SHRI BHUPENDRA SINGH RATHORE,GREATER NOIDA vs. ACIT, NOIDA

Date of Hearing : 22-09-2016 Date of Order : 25-10-2016

ORDER This appeal by the Assessee is directed against the Order of the Ld.

Commissioner of Income Tax (Appeals)-I, Noida dated 29.2.2016 pertaining to assessment year 2011-12.

1. That the Ld. CIT(A) erred in not considering the facts and circumstances of the case and rejected the appeal merely on surmises and conjectures.

2. That the Ld. CIT(A) erred in upholding the addition made by the AO by rejecting the evidence produced before him. He

further erred in holding that in terms of the affidavit and supporting documents of agriculture land and held by Smt. Rita Chawan affidavits filed before gun un support of the claim made by thr appellant as “bogus” without any reason and justification for the same.

5. That the appellant reserves the right to add, amend supplement grounds of appeal in support of his pleadings.

3. The brief facts of the case are that AO passed an order dated 29.3.2014 for the AY 2010-11 on a total income of Rs. 16,29,300/- as against the returned income of Rs. 14,24,300/-. AO observed that the cash deposited in the bank account of the assessee amounting to Rs. 25,000/- and Rs. 1,80,000/- were unaccounted income of the assessee and has added the same to its total income liable to tax. The AO rejected the affidavits submitted by the assessee to claim that the said cash deposits were money advanced by Sh. Mahinder Singh and Smt. Rita Chouhan as the AO found that the signature on the affidavit did not match with the same on the PAN card and the assessee expressed its inability to produce the bank pass books of the lenders. In view of this the AO held that the explanation given by the assessee was not sufficient and the amount 2 deposited in its bank account was its unaccounted income and added the same to the total income of the assessee liable to tax. Aggrieved with the same, Assessee appealed before the Ld. CIT(A) who vide his impugned order dated 29.2.2016 dismissed the appeal of the assessee.

4. At the time of hearing, Ld. Counsel of the assessee has submitted that lower authorities have erred in making the addition and confirming the same by rejecting the evidence produced before them. He further stated the authorities below have erred in holding that in terms of the affidavit and supporting documents of agriculture land held by Smt. Rita Chawhan affidavits filed before him in support of the claim made by the assessee as “bogus” without any reason and justified for the same. Hence, he requested that the addition may be deleted.

Rita Chawan and Sh. Mahinder Singh, copy of acknowledge of Income Tax Return for AY 2010-11, PAN Card and Aadhar Card. I have perused the aforesaid documents and I am of the view that since the assessee has fully proved its burden and discharged the onus upon the Department, however, no contrary evidence was shown by the AO which will prove that the transactions were not genuine, therefore, the addition made by the AO and confirmed by the Ld. CIT(A) is totally unwarranted and the same needs to be deleted.

Accordingly, I delete the addition in dispute and allow this ground of appeal of the assessee. My aforesaid view is fully supported by the following decision :

CIT v. KAMDHENU STEEL & ALLOYS LTD., SLP (CC) no. 15640 of 2012, dated 17-09-2012 (Supreme Court)

Issue Involved: "Whether once the assessee has discharged the initial burden by filing adequate evidence/material, Revenue is supposed to dislodge the initial burden discharged by the assessee and to throw the ball again in the assessee's' court demanding the assessee to give some more proofs, as the documents produced earlier by the assessee either become suspect or are rendered insufficient in view of the material produced by the Department rebutting the assessee's documentary evidence?" Decided in Favour of : Assessee

Held: The Hon'ble Supreme Court has dismissed the Special Leave Petition filed by the Revenue against the decision of Hon'ble Delhi High Court in the case CIT v. Kamdhenu Steel & Alloys Ltd.

[2014] 361 ITR 220 in which it has been held: Cash credits-- Unexplained investments--Burden of proof--Share application money--Assessee explaining source' of money-Identities of applicants and their creditworthiness established--Burden of proof discharged by assessee--Onus shifted to Department--No evidence to show transactions were not genuine--Sections 68 and 69 not applicable--Income-tax Act, 1961, ss. 68, 69:

of the assessee.

8. In the result, the appeal filed by the assessee stands allowed. Order pronounced in the Open Court on 25/10/2016.