ITO, Etawah v. Shri Phattu Ram Bhojwani, Etawah

ITA 335/AGR/2009 | 2004-2005
Pronouncement Date: 25-05-2010 | Result: Dismissed

Appeal Details

RSA Number 33520314 RSA 2009
Assessee PAN AFRPB0188G
Bench Agra
Appeal Number ITA 335/AGR/2009
Duration Of Justice 8 month(s) 27 day(s)
Appellant ITO, Etawah
Respondent Shri Phattu Ram Bhojwani, Etawah
Appeal Type Income Tax Appeal
Pronouncement Date 25-05-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 25-05-2010
Date Of Final Hearing 23-04-2010
Next Hearing Date 23-04-2010
Assessment Year 2004-2005
Appeal Filed On 28-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER AND SHRI P.K. BANSAL ACCOUNTANT MEMBER ITA NO.335/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SHRI PHATTU RAM BHOJ WANI ETAWAH. 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : AFRPB 0188 G). ITA NO.337/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SHRI PHATTU RAM BHOJ WANI ETAWAH. HUF 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : AAHHP 5489 B). ITA NO.338/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SHRI JITENDRA BHOJWA NI ETAWAH. 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : ABVPB 0862 H). ITA NO.341/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SHRI DHARAM DAS BHOJ WANI ETAWAH. 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : AAOPB 6331 M). 2 ITA NO.342/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SHRI DHARAM DAS BHOJ WANI ETAWAH. HUF 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : AAEHD 3254 K). ITA NO.340/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SMT. VIDHI BHOJWANI ETAWAH. 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : AFLPB 0700 Q). ITA NO.339/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SMT. MEERA DEVI BHOJ WANI ETAWAH. 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : AFRPD 0963 H). ITA NO.336/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SHRI KISHAN KUMA R BHOJWANI ETAWAH. 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : ADAPK 6734 C). ITA NO.334/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SHRI KISHAN KUMAR BH OJWANI ETAWAH. HUF 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : AAFHK 9954 G). 3 ITA NO.333/AGR/2009 ASST. YEAR: 2004-05 THE INCOME-TAX OFFICER VS. SMT. KAMLA DEVI BHOJ WANI ETAWAH. 21 KUNJ GALI KAZI TOLA ETAWAH. (PAN : ABVPD 8962 H). (APPELLANT) (RESPONDENTS) APPELLANT BY : SHRI R.C. SHARMA JR. D.R. RESPONDENT BY : SHRI ANURAG SINHA ADVOCATE ORDER PER BENCH : ALL THESE APPEALS HAVE BEEN FILED BY THE REVENUE AG AINST THE SEPARATE ORDERS OF THE CIT(A) DATED 27.05.2009 AND 28.05.2009 FOR ASST. YEAR 2004-05. SINCE ALL THESE APPEALS INVOLVE COMM ON GROUNDS EXCEPT CHANGE IN THE FIGURES ALL THESE APPEALS FOR THE S AKE OF CONVENIENCE ARE DISPOSED OF BY THIS COMMON ORDER. 2. WE ARE TAKING THE GROUNDS IN ITA NO. 335/AGR/200 9 FOR THE DISPOSAL OF ALL THESE APPEALS AS BOTH THE PARTIES AGREED TO TAKE UP THE FACTS OF THIS CASE FOR DECIDING ALL THESE APPEALS. THE EFFECTIVE GROUNDS EXCEPT CHANGE IN THE FIGURES READ AS UNDER :- 4 ITA NO.335/AGR/2009 :- 1) THAT THE LEARNED CIT(A)-II AGRA HAS ERRED IN L AW AND ON FACTS IN DIRECTING TO DELETE THE ADDITION OF RS.7 0 0 000/-. 