SMT. MEERA DEVI, ,JAIPUR vs. ITO, WARD-6(1), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES “B”, JAIPUR Jh lanhi x®lkÃa] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 256/JP/2020 fu/kZkj.k o"kZ@Assessment Year :2013-14 cuke Meera Devi, I.T.O., Vs. 772, Sindhi Colony, Raja Ward 6(1), Park, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFNPD 6394 L vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Tanuj Agarwal (FCA) jktLo dh vksj ls@ Revenue by : Ms. Chanchal Meena (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 29/09/2020 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement :11/11/2020 vkns'k@ ORDER

PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against the order

of the ld. CIT(A)-2, Jaipur dated 15/01/2020 for the A.Y. 2013-14, wherein

the assessee has raised following grounds of appeal:

“1. That on the facts and circumstances of the case and in law, the ld. CIT(A) grossly erred in not quashing the reopening of assessment U/s 147 of the Income-tax Act, 1961 and also erred in not treating the reassessment order passed as illegal, unjustified and void ab initio. 2. That on the facts and circumstances of the case and in law, the ld. CIT(A) grossly erred in sustaining an addition of Rs. 5,00,000/- u/s 68 of the Income Tax Act, 1961 by treating the loan taken by the appellant from Smt. Kamla Tahaliyani as bogus.

ITA 256/JP/2020_ 2 Meera Devi Vs ITO 3. That on the facts and circumstances of the case and in law, the ld. CIT(A) grossly erred in sustaining an addition of Rs. 5,11,000/- by treating the advance taken against sale of property from Shri Ram Swaroop Mali the source of which was truck sold by his son as bogus.

view of the prevailing situation of Covid-19 Pandemic.

of income in response to notice issued U/s 148 of the Income Tax Act, 1961

(in short, the Act) on 29/06/2018 declaring income from business and

profession U/s 44AE of the Act. Income from house property and income

from other sources at the same income declared initially u/s 139 of the Act.

The assessment in the present case was reopened U/s 147 of the Act on the

ground that the assessee had purchased an immovable property and the

source of which remained unexplained. Therefore, order U/s 147/143(3) of

the Act was passed whereby making addition U/s 68 of the Act on account

of unexplained investment in the property.

ITA 256/JP/2020_ 3 Meera Devi Vs ITO 4. Aggrieved by the order of the A.O., the assessee preferred appeal

before the ld. CIT(A), who after considering both the parties, partly allowed

the appeal.

present appeal before the Tribunal on the grounds mentioned hereinabove.

challenging the order of the ld. CIT(A) for upholding the order of reopening

of assessment U/s 147 of the Act. In this regard, the ld AR appearing on

behalf of the assessee has reiterated the same arguments as were raised

before the ld. CIT(A) and has also relied upon the written submissions filed

before us. The contents of the submissions of the ld. AR is reproduced

below:

It is humbly submitted that the lower authorities grossly erred in appreciating the provisions of the law while invoking the provisions of section 147 of the Income-tax Act, 1961.

It is submitted that the invocation of the provisions of section 147, reassessment proceedings and the order passed in consequence thereof, are illegal, unjustified and void, due to the following reason :-

ITA 256/JP/2020_ 4 Meera Devi Vs ITO BELIEVE” AND NOT “REASON TO SUSPECT” THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT.

It is most respectfully submitted that even if for a moment just for the sake of argument it is deemed for a while that the appellant purchased a property, then also, merely because a property was purchased, it does not at all automatically lead to an inference that income has escaped assessment as the assessee might have used his disclosed income for investment in the asset purchased. There must be “reason to believe” and not “reason to suspect” that income chargeable to tax has escaped assessment. It is now a well settled law that reopening of assessment is not permitted for verification purposes, for example: for verification of source of investment in property or cash deposit in bank account.

