Shri Jayantilal K.Harsora, Surat v. The Income tax Officer,Ward-5(2),, Surat

ITA 3210/AHD/2008 | 2005-2006
Pronouncement Date: 02-12-2010 | Result: Dismissed

Appeal Details

RSA Number 321020514 RSA 2008
Assessee PAN AADPH9972P
Bench Ahmedabad
Appeal Number ITA 3210/AHD/2008
Duration Of Justice 2 year(s) 2 month(s) 20 day(s)
Appellant Shri Jayantilal K.Harsora, Surat
Respondent The Income tax Officer,Ward-5(2),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 02-12-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 02-12-2010
Date Of Final Hearing 01-12-2010
Next Hearing Date 01-12-2010
Assessment Year 2005-2006
Appeal Filed On 12-09-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE S/SHRI G. D. AGARWAL VP AND BHAVNESH SAINI JM) ITA NO. 3210/AHD/2008 A. Y.: 2005-06 JAYANTILAL K. HARSORA P. NO.1-2 S. NO.128 OPP. AGRO PETROL PUMP N. H. NO.8 KAMRUJ CHAR RASTA SURAT VS THE INCOME TAX OFFICER WARD NO.5 (2) AAYAKAR BHAVAN MAJURA GATE SURAT PA NO. AADPH 9972 P (APPELLANT) (RESPONDENT) APPELLANT BY SHRI HARDIK VORA AR RESPONDENT BY SHRI M. MATHIVANAN DR O R D E R PER BHAVNESH SAINI JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-II I SURAT DATED 25-07-2008 FOR ASSESSMENT YEAR 2005-06 CHALLENGIN G THE ADDITION OF RS.4 00 000/- ON ACCOUNT OF UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT. 2. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND C ONSIDERED THE MATERIAL AVAILABLE ON RECORD. 3. THE FACTS OF THE CASE ARE THAT THE AO OBSERVED T HAT THIS AMOUNT WAS RECEIVED FROM SHRI MAHESHBHAI SHAH BY DEMAND DR AFTS FOR RS.2 LACS EACH ISSUED ON 16-06-2004 AND 17-06-2004. A PERUSAL OF THE BANK ACCOUNT OF THE LENDER REVEALED THAT HE HAD DEPOSITE D RS.2 LACS EACH IN HIS BANK ACCOUNT BY CASH ON THE SAME DATES AND PURC HASED THE DEMAND DRAFTS. THE AO RECORDED HIS STATEMENT WHEREIN HE AD MITTED THAT HE WAS NOT HAVING ANY BANK ACCOUNT AND WAS ONLY AN AGRICUL TURIST AND PRODUCED LEDGER ACCOUNT FROM MAHAVIR FRUIT CENTRE VARACHHA ROAD. THE ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 2 AO WAS OF THE VIEW THAT THERE WAS NO NEXUS BETWEEN HIS AGRICULTURAL RECEIPT AND CASH DEPOSITED BY HIM. THE AO FURTHER I SSUED NOTICE TO MAHAVIR FRUIT CENTRE BUT THE PARTY DID NOT REPLY. THE ASSESSEE EXPLAINED THAT THE CREDITOR WAS A WELL ESTABLISHED AGRICULTUR IST HAVING 6.55 HECTORS OF LAND AND HIS AVERAGE AGRICULTURAL INCOME WAS RS. 5 TO RS.6 LACS PER YEAR. HE RECEIVED A SUM OF RS.5 23 515/- FROM 1-04- 2004 TO 17-06-2004 PART OF WHICH WAS DEPOSITED IN THE BANK FOR GIVING LOAN TO THE ASSESSEE. THE AO DID NOT ACCEPT THE EXPLANATION AND NOTED THA T THERE WAS NO CASH RECEIVED IN THE CASE OF SHRI MAHESHBHAI SHAH IN THE MONTH OF JUNE 2004 AND THEREFORE TREATED THE ENTIRE LOAN AS UNEXP LAINED CASH CREDIT. 