2) THAT THE ORDER OF THE LEARNED CIT(A)-II AGRA IS ERRONEOUS IN LAW AND ON FACTS OF IGNORING CIRCUMSTANTIAL EVID ENCE OF ARRANGING LOANS THROUGH SUSTAINED CHAIN OF CREDITS OVER NUMBER OF CREDITORS. 3) THAT THE ORDER OF THE LEARNED CIT(A)-II AGRA BE ING ERRONEOUS IN LAW AND ON FACTS BE QUASHED AND THAT O F THE AO BE RESTORED. 3. LD. D.R. RELIED ON THE ORDER OF THE ASSESSING OF FICER (A.O.) MAKING THE ADDITION UNDER SECTION 68 OF THE INCOME-TAX ACT 1961 (THE ACT HEREINAFTER) ESPECIALLY ON PARAGRAPH NOS. 5 6 7 & 8 OF THE ASSESSMENT ORDER AND CONTENDED THAT THE ASSESSEE SINCE COULD N OT PROVE IDENTITY CAPACITY OF THE CREDITOR AND GENUINENESS OF THE TRA NSACTION THE A.O. MADE THE ADDITION OF RS.7 00 000/- IN RESPECT OF THE LOA NS RECEIVED BY THE ASSESSEE THROUGH THREE DEMAND DRAFTS ON STATE BANK OF INDORE AMOUNTING TO RS.3 00 000/- RS.2 00 000/- AND RS.2 00 000/- R ESPECTIVELY FROM SHRI PREM PRAKASH AGARWAL SHRI VINOD KUMAR GOYAL & SHRI RAJAN JASSAL. THE A.O. WAS OF THE VIEW THAT THE ASSESSEE HAS RECEIVED ACCOMMODATION ENTRIES AND THE TRANSACTION ENTERED INTO BETWEEN TH E RESPECTIVE ASSESSEE AND THE LENDERS ARE SIMPLY SHAM TRANSACTIONS. 5 4. LD. A.R. ON THE OTHER HAND POINTED OUT THAT TH E ASSESSEE SUBMITTED RETURN DECLARING AN INCOME OF RS.1 15 170/- ON 12.0 5.2004 WHICH WAS PROCESSED UNDER SECTION 143(1) ON 20.05.2004. LATE R ON THE A.O. INITIATED PROCEEDINGS UNDER SECTION 147 ON THE BASIS OF INFOR MATION RECEIVED FROM ADDL. D.I.T. AND RECORDING THE REASONS. THE ASSESS EE FILED THE OBJECTION BEFORE THE A.O. CHALLENGING THE INITIATION OF THE P ROCEEDINGS UNDER SECTION 147. THE A.O. COMPLETED THE ASSESSMENT UNDER SECTI ON 143(3)/147 MAKING AN ADDITION OF RS.7 00 000/- IN RESPECT OF R S.2 00 000/- RS.2 00 000/- & RS.3 00 000/- RECEIVED BY THE ASSE SSEE FROM SHRI PREM PRAKASH AGARWAL SHRI VINOD KUMAR GOYAL & SHRI RAJA N JASSAL RESPECTIVELY. THESE ALLEGED CREDITORS MADE ADVANCE S OUT OF THE REPAYMENTS MADE TO THEM BY THE CREDITORS. THE ASSE SSEE WENT IN APPEAL BEFORE THE CIT(A) AND CHALLENGED THE ASSESSMENT BOT H ON THE LEGALITY OF INITIATION OF THE PROCEEDINGS UNDER SECTION 147 AS WELL AS ON MERITS IN RESPECT OF ADDITION MADE UNDER SECTION 68 OF THE AC T. REFERRING TO PARAGRAPH NO.33 OF CIT(A)S ORDER IT WAS POINTED O UT THAT THE CIT(A) HAS QUASHED THE NOTICE ISSUED UNDER SECTION 148 AND ACC ORDINGLY THE ASSESSMENT BECOME INVALID. EVEN ON MERIT ALSO THE CIT(A) DELETED THE ADDITION MADE BY THE A.O. THE REVENUE HAS NOT COME IN APPEAL AGAINST THE ORDER OF THE CIT(A) QUASHING THE NOTICE ISSUED UNDER SECTION 148. 