Citation Codes

Equivalent Citations

citation codes

Case Number

ITA 1486/AHD/2019

Disposition

dismissed

Attorney(S)

Acts

SECTION 143 INCOME TAX ACT 1961
SECTION 68 INCOME TAX ACT 1961
Income Tax Act, 1961". 7 I.T.A
section 68 of the I.T. Act, 1961.

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Smart Summary

Case Summary: ITO vs. Sweta Makkhanlal Agrawal (ITA No. 1486/Ahd/2019 & C.O. No. 02/Ahd/2020) A.Y. 2016-17

Factual and Procedural Background

The assessee is an individual and a medical practitioner who filed her e-return for A.Y. 2016-17 declaring a total income of Rs. 8,79,830/-. The assessment under section 143(3) of the Income Tax Act, 1961 was selected for scrutiny. The Assessing Officer (AO) questioned several unsecured loans reflected in the balance sheet totalling Rs. 27,83,47,759/-, and issued summons under section 131 to the alleged lenders; some lenders did not appear. The AO treated amounts aggregating Rs. 2,40,47,759/- relating to seven creditor entries as unexplained credit and added the same to the assessee's income under section 68.

The assessee appealed to the Commissioner of Income Tax (Appeals) [CIT(A)]. The CIT(A) examined the materials submitted by the assessee (including lender names, PANs, addresses, contra confirmations, bank statements, income-tax returns, ledgers, details of repayments and interest) and deleted the addition under section 68. The Revenue filed the present appeal before the Income Tax Appellate Tribunal (ITAT), Ahmedabad "C" Bench, and the assessee filed a cross-objection.

Legal Issues Presented

Whether the addition of Rs. 2,40,47,759/- made by the Assessing Officer as unexplained cash credit under section 68 of the Income Tax Act, 1961, is sustainable where the assessee produced lender confirmations, bank statements, income-tax returns and evidence of repayment and interest payment?

Arguments of the Parties

Appellant (Revenue) - Arguments

The Revenue supported the AO's order and urged that the addition made under section 68 should be sustained. (As recorded: "The Ld. D.R. ... strongly supported the order passed by the Assessing Officer and pleaded to sustain the addition made u/s. 68 of the Act and thereby allow the Revenue appeal.")

Respondent (Assessee) - Arguments

The assessee's representative argued that the assessee had discharged the primary onus under section 68 by producing the names of lenders, PAN numbers, addresses, contra confirmations, bank statements, income-tax returns of lenders, ledger entries, details of opening balance, loan receipts and closing balances, and evidence of interest payments and repayments performed through proper banking channels.
The assessee relied on jurisdictional High Court and tribunal decisions (including Ayachi Chandrashekhar Narsangji, CIT vs. Shri Mahavir Crimpers, DCIT vs. Rohini Builders and ITO vs. Shanti Enterprise) to submit that, once primary documents are produced showing the credits through bank channels and lender details, the onus to disprove shifts to the Revenue and the addition under section 68 is not sustainable.
The assessee emphasised that the AO did not dispute payment of interest with appropriate TDS, and that repayments were evidenced in subsequent year bank statements, ledger copies and contra confirmations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
CIT Rajkot-I vs. Ayachi Chandrashekhar Narsangji (2014) 42 taxmann.com 251 (Guj.)	Held that deletion of section 68 addition is justified where primary evidence establishes genuineness and repayment (including repayment in the immediately next financial year) and Commissioner (Appeals) was satisfied with genuineness and creditworthiness.	The Tribunal followed this ratio (as cited) and treated the assessee's evidence of repayment in a subsequent year and other documents as sufficient to uphold CIT(A)'s deletion of the addition.
CIT vs. Shri Mahavir Crimpers [2018] 95 taxmann.com 323 (Guj.)	Reinforces that where identity of creditor is not disputed and the assessee produces relevant records showing creditor's balance sheet and repayment in a succeeding year, the CIT(A)'s deletion of section 68 addition is sustainable.	The Tribunal relied on this decision to support the conclusion that the assessee had discharged the primary onus and that the addition could not be sustained.
DCIT vs. Rohini Builders (2002) 256 ITR 360 (Guj.)	Principal that once primary documents (bank statement of depositor, confirmations, etc.) are produced, the onus shifts to the Revenue; in absence of contradictory material, it is unfair to confirm a section 68 addition; even if creditors don't attend summons, transaction cannot be termed bogus if preliminary documents exist.	The Tribunal expressly followed this principle, noting that the assessee had produced primary documents and the AO had produced no contradictory material that would sustain the addition.
ITO vs. Shanti Enterprise [2016] 71 taxmann.com 275	Held that where amounts are received by account-payee cheques and the initial burden of proving the credits is discharged, the assessee need not prove the source of the credits and inadequacy of explanation does not automatically result in deeming amounts as income of the assessee.	The Tribunal relied on this ratio to support that the assessee's production of bank-channel evidence and related documents met the initial burden, and therefore deletion by CIT(A) should be sustained.

