Itta/282/2013 Of M.y.maharshi v. The Asst. Commissioner Of Income-Tax

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD(Special Original Jurisdiction) PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE Ms. JUSTICE G. ROHINI INCOME TAX APPELLATE TRIBUNAL APPEAL NO.282 OF 2013 DATED:16.7.2013 Between: M.Y. Maharshi … Appellant And The Asst. Commissioner of Income TaxCircle 16(2)Aayakar BhavanHyderabad … Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA ANDTHE HON’BLE Ms. JUSTICE G. ROHINI I.T.T.A. NO.282 OF 2013 JUDGMENT:(per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the judgment and order of thelearned Tribunal, dt.17.10.2012, in relation to assessment year 2007-08. We have heard Sri K. Vasanth Kumar, learned counsel for theappellant, and gone through the impugned judgment and order of thelearned Tribunal. It appears from the impugned judgment and order, all theauthorities below have not accepted the sum of Rs.74,00,000/- asadvance received by the appellant – assessee, from one P.Madhusudan Reddy. The aforesaid amount has been added to theincome. It was the case of the assessee that the aforesaid amountwas borrowed from said Madhusudan Reddy. On that, the learnedTribunal recorded that no acceptable proof has been produced toestablish the fact of receipt of the aforesaid advance from MadhusudanReddy. We quote the relevant findings of the learned Tribunal, whichread as under: “In support of such claim, the assessee had submittedan affidavit of Sri P. Madhusudan Reddy, wherein Sri P.Madhusudan Reddy has admitted of having advanced anamount of Rs.74 lakhs to the assessee. However, apart fromthe affidavit, there is no other evidence on record either by theassessee or by Sri P. Madhusudan Reddy to establish thefact that an amount of Rs.74 lakhs as in fact has beenadvanced by Sri P. Madhusudan Reddy to the assessee. It isa fact on record that in course of remand proceedings before the AO as well as during the course of hearing before theCIT(A), no credible evidence has been submitted to prove thecreditworthiness of Sri P. Madhusudan Reddy. In spite ofspecific query made by the AO as well as CIT(A) the breakupof advances were not furnished which could have thrownsome light as to whether the advances mentioned in thereceipts and payments account also included in the advancesof Rs.74 lakhs paid to the assessee, when admittedly, theassessee’s name does not find place in the receipts andpayments account of Sri P. Madhusudan Reddy. That apart,the AO after verification of the bank accounts of Sri P.Madhusudan Reddy has found deficit in the cash balance onthe date Sri Madhusudan Reddy stated to have advanced themoney to the assessee. These facts certainly raise apresumption against the creditworthiness of Sri P.Madhusudan Reddy in advancing the money of Rs.74 lakhs. The assessee has not rebutted the presumption by briningsufficient evidence to substantiate the creditworthiness of SriP. Madhusudan Reddy. Undisputedly, the entire amount ofRs.74 lakhs has been claimed to have been paid in cash. Therefore, in absence of substantial evidence the affidavit ofSri P. Madhusudan Reddy becomes only self-servingdocument. The facts that Sri P. Madhusudan Reddy hasshown an advance of Rs.14 crores in the receipts andpayments account and has disclosed an income of 2.18crores in his block return cannot by itself lead to an inferencethat Mr. P. Madhusudan Reddy has advanced the amount ofRs.74 lakhs to the assessee or with regard to hiscreditworthiness.” It is for the Tribunal, the Commissioner of Income Tax (Appeals)and the assessing authority to believe and disbelieve any quality ofevidence. The evidence adduced by the assessee before theauthorities below was not believed at all. This Court cannot substituteits own belief in place and instead of the disbelief and belief of thethree authorities below. In exercise of jurisdiction under Section 260Aof the Income Tax Act, the aforesaid fact finding cannot be interferewith by this Court. Similarly, a further addition of Rs.34 lakhs, withdrawn by theassessee from his bank account, in the Months of January andFebruary, 2007, could not be substantiated by evidence. In view of the aforesaid facts and circumstances of the case, weare of the view that no substantial question of law is involved in thismatter, far less substantial question of law. Hence, this appeal is dismissed. No order as to costs. ________________________ K.J. SENGUPTA, CJ ______________________ G. ROHINI, J 16.7.2013bnr