Reliance is being placed on the judgment of CIT Vs. Maniben Valji Shah (2006) 283 ITR 453 (Bom), wherein Hon’ble Bombay High Court held that AO cannot reopen assessment u/s 147 for verification of source of purchase of flat by the assessee as there is no reason to believe that any income has escaped assessment. Copy of the judgment is submitted herewith at paper book page no. 36 to 38, relevant para no. 8 at page no. 38, which is also reproduced hereunder :-

“8. Having heard Shri Desai, the learned senior counsel for the Appellant, as well as Shri Bhujale, the learned counsel for the Respondents, it is an admitted position that the assessee had invested a sum of Rs. 2,50,000/- for the purpose of purchasing the flat and what was sought to be investigated was the source of income. A bare perusal of the aforesaid notice dated 10.10.1991, clearly indicates that the Officer was wanting to know the details with regard to the source of funds with regard to purchase of the said flat for a sum of Rs. 2,50,000/-. Obviously in the above, there is no question of the assessing officer having any basis to reasonably entertain the belief that any part of the income of the

ITA 256/JP/2020_ 5 Meera Devi Vs ITO assessee had escaped the assessment and that such escapement was by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts.”

The words used in section 147 “has reason to believe” are stronger than the words “is satisfied”. In other words, the AO must form an objective and prima facie opinion himself on the basis of expressed statement or reasons or definite / relevant (and not vague) material in his possession. To put it differently, the words “reason to believe” suggest that the belief must be that of an honest and reasonable person based upon reasonable grounds and that the AO may act on direct or circumstantial evidence but not on mere suspicion, gossip or rumour. The AO would be acting without jurisdiction if the reasons for his belief that the conditions are satisfied does not exist or is not material or relevant to the belief required by the section - Sheo Nath Singh Vs. AAC (1971) 82 ITR 147 (SC).

In view of the reasons stated above, it is humbly requested that the notice for reassessment issued u/s 147 and proceedings in consequence thereof may kindly be quashed as illegal.

ld. CIT(A). She has also submitted that the A.O. has reopened the

assessment proceedings after recording due reasons and due satisfaction

after following due process. The case of the assessee was reopened in the

light of information/documents to the extent which were available with the

A.O. Therefore, the A.O. was having reasons to believe that the income had

escaped assessment. The ld. DR has relied on the decision of the Hon’ble

ITA 256/JP/2020_ 6 Meera Devi Vs ITO Madras High Court in the case of M/s Home Finders Housing Ltd. Vs ITO in

W.A. No. 463 of 2017 dated 25/04/2018.

the material placed on record. We have also deliberated upon the decisions

cited in the orders passed by the authorities below as well as cited before

us and we have also gone through the orders passed by the revenue

authorities. We noticed from the facts on record that the assessment in the

present case was reopened after recording the due reasons and due

satisfaction. The case of the assessee was reopened by the A.O. in the light

of information/documents which were available with the A.O. Although, it

has been submitted by the ld AR that the reasons behind reopening of

assessment was void and illegal as merely because property was purchased

by the assessee, it does not at all lead to an inference that the income has

escaped assessment. It was submitted that there must be ‘reasons to

believe’ and not ‘reason to suspect’ that income chargeable to tax has

escaped assessment. In this regard, the ld AR has relied upon the decision

of Hon’ble Bombay High Court in the case of CIT Vs Maniben Valji Shah

(2006) 283 ITR 453 (Bom) and also the decision rendered by the Hon’ble

Supreme Court in the case of Sheo Nath Singh Vs AAC (1971) 82 ITR 147

(SC). However, after considering the decisions relied upon the assessee, we

found that the facts of the cited cases are distinguishable from the facts of

ITA 256/JP/2020_ 7 Meera Devi Vs ITO the present case, therefore, the judgments relied upon by the assessee are

not applicable to the facts of the present case. As far as the present case of

the assessee is concerned, we are of the view that the material before the

A.O. was relevant and affords a live link or nexus to the formation of a

prima facie belief that income chargeable to tax has escaped assessment in

the hands of the assessee. In our view, the sufficiency and correctness of

material need not be looked at the initial stage at the time of reopening of

the case.

8.1 While considering whether commencement of reassessment

proceedings was valid, the court has only to see whether there was prima

facie some material on the basis of which the department could reopen the

case. The sufficiency and correctness of the material is not anything to be

considered at that stage. The “reasons to believe” would mean “cause or

justification”. If the A.O. has cause or justification to know or suppose that

income had escaped assessment, he can be said to have reasons to believe

that an income had escaped assessment. The expression cannot be read to

mean that the A.O. should have finally ascertained the fact by legal

evidence or conclusion that what is required is “reason to believe” but it is

nowhere mentioned that he has to establish the fact of escapement of

income. Therefore, we are of the considered view that at the stage of

initiating the proceedings for reopening of assessment by issuing notice, the

ITA 256/JP/2020_ 8 Meera Devi Vs ITO only question which should bear in mind is as to whether there was relevant

material on which a reasonable person could have formed a requisite

believe and in our view, the A.O. was well within his right to reopen the

assessment on the basis of information received from I&CI Wing of the

department that the assessee had purchased property in the year under

consideration and during the course of enquiries made by I&CI Wing of the

department, the assessee could not explain the source of investment. In

view of the above facts and circumstances, we find no reason to interfere in

the order of the ld. CIT(A) qua this issue, accordingly, we uphold the same.