Court's Reasoning and Analysis

The Tribunal considered the material on record and the submissions of the parties. The court's analysis proceeded as follows:

The Tribunal observed that the assessee produced lender confirmations, bank statements, copies of the lenders' income-tax returns and ledger entries showing receipt and repayment of loans and payment of interest. These documents demonstrated that transactions took place through proper banking channels and that interest was paid with appropriate TDS in some instances.
On this factual backdrop, the Tribunal held that the assessee discharged the primary onus under section 68 to prove the identity of the creditors, the creditworthiness of the creditors and the genuineness of the transactions.
The Tribunal noted that although the AO disbelieved the transactions, the AO had not contradicted or impeached the documentary evidence relating to repayments, interest payments and banking channels. The AO had not, for example, established any contrary material showing cash movement inconsistent with the records produced.
The Tribunal relied on binding and/or jurisdictional precedents it cited (Ayachi Chandrashekhar Narsangji, CIT vs. Shri Mahavir Crimpers, DCIT vs. Rohini Builders, ITO vs. Shanti Enterprise) to extract legal principles: once primary documents such as bank statements and confirmations are produced, the onus shifts to the Revenue; the assessee is not required to trace the source-of-source of the lender's funds; and repayment in a subsequent year through banking channels supports genuineness.
Applying those principles to the facts, the Tribunal concluded that the CIT(A) correctly found that the assessee had fulfilled the three conditions under section 68 (identity, creditworthiness and genuineness). The Tribunal therefore affirmed the CIT(A)'s deletion of the addition made by the AO under section 68.

Holding and Implications

Core Ruling: The Revenue appeal is dismissed and the Cross Objection filed by the Assessee is allowed.

Direct consequences:

The addition of Rs. 2,40,47,759/- made by the AO under section 68 is deleted and will not be treated as the assessee's income for A.Y. 2016-17.
The CIT(A)'s order deleting the addition is confirmed by the ITAT.

Broader implications:

The Tribunal expressly followed the ratio of existing jurisdictional authorities (as cited) rather than announcing a new legal principle. The opinion does not purport to lay down a new precedent beyond applying established authorities to the facts of this case.

Order pronounced in open court on 25-01-2023 by the Ahmedabad "C" Bench (Accountant Member Shri Waseem Ahmed and Judicial Member Shri T.R. Senthil Kumar).

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The ITO, Ward-3, Palanpur v. Sweta Makkhanlal Agrawal, Banaskantha

IN THE INCOME TAX APPELLATE TRIBUNAL

AHMEDABAD "C" BENCH

Before: Shri Waseem Ahmed, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member

ITA No. 1486/Ahd/2019 & C.O. No. 02/Ahd/2020 Assessment Year 2016-17
The I.T.O., Ward-3, Palanpur Sweta Makkhanlal Agrawal 11, Sawaswati Hospital, Dhanera Highway, Dhanera, Banaskantha, Gujarat-385310 PAN: ADFPA7770D (Appellant)	Vs Vs	Sweta Makkhanlal Agrawal 11, Sawaswati Hospital, Dhanera Highway, Dhanera, Banaskantha, Gujarat-385310 PAN: ADFPA7770D The I.T.O., Ward-3, Palanpur (Respondent)

Assessee Represented: Ms. Nupur Shah, A.R.

