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Income Tax Appellate Tribunal, DELHI BENCH: ‘I(2
Before: MS SUCHITRA KAMBLE, & SHRI PRASHANT MAHARISHI
ORDER PER SUCHITRA KAMBLE, JM
This appeal is filed by the assessee against the order dated 21/02/2019 passed by CIT(A)-1, New Delhi for Assessment Year 2015-16.
The grounds of appeal are as under:-
“That the order of Ld. CIT (A) in respect of alleged creditors is based on mere surmise, conjecture & disbelief and thus, illegal, unwarranted and untenable in law, liable to be quashed/deleted.
That the order of Ld. CIT (A) is perverse on the facts as well as on the law as Ld. CIT (A) has erred in confirming an addition of Rs78,10,154/-_ made to income of appellant by the AO.
That the appellant has discharged its onus by satisfying requirement of section 68 and there is no evidence contrary to his submissions produced by the AO on record , hence the asstt order passed by the AO is bad in law.
That if the Ld. AO has any doubt about the source & creditworthiness of the lender she should have issued summons u/s 131 of the IT Act. The AO has not done so. Therefore, her contention was that when assessee has discharged its onus completely and the Ld. AO does not issue summons to the depositors then addition cannot be made in the hand of the assessee u/s 68 of I. T. act.
That the appellant has discharged his onus of proving identity , the source of loan and the genuineness of transactions in accordance with the provisions of section 68. It is the settled law that the assessee is not answerable to explain source of source of the fund.
That Ld. AO and CIT(A) admitted the identity of the above mentioned three persons from whom the appellant has taken loan but doubted the credit worthiness of thee persons and consequently genuineness of transactions.
In the case of ACIT Vs. MRS PREM ANAND, DATED 13/4/2017/ITAT-DELHI .. It has been held that the appellant is not required to explain source of source .”
The return of income was filed on 30/09/2015 declaring (-) Rs. 61,78,821/-. The assessment u/s 143(3) was completed on 11/1/2017 determining income of Rs.16,31,333/-. The Assessing Officer made addition u/s 68 of the Income Tax Act amounting to Rs. 75,80,000/- and disallowance of interest on unexplained loan amounting to Rs. 2,30,154/-.
Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.
The Ld. AR submitted that the CIT(A) ignored the evidence produced before the Assessing Officer as well as the response to summons issued u/s 133(6) given by one Smt. Krishna Goel, Rohit Gupta, Rohit Gupta HUF. Therefore, the addition may be deleted and does not sustain under the law.
The Ld. DR relied upon the assessment order and the order of the CIT(A).
We have heard the Ld. DR and perused the material available on record. From the perusal of the assessment order as well as order of the CIT(A). It can be seen that the Assessing Officer as well as CIT(A) has not taken the cognizance of response given to the summons issued under Section 133(6) of the Income Tax Act, 1961. The evidence produced by the assessee before the Assessing Officer as well as before the CIT(A). Therefore, it will be appropriate to remand back this matter to the file of the CIT(A) for fresh adjudication in light of the evidence filed by the assessee during the assessment proceedings as well as the response given u/s 133(6) of the Act. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice.
In result, the appeal of the assessee is partly allowed for statistical purpose. Order pronounced in the Open Court on 02nd March, 2020.