6 THUS IT WAS CONTENDED THAT THE GROUND TAKEN BY THE REVENUE IS MERELY ACADEMIC AND WILL NOT HAVE ANY IMPACT. THE ASSESSE E IS FREE TO SUPPORT THE ORDER OF CIT(A) UNDER RULE 27 OF THE INCOME-TAX APPELLATE TRIBUNAL RULES. OTHERWISE ALSO IT WAS CONTENDED THAT THE A SSESSEE HAS DISCHARGED HIS ONUS AS LAID DOWN UNDER SECTION 68 OF THE ACT. THE ASSESSEE HAS RECEIVED THE LOANS THROUGH BROKER SHRI MADAN LAL AN D HAS ALREADY PAID BACK THE LOANS TO THE RESPECTIVE PARTIES PRIOR TO T HE ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSEE HAS SUBMITTED THE PHOTOCOPY OF THE PAN OF EACH OF THE CREDITOR BANK CERTIFICATE CONFI RMING THE RECEIPT AND REPAYMENT OF THE LOANS. ALL THE CREDITORS ARE PERS ONS OF MEANS AND FOR THAT COPY OF THEIR BALANCE SHEET WERE FILED BEFORE THE A .O. THE SOURCE OF THE LOAN EVEN THOUGH THE ASSESSEE WAS NOT REQUIRED TO EXPLAIN WAS ALSO EXPLAINED BY THE ASSESSEE IN RESPECT OF EACH OF THE BORROWERS. SHRI PREM PRAKASH AGARWAL RECEIVED THE REPAYMENT FROM M/S. RO HIT ENTERPRISES COPY OF CERTIFICATE FROM M/S. ROHIT ENTERPRISE WAS FILED WHICH IS EVIDENT FROM THE COPY OF THE BANK ACCOUNT OF ROHIT ENTERPRISES WITH BANK OF RAJASTHAN LIMITED. SIMILARLY SHRI VINOD KUMAR GOYAL HAS ALSO RECEIVED REPAYMENT FROM M/S. ROHIT ENTERPRISES COPY OF CERTIFICATE FR OM M/S. ROHIT ENTERPRISES WAS FILED WHICH IS EVIDENT FROM THE COPY OF BANK AC COUNT OF M/S. ROHIT ENTERPRISES. SHRI RAJAN JASSAL RECEIVED REPAYMENT FROM M/S. M.V. 7 MARKETING (P) LTD. COPY OF CONFIRMATION FROM M/S. M.V. MARKETING (P) LTD. WAS FILED. THIS FACT IS ALSO EVIDENT FROM COPY OF BANK ACCOUNT OF M/S. M.V. MARKETING (P) LTD. WITH VIJAYA BANK. THE ASSESSEE HAS SUBMITTED THE ADDRESSES OF EACH OF THE PARTY AND REQUESTED THE A. O. TO ISSUE SUMMONS UNDER SECTION 131(1) TO EACH OF THE PARTY SO THAT T HE A.O. CAN VERIFY THE GENUINENESS OF THE LOANS RECEIVED BY THE ASSESSEE. RELIANCE WAS PLACED ON THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. SMC SHARE BROKERS LTD. 288 ITR 345 (DELHI) AND THAT OF HONB LE SUPREME COURT IN THE CASE OF CIT VS. ORISSA CORPORATION P. LTD. 159 ITR 78(SC). MERELY THE ASSESSEE FAILED TO PRODUCE THE PARTIES DOES NOT MEA N THAT THE LOAN RECEIVED BY THE ASSESSEE HAS BECOME NON-GENUINE. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF T HE TAX AUTHORITIES BELOW. WE HAVE ALSO GONE THROUGH THE CASE LAW RELI ED ON BEFORE US. WE NOTED THAT IN THIS CASE THE A.O. HAS INITIATED ACTI ON UNDER SECTION 147 BY RECORDING THE REASONS UNDER SECTION 148. NOTICE UN DER SECTION 148 WAS ISSUED TO THE ASSESSEE. THE INITIATION OF PROCEEDI NGS WAS CHALLENGED BY THE ASSESSEE BEFORE THE CIT(A) BY TAKING VARIOUS PL EA THAT THE REASONS WERE NOT BONAFIDE AND THERE WAS ON NON-APPLICATION OF MIND ON THE PART OF 8 THE A.O. THE REASONS WERE BASED MERELY ON INFORMAT ION RECEIVED FROM DDI (INV). THE CIT(A) GAVE SANCTION UNDER SECTION 151 MERELY IN A ROUTINE MANNER. THE CIT(A) AFTER EXAMINING THE CONTENTION OF THE ASSESSEE UNDER PARAGRAPH NO.33 OF THE ORDER QUASHED NOTICE ISSUED UNDER SECTION 148. CONSEQUENTLY THE ASSESSMENT BECAME INVALID. THE R EVENUE THOUGH HAS COME IN APPEAL BEFORE US BUT DID NOT CHALLENGE THE AORDER OF THE CIT(A) FOR QUASHING THE NOTICE ISSUED UNDER SECTION 148. THE REVENUE HAS MERELY CHALLENGED THE DELETION OF THE ADDITION OF RS.7 