Revenue Represented : Shri Rakesh Jha, Sr.D.R.

Date of hearing : 17-01-2023

Date of pronouncement : 25-01-2023

आदेश/ORDER

I.T.A No. 1486/Ahd/2019 & C.O. No. 2/Ahd/2020 A.Y. 2016-17 Page No 2 ITO vs. Sweta Makkhanlal Agrawal

PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-

This appeal is filed by the Revenue as against the Appellate order dated 01.07.2019 passed by the Commissioner of Income Tax (Appeals)-4, Ahmedabad arising out of the Assessment order passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') relating to the Assessment Year (A.Y) 2016-17. The Cross Objection is filed by the assessee as against the above Revenue appeal.

2. The brief facts of the case is that the assessee is an individual and Doctor by Profession and earning Professional Income and Income from Other Sources. For the Assessment Year 2016-17, the assessee filed e-return of income declaring total income of Rs. 8,79,830/-. The assessment was selected for scrutiny assessment and a notice was given to the assessee to explain the unsecured loans are genuine and from disclosed sources, which were availed from the following persons/parties:

Sr. No.	Name of the party/person	Amount outstanding as per Balance Sheet as on 31.03.2016 (Rs.)
1	A.D. Graveurs	2,26,62,500
2	Ashwamegh Sah. Khet Mandli Vibhag-16	23,61,00,000
3	Dhiraj R. Thakker	1,99,068
4	Jayaben Raghuram Thakar	1,05,616
5	Meet Dhiraj Thakar	2,63,014
6	Megh Dhanushya Enterprises LLP	1,80,00,000
7	Raghuram S Thakar	1,05,616
8	Smit Suresh Thakkar	4,70,301
9	Suresh Thakkar HUF	2,41,644
10	Shakuntaladevi Bothra	2,00,000
	Total	27,83,47,759

I.T.A No. 1486/Ahd/2019 & C.O. No. 2/Ahd/2020 A.Y. 2016-17 Page No 3 ITO vs. Sweta Makkhanlal Agrawal

2.1. To examine the genuineness of the above transaction, the Assessing Officer issued s summon u/s. 131 of the Act to the above lenders but none of them turned out. A further notice was given to the assessee to explain the above unsecured loans. Nine creditors were represented by the Representative explaining the unsecured loans. The Assessing Officer found that to the extent of Rs. 2,40,47,759/- pertaining to seven creditors could not be explained properly with genuineness of the transaction and the relation between the assessee and the creditors. Therefore the same was added as the unexplained credit u/s. 68 of the Act as follows:

Sr. No.	Name of the party/person	Amount outstanding as per Balance Sheet as on 31.03.2016 (Rs.)
1	A.D. Graveurs	2,26,62,500
2	Dhiraj R. Thakker	1,99,068
3	Jayaben Raghuram Thakar	1,05,616
4	Meet Dhiraj Thakar	2,63,014
5	Raghuram S Thakar	1,05,616
6	Smit Suresh Thakkar	4,70,301
7	Suresh Thakkar HUF	2,41,644
	Total	2,40,47,759

3. Aggrieved against the same, the assessee filed an appeal before the Ld. Commissioner of Income Tax (Appeals)-4, Ahmedabad. The assessee submitted even before the Assessing Officer the name of the lender, PAN Number, Address, unsecured loan received during the year, contra confirmations, bank statements, Income-tax returns, interest amount, opening balance, loan received during the year and closing balance which proves that the assessee has duly discharged her primary onus to prove identity of lender, credit worthiness and genuineness of the transactions. Therefore the

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addition made u/s. 68 is unjustifiable. The Ld. CIT(A) after considering the submissions of the assessee and on verification of various details deleted the addition made u/s. 68 of the Act as follows:

