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2005 (6) TMI 474 - ITAT MUMBAIAppellate Tribunal - condonation of the delay - Unexplained Cash credits - HELD THAT:- In our opinion there is no mala fide imputable to the assessee. The delay in our considered opinion in filing the appeal is the result of some omission on the part of its Tax Consultant’s staff. It must be remembered that in every case of delay there can be some lapse of the litigant concerned. That alone is not enough to turn down the plea and to shut the doors against him. If the explanation does not smack of mala fide or it is not put forth as a part of dilatory strategy, the Courts must show utmost consideration to such litigant. As observed by the Hon’ble Supreme Court in the case of N. Balakrishnan [1998 (9) TMI 602 - SUPREME COURT] the length of delay is immaterial. It is the acceptability of the explanation. That is the only criteria before condoning the delay. Therefore, taking into consideration the overall circumstances we condone the delay in filing the appeal and proceed to decide it on merit. According to section 68 of the Act if any sum is found credited in the books of account of an assessee maintained for any previous year and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not satisfactory in the opinion of Assessing Officer then the sum so credited may be charged to income-tax as the income of the assessee of that previous year. Therefore, for explaining the cash credit found to be recorded in the books of an assessee he is required to explain the source of such credit, identity of the creditors and genuineness of the transaction. This section contemplate that onus is upon the assessee to explain the availability of the cash in the books of account. Once the assessee discharged its primary onus it will be for the revenue to prove that evidence produced by the assessee are not reliable. In the present case assessee failed to discharge the primary onus put upon it. Even for the sake of arguments we ignore proceedings taken by the Assessing Officer u/s 133(6) for procuring information from the creditors or information gathered from the bankers u/s 131 then no other evidence is available justifying the claim of the assessee. As far as grant of opportunity of hearing is concerned. ld. First appellate authority has reproduced the written submission of the assessee in para 5 of his order. Ld. Assessing Officer has also granted sufficient opportunities but it is the assessee who failed to submit the requisite details. It did not choose to comply with the directions of the Assessing Officer in the assessment proceedings. When a specific finding of fact has been recorded against it, assessee did not rebut that finding by producing sufficient material, then did not bother to challenge the order of the ld. CIT(A) in time. Even before us did not file any paper book and failed to show us the alleged confirmation. Hence taking into consideration the overall casual approach of the assessee at every stage, more particularly keeping in view the stand of the assessee that creditors are family members of the directors from whom it can easily file confirmation etc. Therefore, in our opinion assessee cannot draw any benefit from both these decisions. We find no merit in this appeal. It is rejected.
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