SHRI SHRI SUDHIR KUMAR JHA,BHILAI(CG) vs. THE DY. COMMISSIONER OF INCOME TAX 1(1), BHILAI, BHILAI(CG)

आयकर अऩीऱीय अधधकरण, रायऩुर न्यायऩीठ, रायऩुर IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR श्री रविश सूद, न्याययक सदस्य एवं श्री अरुण खोड़वऩया, ऱेखा सदस्य के समक्ष । BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM आयकर अऩीऱ सं./ITA No.90/RPR/2017 (ननधाारण वषा / Assessment Year :2011-2012) Sudhir Kumar Jha, Vs DCIT-1, Bhilai Prop. Mc Chem & Company, 16/22, Uttar Gangotri, Commercial Complex, Supela, Bhilai PAN No. : ABSPJ 5939 N (अऩीऱाथी /Appellant) .. (प्रत्यथी / Respondent) ननधााररती की ओर से /Assessee by : Shri R.B.Doshi, CA राजस्व की ओर से /Revenue by : Shri G.N.Singh, Sr. DR सुनिाई की तारीख / Date of Hearing : 29/07/2022 घोषणा की तारीख/Date of Pronouncement : 17/10/2022 आदेश / O R D E R Per Arun Khodpia, AM : This appeal is filed by the assessee against the order passed by the CIT(A)-II, Raipur, dated 10.01.2017, on the following ground :- 1. In the facts and in the circumstances of the case, Ld. CIT(A) erred in confirming addition of Rs.30,40,510/- made by the AO u/s.69 on account of unexplained cash credit, being the loan received from Sandeep Kumar Jha. The addition by AO and sustained by CIT(A) is not justified. 2. Facts in brief are that the assessee filed his return of income on 12.01.20123 declaring total income at Rs.15,03,210/-, The case of the assessee was selected for scrutiny under CASS and on issuance of statutory notices, the assessee produced books of accounts for verification. The assessee could not produce supporting evidences to substantiate his claim, therefore, the AO added Rs.1,30,000/- and 32,84,060/- u/s.69 of the Act, Rs.1730/- on account of amount credited in

2 ITA No.90/RPR/2017 the bank account and Rs.46,803/- on account of suppressed contractual receipts. 3. Against the assessment order, the assessee preferred appeal before the CIT(A) and the CIT(A) partly allowed the appeal of the assessee. 4. Now, being aggrieved with the order of the CIT(A), the assessee is in further appeal before the Tribunal. 5. Ld. AR before us submitted that the additions u/s 69 of the Income Tax Act made by Ld AO for Rs. 30,40,510/- and sustained by the Ld CIT(A) was not justifiable. There were two credit entries of Rs. 10,04,418/- and 20,36,092/- both dated 13/12/2010 from Mr Snadip Jha, a friend of the assessee which were towards payments made by Mr. Sandip on behalf of the assessee to two suppliers namely Amar Raja Power Systems and Amar Raja Batterries Limited. Payments were made through DD and credited to “Sandeep Jha, personal Account”. Assessee had filed a confirmation before AO from the creditor Mr Sandip Jha in support of this transaction, but was not considered appropriate on account of discrepancies like PIN in address and PAN of Mr Sandip Jha, No further opportunity was provided by the AO to produce these details, No direct enquiry was conducted by the AO and transactions were treated as unexplained within the meaning of provisions of section 69 of the Act. Thus AO’s conclusion without making any enquiry and giving an opportunity to substantiate the claim to the assessee was not justified. No question with respect to identity and genuineness of the creditor was

