SDC CONSTRUCTION,JAIPUR vs. ITO, WD 1(3), JIAPUR

3. In the facts and circumstances of the case and in law, Id. CIT(A)/NFAC, has erred in confirming the action of the ld. AO, in reopening the case of the assessee under Section 147 of the Income Tax Act, 1961. The action of the Id. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the entire reassessment proceedings initiated against the assessee under Section 147.

4. In the facts and circumstances the case and in law, Id. CIT(A)/NFAC has erred in confirming the action of the ld. AO, in making additions of Rs. 97,00,000, under Section 68, treating the cash credits of Rs. 72,00,000 from M/s Sanmati Gems and Rs. 25,00,000 from M/s Siddarth Gems as accommodation entries. The action of the Id CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the additions of Rs. 97,00,000 made under Section 68 of the Income Tax Act, 1961.

5. In the facts and circumstances the case and in law, Id. CIT(A)/NFAC has erred in confirming the action of the Id. AO, in making additions of Rs. 97,00,000, under Section 68, without considering the documents submitted by the assessee. The action of the ld. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may SDC Construction, Jaipur. please be granted by deleting the additions of Rs. 97,00,000 made under Section 68 of the Income Tax Act, 1961.

As directed by the Hon'ble Supreme Court, the information relied upon to issue notice under section 148 of the Income-tax Act, 1961 was provided by the JAO to the assessee. The assessee was requested by the JAO vide letter dated 30.05.2022 to make compliance against the aforesaid letter within 02 weeks as per the order of Hon'ble Supreme Court. In response to the above notice, the assessee furnished reply dt. 01.06.2022. The same was considered by the JAO and thereafter, the JAO passed Order u/s 148A(d) dated 25.07.2022. Accordingly, he issued notice u/s 148 of the IT Act, 1961 dt. 25.07.2022. After issuance of notice u/s 148 the case was referred to the Faceless Unit.

SDC Construction, Jaipur. 3.1 The faceless unit of the revenue issued the statutory notices as required and the assessee vide letters filed the following details in connection with the credit appearing in their books;  Copy of cashbook  Bank statement showing Sanmati Gems transactions  Computation of income  Bank account statement  Sanmati Gems ledger for the period under consideration  Bank statement showing Siddharth Gems transactions  Copy of ITR Ack filed against notice u/s 148  Siddharth Gems ledger for the period under consideration  Copy of cash ledger  Copy of audited financial statements  Copy of reply Reply dated 09.02.2023  Copy of reply Reply dated 14.02.2023  Copy of reply  Bank statement showing Sanmati Gems transactions  Bank statement showing Siddharth Gems transactions  Copy of ITR for AY 2012-13  Copy of ITR for AY 2013-14  Copy of ITR for AY 2014-15  Copy of audited financial statements Reply dated 21.02.2023  Uploading copy of High Court daily order stating that the Hon'ble court has stayed the proceedings Reply dated 16.05.2023  Assessee uploaded copy of acknowledgement stating that "Gathering of materials from multiple sources requires time." It has been further stated by the assessee that "Dear Sir, In response to your notice we would like to submit that we are gathering materials to submit the reply in this case and need further one week time for the same. Therefore, kindly grant us an adjournment for a week in this case and oblige. Thanking You." Reply dated 17.05.2023  Assessee uploaded copy of acknowledgement stating that Gathering of materials from multiple sources requires time  Copy of Hon'ble Rajasthan High Court's judgment in Micro Marbles Private Limited  Copies of ledger account(s) of the parties to whom loans & advances given SDC Construction, Jaipur.  Copies of ledger account(s) of the parties under the head "Advance from customer  Ledger account of direct expenses  Sanmati ITR, Bank statement and other documents  Copy of ledgers of sundry creditors  Copy of ledgers of unsecured loans  Ledger copy of sales Ld. AO after going through the reply of the assessee, made the following observations:

The assessee has not furnished concrete documents in support of his claim that the above transactions of Rs. 72,00,000/- and Rs. 25,00,000/- credited from M/s Sanmati Gems Pvt. Ltd. (PAN: AAQCS8731D) and from M/s Siddhant Gems Pvt Ltd (PAN:AALCS5128F) respectively are not in the nature of accommodation entries. The primary onus is on assessee to furnish relevant details such as creditworthiness, genuineness and identity of the parties so as to prove that these transactions are not accommodation entries. Further, the assessee has filed confirmation from the parties, bank statement of the loan creditor highlighting the debit entries in the statement and interest received, audited accounts of the loan creditors and therefore, according to the assessee, he had proved the identity source and genuineness of the loans. The assessee emphasized that since identity of the loan creditors was established and the loan was taken through banking channel, therefore, genuineness of the transaction cannot be doubted. He also noted from the reply dated 17.05.2023 wherein the assessee contended that the creditworthiness, genuineness of transactions and identity of the loan creditors are proved beyond doubt. But the ld. AO noted that the assessee has not conclusively proved beyond doubt that the transactions made with the above- mentioned two parties are not in the nature of accommodation SDC Construction, Jaipur. entries as stated by the Shri Deepak Jain in his statement. For example, the assessee firm received two deposits of Rs. 15,00,000/-and Rs. 72,00,000/- from M/s Sanmati Gems Pvt. Ltd. on 16.08.2013 (Total: Rs. 87,00,000/-) and on the same day Rs. 87,00,000/- was transferred. These transactions clearly show that these were accommodation entries and the assessee itself indulged in providing the same. This sufficiently proves beyond doubt that the statement made by Shri Deepak Jain that he was providing accommodation entries through his shell companies M/s Sanmati Gems Pvt. Ltd. (PAN: AAQCS8731D) and from M/s Siddhant Gems Pvt Ltd (PAN:AALCS5128F) is correct and the assessee is beneficiary of the accommodation entries to the tune of Rs. 97,00,000/-.

Record reveals that Shri Deepak Jain has retracted from the statement given u/s 132(4) of the IT Act, 1961 on 11.11.2019 upon his statement recorded on 27.09.2021 but the ld. AO noted that the statements recorded under Section 132(4) of the Act have great evidentiary value and it cannot be discarded in a summary and cryptic manner, by simply observing that the assessee retracted from his statement. On that issue ld. AO noted that one must come to a definite finding as to the manner in which the retraction takes SDC Construction, Jaipur. place. Such retraction should be made as soon as possible and immediately after such statement has been recorded by filing a complaint to the higher officials or otherwise brought to the notice of the higher officials by way of duly sworn affidavit or statement supported by convincing evidence, stating that the earlier statement was recorded under pressure, coercion or compulsion. Retraction after a sufficient long gap or point of time, as in the instant case, loses its significance and is an afterthought. Once statements have been recorded on oath, duly signed, it has a great evidentiary value and it is normally presumed that whatever stated at the time of recording of statements under section 132(4), are true and correct and brings out the correct picture, as by that time the assessee is uninfluenced by external agencies. Therefore, he rejected the contention of the assessee that the statements have been obtained forcefully/by influence without coercion/undue material/contrary to the material, then it should be supported by strong evidence. Once a statement is recorded under section 132(4), such a statement can be used as strong evidence against the assessee in assessing the income, the burden lies on the assessee to establish that the admission made in the statements The Ld. AO noted that the assessee has submitted the ITR V for AY 2014-15 only and that too only entity of M/s Sanmati Gems Pvt. Ltd. (PAN: AAQCS8731D). The assessee has not submitted ITR of M/s Siddhant Gems Pvt Ltd (PAN:AALCS5128F). For verifying the credit worthiness of the entity, the only ITR V submitted by the assessee was perused and it is observed that M/s Sanmati Gems Pvt. Ltd. has only shown income of Rs. 3,70,004/- during the year and complete ITR, B/s & P&L of both the entities were not submitted by the assessee. Therefore, creditworthiness of both these entities cannot be established.

Based on these observations the ld. AO hold that entries amounting to Rs. 97,00,000/- is unexplained credits in the books of account of the assessee and hence attracts provisions of Section 68 of the Act.

4. Aggrieved, from the said order of assessment, assessee preferred first appeal before the ld. CIT(A). The ld. CIT(A) after hearing the contention of the assessee has dismissed the appeal of the assessee by giving the following findings:-

3. I have examined facts of the case as also gone through relevant provisions of Income Tax Act (the Act). In the present case, the appellant has not filed return of income in response to a notice issued under Section 148 of the Income tax Act 1961, under which impugned order has been passed. The impugned order was passed u/s 147 of the Act. creating demand of Rs. 90,15,215/- and the appellant was asked by notice u/s 156 of the Act to deposit the demand but it is noticed that the appellant has not deposited the demand before filing of this appeal. The appellant has attached challan for payment of Rs. 1000/-along- with Form-35. At sl. No. 9 of Form-35, the appellant has offered 'No' comments. This sl. No. 9 is reproduced below-

9. Where no return has been filed by the appellant for the assessment year. No whether an amount equal to the amount of advance tax as per section 249(4)(b) of the Income-tax Act, 1961 has been paid

4. As per provisions of section 249(4)(b) of the Act, where no return has been filed by the assessee, the asseessee has to pay an amount equal to the amount of advance tax which was payable by him otherwise appeal shall not be admitted. The provisions of section 249 (4) of the Act are reproduced as under - Section 249(4)

