The Commissioner Of Income Tax-21 v. In This Appeal By The Revenue Three Questions Of Law

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6973 OF 2010 The Commissioner of Income Tax-21.v. Smt. Ranjan D.Parikh. ..Appellant. ..Respondent. Mr.Suresh Kumar for the Appellant.Mr. B.B.Parekh for the Respondent. CORAM : J.P. DEVADHAR AND M.S. SANKLECHA, JJ. DATE : 22ND JANUARY, 2013 PC: In this appeal by the revenue three questions of law have been raised. However, the basic issue is formulated in Question (a) which reads thus: a)Whether there are unexplained cash credits in the books of the assessee and whether they are chargeable to income tax as income of the assessee u/s.68 of the Income Tax Act,1961? ASN 2)The respondent assessee had filed return of income for assessment year 1997-98. While passing the assessment order the Assessing Officer added an amount of Rs.35 lacs to the income of the respondent assessee under Section 68 of the Income Tax Act,1961 on the ground that the amounts shown as loan from seven parties are not genuine. The matter went in Income Tax Act,1961 on the ground that the amounts shown as loan from seven parties are not genuine. The matter went in appeal upto the Tribunal. The Tribunal by its order remanded the matter to the Assessing Officer with a direction to re-decide the issue according to law after giving opportunity of being heard to the respondent assessee. Further, the Tribunal and also directed issue according to law after giving opportunity of being heard to the respondent assessee. Further, the Tribunal and also directed the respondent assessee to file confirmation letters from its loan creditors with the Assessing Officer.creditors with the Assessing Officer. 3) On remand, the Assessing Officer gave a notice on 19/12/2006 directing the respondent assessee to produce the loan creditors before him on 21/12/2006. However, the respondent assessee was not able to produce the loan creditors. assessee was not able to produce the loan creditors. Consequently, the Assessing Officer by an order dated 26/12/2006 again added a sum of Rs.35 lacs under Section 68 of the Act in respect of the seven loan creditors shown by the respondent. 4) In appeal, the CIT (Appeals) called for a remand report from the Assessing Officer. In the remand report, the Assessing Officer did point out that all loan creditors had filed Notarized affidavits and one of the two Notaries had confirmed that five loan creditors had appeared before him for execution of the said affidavits. So far as the other Notary before whom two creditors had executed the affidavit was concerned, the remand report indicates that since the execution of the affidavit by the loan creditors, the Notary had expired. In spite of the aforesaid remand report, the CIT (Appeals) held that the respondent assessee had not discharged her onus to prove the creditworthiness of the creditors and the genuineness of the ASN transactions Thus, the order of the Assessing Officer dated 26/12/2006 was upheld. 5) In second appeal, the Tribunal by its order dated 18/6/2010 after examining the evidence on record allows the appeal of the respondent assessee. The Tribunal in its order records the following finding of facts. (a)The respondent assessee provided the Assessing officer with the name, address and telephone number of the broker who arranged the loan. (b)The respondent assessee provided details of the names, addresses, and numbers of the loan creditors. (c)creditors. The confirmation letters from the loan (d)Notarized affidavits of the creditors of having given the loan to respondent assessee. (e)The legal notice issued by M/s. Vinod Mistry & Co. Advocates and Solicitors on behalf of the seven creditors to the respondent assessee seeking to recover loan. 5) In second appeal, the Tribunal by its order dated 18/6/2010 after examining the evidence on record allows the appeal of the respondent assessee. The Tribunal in its order records the following finding of facts. (a)The respondent assessee provided the Assessing officer with the name, address and telephone number of the broker who arranged the loan. (b)The respondent assessee provided details of the names, addresses, and numbers of the loan creditors. (c)creditors. The confirmation letters from the loan (d)Notarized affidavits of the creditors of having given the loan to respondent assessee. (e)The legal notice issued by M/s. Vinod Mistry & Co. Advocates and Solicitors on behalf of the seven creditors to the respondent assessee seeking to recover loan. (f)A copy of the summons received from court as one of the creditor had filed a civil suit against the respondent assessee. (g)Notarized affidavits were filed by the loan creditors confirming the loan given. (h)The Assessing officer had not issued any summons to the loan creditors to appear before him. On the basis of the aforesaid facts the Tribunal concludes in Para 7 of its order as under. “As per the evidence before us, in our opinion, the assessee has established the identity of the loan creditors as well as the genuineness of the loan transactions. The assessee also entered into a settlement and repaid the loan and relevant evidences in respect of repayment made to the loan creditors are filed before us”. 7) In view of the above, it is clear that the decision of the Tribunal in the impugned order is based on finding of fact. The revenue has not been able to show that the finding is perverse . ASN Consequently, no question of law arises. 8)Accordingly, the appeal is dismissed with no order as to costs. (M.S.SANKLECHA, J.) (J.P. DEVADHAR, J.)