3 ITA No.90/RPR/2017 raised, only the genuineness of the source was doubted. the AR placed reliance on the following case laws:- In Metachem Industries 245 ITR 160 (M.P.), it was held that so far as the requirement of proof of credit, an assessee is only required to establish that the amount was given by the creditor. It further held that once the creditor admits having given the amount, there is no further requirement. In the appellant's case, the confirmations filed before the AO prove that the amount was given by the respective creditor. Thus, the burden lying upon the appellant has been discharged. The above decision of Hon'ble M.P. High Court has been very recently followed by Hon'ble jurisdictional High Court of Chhattisgarh in the case of M/s Raisons Engineers & Contractors vs. CIT in vide order dated 08.07.2009. In this case, one of the partner of the firm had introduced capital and in support thereof, the details of source from which the capital was introduced by the partner were furnished before the AO. However, no confirmation from the partner was furnished. In this background, following the ratio of the decision in 245 ITR 160 (MP), Hon'ble Chhattisgarh High Court held that the addition was rightly made as there was no confirmation from the partner. 6. Ld AR, further submitted that the Ld CIT(A)’s findings with reference to this issue was also erroneous since to substantiate its claim, the appellant had submitted modified confirmation of Mr Sandip Jha along with various supporting documents in respect to loan from Mr. Sandip Jha which are ITR Acknowledgments for AY 2009-10 to 2011-12, Bank statement for the relevant period. Ld AR submitted that these documents pertaining to Mr. Sandip Jha are good enough to establish the Identity and Credit worthiness of the loan creditor and genuineness of the transaction. There for it is prayed to delete the addition of made by AO and sustained by the Ld CIT(A). Ld AR of the assessee further submitted the following judgments in support of its contention:- i) CIT Vs Orissa Corporation (P) Ltd. (1986) 159 ITR 78 (SC) ii) CIT Vs Metachem Industries (2000) 245 ITR 160 (MP) iii) CIT Vs. Jai Kumar Bakliwal (2014) 366 ITR 217, 223 & 224 (Raj,)

4 ITA No.90/RPR/2017 Claris Life sciences Ltd. Vs ACIT (2008) 298 ITR (AT) 403 (Ahd.) iv) 7. With regarding to assessee’s argument that in the present case no money was received by the assessee, only acceptance of credit entry through journal entry, thus provision of section 68 cannot be invoked, Ld AR has submitted the following case laws:- i) CIT vs P. Mohanakala & Ors. (2007) 291 ITR 278 (SC), PN 42 to 50 of PB, relevant finding on PN 47, para no. 12, as under:- A bare reading of section 68 suggests that there has to be credit of amounts in the books maintained by assessees; that such credit has to be of a sum during the previous year; and that the assessees offer no explanation about the nature and source of such credit found in the books or the explanation offered by the assessees in the opinion of the Assessing Officer is not satisfactory. It is only then the sum so credited may be charged to income-tax as the income of the assessees of that previous year. The expression 'the assessees offer no explanation' means where the assessees offer no proper, reasonable and acceptable explanation as regards the sums found credited in the books maintained by the assessees. It is true that the opinion of the Assessing Officer for not accepting the explanation offered by the assessees as not satisfactory is required to be based on proper appreciation of material and other attending circumstances available on record. The opinion of the Assessing Officer is required to be formed objectively with reference to the material available on record. Application of mind is the sine qua non for forming the opinion. [Para 14] It is true that even after rejecting the explanation given by the assessees, if found unacceptable, the crucial aspect, whether on the facts and circumstances of the case, it should be inferred that the sums credited in the books of the assessees constituted income of the previous year, must receive the consideration of the authorities, provided that the assessees rebut the evidence and the inference drawn to reject the explanation offered as unsatisfactory. Section 68 itself provides that where any sum is found credited in the books of the assessees for any previous year, the same may be charged to income tax as the income of the assessees of the previous year, if the explanation offered by the assessees, about the nature and source of such sums found credited in the books of the assessees, is in the opinion of the Assessing Officer not satisfactory. Such opinion found itself constitutes a prima facie evidence against the assessees, viz., the receipt of money, and if the assessees fail to rebut the said evidence, the