4. THE ADDITION WAS CHALLENGED BEFORE THE LEARNED C IT(A) AND IT WAS SUBMITTED THAT THE CREDITOR CATEGORICALLY CONFIRMED TO HAVE GIVEN LOAN TO THE ASSESSEE AND THAT HE WAS ENGAGED IN AGRICULTURA L ACTIVITY FOR MORE THAN LAST 10 YEARS AND ALSO GAVE DETAILS OF THE PAR TY TO WHOM SALE OF BANANA WAS MADE DURING HIS STATEMENT U/S 131 OF THE IT ACT. THE AO ISSUED SUMMONS TO MAHAVIR FRUIT CENTRE BUT THAT PAR TY DID NOT ATTEND. THE ASSESSEE ALSO FILED DETAILS OF CASH FLOW OF THE DEPOSITOR FROM 01-04-2004 TO 17-06-2004 WHERE THE NET CASH SURPLUS WAS RS.4 61 772/-. THERE WAS NO EVIDENCE WITH THE AO TH AT THE CASH DEPOSITED IN THE BANK DID NOT BELONG TO HIM AND THA T THE SOURCE OF THE SOURCE WAS NOT REQUIRED TO BE PROVED. 5. THE LEARNED CIT(A) CONSIDERING THE SUBMISSIONS O F THE ASSESSEE AND THE MATERIAL ON RECORD IN THE LIGHT OF THE FIND INGS OF THE AO CONFIRMED THE ADDITION. HIS FINDINGS ARE REPRODUCED AS UNDER: I HAVE CONSIDERED THE SUBMISSIONS. THE APPELLANTS CONTENTION THAT THE AO WAS TRYING TO FIND THE SOURC E OF SOURCE IS NOT CORRECT. IT IS THE VERY SOURCE OF SUCH CASH CREDITS WHICH IS IN QUESTION. IN THE INSTANT CASE ALTHOUGH THE CREDITWORTHINESS OF THE LENDER IS NOT DOUBTFUL THE SOURCE OF CASH DEPOSIT IN THE BANK HAS NOT BEEN ESTABLISHED. THE APPELLANTS ARGUMENT THAT THE CREDITOR WOULD GIVE S UCH A HUGE ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 3 CASH IN HAND AND WOULD DEPOSIT A PART OF ITS IN THE BANK ONLY WHEN HE WAS REQUIRED TO ISSUE CHEQUES TO LIC OR GIV ING LOAN TO VARIOUS PARTIES CANNOT BE ACCEPTED. ONCE IT IS EST ABLISHED THAT THE SAID CREDITOR WAS MAINTAINING A BANK ACCOU NT HOLDING SUCH HUGE AMOUNTS IN CASH AND NOT DEPOSITIN G IN THE BANK IS NOT COMPREHENSIBLE. THERE IS NO DOUBT THAT THE SAID CREDITOR WAS HAVING SUFFICIENT INCOME DURING THE YE AR THE NEXUS BETWEEN THE CASH DEPOSITS OF RS.2 LACS EACH M ADE ON THE SAME DATES WHEN THE CHEQUES WERE ISSUED TO THE APPELLANT IS NOT ESTABLISHED. IT COULD VERY WELL BE THE APPELLANTS OWN UNACCOUNTED MONEY WHICH WAS DEPOSIT ED IN THE BANK IN THE NAME OF THE SO CALLED CREDITOR WHIC H WAS SUBSEQUENTLY INTRODUCED AS CASH CREDIT IN THE APPEL LANTS BOOKS. THEREFORE I AM OF THE VIEW THAT THE GENUINE NESS OF TRANSACTIONS HAS NOT BEEN ESTABLISHED AND THE AOS ACTION IN TREATING THE CREDIT AS UNEXPLAINED U/S 68 OF THE IT ACT IS IN ORDER. ADDITION ON THIS ACCOUNT IS THEREFORE CONFIR MED. 6. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THA T THE CREDITOR WAS PRODUCED BEFORE THE AO WHO HAS CONFIRMED GIVING OF LOAN TO THE ASSESSEE IN HIS STATEMENT RECORDED ON OATH U/S 131 OF THE IT ACT. HE HAS SUBMITTED THAT CONFIRMATION OF THE CREDITOR WAS ALS O FILED. THE CERTIFICATE OF SHREE GANESH KHAND UDYOG SAHKARI MANDLI LTD. BH ARUCH WAS ALSO FILED TO SHOW THAT THE CREDITOR HAS SOLD SUGARCANE TO THEM AND RECEIVED A SUBSTANTIAL AMOUNT COPY OF WHICH IS FILED AT PAGE 7 OF THE PAPER BOOK. HE HAS FURTHER SUBMITTED THAT THE ASSESSEE ALSO PRO DUCED LEDGER ACCOUNT FROM MAHAVIR FRUIT CENTRE TO WHICH THE CREDITOR SOL D THE AGRICULTURAL PRODUCTS AND RECEIVED THE PAYMENT COPY OF WHICH IS FILED AT PAGE 8 AND 9 OF THE PAPER BOOK. HE HAS THEREFORE SUBMITTED THA T THE ASSESSEE PROVED THE IDENTITY OF THE CREDITOR AND HIS CREDITWORTHINE SS. THEREFORE THE ADDITION SHOULD HAVE BEEN DELETED. HE HAS RELIED UP ON THE FOLLOWING DECISIONS: (I) DECISION OF THE HONBLE BOMBAY HIGH COURT IN TH E CASE OF ORIENT TRADING CO. VS CIT 49 ITR 723 IN WHICH IT WA S HELD THAT WHEN THE ENTRY STANDS IN THE NAME OF A THIRD PARTY AND THE ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 4 ASSESSEE ESTABLISHES THE IDENTITY OF THE CREDITOR A ND PRODUCES EVIDENCE SHOWING THAT THE ENTRY IS NOT FICTITIOUS INITIAL B URDEN LYING ON THE ASSESSEE STANDS DISCHARGED. (II) DECISION OF THE HONBLE PATNA HIGH COURT IN TH E CASE OF SAROGI CREDIT CORPORATION VS CIT 103 ITR 344 IN WHI CH IT WAS HELD THAT ONCE THE IDENTITY OF THE CREDITOR IS ESTABLISHED BE FORE THE AO AND HE HAS PLEDGED ON OATH THAT THEY HAVE ADVANCED THE AMOUNTS IN QUESTION TO THE ASSESSEE THE BURDEN SHIFTS ON T O THE DEPARTMENT TO SHOW AS TO WHY THE ASSESSEES CASE COULD NOT BE ACCEPTED . (III) DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF NEMICHAND KOTHARI VS CIT 264 ITR 254 IN WHICH IT WA S HELD THAT THE ASSESSEE HAS ESTABLISHED THE IDENTITY OF THE C REDITOR AND THE AMOUNT HAD BEEN RECEIVED BY HIM BY WAY OF CHEQUE. L OAN COULD NOT BE TREATED AS INCOME FROM OTHER SOURCES. 7. ON OTHER HAND THE LEARNED DR RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE CREDITOR S HRI MAHESHBHAI SHAH ISSUED TWO DEMAND DRAFTS IN FAVOR OF THE ASSESSEE W HO DEPOSITED THE CASH ON THE SAME DATES IN HIS BANK ACCOUNT AND THAT THE CREDITOR ADMITTED THAT HE WAS NOT HAVING ANY BANK ACCOUNT AN D WAS ONLY AN AGRICULTURIST. THE LEARNED DR SUBMITTED THAT THE CE RTIFICATE OF SHREE GANESH KHAND UDYOG SAHKARI MANDLI LTD. INDICATED TH AT THE CREDITOR WAS NOT HAVING SUFFICIENT FUNDS RECEIVED IN THE YEA R UNDER CONSIDERATION AND THAT NO EVIDENCE IS AVAILABLE ON RECORD TO PROV E THAT IN THE EARLIER YEARS THE CREDITOR WAS HAVING SUFFICIENT AMOUNT WIT H HIM. THE LEARNED DR SUBMITTED THAT SINCE NO AMOUNT HAS BEEN DEPOSITE D EARLIER IN THE BANK ACCOUNT AND THE SOURCE OF THE DEPOSIT OF THE C ASH IN THE BANK ACCOUNT IN THE YEAR UNDER CONSIDERATION THEREFORE CREDIT WAS RIGHTLY TREATED AS UNEXPLAINED. EVEN THE CERTIFICATE OF MA HAVIR FRUIT CENTRE WOULD NOT SUPPORT THE CASE OF THE ASSESSEE BECAUSE NO SUFFICIENT ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 5 PAYMENT HAS BEEN MADE