Pr. Commissioner Of Income Tax, Central-2 v. M/S. Skylark Build

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.INCOME TAX APPEAL NO. 473 OF 2016 Pr. Commissioner of Income Tax, Central-2..Appellant Versus M/s. Skylark Build ..Respondent ................... Mr. N.C. Mohanty for the Appellant Mr. N.C. Mohanty for the Appellant Mr. Ruturaj Gurjar for the RespondentMr. Ruturaj Gurjar for the Respondent ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : NOVEMBER 22, 2018. P.C.: 1.This appeal under Section 260 A of the Income Tax Act,1961 (Act), challenges the common order dated 22.5.2015passed by the Income Tax Appellate Tribunal (Tribunal). Thecommon impugned order relates to the Assessment Years2008-09 and 2009-10. This appeal relates to AssessmentYear 2009-10. 2.The Revenue has urged following two questions of lawfor our consideration:- “(i) Whether on the facts and in the circumstances of thecase and in law, the Tribunal was justified in holdingthat the claim of the assessee cannot be denied forwant of genuineness and creditworthiness of thecreditor if repayment is proved in subsequent year andrestoring the matter to AO only for this limited purposeof verifying repayment ignoring the provisions ofSection 68 of the IT Act, 1961 under which onus lies onthe assessee to prove the genuineness andcreditworthiness of the credit at the time of credit whichthe assessee had failed to discharge?case and in law, the Tribunal was justified in holdingthat the claim of the assessee cannot be denied forwant of genuineness and creditworthiness of thecreditor if repayment is proved in subsequent year andrestoring the matter to AO only for this limited purposeof verifying repayment ignoring the provisions ofSection 68 of the IT Act, 1961 under which onus lies onthe assessee to prove the genuineness andcreditworthiness of the credit at the time of credit whichthe assessee had failed to discharge? (ii) Whether on the facts and in the circumstances of thecase and in law, the Tribunal was justified in directingthe AO to verify the details of repayment of loan andallow the assessee's claim if the same is found to becorrect even if the genuineness and creditworthiness ofthe creditors cannot be established without appreciatingthat reversal of entry or squaring up of the loan doesnot render a cash credit as explained in view of theprovisions of Section 68 of the IT Act, 1961?case and in law, the Tribunal was justified in directingthe AO to verify the details of repayment of loan andallow the assessee's claim if the same is found to becorrect even if the genuineness and creditworthiness ofthe creditors cannot be established without appreciatingthat reversal of entry or squaring up of the loan doesnot render a cash credit as explained in view of theprovisions of Section 68 of the IT Act, 1961? 3.Mr. Mohanty, the learned counsel for the Revenue, very fairly brings to our notice the order of this Court in respect ofthe Appeal filed by the Revenue from the common impugnedorder dated 22.5.2015 to the extent it relates to theAssessment Year 2008-09 being Income Tax Appeal No. 616of 2016 (Pr. Commissioner of Income Tax, Central 2 Vs. M/s.Skylark Build) decided on 24.10.2018 ( Coram : S.C.Dharmadhikari & B.P. Colabawalla, JJ ). It is pointed out that the very issues arising herein were the subject matter forconsideration of this Court in the above order dated24.10.2018 relating to the Assessment Year 2008-09. Inprinciple, the Court held that the impugned order of theTribunal calls for no interference. 4.Therefore, in the absence of any distinguishing featuresin respect of the appeal for the subject assessment year fromthat in Assessment Year 2008-09 which would warrant adifferent view, we are bound by the order of this Court dated24.10.2018. 5.Accordingly, two proposed questions do not give anyrise to any substantial question of law, hence, notentertained. 6.Thus, the Income Tax Appeal is dismissed. No order asto costs. the very issues arising herein were the subject matter forconsideration of this Court in the above order dated24.10.2018 relating to the Assessment Year 2008-09. Inprinciple, the Court held that the impugned order of theTribunal calls for no interference. 4.Therefore, in the absence of any distinguishing featuresin respect of the appeal for the subject assessment year fromthat in Assessment Year 2008-09 which would warrant adifferent view, we are bound by the order of this Court dated24.10.2018. 5.Accordingly, two proposed questions do not give anyrise to any substantial question of law, hence, notentertained. 6.Thus, the Income Tax Appeal is dismissed. No order asto costs. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]