THE ITO, WARD -2(2)(2),, SURAT vs. SMT. HANSABEN BIPIINKUMAR KOTHARI,, SURAT

ITO, Ward-2(2)(2), Surat Vs. Smt.Hansaben Bipinkumar Kothari /ITA No.613/AHD/2016 for A.Y. 2012-13 Page 1 of 13

आयकरअपील�यअ�धकरण,सुरत�यायपीठ,सुरत IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER आ.अ.सं./I.T.A No.613/AHD/2016 �नधा�रण वष�/Assessment Year: 2012-13 The Income Tax Officer, Vs. Smt.Hansaben Bipinkumar Kothari, Ward-2(2)(2), Surat. 806-C, Kanaknidhi Apartment, Timliawad, Nanpura, Surat. [PAN: ADGPK 1894 D] अपीलाथ� / Appellant ��यथ�/Respondent �नधा�रतीक�ओरसे /Assessee by Shri Sapnesh Sheth – CA राज�वक�ओरसे /Revenue by Shri Sreenivas T.Bidari – CIT-DR

सुनवाईकीतारीख/ Date of hearing: 10.12.2019 उ�घोषणाक�तार�ख/Pronouncement on: 13.12.2019 आदेश /O R D E R PER SANDEEP GOSAIN, JM: 1. This appeal by the Revenue is directed against the order of Ld.Commissioner of Income Tax(Appeals)-4, Surat dated 31.12.2015 for the assessment year 2012-13.

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between the assessee and parties from whom huge loans were taken by the assessee, it was nothing but credit/debt and entries passed in the books of accounts for avoiding the tax. It was further submitted that the ld.CIT(A) has failed to appreciate the fact that the claim of interest payment of Smt.Bhavna R Shah on loan does not survive as the alleged loan taken by the assessee was treated as undisclosed income of the assessee.

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of Rs.2,00,000/- to Rs.3,00,000/-. Therefore, it was hardly believable in view of volume of her business and income and nature of share business that she had numerous creditors of such huge amounts. Moreover, it was remarkable that she had shown sundry creditors of amount NIL in her return of income for A Y 2012- 13. (iii) During the course of statement recording u/s. 131 of the I.T.Act in the case of Sujit Arunbhai Gandhi, the another lender, who submitted copy of return of income for AY 2012-13 declaring total income of Rs. 1,75,700/- and copy of bank statement from which it was seemed that Shri Sujit A. Gandhi did not have much creditworthiness as required to give such huge loan of Rs. 17,35,000/- to the assessee. Further, Shri Sujit has shown sundry creditors of Rs. 12,03,000/- in his balance sheet but in the P & L Account, he had shown that he earned income from brokerage and interest, this reflected a major discrepancy as how a person had sundry creditors when he earned income from brokerage. Moreover, in P&L Account of Sujit A Gandhi, interest income of Rs.91,000/- from unsecured loan was shown for FY 2011-12 and the same was very-contradictory with the view of loan shown in the asset side of balance sheet and confirmation of Sujit A Ganhi for the loan given to the assessee as in the above said confirmation, he accepted that he did not receive any interest income from loan of Rs.17,35,000/- was given. (iv) During the course of statement recording u/s. 131 of the I.T.Act on 03.03.2015 in the case of Shri Ramesh P. Shah in connection with his wife Shri Bhavna R.Shah who given loan to the assessee. He accepted that he and his wife does not have much creditworthiness to give such a huge loan and further stated that arrangement credit entries in Smt. Bhavna R Shah's account as well as loan amount entries given to the assessee by Smt. Bhavna R Shah's bank account that all works maintained by one of Shri Raghav Patel. When asked about interest received paid as per ledger submitted by Smt. Bhavna R Shah, he replied that all adjustment was also made by Shri Raghav Patel and he or his wife Smt. Bhavna R Shah had not received any interest. He further stated books of account are made manually and all the unsecured loan lender/Sundry creditors shown in the books of account are prepared by him. Even he also failed to produce Shri Raghavbhai Patel, manager of all transactions in his wife's account. From this facts also, the genuineness and creditworthiness of the transactions were not proved. (v) It was also noticed that the assessee failed to attend in response to summons issued and also did not comply with the show cause notice issued in which he has to be complied in detail. It means that the assessee failed to establish the factum of genuineness of the claimed of loan taken. Therefore, it has held that the expression the assessee offers no explanation' means the assessee offers no proper, reasonable and acceptable explanation as regards the sums found credited in the books maintained by the assessee. (vi) Prima Facie onus is on the assessee to prove the cash credit entry found in the books of account of assessee. In the land mark cases like Kale Khan Mohammad Hanif Vs/ CIT [1963] 50 ITRl(SC) and Roshan Di Hatti Vs.CIT[1977] 107 ITR (SC), it has been held that the law is well