challenging the order of the ld. CIT(A) in sustaining addition of Rs. 5.00 lacs

U/s 68 of the Act by treating the loan taken by the assessee from Smt.

Kamla Tahaliyani as bogus. In this regard, the ld AR appearing on behalf of

the assessee has reiterated the same arguments as were raised before the

ld. CIT(A) and has also relied upon the written submissions filed before us.

The contents of the submissions of the ld. AR is reproduced below:

It is humbly submitted that the lower authorities grossly erred in appreciating the facts of the case as well as the provisions of law.

For purchase of immovable property, the appellant took loans from her relatives. Detail of loans is summarized as under :-

ITA 256/JP/2020_ 9 Meera Devi Vs ITO S.No. Name Loan Additions made by taken(Rs.) ld. AO (Rs.) 1 Sh. Harish Gyanani 75,000 0 2 Sh. Naresh Gyanani 50,000 0 3 Sh. Diksha Gyanani 2,50,000 2,50,000 Deleted by CIT(A) 4 Sh. Kamala 5,00,000 5,00,000 Tahaliyani Under this Appeal 5 Sh. Lal Chand 4,00,000 4,00,000 Parchani Deleted by CIT(A) Total 12,75,000 11,50,000 Following documents are furnished herewith in support of the loan transactions :- PAGE S.No. PARTICULARS NOS. 1 Confirmation of Kamla Tahaliyani 6 2 Bank statement of Kamla Tahaliyani 7 to 11 3 Purchase Deed dated 12.07.2012 12 to 19 4 Copy of Bank Account Pass book of Meera Devi 20 to 22 Reply letters by the Assessee to The A.O during 5 Assesment proceedings 23 to 25

From the documents submitted as above, it is amply evident that the loan is genuine & the creditor had capacity to advance the loans. Moreover, merely because cash is deposited in the bank accounts of the creditors before issue of cheque, it does not necessarily imply either that the cash does not belong to the creditor or the creditor does not have capacity to deposit such amount in his bank account. In case of Kamla Tahilyani, cash was deposited in bank account but it was fully sourced from the cash withdrawals from the bank account on earlier occasion few days ago. This is explained in detail as under :- S.No. AO’s observations at Appellant’s Humble Paper para no. 4.1 & 4.2 of Submissions Book the assessment order Page No. 1 Sh. Kamla Tahilyani Rs.5,00,000/-

ITA 256/JP/2020_ 10 Meera Devi Vs ITO

(i) Other than the It is humbly submitted the 6 confirmation no other bank statement of the loan evidence was creditor was filed alongwith submitted by the the confirmation containing assessee address. The bank statement of Kamla Tahilyani is the vital evidence as the loan given to the appellant was debited therein. Hence, the contention of the ld. A.O. that no other evidence other than the confirmation was filed is 7 to 11 (ii) The loan creditor erroneous. was not even assessed to tax. No proof of Merely because loan creditor filing return was does not file return of income submitted by the does not automatically lead to assessee. a conclusion that loan is bogus. Return was not filed by the loan creditor lady as she had no taxable income. She received funds from her children settled abroad. All material evidences in the form of confirmation, bank statements have to be considered before arriving at 10, 11, any conclusion. Moreover for 25 purchase of immovable property, the appellant took (iii) As per assessee’s loans from her relatives, hence own admission, cash the genuineness of loan deposits are there in transaction is also established. the bank account of the loan creditor. In The appellant submitted view of these facts the during the assessment credit worthiness of the proceedings (P.B. Pg 25) that creditor was not cash of Rs.6,00,000/- was established by the withdrawn by the loan creditor assessee from the bank account on 18- 19.05.2012 which was deposited back on 31.05.2012 before advancing a sum of Rs.5,00,000/- to the appellant. Hence, in fact, the cash

ITA 256/JP/2020_ 11 Meera Devi Vs ITO deposits in the bank account are totally sourced by the cash withdrawals made earlier, hence any adverse inference in these facts is unwarranted. The ld. CIT(A) erred in sustaining the addition without considering this fact that the cash deposits in bank account were fully sourced from the earlier cash withdrawals from the same bank account. Hence, the finding of the ld. CIT(A) that immediate source of advancing money is unverifiable is perverse.