5 ITA No.90/RPR/2017 same can be used against the assessees by holding that it was a receipt of an income nature. In the instant case, the authorities concurrently found the explanation offered by the assessees unacceptable. The authorities upheld the opinion formed by the Assessing Officer that the explanation offered was not satisfactory. The assessees did not take the plea that even if the explanation was not acceptable, the material and attending circumstances available on record did not justify the sum found credited in the books to be treated as a receipt of an income nature. The burden in this regard was on the assessees. No such attempt had been made before any authority. [Para 21] The Assessing Officer found that the gifts were not real in nature. Various surrounding circumstances had been relied upon by the Assessing Officer to reject the explanation offered by the assessees. The Commissioner (Appeals) confirmed the findings and conclusion drawn by the Assessing Officer. The Tribunal concurred with the findings of fact. The findings were based on the material available on record and not on any conjectures and surmises. They were not imaginary as sought to be contended. [Para 22] The findings of fact arrived at by the authorities below were based on proper appreciation of the facts, the material available on record and surrounding circumstances. The doubtful nature of the transaction and the manner in which the sums were found credited in the books of account maintained by the assessees had been duly taken into consideration by the authorities below. The transactions though apparent were held to be not real one. May be the money came by way of bank cheques and paid through the process of banking transaction but that itself is of no consequence. [Para 23] No question of law much less any substantial question of law had arisen for consideration of the High Court. The High Court misdirected itself and committed error in disturbing the concurrent findings of facts. [Para 24] Thus, the appeals of the revenue deserved to be allowed. ii) V. R. Global Energy P. Ltd. Vs ITO (2018) 407 ITR 145 (Mad.), SLP dismissed in (2019) 106 CCH 190 (SC), PN 14 to 20 of PB, relevant finding on PN 18 para no. 19 & 20. SLP dismissal on PN 20, held as under :- The cash credits towards share capital were admittedly only by way of book adjustment and not actual receipts which could not be substantiated as receipts towards share subscription money. [Para 26]

6 ITA No.90/RPR/2017 The appeal is, thus, allowed and the judgment and order of the Tribunal is set aside, for the reasons discussed above. Additions under section 68 are also set aside. [Para 27] iii) ITO vs Zexus Air Services P. Ltd. (2021) 189 ITD 434 (Del.), PN 21 to 34 of PB, relevant finding on PN 30, para no. 11 & 12, held as under : 11. We find some force in the above argument of the learned counsel for the assessee. As mentioned in the body of the assessment order as well as in the finding of the CIT(A), it is an undisputed fact that there is no actual receipt of any cash by the assessee-company in the instant case towards issue of share capital and such shares were issued in lieu of goodwill. In the instant case, the assessee has debited goodwill account of Rs. 20 crores and, credited the same to share capital of Rs. 20 crores wherein the shares were allotted to Shri Surinder Kumar Kaushik towards goodwill. It has been held in various decisions that the provisions of s. 68 can be applied if there is an actual receipt of money by the assessee whether by cash or cheque during the accounting year relevant to the assessment year under consideration. It has been held in these decisions that when the cash did not pass at any stage and when the respective parties did not receive cash nor did pay any cash, there was no real credit of cash in the cash book and, therefore, the question of inclusion of the amount of the entry as unexplained cash credit under s. 68 could not arise. 12. We find, the Hon’ble Madras High Court in the case of VR Global Energy (P) Ltd. (supra) has held that where the assessee allotted shares to a company in settlement of pre- existing liability of assessee to the said company by way of adjustment and since no cash was involved in transaction of said allotment of shares, conversion of these liabilities into share capital and share premium could not be treated as unexplained cash credit under s. 68 of the Act. It was held that since the cash credits towards share capital were only by way of book adjustment and not actual receipts, therefore, the same could not be treated as receipt towards share subscription money. Since no cash was involved in transaction of said allotment of shares, conversion of these liabilities into share capital and share premium could not be treated as unexplained cash credits under s. 68 of the IT Act. We find, the Revenue challenged this decision of the Hon’ble Madras High Court before the Hon’ble Supreme Court and the Hon’ble Supreme Court dismissed the SLP filed by the Revenue reported in 268 taxmann.com 392. 12.1 We find, the Delhi Bench of the Tribunal in the case of ACIT vs. Shri Suren Goyal (supra), has held that where the assessee has received loan of Rs. 20 lakhs from his father through a journal entry in the books of account and there was no physical transfer of money from the account of his father,

7 ITA No.90/RPR/2017 addition of the same under s. 68 of the Act is not justified and accordingly the Tribunal dismissed the appeal filed by the Revenue against the order of the CIT(A) deleting the addition made by the AO under s. 68 of the IT Act on account of the journal entry.

