur Vs. DCIT, CentralCircle-2, Jodhpur Tax World 2012(48)155 “In reference to copy of statement of Sh. Sunil Agarwalprovided by your honor assessee begs t submit asunder:- That Sh. Sunil Agarwal has accepted payment of loanin his statement inspite of pressure of tax he hasadmitted in his statement that he has paid loan toassessee after depositing in his bank through accountpayee cheque. It is further submitted that Sh. SunilAgarwal is assessed to tax since long he has sufficientcapital to provided loan. He has submitted his PANbefore your honor therefore only due to deposition justbefore providing loan is not sufficient to consider hasentry not genuine. In this connection I Am submittingfollowing decisions: Sh. Kamal Kishore Beheti, Jodhpur Vs. DCIT, CentralCircle-2, Jodhpur Tax World 2012(48)155 Both the creditors from whom assessee acceptedcredits were employees of assessee. Opened bank a/cfirst time to give these loans/cash was deposited andloan was advanced. No other transaction in bank a/cexcept interest. Both were produced through cheque.One of he creditors was filing return of income. AOmade the additions, which were confirmed by CIT(A). Hon’ble ITAT held that assessee has proved identity,credit worthness and genuineness of the transaction. Also in the case of Sm. Premlata Sharma Jaipur Vs.ITO Jaipur Honorable ITAT Jaipur Tax World 2009 Vol.XLII Part 4(236) has observed as under:- During thisyear assessee obtainded loans of Rs. 25 Lacs from 18different persons-AO required the assessee to urnishconfirmation, PA number, copy of return of income andbank account of the creditors-assessee howeverfurnished confirmation alongwith copy of bankaccounts in respect of only five creditors. From thecopy of bank account, AO noticed that the creditorshave deposited the amounts in cash in their bankaccounts just before issue of cheque of loan to theassessee and hence source of such cash deposites inthe bank accounts of creditors and also furnishremaining details. Since assessee failed to producethese persons, AO issued summons to the creditorsbut nobody appeared. Ultimately assessee treating thesome as unexplained cash credits U/s 68 of the Act.CIT(A) sustained the addition since assessee failed toproduce them. Before Tribunal assessee submitted thatall the 18 creditors are income tax assessee and theirconfirmation and PA No. were filed before the AO allthese amounts of loan were repaid during the nextyear along with interest through account payee chequeand that the assessee cannot be alamed if thecreditors did not appear before the AO inspire of issueof summons surrender was made to purchase peace ofmind and avoid litigation. Considering the facts of thiscase, Tribunal have debated the addition afterobserving that identity and credit worthiness of all thecreditors stand proved. In the case of Ashok Kumar Jain V/s. DCIT Tax World2008 Vol. XXXIX part (137) honorable ITAT Jaipur hasobserved as under:- During AY 2003-04, AO made additions of Rs.361000/-representing unexplained case credit assessee filedconfirmation of each creditors alongwith their IncomeTax particulars. AO did not, accept the genuineness of these creditsand made the addition CIT(A) deleted the addition.Now Tribunal have upheld the decision of CIT(A) afterobserving that if the creditors are not traced by theAO, the loans cannot be treated as non genuine. Further, in the case of ACIT Vs Sampat Ram (2005) 24Tax world 172, the Jaipur Bench of ITAT has held thatdepositing of cash after issuing cheque does not effectthe genuineness of transaction. This does not makethe transaction bogus. In the case of Sahibganj Electrical Cables Pvt. Ltd.(1978) 115 ITR 408 (Calcutta) it was held that theloan amount was received and returned throughcheque and the assessee submitted a confirmationletter mentioning income tax number of creditor. Theassessing officer without any investigation and notrelying on the evidence rejected the deposits. HeTribunal reversed the decision of the Assessing Officer. Further, in the case of ACIT Vs Sampat Ram (2005) 24Tax world 172, the Jaipur Bench of ITAT has held thatdepositing of cash after issuing cheque does not effectthe genuineness of transaction. This does not makethe transaction bogus. In the case of Sahibganj Electrical Cables Pvt. Ltd.(1978) 115 ITR 408 (Calcutta) it was held that theloan amount was received and returned throughcheque and the assessee submitted a confirmationletter mentioning income tax number of creditor. Theassessing officer without any investigation and notrelying on the evidence rejected the deposits. HeTribunal reversed the decision of the Assessing Officer. Later, Calcutta High Court also upheld the decision ofTribunal. If any transaction is performed through bank, then thequestion of its genuineness does not arise. Moreoverall loners are assessed to tax and are PAN holders,therefore identity is beyond doubt. Further, money hasbeen advanced out of their assessed capital shown intheir respective balance sheets and establishedsources of income, therefore, credit worthiness is fullyproved. It is also submitted that in AY 2008-09 credit balancehas been considered to be genuine. Sh. Sunil Agarwalhas submitted of his copy of income tax return.Computation & balance sheet in within this sum isrefulcting. djnkrk ds }kjk izLrqr izR;qRrj lkekU; izo`fRr dk gS ,oa blesafn, x;s ch lswa ds rF; djnkrk ds izdj.k ds rF;ksa ls esy ugha[kkrsA djnkrk dk dFku Lohdkj djus ;ksX; ugha gSA vr% djnkrk ds izdj.k esa 500000@& djnkrk dh gh v?kksf"krvk; ekudj /kkjk 68 esa dj ;ksX; vk; esa tksMk tkrk gSA djnkrk us viuh vk; dh fooj.kh esa mijksDr 500000@& dsrF;ksa dks Nqik fy;k gS ,oa lgh&lgh rF; izLrqr ugha fd;s gSAvr% bl pwd ds fy, djnkrk ds fo:) vk;dj vf/kfu;edh /kkjk 271¼1½¼lh½ ds rgr 'kkfLr dh dk;Zokgh visf{kr gSA 6.The aforesaid finding was confirmed by the tribunal. 7.In that view of the matter, we are in complete agreementwith the view taken by the Tribunal, therefore, no substantialquestion of law arises. 8.Hence, the appeal stands dismissed. (VIJAY KUMAR VYAS),J (K.S. JHAVERI),J Brijesh 29.