Ita/199/2009 Of Sri S Mohammed Rafiq v. The Income Tax Officer

IN THE HIGH COURT OF KARNATAKA AT BBNGALURU DATED THIS THE 12[th]DAY OF JANUARY, 20195 PRESENT THERE HON' BLE MR. JUSTICHK N.KUM AND THR HON' BLE MR. JUSTICE B. VEBRAPPA) INCOME TAX APPEAL No. 199/2009 BBRITIWE ori S. Mohammed Rafiq,Babu Agencies, Onion Market,P.B. Road,Davangere. _. APPKRLLANT (BY SRI KASHINATH KALMATH, ADVOCATE FOR R. RAMAMURTHY) AND: The Income Tax Officer,Ward-2,Davangere _... RESPONDENT (BY SRI K.V. ARAVIND, ADVOCATE) This ITA is filed under Section J6O0O-A of thIncome Tax Act, 1961 arising out of Order dated24.12.2008 passed in ITA No. 1278/Bang/2007, tor theassessment year 2004-05 praying to formulate thesubstantial questions of law stated therein and to allowthe appeal and set aside the order passed by the ITATBangalore|1nITA.No.1278/Bang/2007,dated24.12.2008 in the interest of justice and equity. This Income Tax Appeal coming on for Hearingthis day, N. Kumar J., delivered the following: JUDGMENT This appeal is admitted to consider the followingsubstantial questions of law: U Whether on the facts and in the|circumstances,the|AppellateTribunal is right in sustaining theaddition of Rs.51,276/- made asunexplainedcredit.ignoring|thesame is out of agricultural income ofonions?|circumstances,the|AppellateTribunal is right in sustaining theaddition of Rs.51,276/- made asunexplainedcredit.ignoring|thesame is out of agricultural income ofonions?| i)WhetherOnthefacts:and.circumstances of the appellant's:case, the Tribunal is right in itsconclusion that failure to produceDonorbeforeAssessingOfficerwarrantstotreat.thegiftas|unexplained credit, notwithstandingconfirmation and affidavit are filedand inability to produce them asDonee?circumstances of the appellant's:case, the Tribunal is right in itsconclusion that failure to produceDonorbeforeAssessingOfficerwarrantstotreat.thegiftas|unexplained credit, notwithstandingconfirmation and affidavit are filedand inability to produce them asDonee? 2. The assessee is an individual carrying on business as a commission agent in onion. For the assessment year 2004-095 he filed a return of income on 24.12.2004 declaring the income of Rs.1,02,809/-. In the course of assessment, theassessing authority noticed that the assessee wasclaiming a sum of Rs.5,00,000/- as gift by hisbrother and as the said gift was not satisfactorilyexplained, it added the income as unexplainedcash credit by applying the provisions of Section68 of the Income Tax Act, 1961 (for shorthereinafter referred to as ‘the Act). Aggrieved bythe said order, the assesse preferred an appeal tothe Commissioner of Income Tax (Appeals), whodismissed the same against which second appealwas preferred to the Tribunal. In the secondappeal, the Tribunal has upheld the said finding.Agegrieved by the said order, the present appeal isfiled.. 3.The learned Counsel appearing for theaSSCSSEassailingtheimpugnedorderhas|contended that the affidavit filed and the letter written by the brother of the assessee clearlyexplain the source of income of Rs.5,00,000/- —was given to him by way of gift. By not lookinginto the letter written by the brother of the.assessee and insisting on his physical presence,|the assessing authority was not justified in not.accepting the case of the assessee. Both the.appellate authorities without proper appreciation|of the case of the assessee have confirmed the saidorder and therefore, he submits that a case for|interference is made out. 4Thequestionthat.arises{OrOuTconsideration is: Whether a sum of Rs.5,00,000/-which was added by the assessingauthority is an unexplained credit?which was added by the assessingauthority is an unexplained credit? oO. Though the assessee has filed an affidavitof his brother and letter addressed by his brother, he was not able to produce his brother for,examination. On a careful appreciation of the. 4Thequestionthat.arises{OrOuTconsideration is: Whether a sum of Rs.5,00,000/-which was added by the assessingauthority is an unexplained credit?which was added by the assessingauthority is an unexplained credit? oO. Though the assessee has filed an affidavitof his brother and letter addressed by his brother, he was not able to produce his brother for,examination. On a careful appreciation of the. evidence on record, both the authorities haverecorded a categorical finding that a sum ofRs.5,00,000/- remains unexplained which ispurely a question of fact. © 6. In that view of the matter, the impugnedorders cannot be found fault with. Accordingly,the substantial question of law is answered infavour of the revenue and against the assesse. There is no merit. Appeal is dismissed. sd/-Judgeod/-JudgeNsu/-.