Commissioner Of Income Tax-I, Visakhapatnam v. Dhana Reddy, Visakhapatnam

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH ATHYDERABAD THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDTHE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 318 of 2013 DATE: 07.08.2013 Between: Commissioner of Income Tax-I,Visakhapatnam. … Appellant AndV. Dhana Reddy,Visakhapatnam. … Respondent This Court made the following: THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDTHE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 318 of 2013 JUDGMENT:(Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the judgment and order of the learnedTribunal, dated 16.09.2009, in relation to the assessment year 2002-03 and sought to be admitted on the following suggested questions of law. A.Whether on the facts and circumstances of the case, theAppellate Tribunal is justified in deleting the addition ofRs.49,24,069/- though source of cash credit has not beenestablished by the assessee as required in law? B.Whether the Tribunal was justified in accepting the purportedaffidavits of P. Rajasekhara Reddy and A.Shivanagi Reddy withoutallowing to the department, the opportunity of examining truth orotherwise of the contents of such affidavits? C.Whether the finding of the Tribunal that the sum of Rs.49,24,069/-represents trade receipts and that 10% of such trade receipts shouldbe treated as income of the assessee is based on material onrecord.? We have heard the learned counsel for the appellant and gone through the impugned judgment and order of the learned Tribunal. All the three points are really directed towards the fact findings of thelearned Tribunal that the assessee has established that there has been acash flow of an amount of Rs.49,24,069/- and the source of that receipt wasalso established by producing evidence. The learned Tribunal on fact foundthat the aforesaid amount represent the business transaction relating toreceipt of transport charge and such receipt is proved by additional evidence,i.e., two affidavits of two persons, namely; Sri P. Rajasekhara Reddy and SriA. Shivanagi Reddy. The said persons have admitted and stated that theyhave paid the entire amount of Rs.49,24,069/-. When the learned Tribunalhas found on fact supported by material evidence, we cannot admit the appeal on such fact finding. As far as not giving of the opportunity of cross-examination of the twopersons is concerned, we think there is no allegation in the grounds that theappellant prayed for such cross-examination and such prayer was rejected bythe learned Tribunal. The evidence given in examination-in-chief by way ofaffidavit, at the first instance, should not be disbelieved. According to us, theevidence is ordinarily complete and composite when cross-examination issought to be done. If there is any doubt in the mind of any one that suchstatement may not be true, then one can always pray for examining thosedeponents before the forum concerned, namely; here the Tribunal. Of course,right of cross-examination is always waivable right. If such right is notasserted at the appropriate time, it shall be presumed that the party or personconcerned is deemed to have waived such right and the evidence given inexamination-in-chief by way of affidavit has to be taken as final and itsevidentiary value has to be assessed. So far as the estimation of profit at 10% of the trade receipt isconcerned, it is a discretionary exercise on the facts and circumstances of aparticular case and this discretion cannot be substituted. Hence, we do notfind any infirmity or illegality in the impugned judgment and order of thelearned Tribunal to admit the appeal. Accordingly, the appeal is dismissed. _____________________ K.J. SENGUPTA, CJ ________________ K. C. BHANU, J