ITO 25(2)(1), MUMBAI vs. KAUSHIK B. THAKER, MUMBAI

O R D E R

PER SHAILENDRA KUMAR YADAV, JM

2. On the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in deleting the addition and accepting the contention of the assessee that the assessee has proved the genuineness of the person, genuineness of loan transaction and ability to give loan by the loan creditor Shri Harsh D. Ashar.”

2. Assessee, an individual engaged in the business of commission and brokerage of properties has filed return of income on 20.211.2003 admitting total income of `1,05,750/- which was accepted under section 143(1) of the Act. Subsequently the case was reopened under section 148 of the Act by Assessing Officer and selected for scrutiny and completed the assessment under section 143(3) of the act determining the total income at `19,75,750/- by making addition to assessee’s income on account of unexplained cash credit under section 68 of the Act.

Shri Kaushik B. Thaker 2.1 The matter was carried before the first Appellate Authority wherein various contentions were raised on behalf of the assessee and having considered the same CIT(A) granted relief to assessee. Same has been opposed before us on behalf of Revenue, inter alia, submitting that CIT(A) was not justified in deleting the addition made by the Assessing Officer as unexplained cash credit u/s. 68 of the Act in respect of loan of Rs.17,50,000/- taken from Shri Haresh D. Ashar without appreciating the fact that assessee has failed to discharge the primary onus of providing the genuineness of the loan. So the order of the CIT(A) be set aside and that of Assessing Officer be restored. None appeared on behalf of assessee. Therefore the matter is being decided exparte on the basis of the arguments of the learned Departmental Representative and the material on record.

2.2 After going through the rival submissions and material on record we find that the quantum addition was made of `18,70,000/- by Assessing Officer in respect of Shri

Shri Kaushik B. Thaker Harish.D_Ashar (`17,50,000/-), Tehmi R Mody (`50,000/-), and Shri D K Shah (`17,000/-). The issue of latter two parties is not before us. So the issue before us is regarding cash credit of `17,50,000/- taken from Shri Haresh D.

Ashar. Assessee submitted copy of loan confirmation along with copy of PAN card of Shri Haresh D Ashar with an intention to disclose latest address as per income tax records. Since assessee was not dealing with Shri Haresh D Ashar any more, it was not possible produce him before the concerned Assessing Officer. After a lot of efforts, assessee was able to trace Haresh D Ashar who has given an affidavit in respect of loan amount transactions and confirming the same. In this regard the stand of the assessee has been that that loan confirmations and PAN card of Shri Haresh D Ashar have been submitted so the onus was shifted to Assessing Officer to use his power for to make further enquiry. Thus assessee discharged his onus in respect of loan of Rs.17,50,000/- from Haresh D Ashar and proved identity and genuineness of the person. Nothing