3.5. In respect of lender party A. P. Graveurs (Proprietor Ashwin P. Patel), having PAN No. AGCPP7364E, it has shown income of Rs.10,23,567/- in Income-tax Return for AY.2016-17 During the year the appellant has received unsecured loan amount of Rs.17,60,72,500/- from lender party A. D. Graveurs and there was also opening balance of Rs. 13,85,50,000/-. The appellant has repaid the amount of Rs.29,20,00,000/- leaving the closing balance of Rs.2,26,22,500/-.The appellant has received loan funds to meet up the temporary requirement of fund for business purposes on current account basis and interest has also been paid to the said loans. The appellant has repaid the balance interest amount in subsequent year and for which appellant has submitted the ledger copy and bank statement for the A.Y.2017-18 of A. D. Graveurs (compiled at Page No. 155 to 157 of Paper book) showing that loan has been repaid through proper banking channel. In the synopsis of arguments filed on 18.06.2019, the appellant has also submitted the copy of Return of income, contra confirmation from books of A. D. Graveurs alongwith bank statement of A. D. Graveurs (compiled at Page No. 71 to 83 of Paper Book) showing that all transactions has taken place through proper banking channel at the time of assessment proceedings. Thus, the appellant has fulfilled all the 3 conditions mentioned in section 68 of the IT Act, 1961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. Therefore, the AO is not justified in making the observations in the assessment order as regards to the identity and credit worthiness of the lender party A. D. Graveurs. The appellant has already proved the creditworthiness and genuineness of the lender party A. D. Graveurs (Prop. Ashwin D. Patel) by submitting various details as stated herein above and hence the addition of Rs.2,26,22,500/- is not required to be made in the case of appellant. So, the conditions u/s.68 are not fulfilled for an addition of Rs.2,26.22.500/-.

3.6. In respect of lender party Dhiraj R. Thakker having PAN No. AAHPT9813H, he has shown income of Rs.3,46,196/- in Income-tax Return for AY.2016-17. During the year the appellant has received unsecured loan amount of Rs.50,00,000/- from lender party Dhiraj R. Thakkar and has repaid the amount of Rs.50,00,000/- leaving the closing balance of Rs. 1,99,068/- which is of interest amount. The appellant has received loan funds 1o meet up the temporary requirement of fund for business purposes on current account basis and interest has also been paid to the said loans. The appellant has repaid the balance interest amount in subsequent year and for which appellant has submitted the ledger copy and bank statement for the A.Y.2017-18 of Dhiraj R. Thakker (compiled at Page No. 149 of Paper book) showing that loan has been

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repaid through proper banking channel. In the synopsis of arguments filed on 18.06.2019, the appellant has also submitted the copy of Return of income, contra confirmation from books of Dhiraj R. Thakkar alongwith bank statement of lender party(compiled at Page No. 89to 94 of Paper Book) showing that all transactions has taken place through proper banking channel at the time of assessment proceedings. Thus, the appellant has fulfilled all the 3 conditions mentioned in section 68 of the IT Act, 1961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. In my opinion, the appellant has proved the creditworthiness and genuineness of the lender party Dhiraj R. Thakkar by submitting various details as stated herein above and hence the addition of Rs. 1,99,068/- cannot be confirmed as per provisions of section 68 of the Act.