iv) ITO vs Bhagwat Marcom P. Ltd. (2019) 178 ITD 684 (Kol.) PN 35 to 41 of PB in para 6 it has been held as under :- 6. We have considered the rival submissions and also perused the relevant material available on record. It is observed that its shares were issued by the assessee company during the year under consideration at premium to certain companies in lieu of the shares held by the said companies and there was thus no inflow of cash involved in these transactions. The said transactions were entered into in the books of account of the assessee company by way of journal entries and it did not involve any credit to the cash amount. The learned Departmental Representative at the time of hearing has not brought anything on record to rebut or controvert this position. He however has contended by relying on the decision of Hon’ble Madhya Pradesh High Court in the case of V.I.S.P. (P) Ltd. (supra) as well as the decision of Mumbai Bench of this Tribunal in the case of Panna S. Khatau (supra) that s. 68 was still applicable in the present case involving credit to the share capital and share premium amount. It is however observed that the facts involved in the case of V.I.S.P. (P) Ltd. (supra) were different in as much as the liability in question in the said case represented trading liability of the assessee accruing as a result of purchases made by the assessee during the relevant year and since the said liability was found to be a bogus liability, addition made by the AO was held to be sustainable by the Hon’ble Madhya Pradesh High Court. 7. In the case of Panna S. Khatau (supra) cited by the learned Departmental Representative, both ss. 68 and 56(2)(vi) were held to be applicable by the Tribunal but no concrete or cogent reasons were given to justify the applicability of s. 68 to the credits not involving any receipt or inflow of cash in the relevant year. Moreover, the view taken by the Tribunal in the said case is contrary to the decision of Hon’ble Calcutta High Court in the case of Jatia Investment Co. (supra) relied upon by the learned CIT(A) to give relief to the assessee on issue under consideration in the present case. In the said case, the three NBFCs had taken loans from proprietary concern belonging to the same group. Since the said loans were required to be liquidated as per the RBI guidelines and there was no cash available with the NBFCs to repay the loans, the shares held by the three NBFCs were transferred to a partnership firm namely Jatia Investment Co., and the amount receivable against the said sale of shares was adjusted by the NBFCs against the loan amount payable to proprietary concern. The partnership firm of

8 ITA No.90/RPR/2017 M/s Jatia Investment Co. thus received shares from the three NBFCs and also took over the loans payable by the said NBFCs to the proprietary concern. These transactions were entered into in its books of account by the partnership firm through cash book by debiting the investment in shares and crediting the loan amount of the proprietary concern. This credit appearing in the books of account of the partnership firm, M/s Jatia Investment Co. was treated by the AO as unexplained cash credit under s. 68 and on confirmation of the same, when the matter reached to the Hon’ble Calcutta High Court, it was held by their lordship that when the cash did not pass at any stage and since the respective parties did not receive cash nor did pay any cash, there was no real credit of cash in the cash book and the question of inclusion of the amount of the entry as unexplained cash credit could not arise. In our opinion, the ratio of this decision of the Hon’ble jurisdictional High Court in the case of Jatia Investment Co. (supra) is squarely applicabls in the facts of the present case and the learned CIT(A) was fully justified in deleting the addition made by the AO under s. 68 by holding that the said provision was not applicable. 8. The ld. Sr. DR relied on the orders of both the authorities. 9. We have heard the rival contentions and perused the submissions and documents available on the record carefully. In the present case the alleged transaction of loan by way of payment on behalf of the assessee was substantiated by the assessee during the assessment proceeding and thereafter before the Ld CIT(A) during appellate proceedings. Identity and credit worthiness of the loan creditor was questioned by the AO, observing that the PIN and PAN of the creditor was not mentioned on the confirmation provided. No direct enquiry was conducted by AO to verify the identity of the lender, genuineness of transaction, however genuineness of the source was doubled and addition was made. On this issue the assessee had submitted additional evidence before the Ld CIT(A) while opportunity was afforded to him, admittedly the evidence in the form of revised confirmation, ITRs and copy of bank statement of the lender were submitted by the assessee and due cognizance of the same