1.1 IDENITITY, CAPACITY OF CREDITORS AND GENUINENESS OF TRANSACTION STANDS

ESTABLISHED APPELLANT HAS DISCHARGED ITS ONUS.

It is humbly submitted that the appellant has established the identity and capacity of the loan creditors as well as the capacity & genuineness of the transactions. This is evident from the following :-

a) The identity of the loan creditors has been established by filing confirmations, bank pass books, etc.

b) The capacity of the loan creditors is proved through bank pass books wherein they had sufficient balance to advance loans to the appellant.

c) For purchase of immovable property, the appellant took loans from her relatives, hence the genuineness of the transaction is established.

d) The alleged loans were taken through banking channels as is evident from the bank statement of the appellant as well as the bank pass books of the creditors.

ITA 256/JP/2020_ 12 Meera Devi Vs ITO The appellant had discharged its onus of establishing the identity, capacity and genuineness. The onus shifted on the Assessing Officer to prove that the alleged cash creditors were bogus, however, he grossly failed in discharging his onus. Reliance is being placed on the following judgments in this regard :- S. Particulars Citation Hon’ble Court / No. Tribunal 1 CIT Vs. Lovely Exports P. 216 CTR 195 Supreme Court Ltd.(2008) 2 CIT Vs. Kamdhenu Steel & 2006 taxman Delhi High alloyes Ltd.(2012) 254 Court 3 CIT Vs. Arunananda 15 taxman.com Karnataka High textiles(P) Ltd.(2011) 226 Court 4 CIT Vs. Dwrakadhish 194 Taxman 43 Delhi high Investment (P) Ltd. (2010) Court 5 CIT Vs. Value Capital 307 ITR 334 Delhi High Services (P) Ltd. (2008) Court

1.2 AO FAILED TO BRING ANY MATERIAL EVIDENCES ON RECORD TO SUPPORT HIS BELIEF THAT THE CREDITORS WERE BOGUS. HE MERELY ACTED ON SURMISES AND CONJECTURES.

The ld. A.O. merely acted on surmises and conjectures and failed to bring any material evidences on record to support his belief that the creditors were bogus. He wrongly concluded that the appellant routed her own money through cheques from the bank accounts of cash creditors without any basis and merely on surmises and conjectures.

1.3 LOAN FROM A PERSON WHO DOES NOT FILE HIS/HER RETURN OF INCOME OR WHO DO NOT HAVE BANKING HABITS NEED NOT NECESSARILY ALWAYS BE BOGUS.

It is humbly submitted that simply because a cash creditor does not file his/her return of income, it does not necessarily mean that the loan is

ITA 256/JP/2020_ 13 Meera Devi Vs ITO bogus or not genuine. Reliance is being placed on the following judgments in this regard :-

Prabhajeet Kaur Vs. ITO (ITAT, Jaipur Bench) XXXIV Tax World 101

In this case, the Hon’ble bench held as under :-

a) Whether non-filing of income-tax return by creditors ipso facto bring the transaction of cash credit under shadow of doubt? - Held No.

b) Whether transaction of cash credit not having been done through banking channels does by itself constitute to be non-genuine? – Held No.

c) Also held that once assessee has discharged its onus, it is for the department to bring on record sufficient evidence to prove that creditors are persons of no means and transactions are not genuine.

1.5 SOURCE OF SOURCE NEED NOT BE PROVED.

The issue under consideration in this appeal is squarely covered by the judgment of the Hon’ble Rajasthan High Court in the case of M/s Aravali Trading Co. Vs. Income Tax Officer reported at (2008) 8 DTR 199, wherein it was held that once the existence of the creditors is proved and such persons own the credits which are found in the books of the assessee, the assessee’s onus stands discharged and the latter is not further required to proves the source from which the creditors could have acquired the money deposited with him either in terms of section 68 or on general principle. Merely because the depositor’s explanation about the sources of money was not acceptable to the AO, it cannot be presumed that the deposit made by the creditors is money belonging to the assessee itself.

