Itxa/1233/2013 Of The Commissioner Of Income Tax -19, Mumbai v. M/S Laxmi Financier

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (LOD) NO.395 OF 2013 The Commissioner of Income Tax-19, Mumbai ..Appellant. V/s. M/s. Laxmi Financier ..Respondent. Ms. S.V. Bharucha with D.K. Kamwal for the appellant.None for the respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATED : 21ST MARCH, 2013 P.C. :- 1.In this appeal by the revenue for the assessment year 2005-06, following question of law has been raised for our consideration:- “ Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in putting restriction to the Assessing Officer to examine only some of the unsecured loan creditors and accepting the geuineness of all other creditors on 2.The Assessing Officer by an assessment order did not accept the case of the respondent-assessee that Rs.25.11 lakhs were unsecured loans received by them. Thus, an amount of Rs.25.11 lakhs was added to the income of the respondent-assessee as unexplained cash credit under Section 68 of the Income Tax Act, 1961 (the Act). The CIT(A) dismissed the respondent-assessee's appeal and upheld the order of the Assessing Officer. 3.On further appeal, the Tribunal by the impugned order while remanding the matter to the Assessing Officer records the fact that there were 129 creditors who had advanced money to the respondent-assessee and all of them had filed loan confirmations along with their PAN. It is on the above basis that the Tribunal while remanding the matter to the Assessing Officer directed the Assessing Officer to examine some of the creditors on test check basis to test the geuineness of the creditors and their credit worthiness. 4.The greivance of the revenue is that the respondent-assessee had not submitted copies of the return of income filed by the creditors, consequently they failed to prove the genuineness of the loan and the credit worthiness of their creditors. Further, the adoption of the test check basis directed by the impugned order to check the genuiness of the creditors and their creditworthiness is not proper as it fetters the freedom of the Assessing Officer to make a proper assessment. 5.The Tribunal by the impugned order has remanded the issue to the Assessing Officer to verify the genuineness of the loan and creditworthiness of the creditors. Further taking into account that there are 129 creditors, verifying each loan and examining each creditor would take a long time. Thus, the direction for test check. However, the impugned order does not put any cap on the number of creditors to be called for the purposes of test check nor has it specified the creditors to be examined by name. It is for the Assessing Officer to decide the number of creditors he would want to check on test check basis and also which of the creditors he would want to summon. In these circumstances, we find no fault in the order of the Tribunal and do not see any reason to entertain the proposed question of law. 6.Accordingly, the appeal is dismissed with no order as to costs. (M.S. SANKLECHA, J.) (J.P. DEVADHAR, J.)