9 ITA No.90/RPR/2017 was taken by the Ld CIT(A). However, the explanation of the assessee was not considered as satisfactory by the Ld CIT(A), without conducting any further enquiry by way of referring the matter for a remand report to the AO on additional evidences admitted, has concluded this issue against the assessee, by observing as under:- 1.8 Coming to the addition of Rs.10,04,418/- and Rs.20,36,092/- I find that the credit entries have not been adequately substantiated. There is no material on record and no satisfactory explanation for the credit entries of the above amounts. The discrepancies noted by tlie AO such as absence of PAN is not the only defect but more than that is the lack genuineness and creditworthiness of tlie transaction as well as confirmations which have not been proved. The contentions of the appellant that adequate opportunity was not accorded by the Id. AO to explain the above credits was addressed during the appeal proceedings wherein the appellant was accorded opportunity to furnish necessary confirmations from the persons from whom the said credits were obtained. During the appeal proceedings a confirmation letter was submitted which read as under:- " During the financial year 2010-11, I extended financial help to my friend Mr. Sudhir Kumar Jha by issuing two cheque hearing no. 096711 & 096712 for Rs. 10,04,418/- and lis. 20,36,092/- respectively to prepare demand draft in favour of Amur Raja Power Systems Limited and Ameirraj Batteries Limited who were the suppliers of Mr. Sudhir Kumar Jha. I am enclosing the hank statement for the financial year 2010-11 in order to show thai two cheque referred above were in fact issued. Also I am enclosing the confirmation copy accepting the above transactions. " 1.9 Besides tlie above the appellant has not been able to satisfactorily explain the identity and genuineness of the transactions, from the material .submitted 1 do not find the genuineness of such loans/financial help as claimed by the appellant. On the contrary from these details it is further proved (hat trie genuineness and creditworthiness are in doubt. The ease laws relied upon by the appellant place emphasis on the genuineness and identity of the creditors which was established in the appeals before the hon'ble Courts. In the instant case the genuineness and identity have not been established despite opportunity allowed by me. In this context it is important to place reliance on the ratio of various courts including (he hon'ble Apex court herein below:- The hon'ble Supreme Court in Sreelekha Banerjee v. ClT/1963) 49 ITR (SQ112.

10 ITA No.90/RPR/2017 117) has held that the assessee has a legal obligation to explain the nature and source of credits appearing in its accounts. The hon'ble Court in one of its many celebrated decisions also held in the case of (Seth Kalekhan Md, Hanif v. CIT (1958) 34 ITR 66% 673, 674 (MP) affirmed (1963) SO ITR 1 (SC). If the assessee offers an explanation about the cash credit, the income tax department can put the assessee to proof of his explanation and if the assessee fails to tender evidence or burkes an enquiry then the AO is justified in rejecting the explanation and holding that the income is from an undisclosed source. The assessing officer is not requ to specify or prove what that source is which from the nature of the case must be known only to the assessee. The hon'ble Andhra Pradesh High Court in 221 Taxman .143 (A.P) further held that mere filing of bank statement is not ei establish identity of creditors. The hon'ble Kerala High Court held that “The mere fact that the payment was by way of account payee cheque is also not conclusive (ITO v. Diza Holding (P) Ltd., (2002) 255 ITR 573, 577 (Ker.)” In view of the above observations the addition of Rs.10,04,418/- and Rs.20,36,092/- (Rs.30,40,510/-) is confirmed. 10. Now, to decide this issue in hand, on which the addition was sustained by the LD CIT(A), based on the allegation that the assessee was failed to explain and prove the identity and genuineness of the transaction. Ld CIT(A) has doubted the genuineness and credit worthiness of the lender without mentioning any reason or cogent finding for such adverse observation or belief, while it can be seen from the ITR of the Creditor Mr Sandio Jha that during the preceding three assessment years his returned income offered to tax was in the range of Rs. 40 to 48 Lacs and taxes of around Rs. 11 to 15 lac were paid. It is also apparent from the copy of bank statement of Mr Sandip Jha that he is maintaining a balance of approx Rs.2.50 crore and more during the period of transaction. It is also evident that the confirmation of the loan creditor has provided complete address and Pan number thus identity cannot be doubted, business activity was explained, creditor has confirmed that he is a regular assessee of the income tax and also the details of transaction