"No appeal under this Chapter shall be admitted unless at the time of filing of the appeal- (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him, or "(b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him. Provided that, 2 in a case falling under clause (b) and) on an application made by the appellant in this behalf, the 3 Deputy Commissioner (Appeals)] or, as the case may be, the Commissioner (Appeals)] may, for any good 4.3 As per provisions of section 234B(1), read with provisions of section 208 of the Act. the liability to pay advance tax, in a case where returned income is less than the assessed income, is calculated on the basis of assessed income. The provisions of section 2348(1) and provisions of section 208 of the Act are reproduced below- Section 234B(1)

"(1) Subject to the other provisions of this section, where, in any financial year, an assessee who is liable to pay advance tax under section 208 has failed to pay such tax or, where the advance tax paid by such assessee under the provisions of section 210 is less than ninety per cent of the assessed tax, the assessee shall be liable to pay simple interest at the rate of two per cent for every month or part of a month comprised in the period from the 1st day of April next following such financial year to the date of determination of total income under sub- section (1) of section 143 ^ 4 and where a regular assessment is made, to the date of such regular assessment, on an amount]] equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid as aforesaid falls short of the assessed tax. 5 Explanation 1-In this section, assessed tax" means,- (a) for the purposes of computing the interest payable under section 140A, the tax on the total income as declared in the return referred to in that section; (b) in any other case, the tax on the total income determined under sub-section (1) of section 143 or on regular assessment, as reduced by the amount of tax deducted or collected at source in accordance with the provisions of Chapter XVII on any income which is subject to such deduction or collection and which is taken into account in computing such total income.] Explanation 2.- Where in relation to an assessment year, an assessment is made for the first time under section 147, the assessment so made shall be regarded as a regular assessment for the purposes of this section. Explanation 3. In Explanation 1 and in SDC Construction, Jaipur. sub-section (3)." tax on the total income determined under sub- section (1) of section 143 deg shall not include the additional income-tax, if any, payable under section 143.]"

Section 208 “208 Conditions of liability to pay advance tax Advance tax shall be payable during a financial year in every case where the amount of such tax payable by the assessee during that year, as computed in accordance with the provisions of this Chapter, is one thousand five hundred rupees or more.

5. The appellant has offered 'No' comments at sl. No. 9 of Form- 35 and the appellant failed to made payment of amount equal to the advance tax which was due on its income. It is, therefore, clear that information, given at sl. no. 9 of Form-35 is correct and the appellant has not made payment of amount equal to the advance tax which was due on its income The appellant has also not requested for exemption from operation of the provisions of clause (b) of sub-section (4) of section 249 of the Act.

6. Since the appellant has not filed return in response of notice u/s 148of income as well as not paid an amount equal to the amount of advance tax which was payable by it, present appeal

S GROUND NO.

1. In the facts and circumstances of the case and in law, Id. CIT(A)/NFAC, has erred in not admitting the appeal of the assessee on the ground that the assessee has complied with the provisions of section 249(4)(a) and 249(4)(b). However, the fact of filing of return of income and payment of tax was placed on record. The action of the Id. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please SDC Construction, Jaipur. be granted by quashing the entire order passed being against the principles of natural justice GROUND NO.2 In the facts and circumstances of the case and in law, Id. CIT(A)/NFAC, has erred in not admitting the appeal of the assessee even though requisite submissions were filed by the assessee. The submissions were filed at the time of first hearing of appeal which were completely ignored by Id. CIT(A)/NFAC. The action of the Id. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the entire order passed being against the principles of natural justice. Our Submission We submit that Ld.CIT (Appeals) has dismissed the appeal on the ground that in coloum 9 of form 35 the assessee has stated No. The Ld.CIT (Appeals) has not considered the fact that the assessee has filled the ITR against the notice dated 25.07.2022 u/s 148 of the Income tax act on 22.08.2022 and such fact has been duly conveyed to the Ld CIT(A) by the assessee in response to the notice dated 18.09.2023. (Refer to PB page 10) The action of the Ld CIT is against the fact of the case, illegal, unjustified and against the principle of natural justice. Ground No 3 In the facts and circumstances of the case and in law. Id. CIT(A)/NFAC, has erred in confirming the action of the Id. AO, in reopening the case of the assessee under Section 147 of the Income Tax Act, 1961. The action of the Id. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the entire reassessment proceedings initiated against the assessee under Section 147. Our Submission We submit that reopening u/s 148 of the act is bad in law as no material has been provided for reopening as directed by Hon'ble Supreme Court in the case of UOI Vs Ashish Agarwal as well as the Ld AO has not properly followed the procedure prescribed u/s 148A of the act. We submit that the Ld AO in annexure A of notice u/s 148 A(b) of the act mentioned as under; "In this connection, it is to intimate that information has been received from INSIGHT Portal under category High Risk CRIU/VRUInformation, that unexplained bogus entry were found credited from the Sanmati Gems Pvt LTd in the account of the assessee amounting toRs.97,00,000/- during the A.Y. 2014-15. The taxability of abovetransactions are remained unexplained."