00 000/- ON MERITS SINCE THE ORDER HAS ALREADY BEEN QUASHED AND THE FINDING OF T HE CIT(A) HAS BECOME FINAL. THE REVENUE DID NOT TAKE ANY GROUND AGAINST QUASHING OF THE NOTICE UNDER SECTION 148 OF THE ACT. OUR JURISDICTION UND ER SECTION 254 IS LIMITED TO THE GROUNDS OF APPEAL TAKEN BEFORE US. WE THERE FORE ARE OF THE OPINION THAT ONCE THE NOTICE UNDER SECTION 148 STANDS QUASH ED THE REASSESSMENT ORDER PASSED HAS ALSO BECOME INVALID. THE GROUND T AKEN BY THE REVENUE IN ITS APPEAL AGAINST THE DELETION OF ADDITION ON M ERITS BY THE CIT(A) HAS BECOME MERELY ACADEMIC AND DOES NOT REQUIRE ANY ADJ UDICATION. 6. SINCE BOTH THE PARTIES HAVE EXTENSIVELY ARGUED O N MERITS ALSO WE THEREFORE DISPOSE OF THE GROUND TAKEN BY THE REVEN UE ON MERIT ALSO. WE NOTED THAT THE ASSESSEE RECEIVED LOAN DURING THE YE AR FROM THREE PARTIES NAMELY SHRI PREM PRAKASH AGARWAL - RS.2 00 000/- SHRI VINOD KUMAR 9 GOYAL RS.2 00 000/- & SHRI RAJAN JASSAL RS.3 00 000/-. ALL THE LOANS WERE TAKEN THROUGH DEMAND DRAFTS. ALL THE CREDITOR S ARE INCOME-TAX ASSESSEES COPY OF THEIR PERMANENT ACCOUNT NUMBERS WERE DULY FILED. THE ASSESSEE HAS ALSO SUBMITTED COPY OF ACCOUNTS OF EAC H OF THE PARTY IN ITS BOOKS OF ACCOUNTS. THE ASSESSEE HAS ALREADY REPAID ALL THE LOANS THROUGH ACCOUNT PAYEE CHEQUES. IN SUPPORT THEREOF THE ASS ESSEE HAS SUBMITTED BANK CERTIFICATE IN EACH OF THE CASE. THE ASSESSEE HAS EXPLAINED THE SOURCE OF THE DEPOSIT EVEN THOUGH THE ASSESSEE WAS NOT REQUIRED TO PROVE THE SOURCE OF SOURCES IN THE CASE OF EACH OF THE LE NDER. EVEN THE PROOF OF BANK ACCOUNT AND THE BANK FROM WHOM EACH OF THE LEN DER RECEIVED MONEY WERE ALSO FILED BY THE ASSESSEE. MERELY THE ASSESS EE COULD NOT PRODUCE EACH OF THE CREDITORS WILL NOT CONVERT A GENUINE TR ANSACTION INTO A NON- GENUINE TRANSACTION. WE NOTED THAT THE ASSESSEE HA S ASKED THE A.O. TO ISSUE SUMMONS TO EACH OF THE PARTY FOR THAT ADDRESS ES OF EACH OF THE PARTY WAS DULY SUBMITTED. THUS IN OUR OPINION THE ASSE SSEE HAS DULY DISCHARGED HIS ONUS. SECTION 68 LAYS DOWN THE RULE OF EVIDENCE THAT WHEN ANY SUM IS FOUND CREDITED IN THE BOOKS OF THE ASSES SEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS NO EXPLANATI ON ABOUT THE NATURE AND SOURCE OF SUCH CREDIT FOUND IN THE BOOKS OF THE ASSESSEE OR THE EXPLANATION OFFERED BY THE ASSESSEE IN THE OPINION OF THE A.O. IS NOT SATISFACTORY THE SAME SO CREDITED MAY BE CHARGED T O INCOME TAX AS THE INCOME IF THE ASSESSEE OF THAT PREVIOUS YEAR. BEFOR E CHARGING THE CREDIT AS THE INCOME OF THE ASSESSEE THE AO HAS TO FORM AN OPINION. THIS OPINION IS SUBJECTIVE BUT IT HAS TO BE JUDICIOUS AND BASED ON MATERIAL ON RECORD. AN OPINION IS AN INFE RENCE OF FACTS FROM OBSERVED FACTS. IT IS NOT AN IMPRESSION. IT IS A CONVICTION BASED ON APPRAISAL OF EVIDENCE ON RECORD. IN V.L.S. FINANCE 10 LTD. V CIT (2000) 246 ITR 707 THE HONBLE DELHI HIGH COURT OBSERVED AS UNDER: OPINION MEANS SOMETHING MORE THAN MORE RETAILING OF GOSSIP OR HEARSAY; IT MEANS JUDGMENT OR BELIEF THA T IS A BELIEF OR A CONVICTION RESULTING FROM