3.7. In respect of the lender party Jayaben Raghuram Thakker, having PAN No.ABBPT5327M, she has shown income of Rs.11,56,483/- in the Income-tax Return for AY 2016-17. The appellant has received unsecured loan of Rs.25,00,000/- during the year from lender party Jayaben Raghuram Thakker and the appellant has repaid the amount of Rs.25,00,000/- leaving the closing balance of Rs. 1,05,616/- which is of interest amount. The appellant has received the loan funds to meet up the temporary requirement of fund for business purposes on current account basis and interest has also been paid to the said loans. The appellant has also repaid the balance interest amount in subsequent year and for which appellant has submitted the ledger copy of the said lender party and bank statement of A.Y.2017-18 (compiled at Page No. 150 of Paper Book) showing that loan has been repaid through proper banking channel. In the synopsis of arguments filed on 18.06.2019, appellant has also provided the copy of Return of income, contra confirmation from books of lender party alongwith bank statement of lender party (compiled at Page No. 95 to 99 of Paper Book) showing that all transactions has taken place through proper banking channel at the time of assessment proceedings. Thus, the appellant has fulfilled all the 3 conditions mentioned in section 68 of the IT Act, 1961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. Therefore, the AO is not justified in making the observations in the assessment order as regards to the identity and credit worthiness of the lender party Jayaben Raghuram Thakker.

3.8. In respect of the lender party Meet Dhiraj Thakker, having PAN No. ADYPT9821B, he has shown income of Rs.8,38,000/- in the Income-tax return for A.Y.2016-17. During the year, the appellant has received unsecured loan of Rs. 1,00,00,000/- from lender party Meet Dhiraj Thakker. The appellant has repaid the said amount of Rs. 1,00,00,000/- leaving the closing balance of Rs. 2,63,0147- which is of interest amount. The appellant has received the loan funds to meet up the temporary requirement of fund for business purposes on current account basis and interest has also been paid on such loans. The appellant has repaid the balance interest amount in subsequent year and for which appellant has submitted ledger copy of the said lender party Meet Dhiraj Thakker and

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bank statement of A.Y. 2017-18(compiled at Page No. 151 of Paper Book) showing that loan has been repaid through proper banking channel. In the synopsis of arguments filed on 18.06.2019, the appellant has also provided the copy of Return of income, contra confirmation from books of lender party alongwith bank statement of lender Meet Dhiraj Thakker (compiled at Page No. l00 to 104 of Paper Book) showing that all transactions has taken place through proper banking channel at the time of assessment proceedings. Thus, the appellant has fulfilled all the 3 conditions mentioned in section 68 of the IT Act, 1961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. Therefore, the AO is not justified in making the observations in the assessment order as regards to the identity and credit worthiness of the lender party Meet Dhiraj Thakker.

3.9. In respect of the lender party Raghuram S. Thakker, having PAN No. AAZPT6030E, he has shown income of Rs.9,65,462/- in the Income-tax return for A. Y. 2016-17. During the year, the appellant has received unsecured loan of Rs.25,00,000/- from said lender party Raghuram S. Thakker. The appellant has repaid the said amount of Rs.25,00,000/- leaving the closing balance of Rs. 1,05,616/- which is of interest amount. The appellant has received the loan funds to meet up the temporary requirement of fund for business purposes on current account basis and interest has also been paid on such loans. The appellant has also repaid the balance interest amount in subsequent year and for which appellant has submitted the ledger copy and bank statement of A. Y. 2017-18of the said lender party Raghuram S. Thakker (compiled at Page No. 152 of Paper book) showing that loan has been repaid through proper banking channel. In the synopsis of arguments filed on 18.06.2019, the appellant has also submitted the copy of Return of income, contra confirmation from books of Raghuram S. Thakker along with bank statement(compiled at Page No. 105 to 109 of Paper Book) showing that all transactions has taken place through proper banking channel at the time of assessment proceedings. Thus, the appellant has fulfilled all the 3 conditions mentioned in section 68 of the IT Act, 1961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. Therefore, the AO is not justified in making the observations in the assessment order as regards to the identity and credit worthiness of the lender party Raghuram S. Thakker.