Hence, it is now a well established law that in case of loan transactions, source of source need not be proved. Once the identity, capacity and genuineness of a loan transaction is proved by the assessee, the primary

ITA 256/JP/2020_ 14 Meera Devi Vs ITO onus which lay upon him is discharged and is shifted on the revenue. The assessee need not to prove the source of source of the loan transaction. Reliance is also being placed on the following judgments in this regard :- S.No. Particulars Citation Hon’ble Court / Tribunal CIT Vs. First Point Finance Raj. High 1 286 ITR 477 Ltd. Court ACIT Vs. Rajasthan ITAT, Jaipur 2 XLI Tax World 153 Asbestos Cement Co. Bench For the reasons stated above, it is humbly requested that the impugned addition made by the ld. A.O., being illegal and unjustified, may kindly be deleted.

ld. CIT(A).

the material placed on record. We have also deliberated upon the decisions

cited in the orders passed by the authorities below as well as cited before

us and we have also gone through the orders passed by the revenue

authorities. From the records, we found that initially the A.O. had treated

loan received from three persons namely Smt. Diksha Gyanani, Shri Lal

Chand Parchani and Smt. Kamla Tahaliyani as unexplained. However, during

the appellate proceedings, the ld. CIT(A) deleted the additions in respect of

loan taken from Smt. Diksha Gyanani and Shri Lal Chand Parchani as the

assessee had established identity, genuineness and creditworthiness of the

transactions by filing confirmations and bank accounts and copy of return of

ITA 256/JP/2020_ 15 Meera Devi Vs ITO income. However, in the case of Smt. Kamla Tahaliyani, it was held by the

revenue authorities that the assessee had only placed on record

confirmation and apart from that no other evidence was submitted by the

assessee. It was also held that the loan creditor i.e. Smt. Kamla Tahaliyani

was not assessed to tax. However, while going through the documents

placed on record in the paper book by the assessee in respect of loan taken

from Smt. Kamla Tahaliyani is concerned, we noticed that apart from

confirmation of Smt. Kamla Tahaliyani, the bank statement of the said lady

has also been placed on record, which is at page Nos. 7 to 11 of the paper

book. However, the claim of the assessee was denied in respect of loan

taken from Smt. Kamla Tahaliyani merely on the ground that cash was

deposited in the bank account of the creditor before issue of cheque. We

are of the view that merely because cash was deposited in the bank

account of the creditor does not necessarily implied either the cash does not

belong to the creditor or the creditor does not have capacity to deposit such

amount in her bank account. In the case of Smt. Kamla Tahaliyani, cash

was deposited in the bank account, but it was fully sourced from the cash

withdrawn from the bank account on earlier occasion few days ago. In this

respect, we have seen that the bank statement of the said creditor wherein

it has been shown that the cash of Rs. 6.00 lacs were withdrawn by the

loan creditor from her own bank account on 18/05/2012 and 19/05/2012

ITA 256/JP/2020_ 16 Meera Devi Vs ITO which was subsequently deposited back in the bank account on 31/05/2012

before advancing a sum of Rs. 5.00 lacs to the assessee. Therefore, in such

circumstances, we are of the view that the cash deposited in the bank

account is totally sourced by the cash withdrawals made earlier. Hence,

adverse inference drawn by the revenue authorities under these peculiar

facts and circumstances is unwarranted. Therefore, in our view, the ld.

CIT(A) erred in sustaining the addition without considering this fact that the

cash deposited in the bank account was fully sourced from the earlier cash

withdrawals from the same bank account, therefore, the findings of the ld.

CIT(A) that immediate source of advancing money is unverifiable, are

factually incorrect and are perverse. Therefore, keeping in view our above

discussion, we direct the A.O. to delete the addition of Rs. 5,00,000/- made

U/s 68 of the Act.

CIT(A) in sustaining addition of Rs. 5.11 lacs by treating the advance

payment by the assessee against the sale of property from Shri Ram

Swaroop Mali. In this regard, the ld AR appearing on behalf of the assessee

has reiterated the same arguments as were raised before the ld. CIT(A) and

has also relied upon the written submissions filed before us. The contents of

the submissions of the ld. AR is reproduced below:

ITA 256/JP/2020_ 17 Meera Devi Vs ITO It is humbly submitted that the appellant has received advance of Rs.10,00,000/- from Shri Ramswaroop Mali for sale of her share in Plot No. 58, Sindhi Colony, Rajapark, Jaipur.

It is pertinent to mention here that as evident from para no. 5.3 of the assessment order, statements of Shri Ram Swaroop Mali were recorded by the ld. A.O. On perusal of the assessment order, it is amply evident that Shri Ram Swaroop Mali accepted having paid a sum of Rs.10,00,000/- cash to the appellant towards advance for purchase of property. Shri Ram Swaroop Mali never denied that Rs.10 lakhs was not paid to the appellant, instead Mr. Ram Swaroop Mali also explained the source of cash payment of Rs.10 lakhs with evidences. Rs.5,11,000/- was received by Mr. Ram Swaroop Mali from his son Shri Chithar Mali towards purchase of house which was received by his son from sale of Tata truck no. RJ-05-G-4334 (chassis no. 82332GVZ733023, engine no. 497TC89GVZ90408) the documents of which were submitted during the assessment proceedings (Paper book page no. 34 to 35). Mr. Ram Swaroop Mali contended that source of the balance Rs.4,89,000/- was his agricultural income in support of which he submitted copy of jamabandi, sarpach certificate etc. which was duly accepted by the ld. CIT(A).

Following documentary evidences were submitted by the appellant before both the lower authorities:- PAGE S.NO. PARTICULARS NOS.

1 Copy of Aadhar Card of Ramswaroop Mali 26 2 Affidavit of Ramswaroop Mali 27 to 28 Agreement to sell date 04.07.2012 wherein Rs. 10 Lakhs cash 3 was received 29 to 31 4 Cancellation Agreement dated 05.04.2013 32 to 33 Documents pertaining to Truck in the case of Son of 5 Ramswaroop Mali 34 to 35

ITA 256/JP/2020_ 18 Meera Devi Vs ITO It is further submitted that the ld. CIT(A) sustained the part addition amounting to Rs.5,11,000/- pertaining to sale of truck by son by holding at para no. 4.3 (page no. 19-20) of the appellate order as under:-

“I find that that the truck was sold by the son of Shri Ramswaroop Mali and not by Ramswaroop Mali. There is no evidence that the son gave the amount to Shri Ramswaroop Mali. Therefore, the source to the extent of Rs.5,11,000/- cannot be accepted and is correctly added by the Assessing Officer. The balance amount of Rs.4,89,000/- is deleted. This ground of appeal is partly allowed.”

It is most respectfully submitted that Shri Ramswaroop Mali has accepted the payment of money to the appellant before the ld. A.O. by way of his statements recorded during the assessment proceedings and also by way of affidavits and other documents as mentioned in the table above. The ld. CIT(A) held that there was no evidence to show that Shri Ramswaroop Mali received the sale proceeds of truck from his son thereby ignoring that they are not outsiders but father and son and when the father has admitted to have received an amount from his son for purchasing a house, there is no reason to disbelieve particularly in absence of any evidence to the contrary.

Moreover, at this juncture, it is pertinent to draw kind attention of the Hon’ble Bench towards the provisions of the Prohibition of Benami Property Transactions Act, 1988, wherein a property acquired by father in the name of his son is not treated as benami property under the benami laws even.

Further, it is humbly submitted that merely because a sum of money has been received in cash from an agriculturist, it does not automatically lead to an inference that it is bogus. It is humbly submitted that simply because a cash creditor does not file his/her return of income, it does not necessarily mean that the loan is bogus or not genuine. Reliance is placed in the decision of the Jaipur ITAT in the case of Prabhajeet Kaur Vs. ITO (ITAT, Jaipur Bench) XXXIV Tax World 101

ITA 256/JP/2020_ 19 Meera Devi Vs ITO It is further submitted that though the appellant has established with evidences the Source of Source of the sum of money of Rs.10,00,000/- received from Mr. Ram Swaroop Mali, but as per the settled proposition of law, the source of source need not be proved as per the judgment of the Hon’ble Rajasthan High in the case of M/s Aravali Trading Co. Vs. Income Tax Officer reported at (2008) 8 DTR 199, wherein it was held that once the existence of the creditors is proved and such persons own the credits which are found in the books of the assessee, the assessee’s onus stands discharged and the latter is not further required to proves the source from which the creditors could have acquired the money deposited with him either in terms of section 68 or on general principle. Merely because the depositor’s explanation about the sources of money was not acceptable to the AO, it cannot be presumed that the deposit made by the creditors is money belonging to the assessee itself.

Hence, it is now a well established law that in case of loan transactions, source of source need not be proved. Once the identity, capacity and genuineness of a loan transaction is proved by the assessee, the primary onus which lay upon him is discharged and is shifted on the revenue. The assessee need not to prove the source of source of the loan transaction. Reliance is also being placed on the following judgments in this regard :- S.No. Citation Hon’ble Court Particulars / Tribunal CIT Vs. First Point Raj. High 1 286 ITR 477 Finance Ltd. Court ACIT Vs. Rajasthan XLI Tax World ITAT, Jaipur 2 Asbestos Cement Co. 153 Bench It is further submitted that merely because the receipt and payment by the appellant are claimed to have been made in cash, it does not mean that transaction made between the appellant and Shri Ramswaroop Mali are not actual/genuine. Hence, treating of advance payment as bogus brushing aside

ITA 256/JP/2020_ 20 Meera Devi Vs ITO all the material evidences on record by the ld. A.O. is illegal, unjustified and deserves to be deleted.

ld. CIT(A).

the material placed on record. We have also deliberated upon the decisions

cited in the orders passed by the authorities below as well as cited before

us and we have also gone through the orders passed by the revenue

authorities. During the course of argument, the assessee had also placed on

record an application dated 21/09/2020 to accept an affidavit as additional

evidence under the provisions of Income Tax Appellate Rules, 1963 (in

short, the Rules). In the said application, the assessee wants to place on

record an affidavit of Shri Chhitar Mali, S/o- Shri Ramswaroop Mali as

additional evidence, however, the ld AR has failed to demonstrate as to how

the present application filed by the assessee is meeting with the ingredients

contained in Rule 29 of the Rules. Therefore, in our view, the present

application for accepting the affidavit as additional evidence moved by the

assessee deserves to be dismissed and the same is accordingly dismissed.

Rs. 10.00 lacs were received from Shri Ramswaroop Mali vide agreement to

sell and in support thereof, the assessee has placed on record copy of

ITA 256/JP/2020_ 21 Meera Devi Vs ITO agreement to sell. However, during the course of assessment proceedings,

the said Shri Ramswaroop Mali was called by the A.O. wherein his

statement was recoded. The said Shri Ramswaroop Mali was not assessed

to tax and in his answer to question No. 8, he has specifically stated that he

had received Rs. 5.11 lacs from his son, who had sold his truck and the

same was used to advance money to the assessee. Apart from that it was

also submitted that the balance amount of Rs. 4,89,000/- was out of his

agricultural income. The A.O. had believed the source of Rs. 4,89,000/-

from the agricultural income of Shri Ramswaroop Mali but in respect of the

amount of Rs. 5.11 lacs, the assessee has not placed on record any

document in respect of purchase and sale of truck by son of Shri

Ramswaroop Mali. The assessee has not placed on record any corroborative

evidence, such as, Registration, transfer certificate or any other documents

to demonstrate for acquiring and sale of truck by son of Shri Ramswaroop

Mali and absolutely no evidence to prove that the said son had given

amount to Shri Ramswaroop Mali. In view of the above facts and

circumstances, we find no reason to interfere in the order of the ld. CIT(A)

qua this issue, accordingly, we uphold the same.

CIT(A) in not quashing the invocation of provisions of Section 115BBE of the

Act. During the course of hearing, the ld AR appearing on behalf of the

ITA 256/JP/2020_ 22 Meera Devi Vs ITO assessee does not want to press this ground of appeal. The ld DR has

raised no objection if this ground of appeal is dismissed being not pressed.

Accordingly, we dismiss this ground of appeal being not pressed.

Order pronounced in the open court on 11th November, 2020.

Sd/- Sd/- ¼foØe flag ;kno½ ¼lanhi x®lkÃa½ (SANDEEP GOSAIN) (VIKRAM SINGH YADAV) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 11/11/2020 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Smt. Meera Devi, Jaipur. 1. izR;FkhZ@ The Respondent- The I.T.O., Ward 6(1), Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 256/JP/2020) 6.

vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत