ITO, New Delhi v. M/s. Libcan Marketing Pvt. Ltd., New Delhi

3422-2010-L M 1 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI K.G . BANSAL ACCOUNTANT MEMBER I.T.A. NO.3422/D/2010 ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER VS. M/S LIBCAN MARKETING (P) LTD. WARD 4(4) A-88 NEW FRIENDS COLONY NEW DELHI NEW DELHI-25 (APPELLANT) (RESPONDENT) PAN NO.AABCL-0778-N APPELLANT BY : SHRI A.K. MONGA SR. DR RESPONDENT BY: S/SHRI ANOOP SHARMA MANU K GIRI ADVOCATE ORDER PER K.G. BANSAL: AM: ALTHOUGH THE REVENUE HAS TAKEN FIVE GROUNDS IN THE APPEAL THE REAL GRIEVANCE IS TO THE EFFECT THAT ON THE FACTS AND IN THE C IRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE ADDITIONS OF `4 38 780/- AND `4 05 000/-; MADE BY THE ASSESSING OFFICER U/S 68 OF TH E ACT IN RESPECT OF CREDITS STANDING IN THE NAMES OF SMT. BHARTI GUPTA AND SHRI VIR ENDER GUPTA. IT IS ALSO MENTIONED THAT THE LEARNED CIT(A) ERRED IN ACCEPTING ADDITI ONAL EVIDENCE UNDER RULE 46A WITHOUT FOLLOWING THE PROCEDURE LAID DOWN IN L AW. 1.1 IN SO FAR AS ADMISSION OF ADDITIONAL EVIDENCE IS C ONCERNED IT IS FOUND THAT THE LEARNED CIT(A) ADMITTED THE SAME IN RESPECT OF CREDIT STAN DING IN THE NAME OF SMT. BHARTI GUPTA. THIS EVIDENCE WAS PUT TO THE INCOME TAX O FFICER FOR OBTAINING HIS REMAND REPORT WHICH WAS FILED. THE LEARNED CIT(A) DECIDED THE MATTER AFTER 3422-2010-L M 2 CONSIDERING THE REMAND REPORT ALSO. THEREFORE THERE DOES NO T SEEM TO BE ANY INFIRMITY IN THE PROCEDURE FOLLOWED BY HIM IN THIS BEHAL F. THE LEARNED DR ALSO DID NOT CARRY THE MATTER FURTHER WHEN HIS ATTENTION WAS DRAW N TOWARDS THE RELEVANT PORTIONS OF THE ORDER OF THE LEARNED CIT(A). THUS THE G ROUND TO THIS EFFECT BEING GROUND NO.4 IS DISMISSED. 2. IN THIS REGARD TO THE AFORESAID TWO ADDITIONS THE L EARNED DR RELIED ON THE ORDER OF THE ASSESSING OFFICER IN PARAGRAPH NOS.5 & 7. THESE PARAGRAPHS ARE REPRODUCED BELOW:- 5. UNSECURED LOAN RECEIVED FROM MS. BHARTI GUPTA - `4 38 780/-: VIDE QUESTIONNAIRE DATED 25.08.2008 THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF UNSECURED LOANS ALONG WITH THE CONFI RMATIONS OF LOAN CREDITORS. VIDE ORDER SHEET DATED 17.11.2008 THE ASSESSEE W AS ASKED TO FURNISH ITRS/BANK ACCOUNTS STATEMENTS/SOURCE O F INVESTMENT/PAN OF UNSECURED LOAN CREDITORS. THE ASSESSEE HA S SHOWN A LOAN OF `4 38 780/- FROM MS. BHARTI GUPTA B-3/4 RANA PRATAP BAGH DELHI. HOWEVER IT HAS FAILED TO FURNISH THE PAN/CONFIRMATION/ITR/BANK STATEMENT OF THE LOAN CREDI TORS. IN VIEW OF LACK OF ANY SUPPORTING EVIDENCES AND PROOF OF IDENTI TY/INCOME TAX PARTICULARS OF THIS LOAN CREDITORS THE AMOUNT OF `4 38 780/- SHOWN AS UNSECURED LOAN FROM MS. BHARTI GUPTA IS TREATED AS UNEXP LAINED CASH CREDIT UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME- TAX ACT AND IS BEING ADDED TO THE INCOME OF THE ASSESSEE. .. 7. UNEXPLAINED CASH CREDITS: IT IS CLEAR FROM THE ABOV E DISCUSSION THAT HUGE AMOUNTS HAVE BEEN PAID IN CASH BY THE DIRECTORS TO THE ASSESSEE COMPANY. WHEREAS THE STATEMENTS OF AFFAIRS OF SMT . ANJU GUPTA AS ON 31.03.2005 AND 31.03.2006 HAVE BEEN SUBMI TTED BY ASSESSEE VIDE LETTER DATED 26.11.2008 IN SUPPORT OF THE CAS H AVAILABLE IN HER HANDS NO EVIDENCE/DOCUMENTS WERE SUBMITT ED IN SUPPORT OF AVAILABILITY OF CASH/FUNDS IN THE HANDS O F SH. VIRENDER GUPTA. IT IS ALSO SEEN FROM THE BANK STATEMENT OF SH. V IRENDER GUPTA THAT FREQUENT DEPOSITS OF CASH HAVE BEEN MADE IN HIS ICICI BANK ACCOUNT NO.004601023658. FOR EXAMPLE ON 21.05.2005 - `49 000/- 30.05.2005 - `49 000/- 09.06.2005 - `10 000/- 19.10.2005 `5 500/- 24.10.2005 - `5 000/- 19.10. 2005 - 3422-2010-L M 3 `17 300/- 02.01.2006 - `13 000/- 21.01.2006 - `13 000/- 06.02.2006 - `1 30 000/- 01.03.2006 - `3 000/- 07 .03.2006 - `5 000/- AND ON 31.03.2006 - `13 000/-. 3. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSESSEE REL IED ON THE FINDINGS IN THE IMPUGNED ORDER CONTAINED IN PARAGRAPH NOS.9.3 AND 10.3. THESE PARAGRAPHS ARE REPRODUCED BELOW:- 9.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER THE WRITTEN AND ORAL SUBMISSION(S) OF THE APPELLANT AND /THE REMAND REPORT OF THE ASSESSING OFFICER. I FIND THAT IN THE REMAND REPORT THE ASSESSING OFFICER HAS NOT MADE ANY ADVERSE COMMENT AGAINST THE EVID ENCES AND EXPLANATION FILED BY THE APPELLANT ON THE ISSUE AT HA ND. IN OTHER WORDS THE ASSESSING OFFICER HAS NOT BEEN ABLE TO JUSTIFY THE ADDITION MADE IN THE ASSESSMENT ORDER ON ACCOUNT OF UNSECURED LOAN S TO THE EXTENT OF `4 38 780/-. THE ASSESSING OFFICER SIMPLY DID NOT CARE TO TAKE THE CORRECT FACTS INTO ACCOUNT DURING THE ASSESSMEN T PROCEEDINGS. AS CONTENDED ON BEHALF OF THE APPELLANT REGARDING THE UNS ECURED LOANS OF `4 38 780/- IT HAS ADDUCED THE DOCUMENTARY EV IDENCES TO SUBSTANTIATE THE CLAIM DURING THE COURSE OF REMAND AS WEL L AS APPELLATE PROCEEDINGS. THE IDENTITY OF THE LENDER WAS ESTABL ISHED AS IT WAS BORNE ON THE RECORD OF THE INCOME-TAX DEPARTMENT . THE LENDER HAS BANK ACCOUNTS AND ALSO PAN. SO FAR AS HER CREDITW ORTHINESS IS CONCERNED IT IS SEEN THAT THE LENDER HAS FILED INCOME-TAX RETURN. THE LENDER HAD SUFFICIENT FUNDS TO MAKE THE INVESTMENT AND TO ADVANCE LOANS AND THOSE INVESTMENTS/LOANS HAVE BEEN DULY DISCLO SED IN THEIR BALANCE SHEET. THESE DETAILS SHOW THAT THE LENDER WAS PERS ON OF MEANS WITH THE FINANCIAL CAPACITY TO ADVANCE THE LOANS . THERE IS NO EVIDENCE OR MATERIAL TO EVEN SUGGEST AS POINTED OUT ON BEHA LF OF THE ASSESSEE THAT THE MONEY DIRECTLY OR INDIRECTLY EMANATED FR OM THE ASSESSEE SO THAT IT COULD BE SAID THAT THE ASSESSEES OWN MONEY WAS BROUGHT BACK IN THE GUISE OF LOANS. THE PRESENT CASE DO ES NOT APPEAR TO BE A CASE WHERE THE