SDC Construction, Jaipur. The Ld. AO has not provided any material in this regard despite the fact that Hon'ble Supreme Court in the decision dated 04.05.2022 directed to provide the respective assessee information and material relied upon by the revenue, so that the asseesee can reply to the show cause notice within two weeks thereafter; The Ld.AO issued notice u/s 148A(b) of the act without supplying to the assessee proper and necessary material which formed the basis for issuing the notice. The assessee was not supplied with the copy of the statement of Deepak Jain recorded under section132(4) of the Act with the notice. In fact, a search and seizure was carried out in the business premises of one Deepak Jain. It was during the investigation of his case that his statement under section 132(4) of the Act was recorded. The assessee was identified as one of the beneficiaries of the bogus entries, therefore, his statement becomes material and so is his books of accounts to enable the assessee to respond to the notice u/s 148A(b) in an effective manner. The assessee being a third party was not liable to be proceeded on the basis of such investigation under Section 148 of the Act, rather the Ld.AO ought to have, if necessary, initiated proceedings undersection 153C which provides for a complete mechanism to check evasion of tax by a party alien to search and seizure. The Hon'ble Supreme Court in case of Union of India Vs Rajeev Bansal in Concluding para 114 g stated as under; "The time during which the show cause notices were deemed to be stayed is from the date of issuance of deemed notice between 1 April 2021 and 30 June 2021 till the supply of relevant information and material by the assessing officers to the assessee in terms of directions issued by this court in Ashish Agarwal (Supra), and the period of two weeks allowed to the assesses to respond to the show cause notice;" We also submit that the assessee in response to the notice u/s 148A(b) dated 30.05.2022 made two submissions one of dated 1.06.2022 and another dated 11.06.2022. The Ld. A.O while passing the order u/s 148A(d) of the act has not considered the submission dated 11.06.2022. In the order u/s 148A(d) of the act Ld. AO mentioned the reply of assessee dated 01.06.2022 The AO has not considered the reply in totality and passed an order u/s 148A(d) of the act in mechanical manner, which defeated the purpose of sec 148 A of the act,in such a situation such order is void as passed without compliance the procedure prescribed u/s 148A of the act. In view of the non compliance of order of Hon'ble Supreme Court the notice u/s 148 of the act dated 25.07.2022 is void ab initio and against the provisions of the act. Ground No 4 SDC Construction, Jaipur. In the facts and circumstances the case and in law, Id. CIT(A)/NFAC has erred in confirming the action of the Id. AO, in making additions of Rs. 97,00,000, under Section 68, treating the cash credits of Rs. 72,00,000 from M/s Sanmati Gems and Rs. 25,00,000 from M/s Siddarth Gems as accommodation entries. The action of the Id. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the additions of Rs. 97,00,000 made under Section 68 of the Income Tax Act, 1961 Ground No 5 In the facts and circumstances the case and in law, Id. CIT(A)/NFAC has erred in confirming the action of the Id. AO, in making additions of Rs. 97,00,000, under Section 68, without considering the documents submitted by the assessee. The action of the Id. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the additions of Rs. 97,00,000 made under Section 68 of the Income Tax Act, 1961 Our Submission We submit that assesse during the FY 2013-14 has taken the unsecured loan of Rs 72,00,000/- from M/s Sanmati Gems Pvt Ltd, such loan has been received through banking channel only and duly recorded in the books of accounts maintained by the assessee. The assessee also paid interest on such loan during the year after deducting the TDS thereon. The Ld. AO has allowed such interest in the assessment completed u/s 147 r.w.s 1448. Such loan has also been repaid by the assessee in the FY 2014-15. We submit that no loan has been received by the assessee firm as alleged by Ld.AO from Siddhant Gems Pvt Ltd. The Ld AO did not examine the party wise details of loans received by the assessee submitted by the assessee firm vide letter dated 09.02.2023 during assessment proceedings. Ld. AO did not consider such fact. Ignoring this vital fact, Id. AO proceeded with making addition of Rs 25,00,000/- to the assessee firm in respect of such non existent loan. The Ld. AO made an addition on the basis of statement given by Mr Deepak Jain u/s 132(4) of the act on11.11.2019during the search and seizure action under section 132 of the income tax act, 1961 in case of M/s Skyway infra projects Pvt Ltd, M/s Hi-Tech Engineers, M/s RPS infra projects Pvt Ltd, M/s Relcon Realty Pvt Ltd, M/s Relcon infra projects Ltd and Shri Deepak Jain on 10.11.2019, Lateron Mr Deepak Jain retracted from the statement on 27.09.2021. The Ld. AO did not verify that no loan has been taken by the assessee from Siddhant Gems and passed an order without application of mind. During the assessment proceedings assessee submitted copy of ledger and ITR of Sanmati Gems Pvt Ltd, Bank statement of assessee SDC Construction, Jaipur. Company for the AY 2014-15 and Copy of details taken from MCA portal indicating the status of the Company i.eSanmati Gems Pvt Ltd to prove the identity, Genuineness and capacity (credit worthiness) of the lender and discharged the onus. Provisions of sec 68 can be invoked only if onus, as required therein, is not discharged by the assessee. In the present case the assesseee firm duly discharged such onus by providing the identity, creditworthiness and genuineness of the lender M/s Sanmati Gems Pvt Ltd. However the Ld. AO alleged that the assessee has not proved the credit worthiness of the lender Companies and on the basis of statement of Mr Deepak Jain made an addition of Rs 97,00,000/- The Ld. AO also alleged that the assessee is also involve in providing accommodation entries.