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settled that the onus of proving the source of sum of money found to have been received by an assessee is on him/ Wherein the nature and source thereof cannot be explained satisfactorily, it is open to the revenue to hold that it is the income of the assessee and no further burden is on the revenue to show that the income from any particular source. An assessee can discharge his onus of proof by proving three things Identity of the creditor, capacity of the creditor and the genuineness of the transaction. Once, the assessee proves all three things his onus is discharged. Section 68 of the I.T.Act provides that where any sum is found credited on the books of assessee maintained for any year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income tax as the income of the assessee of that previous year. Further, the onus to prove the genuineness of the transaction lies upon the assessee which has upheld in the following cases also :- • CIT Vs.W.J. Walker and Co. [1979] 117 ITR 690, 694 (Cal.) • Sajan Dasand Sons V. CIT [2003] 264 ITR 435 (Delhi) • Sumati Dayal Vs.CIT [1995] 214 ITR 801 (SC) and • Jaspal Singh V CIT [2006] 290 ITR 306 (P&H) • Dhanlaxmi Steel RE-rolling Mills 57 ITD 3612 (Hyd.) In view of the above facts, it is evident that the assessee could not discharge the onus of burden of the two persons from whom loan amount totaling to Rs.2,95,85,000/- (Rs.2,78,50,000 + Rs. 17,35,000) was taken by the assessee.” 7. On the other hand, the ld.Authorised Representative(AR) relied upon order passed by the ld.CIT(A).

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portion of the decision of ld.CIT(A) is contained in para no.8 (8.1 to 8.2) same is reproduced below: “8.1 Summons u/s 131 (1) of the Act were issued by the AO on these parties & Smt. Bhavna R Shah and her husband also attended before assessing officer & their statements have been recorded. The AO was not satisfied with the genuineness, credibility and paying capacity of these creditors and issued show cause notice on 18.03.2015, the relevant portion of which has been reproduced at para no. 12 of the assessment order [Page 6-11]. The AO had gone on to make the additions being not satisfied with the explanation of the appellant. The reasons given by him for treating the loans as unexplained are basically the following: 1) That Smt. Bhavna R Shah stated in a statement that she does not know the assessee and also was unaware about the loan claimed given to the appellant. She stated that only her husband is aware about the loan transactions. 2) That Shri Ramesh P Shah (husband of Bhavna R Shah) stated that the transactions in bank account of Bhavna R Shah were done at instance of one Shri Raghav Patel, who managed all credit entries in Bhavna R Shah's bank account which were required to give loan to the assessee. The AO observed that the statement about Shri Raghav Patel was only a concocted story and not only he did not produce the said person as promised but failed to give even his address, PAN or any other detail about him, so that he can be traced. 3) That both the lenders i.e. Bhavna R Shah & Sujit A Gandhi does not have the capacity to give loan to assessee. Their incomes were very small and Smt.Bhavna and her husband had accepted that they do not have capacity to advance such loans themselves. 4) There were discrepancies in the accounts and returns of Bhavna R Shah. The loans/credits in her bank accounts were shown as Sundry Creditors whereas there was no transaction with them in their business. Further there was mismatch in interest accounts and creditors vis-a vis books of the creditor. 8.2 I through and carefully considered the facts of the case, the evidences submitted by the appellant, the statements recorded by the AO, the observations of the AO, the submissions of the appellant and the case law on the issues involved. I am of the considered opinion that the appellant has substantially and sufficiently discharged its primary onus to establish the genuineness, credibility and paying capacity of these creditors; in view of the following evidences and facts: 1) Both the creditors are assessed to tax. The copy of the Income Tax Returns, Computation of Income, Balance Sheet and Bank Accounts was duly submitted along with the confirmation of accounts. The transactions were made by cheques.