CREDITWORTHINESS OF THE LENDERS AND TH E GENUINENESS OF THE LOAN TRANSACTIONS COULD BE CALLED IN QUESTION. SINCE THE ADDITION HAS BEEN MADE AS UNEXPLAINED CASH CREDIT IT IS CONSIDERED NECESSARY TO EXAMINE THE CASE IN THE LIGHT OF TH E PROVISIONS OF SECTION 68 OF THE ACT. UNDER SECTION 68 OF THE ACT IF ANY SUM IS FOUND CREDITED IN THE BOOKS OF ACCOUNTS OF THE APPELLANT AND THE APPELLANT OFFERS NO EXPLANATION ABOUT THE NATURE AND SOU RCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT SATISFACTORY I N THE OPINION OF 3422-2010-L M 4 THE ASSESSING OFFICER THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THE RELEVANT PREVIOUS Y EAR. THEREFORE WHAT HAS TO BE ENQUIRED INTO BY THE ASSESSING O FFICER IS THE NATURE AND SOURCE OF THE SUM OR DEPOSIT. IF THE EXPLANAT ION WITH REGARD TO NATURE AND SOURCE IS NOT FOUND SATISFACTORY ONLY THEN THE AMOUNT SO CREDITED MAY BE TREATED AS INCOME. SECTION 68 HAS COME UP FOR CONSIDERATION BEFORE VARIOUS HIGH COURTS WHICH HAVE HELD THAT THE ASSESSEE HAS TO PROVE THREE CONDITIONS (I) IDENTITY OF THE CREDITOR (II) CAPACITY OF SUCH CREDITOR TO ADVANCE MONEY & (III) GEN UINENESS OF THE TRANSACTION. (VIDE SHANKAR INDUSTRIES VS. CIT (1978) 114 ITR 689 (CAL.); C. KANT & COMPANY VS. CIT (1980) 121 ITR 89 0 (CAL); ORIENTAL WIRE INDUSTRIES PVT. LTD. VS. CIT (1997) 223 ITR 11 ( GAU) & CIT VS. KORLAY TRADING COMPANY LTD. (1999) 232 ITR 820 (CAL .). IF ALL THE AFORESAID THREE CONDITIONS ARE PROVED THE BURD EN SHIFTS ON THE REVENUE TO PROVE THAT THE AMOUNT BELONGED TO THE ASSESSEE (CIT VS. UNITED COMMERCIAL & INDUSTRIAL CO. (P) LTD. (1991 ) 187 ITR 596 (CAL); M.A. UNNEERI KUTTY VS. CIT (1992) 198 ITR 147 (KER.); CIT VS. PRECISION FINANCE P. LTD. (1994) 208 ITR 495 (CAL.). IT HAS ALSO BEEN HELD BY THE VARIOUS HIGH COURTS THAT . THE ASSESSEE CANNOT BE ASKED TO PROVE THE SOURCE OF SOURCE OR THE ORIGI N OF ORIGIN. REFERENCE MAY BE MADE TO THE DECISIONS IN S. HASTIMAL VS. CI T (1963) 49 ITR 273 (MAD); TOLA RAM DAGA VS. CIT (1966) 59 I TR 632 (GAU.); CIT VS. DAULAT RAM RAWATMULL (1973) 87 ITR 349 (SUPR EME COURT); SAROGI CREDIT CORPN. VS. CIT (1976) 103 ITR 344 (PAT) ; CIT VS. ORISSA CORPN. (P) LTD. (1986) 159 ITR 78 (SUPREME COURT) AND KISHAN CHAND CHELLARAM VS. CIT 125 ITR 713 (SUPREME COURT). IN THIS REGARD IT IS IMPORTANT TO TAKE NOTE OF /THE JUDGMENT IN THE CASE OF KISHAN CHAND CHELLARAM (SUPRA) HOLDING THAT THE BURDEN IS ON THE DEPA RTMENT TO SHOW THAT THE MONEY BELONGED TO THE ASSESSEE BY BRINGING P ROPER EVIDENCE ON RECORD AND THE ASSESSEE COULD NOT BE EXPECTED TO P UT EVIDENCE TO HELP THE DEPARTMENT TO DISCHARGE THE BURDEN THAT LAY UPON IT. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE STATED ABOVE IT IS HELD THAT THE APPELLANT HAD DISCHARGED ITS BURDEN OF PROOF U/S 68 OF THE ACT IN RESPECT OF UNSECURED LOANS. ACCORDINGLY IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDIT ION OF `4 38 780 AND THE ADDITION MADE BY HIM IS NOT SUSTAI NABLE IN LAW. IN VIEW OF THE AFORESAID THE ASSESSING OFFICER IS DIRECTED TO DELETE THE ADDITION OF `4 38 780/-. AS A RESULT GROUND OF APP EAL NO.5 IS ALLOWED. 3422-2010-L M 5 . 10.3 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER THE WRITTEN AND ORAL SUBMISSIONS(S) OF THE APPELLANT AND THE REMAND REPORT OF THE ASSESSING OFFICER. I FIND THAT IN THE REMAND REPORT THE ASSESSING OFFICER HAS NOT MADE ANY ADVERSE COMMENT AGAINST THE EVID ENCES AND EXPLANATION FILED BY THE APPELLANT ON THE ISSUE AT HA ND. THE ASSESSING OFFICER HAS NOT BEEN ABLE TO JUSTIFY THE ADDITI ON MADE IN THE ASSESSMENT ORDER ON ACCOUNT OF UNSECURED LOANS TO THE EXTEN T OF `4 05 000/-. THE ASSESSING OFFICER SIMPLY DID NOT CAR E TO TAKE THE CORRECT FACTS INTO ACCOUNT DURING THE ASSESSMENT PROCEEDI NGS. AS CONTENDED ON BEHALF OF THE APPELLANT REGARDING THE UNSECUR ED LOANS OF `4 05 000/-. IT HAS ADDUCED THE DOCUMENTARY EVIDENCES TO SUBSTANTIATE THE CLAIM DURING THE COURSE OF REMAND AS WEL L AS APPELLATE PROCEEDINGS. THE IDENTITY OF THE LENDER WAS ESTABL ISHED AS IT WAS BORNE ON THE RECORD OF THE INCOME-TAX DEPARTMENT . THE LENDER HAS BANK ACCOUNTS AND ALSO PAN. SO FAR AS HIS CREDIT WORTHINESS IS CONCERNED IT IS SEEN THAT THE LENDER /HAS FILED INCOME-TAX RETURN. THE LENDER HAD SUFFICIENT FUNDS TO MAKE THE INVESTMENT AND TO ADVANCE LOANS AND THOSE INVESTMENTS/LOANS HAVE BEEN DULY DISCLO SED IN THEIR BALANCE SHEET. THESE DETAILS SHOW THAT THE LENDER WAS PERS ON OF MEANS WITH THE FINANCIAL CAPACITY TO ADVANCE THE LOANS . THERE IS NO EVIDENCE OR MATERIAL TO EVEN SUGGEST AS POINTED OUT ON BEHA LF OF THE ASSESSEE THAT THE MONEY DIRECTLY OR INDIRECTLY EMANATED FR OM THE ASSESSEE SO THAT IT COULD BE SAID THAT THE ASSESSEES OWN MONEY WAS BROUGHT BACK IN THE GUISE OF LOANS. THE PRESENT CASE DO ES NOT APPEAR TO BE A CASE WHERE THE CREDITWORTHINESS OF THE LENDERS AND TH E GENUINENESS OF THE LOAN TRANSACTIONS COULD BE CALLED IN Q UESTION.. ACCORDINGLY IT IS HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION OF `4 05 000/- AND THE ADDITION MADE BY HIM IS NOT SUSTAINABLE IN LAW. IN VIEW OF THE AFORESAID THE ASSESS ING OFFICER IS DIRECTED TO DELETE THE ADDITION OF `4 05 000/-. AS A RESU LT GROUND OF APPEAL NO.6 IS ALLOWED. 3.1 FURTHER IN THE CASE OF SMT. BHARTI GUPTA HE REFERRED TO THE EVIDENCE PLACED IN THE PAPER BOOK. ON PAGE NO.74 THE DETAILS IN RESPECT OF DIRECTORS SHRI VIRENDER GUPTA AND SMT. ANJU GUPTA HAVE BEEN MENTIONED. TH E ADDRESSES DETAILS OF THE RETURN FILED AND THE PARTICULARS OF THE ASSESSING OFFICER HAVE ALSO BEEN MENTIONED ALONG WITH THEIR SHARE HOLDINGS IN THE ASSESSEE C OMPANY. PAGE NO.79 3422-2010-L M 6 SHOWS THE LOANS RECEIVED FROM SMT. BHARTI GUPTA AT `4 38 780/- ALONG WITH HER PAN. PAGE NO.90 CONTAINS THE DETAILS IN RESPECT OF THES E LENDERS IN TERMS OF OPENING BALANCE AMOUNT PAID DURING THE YEAR AMOUNT REC EIVED DURING THE YEAR INTEREST AND CLOSING BALANCE. THE CLOSING BALANCE IN CA SE OF SMT. BHARTI GUPTA STANDS AT `4 38 780/- AND IN CASE OF SHRI VIRENDER GUPT A AT `3 21 110/-. PAGE NO.91 IS THE LEDGER ACCOUNT OF SMT. BHARTI GUPTA SHOWIN G RECEIPTS OF THREE CHEQUES OF `60 000/-; `1 90 000/- AND `1 88 780/- ON 30.05. 2005 20.05.2005 AND 18.10.2005. THE AMOUNT OF `4 38 780/- HAS BEEN CARRIED FORWARD TO THE NEXT YEAR. PAGE NO.92 IS THE CONFIRMED COPY OF THE ACCOUNT C ONTAINING INTER ALIA THE DETAILS OF THE AMOUNT RECEIVED ADDRESS AND PAN. PAGE NO. 93 IS COPY OF THE ACKNOWLEDGMENT OF HER RETURN FOR ASSESSMENT YEAR 2006-07 S HOWING TOTAL INCOME OF `1 81 273/-. PAGE NO.110 IS THE COPY OF THE BANK ACCOUNT OF THE ASSESSEE SHOWING CREDIT OF THE AMOUNT OF `1 88 780/- ON 24.10. 2005. PAGE NO.111 IS ALSO THE COPY OF THE BANK ACCOUNT WITH ANOTHER BANK SHOWING TWO CREDITS OF `60 000/- AND `1 90 000/- ON 31.05.2005 IN RESPECT OF THE CHEQUES DRAWN ON BANK OF BARODA. 3.2 THE LEARNED COUNSEL ALSO DREW OUR ATTENTION TOWARDS T HE DETAILS FILED IN CASE OF SHRI VIRENDER GUPTA. AS MENTIONED EARLIER PAGE NO.74 F URNISHES DETAILS REGARDING ASSESSMENT PARTICULARS AND SHAREHOLDING IN TH E ASSESSEE COMPANY. PAGE NO.78 CONTAINS REPRESENTATION TO THE EFFECT THAT SHRI VIREN DER GUPTA CONTRIBUTED `50 000/- BY WAY OF CHEQUE TOWARDS SHARE APPLICATION M ONEY. PAGE NO.88 CONTAINS SUBMISSIONS MADE TO THE ASSESSING OFFICER INCL UDING AVERMENT TO THE EFFECT THAT THE AMOUNT HAD BEEN WITHDRAWN FROM THE PERSONAL ACC OUNTS WHERE HE HAD SUFFICIENT CASH ON HAND AS PER COPY OF THE STATEMENT OF AFFAIRS DRAWN AS ON 31.03.2005. AS MENTIONED EARLIER PAGE NO.90 CONTAINS THE DETAILS OF UNSECURED LOANS RECEIVED FROM SHRI VIRENDER GUPTA SHOWING OPENING B ALANCE OF `6 60 052/- 3422-2010-L M 7 AND CLOSING BALANCE OF `3 21 110/-. PAGE NOS. 95 TO 96 CONTAIN THE LEDGER ACCOUNT AND PAGE NO.97 CONTAINS COPY OF HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 DECLARING TOTAL INCOME OF `3 30 050/-. PAGE N O.102 CONTAINS HIS STATEMENT OF AFFAIRS AS ON 31.03.2005 WHICH SHOWS CA SH IN HAND AT `4 21 770/-. PAGE NOS.103 TO 109 CONTAIN THE CASH BOOK OF THE LENDER FROM 01.04.2005 TO 31.03.2006. 3.3 ON THE BASIS OF AFORESAID DETAILS THE CASE OF THE LEA RNED COUNSEL IS THAT BOTH THE PERSONS HAVE BEEN IDENTIFIED THEY HAD CAPACITY TO ADV ANCE THE MONEY AND IN FACT THEY ADVANCED THE MONEY TO THE ASSESSEE COMPANY. IN THIS CONNECTION HE ALSO RELIED ON THE FINDINGS OF THE LEARNED CIT(A) IN PARA GRAPH NO.10.3 WHICH HAVE ALREADY BEEN REPRODUCED BY US EARLIER IN THIS ORDER. 