3.10. In respect of the lender party Smit Suresh Thakker, having PAN No. AERPT2692C, he has shown income of Rs.8,00,133/- in the Income-tax return for AY 2016-17. During the year, the appellant has received unsecured loan of Rs.1,00,00,000/- from lender party Smit Suresh Thakker. The appellant has repaid the said amount of Rs.1,00,00,000/- leaving the closing balance of Rs. 4,70,301/- which is of interest amount. The appellant has received the loan funds to meet up the temporary requirement of fund for business purposes on current account basis and interest has also been paid on such loans. The appellant has also repaid the balance interest amount in subsequent year and for which appellant

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has submitted the ledger copy of the said lender party Smit Suresh Thakker bank statement of A.Y.2017-18 (compiled at Page No. 153 of Paper book) showing that loan has been repaid through proper banking channel. In the synopsis of arguments filed on 18.06.2019, the appellant has also submitted the copy of Return of income, contra confirmation from books of lender party Smit Suresh Thakker alongwith bank statement (compiled at Page No. 110 to 114 of Paper Book) showing that all transactions has taken place through proper banking channel at the time of assessment proceedings. Thus, the appellant has fulfilled all the 3 conditions mentioned in section 68 of the IT Act, 1961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. Therefore, the AO is not justified in making the observations in the assessment order as regards to the identity and credit worthiness of the lender party Smit Suresh Thakker.

3.11. In respect of the lender party Suresh Thakker HUF, having PAN No. AERPT2692C, he has shown income of Rs. 10,48,957/- in the Income-tax return for A.Y.2016-17. During the year the appellant has received unsecured loan of Rs.50,00,000/- from said lender party Suresh Thakker HUF and the appellant has repaid the said amount of Rs.50,00,000/- leaving the closing balance of Rs.2,41,644/- which is of interest amount. The appellant has received the loan funds to meet up the temporary requirement of fund for business purposes on current account basis and interest has also been paid on such loans, The appellant has also repaid the balance interest amount in subsequent year for which appellant has submitted the ledger copy of the lender party Suresh Thakker HUF and bank statement of A.Y. 2017-18 (compiled at Page No. 154 of Paper Book) showing that loan has been repaid through proper banking channel. In the synopsis of arguments filed on 18.06.2019, the appellant has also provided the copy of Return of income, contra confirmation from books of lender party Suresh Thakker-HUF alongwith bank statement (compiled at Page No.115 to 118 of Paper Book) showing that all transactions has taken place It through proper banking channel at the time of assessment proceedings. Thus, the appellant has fulfilled all the 3 conditions mentioned in section 68 of the IT Act, 1961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. Therefore, the A.O. is not justified in making the observations in the assessment order as regards to the identity and credit worthiness of the lender party Suresh Thakker-HUF.

4. Aggrieved against the same, the Revenue is in appeal before us raising the following Grounds of Appeal:

1. "That the Ld. CIT(A) has erred in law and on the facts in deleting the addition of Rs. 2,40,47,759/- on account of unexplained cash credit u/s. 68 of the Income Tax Act, 1961".

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4.1. The Grounds of Appeal in Cross Objection filed by the assessee are as follows:

1. The Ld. CIT(A) has correctly on facts and under law after considering the settled legal position of the judicial pronouncements of the Hon'ble jurisdictional Gujarat High Court in the case of CIT Rajkot-I vs. Ayachi Chandrashekhar Narsangji (2014) 42 taxmann.com 251 (Guj.), ITO vs. Shanti Enterprise (2016) 71 taxmann.com 275, DCIT vs. Rohini Builders

256 ITR 360 (Guj.) held that the Respondent has fulfilled all the 3 conditions mentioned in section 68 of the IT Act 2961 regarding proving the identity, creditworthiness and genuineness of unsecured loan. Therefore, the AO is not justified in making the observation in the assessment order as regards to the identity and creditworthiness of the lender parties. Most particularly when all the lender parties or their authorized representatives appeared before the Ld. AO discharging their onus by placing all the proofs required u/s. 68 for acceptance of loan and their repayment in full during the year under consideration. Thus, the Ld. CIT(A) has rightly deleted the addition of Rs. 2,40,47,759/- made by the AO under section 68 of the I.T. Act, 1961.

