Malpani House Of Stones v. Commissioner Of Income Tax-Ii, Jaipur

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR. D.B. Income Tax Appeal No.37/2003 Malpani House of Stones Vs. Commissioner of Income Tax-II, Jaipur. DATE OF ORDER ::: 2[nd] November, 2016 HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE MAHENDRA MAHESHWARI Mr. Prakul Khurana, for the appellant.Mr. Anuroop Singhi, for the respondent. BY THE COURT:- (Per Hon'ble Jhaveri, J.) 1.By way of this appeal, the appellant has challenged thejudgment & order of the Tribunal whereby the Tribunal hasdismissed the appeal filed by the department for theassessment year 1985-86 and partly allowed the appeal ofthe assessee for assessment years 1985-86, 1987-88,1988-89 & 1989-90. 2.This court while admitting the matter on 2.4.2003 has framed following substantial question of law:- “Whether when once the assessee discharges hisburden of proof u/s 68 of the Act, 1961 can thecash credits of Rs.52,000/- be sustained asunexplained where the amount was received andrepaid through account payee cheques moreparticularly when the identity of the cashcreditor was accepted by the department in thecase of some other assessee and departmenthas not brought on record any contrary materialto disprove the claim of the assessee?” 3.Counsel for the appellant has taken us to the order ofAO and CIT(A) and contended that the transactions whichhave been done were proved before the tribunal and thetribunal ought to have allowed the issue in favour of theassessee. 4.We have gone through the reasons adopted by the AO. The CIT(A) in para no.3.3 observed as under:- “3.3 2.2:It relates to the addition of Rs. 52,000u/s 68 of the Act The appellant was not able to prove thegenuineness of the cash credit of Rs. 52,000/- onthe name of Shri Bherulal Jawahar. According tothe AR the amount had been received by chequefrom cash creditor and the amount had been paidback to him also by cheque. It was a genuineparty and the party had been produced in thecase of M/s Bhandari Jewellers, Jaipur. In the saidcase creditor had been admitted as genuineparty. As such the addition may be deleted.On consideration of the facts of the case and thesubmissions of the AR it is seen that theappellant neither produced the creditor nor washis detailed address furnished. It was alsoadmitted that the appellant was not in a positionto produce him now during the course ofappellantproceedings.Underthesecircumstances, the cerdit worthiness of thecreditor and the genuineness of the transactiondo not stand proved and as such the addition ofRs. 52,000/- is hereby confirmed.” 5.Counsel for the respondent has relied upon the decision in the case of Commissioner of Income Tax vs. Precision Finance Pvt. Ltd. reported in (1994) 208 ITR 465 and more particularly in para no.6 observed asunder:- “Mere payment by account payee cheque is notsacrosant nor can it make a non-genuine transaction genuine. In that view of the matter,the question before us is answered in thenegative and in favour of the Revenue.” 6.We are in complete agreement with the view taken by the tribunal. The issue is answered in favour of thedepartment against the assessee. 7.The appeal stands dismissed. (Mahendra Maheshwari), J. (K.S. Jhaveri), J. Brijesh76.