We submit that the Ld.AO neither provided any statement of admission of Mr Deepak Jain that the assessee is involved in providing accommodation entries nor established that unaccounted money had been given by the assessee firm to accommodate any loan entry or there was any cash trail. There is no evidence which suggests that such loan transactions are bogus. The Ld. AO made an addition on the basis of statement of Mr Deepak Jain which has no evidentry value in the eyes of law as Mr Deepak jain has retracted the statement later on, this view has been held by Hon'ble High Court of Rajathan in the matter of PCIT vs Esspa IInternational(P.) Ltd[ Refer compilation of case law page no 105-109] We submit that Hon'ble High Court of Rajasthan in the matter ofPCIT vs Esspal International (P.) Ltd in para 11 held as under. "Now it is a matter of record that Shirish Chandrakant Shah had retracted his statements given before theAssessing Officer. Even otherwise, an admission by the assessee cannot be said to be a conclusive piece ofevidence. The admission of the assessee in absence of any corroborative evidence to strengthen the case of theRevenue cannot be made the basis for any addition. Therefore, the substantial questions of law framed by theappellant pertained to an openissuewhich stands concluded by the decision of the Hon'ble Supreme Court;one such decision was rendered in "M/sPullangode Rubber Produce Co. Ltd. v.State of Kerala And Another" [1973] 19 ITR 18." We are citing the case law in the matter of CIT V. Lovely Exports(P.) Ltd (2008)216 CTR 195(SC)[ refer compilation of case law page no 104] Wherein The Apex court held that "If the share application money is received by the assessee Company from alleged bogus shareholders, whose names are given to the Assessing officer, then the department is free to proceed to reopen their individual assessments in accordance with law but this amount of share money cannot be regarded as undisclosed income under section 68 of the assessee company"

SDC Construction, Jaipur. Similarly in this case unsecured loans cannot be regarded as undisclosed income under section 68 of the firm. We submit that for the AY 2014-15 there was no requirement to establish source of source by the appellant as appellant is a partnership firm and the amendment made by the Finance act, 2012 was applicable in case of Companies in which public are not substantially interested. We are reproducing sec 68 of the Income tax, 1961 for the reference Where any sum is found credited in the books of an assessee maintained for any previous 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: Provided that where the assessee is a company, (not being a company in which the public are substantially interested) and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless- (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: Provided further that nothing contained in the first proviso shall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capital company as referred to in clause (23FB) of section 10." We submit that in the case of Labh Chand Bohra vs. Income-tax Officer [2010] 189 Taxman 141 (Rajasthan) [ Refer compilation of case law page no 110-114], the Hon'ble Rajasthan High Court held as under The judgment of CIT v. Daulat Ram Rawat Mull [1973] 87 ITR 349 (SC) is the authority for the proposition that the assessee cannot be required to prove the source of the source. It was precisely held in Daulat Ram Rawat Mull's case (supra) that the fact that lender has not been able to give satisfactory explanation regarding the source of the fund lent by him, would not be decisive, even of the matter, as to whether the lender was the owner of that sum, even though the explanation furnished by him regarding that source of money is found to be not correct. From the simple fact, that the explanation regarding source of money furnished by the lender whose money is lying deposited, has been found to be false, It would be a remote and far-fetched conclusion to hold that the money belongs to the assessee and that he would, in such a case, have any SDC Construction, Jaipur. direct nexus between the facts and conclusions found therefrom. Further, in CIT v. Kishorilal Santoshilal [1995] 216 ITR 9, the Rajasthan High Court observed that in order to determine whether any addition is to be made under section 68 or not, the following six conditions are required to be considered (i) that there is no distinction between the cash credit entry existing in the books of the firm whether itis of a partner or of a third party; (ii) that the burden to prove the identity, capacity and genuineness have to be on the assessee; (iii) if the cash credit is not satisfactorily explained, the ITO would be justified to treat it as income from undisclosed sources'; (iv) the firm has to establish that the amount was actually given by the lender; (v) the genuineness and regularity in the maintenance of the account have to be taken into consideration by the taxing authorities; and (vi) if the explanation is not supported by any documentary or other evidences, then the deeming fiction created by section 68 can be invoked. [Para 7] In the instant case, the first requirement was not relevant. So far as the second requirement was concerned, there was no doubt about initial burden being on the assessee. So far as the third requirement was concerned, obviously if the explanation was not satisfactory, then it was to be added. Then fourth requirement was that the firm had to establish that the amount was actually given by the lender. Fifth requirement was about genuineness and regularity in maintenance of the accounts obviously of the assessee, and it was not the finding that the accounts were not regularly maintained. Then sixth requirement was that if the explanation was not supported by any documentary or other evidences, then the deeming fiction created by section 68could be invoked. In the instant case, that requirement was very much there in existence inasmuch as the amounts had been advanced by account payee cheques through the bank and were duly supported by documentary evidences as well as the evidences of the two lenders, and that satisfied the second requirement also about the discharge of burden on the part of the assessee to prove identity and genuineness of the transaction. So far as capacity of the lender was concerned, on the face of the judgment of the Supreme Court in Daulat Ram Rawat Mull (supra)and other judgments, capacity of the lender to advance money to the assessee was not a matter which would require the assessee to establish, as that would amount to calling upon him to establish the source of the source. In view of the above, the appeal was to be allowed and additions with respect to the entries of VK and DS made to the income of the assessee were to be deleted.