11 ITA No.90/RPR/2017 through banking channel confirming cheque numbers, amount, name parties to whom the payments were made on behalf of the assessee were provided. Since all the said documents furnished by the assessee before AO and CIT(A) were admitted without disapproving, no direct enquiry were made, no contrary cogent evidence to dislodge the contentions of the assessee were brought on the records, Simply disallowance was made based on belief by AO and further confirmed by the CIT(A) on the basis of presumption and based on certain judicial findings referred to supra, which are not applicable in the instant case since all the requisite details and evidences are duly submitted by the assessee, onus cast upon the assessee was duly discharged and the burden was shifted on the revenue. If any further information or direct enquiry was necessary the same should have been conducted by the revenue authorities. This view of ours is duly supported by the findings of the Hon’ble Courts in the following cases: CIT Vs Orissa Corporation (P) Ltd. (1986) 159 ITR 78 (SC) Held : In this case the assessee had given the names and addresses of the alleged creditors. It was in the knowledge of the revenue that the said creditors were the income-tax assessees. Their index number was in the file of the revenue. The revenue, apart from issuing notices under section 131 at the instance of the assessee, did not pursue the matter further. The revenue did not examine the source of income of the said alleged creditors to find out whether they were credit-worthy or were such who could advance the alleged loans. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the assessee could not do any further. In the premises, if the Tribunal came to the conclusion that the assessee had discharged the burden that lay on him, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the conclusion was based on some evidence on which a conclusion could be arrived at, no question of law as such could arise.

12 ITA No.90/RPR/2017 The High Court was, therefore, right in refusing to refer the questions sought for. Decision of the High Court affirmed. 11. Similar view has been taken by the Jurisdictional High Court in the case of CIT Vs. Abdul Aziz (2012) 251 CTR 58 (Chhatisgarh) The Commissioner (Appeals) has examined all the statements and depositions made by the creditors including their source of income and it was found that the Assessing Officer without having any material on record, contrary to the statements and affidavits filed by the creditors, has taken a stand that the creditors have failed to prove their creditworthiness and, as such, the transaction was not genuine. The Assessing Officer has not made any other independent enquiry to disprove the creditworthiness of the creditors, as established by the affidavits, statements of the creditors disclosing source of income. Thus, the finding of the Commissioner (Appeals) that the observation of the Assessing Officer with regard to dissatisfaction was on the basis of surmises and conjectures, is just and proper. The Tribunal has affirmed the finding recorded by the Commissioner (Appeals) and, as such, there is no occasion for the High Court to interfere with the finding of facts, which is based on proper appraisal of evidence and on the basis of sufficient records. [Para 19] In view of the foregoing, that the findings recorded by the Commissioner (Appeals) and affirmed by the Tribunal are based on proper appreciation of facts and are not perverse being correlated with each and every transaction. Thus, the issue is purely question of facts. No question of law, more so substantial question of law, arises in the facts of the case. [Para 20]

13 ITA No.90/RPR/2017 13. In the result, the appeal of assessee is allowed. Order pronounced in pursuance to Rule 34(4) of ITAT Rules, 1963 on 17/10/ 2022. Sd/- Sd/- (RAVISH SOOD) (ARUN KHODPIA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER रायऩुर/Raipur; ददनाांक Dated 17/10/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : अऩीऱाथी / The Appellant- 1. प्रत्यथी / The Respondent- 2. आयकर आयुक्त(अऩीऱ) / The CIT(A), 3. आयकर आयुक्त / CIT 4. 5. विभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, रायऩुर/ DR, ITAT, Raipur गार्ड पाईऱ / Guard file. 6. आदेशानुसार/ BY ORDER, सत्यावऩत प्रयत //True Copy// (Assistant Registrar) आयकर अऩीऱीय अधधकरण, रायऩुर/ITAT, Raipur