SHRI NITINCHANDRA SUBHASHCHANDRA SHAH,,VADODARA vs THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3(1),, BARODA

Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD

Before: Shri Pramod Kumar]

By way of this appeal, the assessee appellant has challenged correctness of order dated 27th January 2017 passed by the CIT(A) in the matter of assessment under Section 143(3) of the Income-tax Act, 1961, for the assessment year 2012-13.

Grievance of the appellant is as follows:-

“On the facts and in the circumstances of the case, the learned Commissioner of Income Tax (Appeals) erred in law and facts in confirming the addition of cash credits in the name of Ambica Investments Rs.10,00,000/- made by the Assessing Officer.

The Ld. CIT(A) ought to have considered the affidavit filed by the assessee and evidence produced before him. The ld. AO may kindly be directed to delete the addition of cash credit as above.”

To adjudicate on this appeal, only a few material facts need to be taken note of. During the course of scrutiny assessment proceedings, it was, inter alia,

SSMC-ITA No. 654/Ahd/2017 Nitinchandra Subhashchandra Shah Vs. DCIT AY : 2012-13 Page 2 of 3

noted that the assessee had shown a credit of Rs.10,00,000/- from Ambica Investments. The assessee was, however, unable to give any details about the said Ambica Investments, and the Assessing Officer, therefore, added Rs.10,00,000/- to the income of the assessee as unexplained credit. Aggrieved, assessee carried the matter in appeal before the CIT(A) but without any success. Learned CIT(A) confirmed the action of the Assessing Officer by observing as follows:-

“4.1. In respect of unsecured loan of Rs.10,00,000/- shown in the name of Ambica Investments, the AO issued summon u/s 131 at the address given by the appellant during the course of assessment proceedings, but the same was returned unserved. The appellant did not file necessary documentary evidences such as bank statement and copy of return of Income to prove genuineness of transaction and creditworthiness of the depositor. During the course of appellate proceedings, the Id.AR has only furnished copy of account, which Is not signed by Ambica Investments. Even full address of Ambica Investments is not available on the copy of account which Is In the form of confirmation of account. To prove the genuineness of transaction, the appellant has furnished only bank account No. i.e. 03010400000009 with Bank of Baroda, Anklav, Tal. Borsad, Dist. Anand. During the course of remand proceedings, the AO made enquiries from the Bank of Baroda and noticed that the bank account Number given by the appellant was not pertaining to Ambica Investments. In fact, this bank account was belonging to Ambica Finance. Perusal of the bank statement revealed that there was no entry of Rs. 10,00,000/- claimed to have been given to the appellant on 24.05.2011. Undisputedly, Ambica Investments is not assessed to tax. The Id.AR vide written reply dated 20.01.2017 has very clearly admitted that Ambica Investments is not traceable. Thus in view of the above facts and circumstances, it is crystal clear that identity and capacity of Ambica Investments has remained totally unexplained. Since the entry of loan of Rs.10,00,000/- was not found to be recorded in the bank account given by the appellant, the genuineness of transaction is also not proved. Accordingly, the case laws relied upon by the Id.AR are not applicable in the case of appellant. Therefore, I hold that source of Rs.10,00,000/- loan in the name of Ambica Investments has remained totally unexplained within the meaning of section 68 and accordingly, the addition made on this account is confirmed.”

The assessee is not satisfied and is in further appeal before me.

I have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.

I find that the assessee has not been able to produce any whereabouts about Ambica Investments or any evidences about its means to have given the loan of Rs.10,00,000/-. It is well settled in law that the onus of proving identity and means of the lender, as also genuineness of the transaction, is on the assessee – as is held by Hon’ble High Courts in cases of CIT vs. United Commercial and Industrial Co. Ltd (187 ITR 596) and CIT vs. Precision Finance Pvt Ltd (208 ITR

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465). That onus is clearly not discharged on the facts of this case. Learned counsel for the assessee now submits that he has located the bank branch in which account of the lender exists and the matter may be remitted to the file of the Assessing Officer so as to enable him to ascertain complete details. I am not inclined to accept this plea and prayer for the matter being restored to the file of the Assessing Officer; it will only amount to delay in this adjudication process reaching finality. In any case, at no stage, the assessee has taken any serious steps in this regard and miserably failed in discharging his onus. Learned counsel’s plea lacks, in my humble understanding, any seriousness and genuineness. In view of these discussions, as also bearing in mind entirety of the case, I approve the stand of the authorities below and decline to interfere in the matter.

In the result, the appeal is dismissed. Order pronounced in the open Court on this 15th day of October, 2018.

Sd/-

Pramod Kumar (Accountant Member) Ahmedabad, the 15th day of October, 2018 **bt Copies to: (1) The appellant (2) The respondent (3) Commissioner (4) CIT(A) (5) Departmental Representative (6) Guard File By order

SHRI NITINCHANDRA SUBHASHCHANDRA SHAH,,VADODARA vs. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3(1),, BARODA