SDC Construction, Jaipur. Attention is drawn towards the judgment of Hon'ble Rajasthan High Court(Jurisdictional High Court) in the case of CIT vs. Pooja Agarwal, [2018]99 taxmann.com 451 (Rajasthan) wherein it was held that no addition can be made if the following conditions are satisfied: a) The payments and receipts are through banking channel. b) The transactions are supported by documents appearing to be genuine. c) The statements recorded do not have a clear and a distinct remark about the assessee so as to challenge the genuineness of the transaction. Hon'ble Supreme Courtin the case of Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151 (SC) had held that no addition can be made on the basis of surmises, suspicion, and conjectures, totally disregarding the documentary evidence. The Hon'ble Supreme Court in the case of Umacharan Shaw & Bros. v. CIT (1959) [1959] 37 ITR 271 (SC)held that suspicion, however, strong, cannot take the place of evidence. We submit that in the identical case of ITO Vs Amar Pratap Steels(p) Ltd DATED 18.12.2024. The Hon'ble Jaipur bench of ITAT following the decision of the Apex Court in the case of Lovely export and jurisdictional high court decision in the case of Esspal International (P.) Ltd dismissed the appeal of revenue.[ Refer compilation of case law page no116-142) We submit that in the matter of PCIT vs Manoj Kumar Vipin Kumar Hon'ble High Court of Rajasthan held that where transaction was clearly evident from documentary evidence produced by the assessee. Assessing officer without bringing any adverse evidence on record, simply on assumption and presumption was not justified in holding that the transaction is bogus. [ Refer compilation of case law page no 143- 145] The fact that said loan was repaid by assessee firm in the next financial year and also the Interest paid by the assessee has not been disallowed by the Ld.AO. When the loan stand repaid and interest paid is not disallowed no addition can be made. Reliance is placed on the Judgement of Hon'ble Gujarat High Court in case of Deputy Commissioner of Income tax v. Rohini Builders. Hon'ble Gujarat High court held that; "The genuineness of the transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques.

SDC Construction, Jaipur. In view of the above submission, we request the Honourable bench to kindly set aside the order of Ld.AO.” 6. To support the contentions raised in the written submission the ld. AR of the assessee has relied upon the following evidences/records/decisions :-

S. No. Documents Page from to 1. Copy of Appeal to ITAT (Form 36) 01 to 03 2. Copy of order u/s 250 of income tax act, 1961 04 to 08 Α.Υ.2014-15 3. Copy of Notice dated 18.09.2023 of CIT (A) 09 to 19 alongwith Reply Dated 28.09.2023 4. Copy of appeal to CIT (A) (Form 35) 20 to 25 5. Copy of order u/s 147 r.w.s. 144B of I.T. act, 1961 26 to 34 A.Y.2014-15 Dated 30-05-2023 6. Copy of Notice of u/s 148A(b) in Consequence to 35 to 59 Hon'ble Supreme Court Order Dated 30.05.2022 alongwith Reply Dated 01.06.2022 & 11.06.2022 7. Copy of Notice of 148A(d) Dated 25.07.2022 60 to 66 8 Copy of Statement of Mr. Deepak Jain u/s 132(4) 67 to 103 of the I.T. Act, 1961 alongwith Notice Dated 22.05.2023 Supplementary Paper book S. No. Documents Page from to 1. Copy of Ledger of Sanmati Gems Pvt Ltd in the 1 books of SDC Construction From 01.04.2013 to 31.03.2015 2. Copy of Bank Statement of SDC Construction 02 to 07 reflecting entries of Sanmati Gems Pvt Ltd 3. Copy of Bank Statement of Sanmati Gems Pvt Ltd 08 to 25 4. Copy of Company Master Data of Sanmati Gems 26 Pvt Ltd 5. Copy of Retraction affidavit by Mr. Deepak B. Jain 27 to 29 6. Copy of Annual Report of SDC Construction for 30 to 36 the F.Y. 2013-14 Name of case law Page No.