TO THE CREDITOR IN JUNE 2004 . EVEN THIS PARTY HAS NOT CONFIRMED GIVING ANY AMOUNT TO THE CREDITOR . HE HAS SUBMITTED THAT THE CREDITOR WAS NOT ASSESSED TO TAX AND ADMIT TEDLY DID NOT HAVE ANY TAXABLE INCOME AND NO SOURCE OF THE DEPOSIT IN JUNE 2004 IS EXPLAINED. THEREFORE THE AUTHORITIES BELOW HAVE RIGHTLY REJEC TED THE CLAIM OF THE ASSESSEE. THE LEARNED DR RELIED UPON THE DECISION O F THE HONBLE MADRAS HIGH COURT IN THE CASE OF MANGILAL JAIN VS ITO 315 ITR 105. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIALS AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE CREDITOR SHRI MAHESHBHAI SHAH OBTAINED TWO DEMAND DRAFTS OF RS. 2 LACS EACH ON 16-06-2004 AND 17-06-2004 FOR GIVING THE SAME TO THE ASSESSEE. PER USAL OF HIS BANK ACCOUNT REVEALED THAT HE HAD DEPOSITED RS.2 LACS EA CH IN HIS BANK ACCOUNT BY CASH ON THE SAME DATES FOR PURCHASE OF T HE DEMAND DRAFTS. IN HIS STATEMENT HE HAS EXPLAINED THAT HE WAS NOT LIA BLE TO INCOME TAX AS HIS INCOME NEVER EXCEEDED EXEMPTION LIMIT. THE CRED ITOR WAS THEREFORE NOT ASSESSED TO TAX. HE HAS FURTHER EXPLAINED THAT SOURCE OF THE DEPOSIT IN HIS BANK ACCOUNT IS FROM SALE OF SUGARCANE CROP TO SHREE GANESH KHAND UDYOG SAHKARI MANDLI LTD. THE PAYMENT WAS REC EIVED PARTLY IN CASH AND PARTLY IN CHEQUE AND FOR BANANA SOLD TO MA HAVIR FRUIT CENTRE PAYMENT OF WHICH WAS RECEIVED IN CASH. PB-9 IS THE COPY OF THE STATEMENT OF ACCOUNT OF THE CREDITOR IN THE BOOKS OF MAHAVIR FRUIT CENTRE WHICH WOULD SHOW THAT NO SUFFICIENT PAYMENT WAS MADE TO T HE CREDITOR IN JUNE 2004 TO MAKE DEPOSITS OF RS.4 LACS IN CASH IN HIS B ANK ACCOUNT IN JUNE 2004. EARLIER ALSO NO SUFFICIENT FUNDS WERE AVAILA BLE. WHEN THE AO WANTED TO VERIFY THE CREDITWORTHINESS OF THE CREDIT OR SUMMONS WERE ISSUED TO MAHAVIR FRUIT CENTRE TO ASCERTAIN THE GEN UINENESS OF THE CASH GIVEN TO THE CREDITOR BUT SUCH PARTY DID NOT ATTEND THE PROCEEDINGS BEFORE THE AO AND HAS NOT FILED ANY WRITTEN EXPLANATION. S IMILARLY PB-7 IS CERTIFICATE OF SHREE GANESH KHAND UDYOG SAHKARI MA NDLI LTD. IN WHICH IT WAS EXPLAINED THAT IN THE YEAR 2004-05 RELEVANT TO THE ASSESSMENT YEAR ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 6 UNDER APPEAL 2005-06 FINAL PAYMENT FOR WHOLE OF T HE SESSION WAS MADE IN A SUM OF RS.2 99 110/-. EVEN THIS AMOUNT WAS NO T SUFFICIENT TO MAKE THE DEPOSIT OF CASH OF RS.4 LACS IN JUNE 2004 IN T HE ACCOUNT OF THE CREDITOR. THE ABOVE AMOUNT WOULD SHOW THAT EVEN THI S AMOUNT WAS FOR WHOLE OF THE SESSION AND THE MONTH OF JUNE 2004 FA LLS IN THE BEGINNING OF THE FINANCIAL YEAR ITSELF AND AS SUCH NO SUFFICI ENT AMOUNT WOULD BE AVAILABLE TO THE LENDER/CREDITOR TO DEPOSIT THE SAM E IN THE BANK ACCOUNT IN JUNE 2004. THE ABOVE MATERIAL AND EVIDENCE WOUL D NOT SUPPORT THE CASE OF THE ASSESSEE TO PROVE THE