6. The Ld. Counsel Ms. Nupur shah appearing for the assessee reiterated the arguments made before the Ld. CIT(A) and pleaded that it does not require any interference since the addition made by the A.O. is not sustainable in law and heavily relied upon Jurisdictional High Court Judgments in the case of CIT vs. Ayachi Chandrashekhar Narsangji [2014] 42 taxmann.com 251, CIT vs. Shri Mahavir Crimpers [2018] 95 taxmann.com 323 and Rohini Builders Judgment and ITO vs. Shanti Enterprise [2016] 71 taxmann.com 275.

6.1. Thus the Ld. A.R. argued that the onus on the assessee lies only to the extent of establishing the identity of the lenders, whereas in the present case the assessee has submitted the evidences to establish prima facie, the name of the lender, PAN Number, full Address, unsecured loan received during the year, contra confirmations, bank statements, Income-tax returns,

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interest amount, opening balance, loans received during the year and closing balance which proves that the assessee has duly discharged her primary onus to prove identity of lender, credit worthiness and genuineness of the transactions. Thus the Assessing Officer failed to establish that the above unsecured loans as not genuine. Thus the Ld. CIT(A) is correct in law in deleting the addition made by the Assessing Officer. Further the Ld. CIT(A) had duly considered repayment of the loan during the year and the interest payment made by the assessee. Therefore the order passed by the Ld. CIT(A) does not require any interference and the Revenue appeal is liable to be dismissed and the Cross Objection filed by the Assessee is to be allowed.

7. The Ld. D.R. Shri Rakesh Jha appearing for the Revenue strongly supported the order passed by the Assessing Officer and pleaded to sustain the addition made u/s. 68 of the Act and thereby allow the Revenue appeal.

8. We have given our thoughtful consideration and perused the materials available on record. The addition made by the Assessing Officer invoking Section 68 does not hold it good, since the assessee has filed the confirmation letter from the lenders, Bank statements, Income Tax Return and statement of total income of the various lenders. Thus the assessee has discharged its initial onus namely identity of the creditors, genuineness of the transactions and creditworthiness of the creditors. Further the Assessing Officer has disbelieved the same, but has not doubted the interest paid by the assessee against the above loans, with

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appropriate TDS. Therefore the addition made by the Assessing Officer u/s. 68 of the Act is not sustainable in law.

8.1. Further the Hon'ble Jurisdictional High Court in the case of Ayachi Chandrashekhar Narsangji (cited supra) it was held as follows:

Section 68, read with section 143, of the Income-tax Act, 1961 - Cash credit [Loans] -Assessment year 2006-07 - Assessing Officer framed assessment under section 143(3) wherein he made addition of Rs. 1.45 crore under section 68 on ground that loan taken from one 'IA' was not explained satisfactorily - On appeal, Commissioner (Appeals) was satisfied with respect to genuineness of transaction and creditworthiness of MA' and, therefore, deleted addition - It was found that total loan of Rs. 1.60 crore was advanced to assessee, out of which Rs.15 lakh was repaid - Therefore, an amount of Rs.1.45 crore remained outstanding to be paid to 'IA' - Balance loan amount was repaid by assessee in immediately next financial year - Whether when Department had accepted same, addition made by Assessing Officer was to be deleted - Held, yes [Para 6] [In favour of assessee]

8.2. In the case of CIT Vs. Shri Mahavir Crimpers, [2018] 95 taxmann.com 323 (Guj.) wherein it has been held as follows:

"5. We have heard both the parties. There is no dispute so far as identity of the creditor party M/s. Raj Capital & Finance Pvt. Ltd. is concerned. There is further no quarrel that the Assessing Officer does not dispute the fact that the assessee has not availed any cash loan from the said entity. His only case is that the assessee has not been able to prove source along with genuineness and creditworthiness of the above stated entity. It emanates from above extracted portion that the assessee has filed all relevant details along with assessment records of the said entity explaining source of the loans to the above entity's balance sheet indicating sufficient reserves, surplus and share premium as followed by repayment in succeeding assessment year. Learned Departmental Representative fails to rebut CIT (A)'s conclusion that the assessee has been having regular loan transactions with the said entity. We notice in this backdrop that Hon'ble Jurisdictional high court's decision in DCIT v. Rohini Builders, (2002) 256 ITR 360 (Guj) upholding tribunal's conclusion deleting Section 68 addition in view of identical details; squarely applies here. So in their lordships' latter decision in CIT v. Ayachi Chandrashekhar Narsangji (2014) 42 taxmann.com 251 (Guj) confirming this tribunal's another decision reversing Section 68 addition wherein the department