7. The ld. AR of the assessee vehemently argued that ld. CIT(A) has dismissed the appeal of the assessee on technical ground and before doing so he has not allowed an opportunity of being heard to rectify / clarifying the fact that in fact the assessee is liable for payment of advance tax or not. As is evident from the record that the assessee has already filed the return of income and therefore, the action of the ld. CIT(A) was not proper and he should have granted an opportunity of being heard to the assessee. Be that it may the ld. AR of the assessee submitted that looking to the facts already on record the appeal of the assessee be decided. The assessee has filed the ITR u/s. 139 of the Act as is evident SDC Construction, Jaipur. from the assessment order. The assessee has already participated in the 148 proceeding and submitted all the details in connection with the notices so issued. The whole 148 proceeding was initiated on account of the search conducted in the Jain Group wherein the Shri Deepak Jain given the details of accommodation entry u/s. 132(4) of the Act, that statement has been retracted [ paper book page 27-29 ]. The ld. AO has not given any material and thereby it is a violation of the direction given by the apex court in the case of UOI Vs. Rajeev Bansal. Even otherwise since no material is provided and only addition was made based on a statement which has already been retracted. Considering the decision the Rajasthan High Court in the case of PCIT Vs. Esspal International P. Ltd [ 166 taxmann.com 722 (Rajasthan) ] no addition can be made. Even other wise the assessee has filed all the documents to prove the identity, capacity and genuineness based on the details placed in the paper book even on merits of the case the assessee has discharged the burden cast upon him and therefore no addition can be made. He also submitted that while making the addition of loan the ld. AO has allowed the interest claim of the assessee. This shows that the ld. AO has merely relied upon the information and made the addition with surmises and conjections.

SDC Construction, Jaipur. The assessee has also repaid the loan and therefore, once the loan is repaid the identity and genuineness cannot disbelieved. On this aspect the Gujarat High Court held that when the assessee repaid the loan no addition can be made u/s. 68 of the Act. Even in the proceeding the revenue could not placed on record any contrary material and therefore, even without providing the relied upon material no addition can be made.

Record reveals that there was specific information, it brought on records that unexplained bogus entries were found credited in books of the assessee firm in the name of M/s Sanmati Gems Pvt. Ltd. (PAN: AAQCS8731D) amounting to Rs. 72,00,000/- and from M/s Siddhant Gems Pvt Ltd (PAN:AALCS5128F) amounting to Rs. 25,00,000/- totaling to Rs. 97,00,000/- during the FY 2013-14 relevant to AY 2014-15. Therefore, the proceedings u/s.147 of the Act were initiated after recording the reasons in writing. Based on that information, the JAO recorded the reasons and issued notice u/s 148 of the IT Act in accordance with the law.

Record also reveals that in response to various notices so issued by the faceless unit of the revenue the assessee submitted the details called for. The summarized details as submitted in  Copy of cashbook  Bank statement showing Sanmati Gems transactions  Computation of income  Bank account statement  Sanmati Gems ledger for the period under consideration  Bank statement showing Siddharth Gems transactions  Copy of ITR Ack filed against notice u/s 148  Siddharth Gems ledger for the period under consideration  Copy of cash ledger  Copy of audited financial statements  Copy of reply Reply dated 09.02.2023  Copy of reply Reply dated 14.02.2023  Copy of reply  Bank statement showing Sanmati Gems transactions  Bank statement showing Siddharth Gems transactions  Copy of ITR for AY 2012-13  Copy of ITR for AY 2013-14  Copy of ITR for AY 2014-15  Copy of audited financial statements Reply dated 21.02.2023  Uploading copy of High Court daily order stating that the Hon'ble court has stayed the proceedings Reply dated 16.05.2023  Assessee uploaded copy of acknowledgement stating that "Gathering of materials from multiple sources requires time." It has been further stated by the assessee that "Dear Sir, In response to your notice we would like to submit that we are gathering materials to submit the reply in this case and need further one week time for the same. Therefore, kindly grant us an adjournment for a week in this case and oblige. Thanking You." Reply dated 17.05.2023  Assessee uploaded copy of acknowledgement stating that Gathering of materials from multiple sources requires time  Copy of Hon'ble Rajasthan High Court's judgment in Micro Marbles Private Limited  Copies of ledger account(s) of the parties to whom loans & advances given  Copies of ledger account(s) of the parties under the head "Advance from customer SDC Construction, Jaipur.  Ledger account of direct expenses  Sanmati ITR, Bank statement and other documents  Copy of ledgers of sundry creditors  Copy of ledgers of unsecured loans  Ledger copy of sales Even though the above evidence and records so provided by the assessee the ld. AO noted that the assessee has not not furnished concrete documents in support of his claim that the above transactions of Rs. 72,00,000/- and Rs. 25,00,000/- credited from M/s Sanmati Gems Pvt. Ltd. (PAN: AAQCS8731D) and from M/s Siddhant Gems Pvt Ltd (PAN:AALCS5128F) respectively are not in the nature of accommodation entries. The ld. AO did not specify what other concrete evidence that he want and what is the mistake that has been observed on the above documents so produced by the assessee. Thus, the bench noted that the primary onus which is on assessee to furnish relevant details such as creditworthiness, genuineness and identity of the parties so as to prove that these transactions are not accommodation entries has already been placed on record. Ld. AO failed to establish that these transactions are accommodative transactions. As is evident from the above record that the assessee has filed confirmation from the parties, bank statement of the loan creditor highlighting the debit entries in SDC Construction, Jaipur. the statement and interest received, audited accounts of the loan creditors and therefore, the primary onus casted upon the assessee has been discharged by the assessee by placing on record the evidence of identity of the depositor, source [ placing on record the bank statement of the loan depositors] and genuineness of the loans [ by filling the confirmation and ITR]. The assessee emphasized that since identity of the loan creditors was established and the loan was taken through banking channel, therefore, genuineness of the transaction cannot be doubted. Even though while making the addition the ld. AO considered the interest paid to those depositors as genuine and thereby ld. AO is playing due standard on the same very facts. As is evident from the reply dated 17.05.2023 wherein the assessee contended that the creditworthiness, genuineness of transactions and identity of the loan creditors are proved beyond doubt. But the ld. AO noted merely noted that the assessee has not conclusively proved beyond doubt that the transactions made with the above- mentioned two parties are not in the nature of accommodation entries as stated by the Shri Deepak Jain in his statement. Thus, the ld. AO shift his burden upon the assessee when the assessee has already discharged his burden casted upon.

SDC Construction, Jaipur. The bench also noted that the addition were proposed based on the statement of Shri Deepak Jain wherein he stated to have provided accommodation entries through his shell companies M/s Sanmati Gems Pvt. Ltd. (PAN: AAQCS8731D) and from M/s Siddhant Gems Pvt Ltd (PAN:AALCS5128F) has retracted from his statement given u/s 132(4) of the Act on 11.11.2019 upon his statement recorded on 27.09.2021. Thus, the very basis for making the statement is retracted and the assessee has placed on record all the evidence that is required to prove the onus casted upon the assessee we see no reason to sustain the addition and therefore, the same is directed to be deleted, because the addition was proposed solely on the statement of Shri Deepak Jain who has retracted from his statement and revenue does not place on record any other material to contradict the facts supported by evidence. We get support of our view that merely based on the statement which was retracted no addition can be made as held by our own Rajasthan High Court in the case of PCIT Vs. Esspal International P. Ltd [ 166 taxmann.com 722 (Rajasthan) ] holding that ; “11. Now it is a matter of record that Shirish Chandrakant Shah had retracted his statements given before the Assessing Officer. Even otherwise, an admission by the assessee cannot be said to be a SDC Construction, Jaipur. conclusive piece of evidence. The admission of the assessee in absence of any corroborative evidence to strengthen the case of the Revenue cannot be made the basis for any addition. Therefore, the substantial questions of law framed by the appellant pertained to an open issue which stands concluded by the decision of the Hon'ble Supreme Court; one such decision was rendered in "M/s Pullangode Rubber Produce Co. Ltd. v. State of Kerala And Another" [1973] 19 ITR 18.”

The bench also noted that in the case of the assessee interest were also paid which were not disallowed by the ld. AO and the assessee has already repaid those unsecured loans along with the interest and therefore the contention of the assessee gets more strength as the assessee repaid those unsecured loans. Thus, when loan stands repaid no addition under Section 68 can be made and is held by the judgment of Hon’ble Gujarat High Court in case of Rohini Builders [2002] 256 ITR 360 (Gujarat), wherein the court held that "The genuineness of the transaction is proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques." Respectfully following the above binding precedent cited herein above and discussion that the assessee has discharged his burden casted discussed as per provision of section 68 of the Act no SDC Construction, Jaipur. addition be sustained and therefore, ground no. 4 & 5 raised by the assessee are allowed. Since we have allowed the appeal of the assessee on its merits the technical ground no. 1, 2 & 3 become academic at this stage and are not required to be adjudicated. Ground no. 6 being general does not require any finding. In the result, the appeal filed by the assessee is allowed.

Order pronounced in the open Court on 06/08/2025.