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2) The immediate source of the credits to the appellant are not cash deposits but amounts received through cheques and bank accounts from sub-creditors. 3) Smt. Bhavna R Shah did not deny the loan but only said that her husband knew about the transactions. In the statements Shri Ramesh R Shah confirmed that loans have been advanced from the account of Smt. Bhavna R Shah and that he knew the appellant's family and partners of firm Shiv Developers because of the business relations.

4) Shri Ramesh R Shah in his statement recorded by the AO stated that he is in the business of arranging loans from banks and arranging credit cards and similar such business. 5) It is also very pertinent to mention here that the loan taken by assessee from above two parties have also been repaid in subsequent year. With this material on record in my view as far as the Assessee was concerned, it had discharged initial onus placed on it. The assessing officer has got vast powers under the Act to make independent verification on his own & in fact it is very much imperative on his part to make independent verification before making any addition u/s 68 of the Act. Whereas in the instant case, he has made addition simply on the ground that source of deposit in the bank account of further sub-creditors remains unexplained, even though these are received through cheques. In the case of Mod. Creations Pvt. Ltd. v. Income Tax Officer (2013) 354 ITR 282 (Del), the position was clarified by the Hon'ble Delhi High Court and it was held that the burden u/s Section 68 of the I.T., which is placed on the Assessee, shifts as soon as the Assessee establishes the authenticity of transactions as executed between the Assessee and its creditors. It is no part of the Assessee's burden to prove either the genuineness of the transactions executed between the creditors and the sub-creditors nor is it the burden of the Assessee to prove the credit worthiness of the sub-creditors. In the event the revenue still had a doubt with regard to the genuineness of the transactions in issue, or as regards the credit worthiness of the creditors, it would have had to discharge the onus which had shifted on to it. The Hon'ble Gauhati High Court in Nemi Chand Kothari v. Commissioner of Income Tax (2003) 264 ITR 254 (Gau) has on a harmonious construction of Section 106 of the Evidence Act and Section 68 of the Act, held that it is not the burden of the Assessee to prove the genuineness of the transactions between his creditor and sub-creditors nor is it the burden of the Assessee to prove that the sub-creditor had the creditworthiness to advance the cash credit to the creditor from whom the cash credit has been, eventually, received by the Assessee. It, therefore, further logically follows that the creditor's creditworthiness has to be judged vis-a-vis the transactions, which have taken place between the Assessee and the creditor, and, it is not the business of the Assessee to find out the source of money of his creditor or of the genuineness of the transactions, which took between the creditor and sub-creditor and/or creditworthiness of the sub- creditors, for, these aspects may not be within the special knowledge of the Assessee.