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head accepted repayment of loan in subsequent year to be correct. We take into account all these facts and judicial precedents to affirm CIT(A)'s findings under challenge deleting the impugned addition. This first substantive ground is accordingly declined."

8.3. In the case of DCIT Vs. Rohini Builders, [2002] 256 ITR 360 (Guj.) wherein it has been held as follows:

Once primary documents are given, onus shifts from assessee to revenue. In absence of anything contradictory brought on the table, it wouldn't be fair to confirm addition u/s 68 of the Act. Gujarat High Court went on to the extent of confirming that even if creditors didn't turn up on issue of summons, even then, the transaction can't be termed as bogus because preliminary documents have been put forth by the assessee and nothing contradictory is observed by the revenue. It was contended by revenue that "creditworthiness" continues to remain unproved because a few alleged parties were i having a meagre income as against hefty deposits made. To this argument, the court held that assessee's duty is discharged once it shows the bank statement of the depositor. It is not assessee's look out to find out source to source, and get into the subject of how the creditor could afford that money. Source is what is required to be proved by the assessee, and the onus immediately gets discharged on submission of preliminary documents like a bank statement of the depositor. Also, if the revenue seriously felt that the source to source was bogus, in which case the resultant addition would fall in the hands of the depositors or investors u/s 69 of the Act. As far as assessee is concerned, he is required to prove that the alleged depositor or creditor, as the case be, had legitimate monies which were given to assessee through banking channel. How that monies were earned and whether or not the depositor is showing it in his personal return of income is beyond the scope of the assessee; if there are any doubts on the source to source then revenue can always approach the depositor."

8.4. In the case of ITO Vs. Shanti Enterprise, [2016] 71 taxmann.com 275 wherein it has been held as follows:

".....amounts were received by the assessee by account payee cheques and initial burden of proving the credits was discharged. It is held that the assessee need not prove the source of the credits and the fact that the explanation was not satisfactory would not automatically result in deeming amounts as income of the assessee...."

8.5. Respectfully following the above ratio of the judgments rendered by the Jurisdictional High Court, we have no hesitation in

I.T.A No. 1486/Ahd/2019 & C.O. No. 2/Ahd/2020 A.Y. 2016-17 Page No 12 ITO vs. Sweta Makkhanlal Agrawal

confirming the order of the Ld. CIT(A), who deleted the addition made by the Assessing Officer u/s. 68 of the Act. Thus the grounds raised by the Revenue in ITA No. 1486/Ahd/2019 does not hold good on merits and the same is dismissed.

9. In the result, the appeal filed by the Revenue is hereby dismissed and consequently the Cross Objection filed by the Assessee is hereby allowed.

Order pronounced in the open court on 25-01-2023 Sd/- Sd/-

(WASEEM AHMED) (T.R. SENTHIL KUMAR)

ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 25/01/2023

आदेश क त ल प अ े षत / Copy of Order Forwarded to:-

1. Assessee

2. Revenue

3. Concerned CIT

4. CIT (A)

5. DR, ITAT, Ahmedabad

6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद

The ITO, Ward-3, Palanpur v. Sweta Makkhanlal Agrawal, Banaskantha

Case Summary: ITO vs. Sweta Makkhanlal Agrawal (ITA No. 1486/Ahd/2019 & C.O. No. 02/Ahd/2020) A.Y. 2016-17

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Revenue) - Arguments

Respondent (Assessee) - Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

The ITO, Ward-3, Palanpur v. Sweta Makkhanlal Agrawal, Banaskantha

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