4. ON THE BASIS OF THE SUBMISSIONS MADE BEFORE US BY THE RIVAL PARTIES THE FACTS ASCERTAINED ARE THAT SMT. BHARTI GUPTA AND SHRI VIRENDER G UPTA ARE EXISTING PERSONS WHO ARE ASSESSED TO TAX. SHRI VIRENDER GUPTA IS ALSO A DIRECTOR IN THE ASSESSEE COMPANY. LOANS WERE RECEIVED FROM SMT. BHARTI GUPT A BY WAY OF THREE CHEQUES. IN THE BANK STATEMENT OF SHRI VIRENDER GUPTA WITH ICICI BANK THERE ARE FREQUENT DEPOSITS IN CASH. SMT. BHARTI GUPTA HAS CONFI RMED THE TRANSACTIONS OF LOAN. THE QUESTION IS WHETHER THE MONIES RECEIVED FROM THESE PERSO NS CAN BE SAID TO HAVE BEEN SATISFACTORILY EXPLAINED AS TO NATURE AND SOURC E BY THE ASSESSEE COMPANY? IN ORDER TO DO SO THE ASSESSEE HAS TO FILE EVI DENCE FOR ESTABLISHING ON PRIMA FACIE BASIS (I) THE IDENTITY OF THE PERSONS; (II) THE CAPACITY OF THE PERSONS TO LEND THE MONIES; AND (III) THE GENUINENESS OF THE TRANSACTI ONS. AS MENTIONED EARLIER THERE IS NO DISPUTE ABOUT THE IDENTITY OF THE PERSONS. B OTH THE PERSONS ARE ASSESSED TO TAX. SMT. BHARTI GUPTA HAS ADVANCED MONEY BY WAY OF CHEQUES AND THE TRANSACTIONS HAVE NOT BEEN DISPROVED IN ANY MANNER. THER E ARE CASH TRANSACTIONS IN 3422-2010-L M 8 CASE OF SHRI VIRENDER GUPTA BUT THE STATEMENT OF AFFAIRS S HOWS THAT THERE IS ENOUGH CASH BALANCE TO EXPLAIN THE TRANSACTIONS. THEREFORE TH E CAPACITY OF THE LENDERS STAND PROVED ON A PRIMA FACIE BASIS. BOTH THE PARTIES HAVE ACCEPTED THE TRANSACTIONS. SMT. BHARTI GUPTA HAS FILED CONFIRMATI ON AND THE CASH BOOK OF SHRI VIRENDER GUPTA ESTABLISHES THE TRANSACTIONS. THEREFORE TH E GENUINENESS OF THE TRANSACTIONS HAS ALSO BEEN ESTABLISHED ON A PRIMA FACIE BASIS. HAVING DONE SO IT WAS THEREAFTER FOR THE ASSESSING OFFICER TO PROVE THAT THE EVIDENCES WERE FALSE OR TO BRING ON RECORD EVIDENCE TO CONTRADICT THE EVIDENCE FILED B Y THE ASSESSEE COMPANY. NOTHING HAS BEEN DONE IN THIS BEHALF. THE WHOLE EVIDENCE FILED BY THE ASSESSEE COMPANY HAS BEEN IGNORED OR RENDERED INCONSEQUENTIAL WITHOU T ITS PROPER APPRECIATION. EVEN IF AFTER RECEIPT OF THE EVIDENCE FROM THE ASSESSEE HE HAD ANY DOUBT ABOUT THE SOURCE OF THE CREDITORS HE SHOULD HAVE P ROCEEDED AGAINST THEM RATHER THAN AGAINST THE ASSESSEE AS IT HAD ESTABLISHED THE THREE INGREDIENTS SUFFICIENTLY AND IN ANY CASE ON A PRIMA FACIE BASIS. THEREFORE WE ARE OF THE VIEW THAT THE LEARNED CIT(A) WAS RIGHT IN DELETING BOTH THE AD DITIONS. 5. IN RESULT THE APPEAL IS DISMISSED. THIS ORDER WAS PRONOUNCED IN OPEN COURT ON 18.02.2011. SD/- SD/- ( I.P. BANSAL ) ( K.G. BANSAL ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DT. 18/02/2011 NS COPY FORWARDED TO:- 3422-2010-L M 9 1. INCOME TAX OFFICER WARD-4(4) NEW DELHI. 2. M/S LIBCAN MARKETING PVT. LTD. A-88 NEW FRIENDS COLO NY NEW DELHI-25. 3. THE CIT 4. THE CIT (A) NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DELHI. TRUE COPY BY ORDER (ITAT NEW DELHI).