WHAT ONE THIN KS ON A PARTICULAR QUESTION. IT MEANS: JUDGMENT OR BELIEF B ASED ON GROUNDS SHORT OF PROOF. IF A MAN IS TO FORM AN OPIN ION AND HIS OPINION IS TO GOVERN HE MUST FORM IT HIMSELF O N SUCH REASONS AND GROUNDS AS SEEM GOOD TO HIM. THUS BEFORE THE AO FORMS AN OPINION HE MUST CONSI DER THE MATERIAL BEFORE HIM. HE HAS BEFORE HIM THE MATERIAL SUBMITTED BY THE ASSESSEE WHILE GIVING AN EXPLANATION THEN HE M UST COLLECT HIS OWN MATERIAL AS AN ENQUIRY OFFICER WEIGH THE T WO MATERIALS AND AS A QUASI-JUDICIAL AUTHORITY FORM AN OPINION A S TO WHETHER EXPLANATION FURNISHED BY THE ASSESSEE IS SATISFACTO RY OR NOT. IF THE AO DOES NOT APPLY HIS MIND IN EXAMINING THE DOC UMENTS FURNISHED BY THE ASSESSEE AND DOES NOT FIND ANY SUB STANTIVE ERROR IN THEM NOR HE COLLECTS ANY MATERIAL BY EXERC ISING POWERS UNDER INCOME-TAX ACT THEN THE CLAIM OF THE ASSESSE E CANNOT BE STRAIGHTWAY REJECTED. IF HE DOES IT WOULD BE A VIO LATION OF PRINCIPLES OF NATURAL JUSTICE AND PROVISIONS OF SEC TION 68. THE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION MEANS WHERE THE ASSESSEE OFFERS NO PROPER REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS THE SUM FOUND CREDITED IN TH E BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE. THE OPINION OF THE AO FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESS EE AS NOT SATISFACTORY MUST BE BASED ON PROPER APPRECIATION O F THE 11 MATERIAL AND OTHER SURROUNDING CIRCUMSTANCES AVAILA BLE ON RECORD. THE OPINION OF THE AO IS TO BE BASED ON AP PRECIATION OF THE MATERIAL ON RECORD. 7. THE WORD MAY USED IN SECTION 68 PROVIDES DISCR ETION TO THE AO. IN GENERAL THE WORD MAY IS AN AUXILIARY V ERB CLARIFYING THE MEANING OF ANOTHER VERB OF EXPRESSING AN ABILIT Y CONTINGENCY POSSIBILITY OR PROBABILITY. WHEN USED IN A STATUTE IN ITS ORDINARY SENSE THE WORD IS PERMISSIVE AND NOT M ANDATORY. BUT WHERE CERTAIN CONDITIONS ARE PROVIDED IN THE STATUT E AND ON THE FULFILLMENT THEREOF A DUTY IS CAST ON THE AUTHORITY CONCERNED TO TAKE AN ACTION THEN ON FULFILLMENT OF THOSE CONDIT IONS THE WORD MAY TAKE THE CHARACTER OF SHALL AND THEN IT BEC OMES MANDATORY. IN SECTION 68 WE FIND THAT THERE ARE N O SUCH CONDITIONS ON THE FULFILLMENT OF WHICH THE AO IS DU TY BOUND TO MAKE THE ADDITION. THE WORD MAY DENOTES THE DISCR ETION OF THE AO THAT HE CAN MAKE AN ADDITION OR CAN NOT MAKE AN ADDITION. THE HON'BLE SUPREME COURT IN THE CASE OF CIT V SMT. P K NOORJAHAN 237 ITR 570 (SC) WHILE DEALING WITH THE WORD MAY IN SECTION 69 OBSERVED AS UNDER: 'IN THE CORRESPONDING CLAUSE OF THE BILL WHICH WAS INTRODUCED IN PARLIAMENT WHILE INSERTING SECTION 6 9 IN THE INCOME-TAX ACT 1961 THE WORD 'SHALL' HAD BEEN USE D BUT DURING THE COURSE OF CONSIDERATION OF THE BILL AND ON THE RECOMMENDATION OF THE SELECT COMMITTEE THE SAID WO RD WAS SUBSTITUTED BY THE WORD 'MAY'. THIS CLEARLY IND ICATES THAT THE INTENTION OF PARLIAMENT IN ENACTING SECTIO N 69 WAS TO CONFER A DISCRETION ON THE INCOME-TAX OFFICER IN THE MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH H AS NOT BEEN SATISFACTORILY EXPLAINED BY THE ASSESSEE AS TH E INCOME 12 OF THE ASSESSEE AND THE INCOME-TAX OFFICER IS NOT O BLIGED TO TREAT SUCH SOURCE OF INVESTMENT AS INCOME IN EVERY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FO UND TO BE NOT SATISFACTORY. THE QUESTION WHETHER THE SOURC E OF THE INVESTMENT SHOULD BE TREATED AS INCOME OR NOT UNDER SECTION 69 HAS TO BE CONSIDERED IN THE LIGHT OF THE FACTS OF EACH CASE. IN OTHER WORDS A DISCRETION HAS BEEN CO NFERRED ON THE INCOME-TAX OFFICER UNDER SECTION 69 OF THE A CT TO TREAT THE SOURCE OF INVESTMENT AS THE INCOME OF THE ASSESSEE IF THE EXPLANATION OFFERED BY THE ASSESSEE IS NOT FOUND SATISFACTORY AND THE SAID DISCRETION HAS TO B E EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANC ES OF THE PARTICULAR CASE.' 8. IN THE CASE BEFORE US ALL THE PERSONS FROM WHOM THE DEPOSITS HAVE BEEN RECEIVED BY THE ASSESSEE ARE THE INCOME-TAX ASSESSEES. THEY ARE HAVING PAN NUMBERS. THE CONFI RMATIONS FROM THE DEPOSITORS WERE FILED. THE AMOUNTS HAVE B EEN RECEIVED THROUGH BANKING CHANNEL. COPIES OF ACCOUNTS OF EAC H OF THE DEPOSITORS WERE DULY FILED. THE ASSESSEE HAS DULY EXPLAINED IN RESPECT OF EACH OF THE DEPOSITORS AND THE CIRCUMSTA NCES UNDER WHICH THE DEPOSITS WERE RECEIVED BY THE ASSESSEE. THE ASSESSEE HAS SUBMITTED THE ADDRESS OF EACH OF THE LENDERS/DEPOSITORS AND REQUESTED THE AO TO VERIFY D IRECTLY FROM THEM BY ISSUING SUMMONS U/S 131. THE AO DID NOT ISS UE ANY SUMMONS. THE CASE OF HONBLE SUPREME COURT IN THE CASE OF ORISSA SYNTHETIC CORPORATION 159 ITR 78(SC) IS CLEA RLY APPLICABLE. EVEN OTHERWISE ON THE FACTS OF THE CASE THE ONUS IN OUR OPINION GETS SHIFTED ON THE REVENUE TO PROVE T HAT THE PARTIES FROM THE ASSESSEE HAD RECEIVED THE LOAN WER E NOT REGULAR ASSESSEES THEIR CREDITWORTHINESS WERE NOT PROVED A ND THE 13 TRANSACTIONS ENTERED INTO BY THE ASSESSEE WERE NOT GENUINE TRANSACTIONS. THE HONBLE GUJARAT HIGH COURT IN TH E CASE OF DCIT V ROHINI BUILDERS 256 ITR 360 HAS HELD THAT MERE IDENTIFICATION OF THE SOURCE OF CREDITS EVEN WITHOU T EVIDENCE AS TO THE NATURE OF THE INCOME COULD JUSTIFY THE CREDIT W HETHER THE ASSESSEE HAS GIVEN THE GIR/PAN NOS. OF THE CREDITOR S AND ALSO SHOWS THAT THE AMOUNTS WERE RECEIVED BY ACCOUNT PAY EE CHEQUES. THE HIGH COURT IN THIS CASE ENDORSED THE FINDING OF THE TRIBUNAL THAT IT IS NOT NECESSARY THAT THERE SH OULD BE AN EXPLANATION AS TO THE SOURCE OF MONEY ON THE PART O F THE CREDITORS IN EVERY CASE. IN VIEW OF THIS DECISION O F THE HON'BLE JURISDICTIONAL HIGH COURT WHICH IS BINDING ON US W E ARE OF THE VIEW THAT THE ASSESSEE IS BOUND TO SUCCEED. NO CON TRARY DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT H AS BEEN BROUGHT TO OUR KNOWLEDGE BY THE REVENUE. 9. WE THEREFORE CONFIRM THE ORDER OF THE CIT(A) SO FAR AS DELETION OF THE ADDITION OF RS7 LAKHS IS CONCERNED ACCORDINGLY THE APPEAL OF THE REVENUE STANDS DISMISSED 10. IN THE RESULT APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ITA NO.337/AGR/2009 11. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE 14 AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 TO WHICH BOTH T HE PARTIES AGREED WE THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DEC ISION IN ITA NO.335/AGR/2009 CONFIRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ITA NO.338/AGR/2009 12. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE PARTIES FROM WHOM THE LOANS HAVE BEEN RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE ACT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEPARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SEC TION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS CASE ARE ALSO SIMI LAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FO LLOWING THE AFORESAID 15 DECISION IN ITA NO.335/AGR/2009 CONFIRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ITA NO.341/AGR/2009 13. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN ITA NO.335/AGR/2009 CONF IRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ITA NO.342/AGR/2009 14. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE 16 AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN ITA NO.335/AGR/2009 CONF IRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ITA NO.340/AGR/2009 15. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FOLLOWING 17 THE AFORESAID DECISION IN ITA NO.335/AGR/2009 CONF IRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ITA NO.339/AGR/2009 16. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN ITA NO.335/AGR/2009 CONF IRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ITA NO.336/AGR/2009 17. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE 18 AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN ITA NO.335/AGR/2009 CONF IRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STAN DS DISMISSED. ITA NO.334/AGR/2009 18. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN ITA NO.335/AGR/2009 CONF IRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STAN DS DISMISSED. 19 ITA NO.333/AGR/2009 19. BOTH THE LD. A.R. AND LD. D.R. AGREED THAT FACT S INVOLVED IN THIS CASE ARE SIMILAR TO THE FACTS IN THE CASE IN ITA NO.335/ AGR/2009 EXCEPT THE AMOUNT AND THE PARTIES FROM WHOM THE LOANS HAVE BEE N RECEIVED. IN THIS CASE ALSO NOTICE ISSUED UNDER SECTION 148 OF THE A CT WAS QUASHED AND ACCORDINGLY THE ASSESSMENT BECAME INVALID. THE DEP ARTMENT HAS NOT TAKEN ANY GROUND AGAINST THE QUASHING OF THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. SINCE THE FACTS INVOLVED IN THIS C ASE ARE ALSO SIMILAR TO THE FACTS AS ARE IN ITA NO.335/AGR/2009 WE THEREFORE RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN ITA NO.335/AGR/2009 CONF IRM THE ORDER OF THE CIT(A). THUS THE APPEAL FILED BY THE REVENUE STAN DS DISMISSED. 20. IN THE RESULT ALL THE APPEALS FILED BY THE REV ENUE STANDS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 25.05.2010) . SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 25 TH MAY 2010. PBN/* 20 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPEL LATE TRIBUNAL AGRA TRUE COPY