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So, AO's reliance on certain alleged discrepancies by creditor in maintaining its books and accounts and not explaining the source/nature of transactions between creditor and sub-creditors and attempting to evade questions falsely or truthfully is not justified; as assessee cannot and is not accepted to control the activities and books of creditor to such an extent. Action can always be taken in the case of a creditor who is not able to justify or explain his transactions and books, if required. It is also pertinent to mention here that credit entries in bank account of loan giver have came through different persons and there is no cash deposit in bank account of loan giver prior to giving loan to assessee. Also, assessing officer has failed to bring even an iota of evidence on record which indicates that loans received from above party actually emanated from the coffers of assessee. When assessing officer could not establish the same, addition cannot be made u/s 68 of the Act once the initial onus has been discharged and onus has been shifted to the department. This is the view of the Courts including that of Delhi High Court decision in the case of CIT Vs. Value Capital Services Pvt. Ltd.307 ITR 334. The Hon'ble Delhi court in the case of Shiv Dhooti Pearls & Investments 64Taxmann.com 329, has relied on various decisions and on 'similar circumstances held that the assessee has discharged it's onus u/s 68 of the IT Act. In the above case the Delhi High Court has cited the case of Mod. Creations Pvt. Ltd. (supra), where the same Court negatived the case of the Revenue that the onus was on the Assessee to prove the source of the creditor. It was observed as under: "14. With this material on record in our view as far as the Assessee \ concerned, it had discharged initial onus placed on it. In the event revenue still had a doubt with regard to the genuineness of the transactions issue, or as regards the credit worthiness of the creditors, if would have hoc discharge the onus which had shifted on to it. A bald assertion by the A that the credits were a circular route adopted by the Assessee to plough be its own undisclosed income into its accounts, can be of no avail. The revenue was required to prove this allegation. An allegation by itself which is based assumption will not pass muster in law. The revenue would be required bridge the gap between the suspicions and proof in order to bring home allegation. The ITAT, in our view, without adverting to the aforementioned principle laid stress on the fact that despite opportunities, the Assessee and the creditors had not proved the genuineness of the transaction. Based on the ITAT construed the intentions of the Assessee as being malafide. In our view the ITAT ought to have analyzed the material rather than be burden by the fact that some of the creditors had chosen not to make a personal appearance before the A.O. If the A.O. had any doubt about the mate: placed on record, which was largely bank statements, of the creditors a their income tax returns, it could gather the necessary information from t sources to which the said information was attributable to. No such exercise had been conducted by the A.O. In any event what both the A.O. and t ITAT lost track of was that it was dealing with the assessment of the company i.e., the recipient of the loan and not that of

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its directors and shareholders that of the sub-creditors. If it had any doubts with regard to their credit worthiness, the revenue could always bring it to tax in the hands of creditors and/or sub-creditors. [See CIT v. Divine Leasing & Finance Ltd. (20C 299 ITR 268 (Delhi) and CIT v. Lovely Exports (P.) Ltd. (2008) 216 CTR 195 (SC)]." In view of the legal position explained in the above decisions, I hold that as fc the present case is concerned, the Assessee has indeed discharged its onus proving the creditworthiness and genuineness of the creditors. There was requirement in law for the Assessee to prove the genuineness and credit worthiness of the sub-creditors and therefore on the basis of facts and evident on record the addition u/s 68 are not justified and are required to be deleted.” 9. After having heard the parties at length and appreciating the facts of the present case we noticed that the Revenue had raised two grounds of appeal thereby challenging the order of ld.CIT(A) in deleting the additions on account of undisclosed income and on account of interest. In this respect, we notice that the assessee had shown to have taken unsecured loan from Smt.Bhavna R Shah and Sujit Arunbhai Gandhi respectively. In this respect, the necessary notices were issued on these parties and they have also attended before the AO’s and their statements were separately recorded. It is important to mention here that both the creditors who had given unsecured loan to the assessee are assessed to tax and the copy of the income tax return, computation of income, balance sheet and bank accounts of both the parties were duly submitted along with the confirmation of accounts to the AO. All those transactions were made through banking channel and during the verifications, it was also found by the AO that the immediate source of credits to the assessee are not cash deposits to the entire amount was received through cheques and bank account to sub-creditors. Smt.Bhavna R Shah and R R Shah did not deny the loan and rather the