CREDITWORTHINESS OF THE CREDITOR AND THE GENUINENESS OF THE TRANSACTION IN THE MATTER. IT MA Y FURTHER BE NOTED THAT THE CREDITOR IN HIS STATEMENT EXPLAINED THAT H IS MONTHLY HOUSEHOLD EXPENSES ARE RS.8 000/- TO RS.10 000/- AND IN HIS B OOKS HE HAS SHOWN RS.5 000/- AS EXPENDITURE. HE HAS FURTHER STATED IN THE STATEMENT THAT DURING THE YEAR HE HAS TAKEN LOAN OF RS.2 LACS FROM BANK OF BARODA ON INTEREST @9% PER ANNUM AND HAVE GIVEN RS.3 25 LACS TO ABHISHEK TRACTOR HOUSE. THE ABOVE FACTS STATED IN THE STATEM ENT OF THE CREDITOR WOULD SHOW THAT HE WAS NOT A MAN OF MEANS TO MAKE D EPOSIT OF RS.4 LAC IN HIS BANK ACCOUNT IN JUNE 2004. HIS HOUSEHOLD EX PENSES WOULD NOT SUPPORT HIS CREDITWORTHINESS. IF THE CREDITOR WAS H AVING SUFFICIENT CASH BALANCE WITH HIM THERE WAS NO NEED FOR HIM TO TAKE LOAN OF RS.2 LACS FROM BANK OF BARODA DURING THE YEAR UNDER CONSIDERA TION. THE THEORY SET UP BY THE ASSESSEE THAT THE CREDITOR WAS WEALTHY AG RICULTURIST AND DID NOT MAKE DEPOSIT IN THE BANK ACCOUNT WOULD NOT PROV E THAT THE CREDITOR WAS A MAN OF MEANS TO MAKE SUCH DEPOSIT IN THE BANK ACCOUNT. NO EXPLANATION IS GIVEN WHY THE CREDITOR HAS NOT MADE DEPOSIT IN THE BANK ACCOUNT DESPITE BANK ACCOUNT WAS MAINTAINED EARLIER PURPOSELY FOR THE PURPOSE OF OBTAINING THE DEMAND DRAFTS. ASSESSEES EXPLANATION THAT THE CREDITOR DID NOT BELIEVE IN MAINTAINING BANK ACCOUN T WAS THUS INCORRECT AND FALSE. THE ABOVE FACTS WOULD SHOW THAT THERE RE MAINS DOUBT REGARDING THE SOURCE OF THE DEPOSIT MADE IN THE BAN K ACCOUNT OF THE CREDITOR. NO EVIDENCE OR MATERIAL IS PRODUCED ON RE CORD TO ESTABLISH THE ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 7 SOURCE OF THE CASH DEPOSIT IN HIS BANK ACCOUNT. NO OTHER HEAVY DEPOSIT IN THE BANK ACCOUNT OF THE CREDITOR ON EARLIER OCCASIO N WAS FOUND. SINCE THE CREDITOR WAS NOT ASSESSED TO TAX AND HIS INCOME WAS BLOW TAXABLE LIMIT THEREFORE IT WOULD SUPPORT THE FINDINGS OF THE AUT HORITIES BELOW THAT THE CREDITOR WAS NOT HAVING SOURCE TO MAKE CASH DEPOSIT IN HIS BANK ACCOUNT IN JUNE 2004 AND WAS NOT A MAN OF MEANS AND THAT T HE TRANSACTION IN QUESTION IS NOT GENUINE. THE HONBLE MADRAS HIGH CO URT IN THE CASE OF MANGILAL JAIN RELIED UPON BY THE LEARNED DR CONSIDE RED THE FACTS IN WHICH THE BANK TRANSACTION CLEARLY INDICATED THAT T HE TRANSACTION WAS DONE AFTER DEPOSITS WERE MADE ONLY ON THE PREVIOUS DATES AND ON THE NEXT DATE IT WAS GIVEN A BEARER CHEQUE AND IT WAS A LSO NOT EXPLAINED WHY A NEW BANK ACCOUNT WAS OPENED WHEN ALREADY THERE EX ISTED ANOTHER ACCOUNT. HONBLE HIGH COURT IN THIS CASE HELD AS UN DER: HELD DISMISSING THE APPEAL THAT THE BANK TRANSACTIONS INDICATED THAT DEPOSITS WERE MADE ONLY ON THE PREVIOUS DATES AND ON THE NEXT DAY THE MONEY WA S GIVEN AS BEARERS CHEQUE. IT WAS ALSO NOT EXPLAINED WHY A NEW ACCOUNT WAS OPENED WHEN ALREADY THERE EXISTED ANOTHER ACCOUNT. THERE WAS CONTRADICTION OF STATEME NT BY S IN RESPECT OF THE PLACE WHERE THE MONEY WAS KE PT WHETHER IT WAS IN THE HOUSE OR IN THE BANK. BOTH TH E ASSESSING AUTHORITY AND THE TRIBUNAL HELD THAT THE EVIDENCE OF S COULD NOT BE RELIED UPON AND RIGHTLY THEY CAME TO THE CONCLUSION THAT THE TRANSACTIONS AS STA TED BY THE ASSESSEE IN RESPECT OF THE LOAN COULD NOT BE BELIEVED AND THIS TRANSACTION COULD ONLY BE TREATED AS INCOME FOR THE RELEVANT YEAR. THE DEDUCTION CLAIMED BY THE ASSESSEE TOWARDS INTEREST COULD NOT ALSO BE ALL OWED AS EXPENDITURE. MERELY BECAUSE LOAN WAS GIVEN BY CHEQUE THAT BY ITSELF WOULD NOT PROVE THE GENUINEN ESS OF THE TRANSACTION. A MERE PROOF OF IDENTITY OF CRE DITOR WAS NOT SUFFICIENT. HENCE THE FINDING OF THE FIRST APPELLATE AUTHORITY RELYING UPON THE LETTERS AND GRANTING EXEMPTION WAS RIGHTLY SET ASIDE BY THE TRIBUNAL. 9. THE ABOVE DECISION SQUARELY APPLIES TO THE FACTS OF THE CASE AND SUPPORTS THE FINDINGS OF THE AUTHORITIES BELOW. ON THE OTHER HAND THE ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 8 LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON 3 DECI SIONS NOTED ABOVE IN WHICH THE EVIDENCES WERE PRODUCED TO SHOW THAT ENTR Y IS NOT FICTITIOUS AND THAT THE AMOUNT HAD BEEN RECEIVED BY WAY OF CHE QUES. THE FACTS OF THESE CASES ARE THEREFORE CLEARLY DISTINGUISHABLE WITH THE FACTS OF THE PRESENT APPEAL. THESE CASES WOULD NOT SUPPORT THE C ASE OF THE ASSESSEE IN ANY MANNER. THE HONBLE SUPREME COURT IN THE CAS ES OF DURGA PRASAD MORE 82 ITR 540 AND SUMATI DAYAL 214 ITR 801 HELD T HAT THE COURTS AND TRIBUNAL HAVE TO JUDGE THE EVIDENCES BEFORE THE M BY APPLYING THE TEST OF HUMAN PROBABILITIES AFTER CONSIDERING T HE SURROUNDING CIRCUMSTANCES. CONSIDERING THE FACTS OF THE CASE AND THE EVIDENCE S ON RECORD IN THE LIGHT OF THE ABOVE PRINCIPLE OF LAW IT WOULD LEAD TO IRRESISTIBLE CONCLUSION THAT THE ASSESSEE HAS FAILE D TO PROVE THE GENUINE CREDIT IN THE MATTER. THE ASSESSEE HAS FAILED TO ES TABLISH THE SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNT OF THE CREDI TOR AS WELL AS FAILED TO PROVE GENUINENESS OF THE TRANSACTION IN THE MATTER. WE ACCORDINGLY DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORI TIES BELOW IN MAKING AND CONFIRMING THE ADDITION U/S 68 OF THE IT ACT ON ACCOUNT OF UNEXPLAINED CREDIT. THERE IS NO MERIT IN THE APPEAL OF THE ASSESSEE. SAME IS ACCORDINGLY DISMISSED. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED ON 2-12-2010. SD/- SD/- (G. D. AGARWAL) VICE PRESIDENT (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 2-12 -2010 LAKSHMIKANT/- ITA NO.3210/AHD/2008 JAYANTILAL K. HARSORA VS ITO 5(2) SURAT 9 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR ITAT AHMEDABAD