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same was confirmed who have been paid to the assessee. Shri R.R.Shah in his statement recorded before the AO had categorically stated that he is in the business of arranging loans and credit cards. We further noticed that the entire loan taken by the assessee from the above two parties have already been repaid in the subsequent year. Since the assessee has already discharged his initial onus by placing on record, all the relevant documents which have been mentioned by us before the AO, but AO had not carried out any independent inquiries or verifications in respect of the documents submitted by the assessee and had made additions simply on the ground that source of deposit in the bank account of further sub-creditors remained unexplained. In such sort of situations, Hon'ble Delhi High Court in the case of Mod Creations Pvt. Ltd., Vs. ITO [2013] 354 ITR 282 had categorically held that the burden U/s.68 of the I.T.Act which is placed on the assessee, shifts as soon as the assessee establishes the authenticity of transactions as executed between the assessee and its creditors. It is not assessee’s burden to prove either the genuineness of the transactions entered between the creditors and the sub-creditors, nor it is the burden of the assessee to prove credit-worthiness of the sub-creditors. The Hon'ble Guwahati High Court in the case of Nemi Chand Kothari Vs. CIT [2003] 264 ITR 254 (Gau) has held that on a harmonious construction of Section 106 of the Evidence Act and Section 68 of the Act, held that it is not the burden of the assessee to prove the genuineness of the transactions between his creditor and sub-creditor had the creditworthiness to

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advance the cash credit to the creditor from whom the cash credit has been, eventually, received by the Assessee. It, therefore, further logically follows that the creditor’s creditworthiness has to be judged vis-à-vis the transactions, which have taken place between the Assessee and the creditor, and it is not the business of the Assessee to find out the source of money of his creditor or of the genuineness of the transactions, which took between the creditor and sub-creditor and/or creditworthiness of the sub-creditors, for, these aspects may not be within the special knowledge of the Assessee.

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also failed to bring iota of evidence on record which indicates that loans received from the two parties had actually emanated from the coffers of the assessee. Since the assessee in the present case has already discharged is onus by placing on record all information and documents in his power in the position. Therefore, while relying upon the decision of Shiv Dhooti Pearls & Investments 64 Taxmann.com 329, Mod Creations Pvt. Ltd., vs. ITO [2013] 354 ITR 282 (Del) wherein it was held as under: "14. With this material on record in our view as far as the Assessee \ concerned, it had discharged initial onus placed on it. In the event revenue still had a doubt with regard to the genuineness of the transactions issue, or as regards the credit worthiness of the creditors, if would have hoc discharge the onus which had shifted on to it. A bald assertion by the A that the credits were a circular route adopted by the Assessee to plough be its own undisclosed income into its accounts, can be of no avail. The revenue was required to prove this allegation. An allegation by itself which is based assumption will not pass muster in law. The revenue would be required bridge the gap between the suspicions and proof in order to bring home allegation. The ITAT, in our view, without adverting to the aforementioned principle laid stress on the fact that despite opportunities, the Assessee and the creditors had not proved the genuineness of the transaction. Based on the ITAT construed the intentions of the Assessee as being malafide. In our view the ITAT ought to have analyzed the material rather than be burden by the fact that some of the creditors had chosen not to make a personal appearance before the A.O. If the A.O. had any doubt about the mate: placed on record, which was largely bank statements, of the creditors a their income tax returns, it could gather the necessary information from t sources to which the said information was attributable to. No such exercise had been conducted by the A.O. In any event what both the A.O. and t ITAT lost track of was that it was dealing with the assessment of the company i.e., the recipient of the loan and not that of its directors and shareholders that of the sub-creditors. If it had any doubts with regard to their credit worthiness, the revenue could always bring it to tax in the hands of creditors and/or sub- creditors. [See CIT v. Divine Leasing & Finance Ltd. (20C 299 ITR 268 (Delhi) and CIT v. Lovely Exports (P.) Ltd. (2008) 216 CTR 195 (SC)]."

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reasons to interfere into or deviate from the lawful findings so recorded by the ld.CIT(A), accordingly we upheld the same. Therefore, grounds raised by the Revenue are dismissed.

Sd/- Sd/- (O.P.MEENA) (SANDEEP GOSAIN) (लेखा सद�यतथा/ACCOUNTANT MEMBER) (�याियक सद�यकेसम� /JUDICIAL MEMBER) सुरत/ Surat, �दनांक Dated: 13th December, 2019/S.Gangadhara Rao, Sr.PS Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat