TMI Blog2005 (6) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Counsel for the assessee prayed the delay in filing the appeal may please be condoned. On the other hand, ld. D.R. opposed the prayer of the assessee and submitted that assessee failed to disclose as to when exactly the papers were handed over to the Chartered Accountant. 3. We have duly considered the rival contentions. The Courts and the quasi-judicial bodies are empowered to condone the delay if a litigant satisfied the Court that there were sufficient reasons for availing the remedy after expiry of the limitation. Such reasoning should be to the satisfaction of the Court. The expression "sufficient cause or reason" as provided in sub-section (5) of section 253 of the Income-tax Act is used in identical position in the Limitation Act and the CPC. Such expression has also been used in other sections of the Income-tax Act such as sections 274, 273, etc. The expression "sufficient cause" within the meaning of section 5 of the Limitation Act as well as similar other provisions, the ambit of exercise of powers thereunder have been subject-matter of conside-ration before the Hon ble Supreme Court on various occasions. In the case of State of West Bengal v. Administrator, Howrah Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free to consider the cause shown for the delay afresh and in its own finding even untrammelled by the conclusion of the lower Court. 10. ****** The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause." [Emphasis supplied] The Hon ble Supreme Court further observed that rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek the remedy promptly. The Hon ble Court further observed that refusal to condone the delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the Court is always deliberate. The Hon ble Supreme Court in SLP (Civil No. 12980 of 1986, decided on 19th February, 1987, in the case of Collector, Land Acquisition Ors. v. Mst. Katiji Ors. [reported at [1987] 62 CTR (Syn.) 23 (SC)] has laid down the following guidelines : 1.Ordinarily a litigant does not stand to benefit by lodging an appeal late. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ( supra ) 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. 6. The grievance of the assessee on merits relates to confirmation of addition of Rs. 31,50,000. The brief facts of the case are that return of income was filed on 28-3-2002 declaring total income at Rs. nil. During the course of assessment proceeding the ld. Assessing Officer found a share capital of Rs. 30 lakhs and unsecured loan of Rs. 1,50,000 in the books of account of the assessee. He directed the assessee to explain the share capital money as well as unsecured loan. In response to the Assessing Officer s query assessee submitted confirmation and disclosed that share capital and unsecured loan have been taken from the family members of the directors. Ld. Assessing Officer noted down the details of the persons, amounts appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, ld. D.R. relied upon the orders of the revenue authorities below. He submitted that ld. CIT(A) has specifically taken into consideration the written submission filed by the assessee. 9. We have duly considered the rival contention. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer issued summons under section 131 to the creditors for appearance. The summons were returned with the endorsement "left". Due to the non-service of the summons ld. Assessing Officer treated the cash credit as unexplained. The Tribunal deleted this addition on the ground that assessee has duly explained the cash credits. This order of the Tribunal has been upheld up to the Hon ble Supreme Court. The basic difference between the case relied upon and the present one is that assessee there filed the proper confirmation details of hundies and General Index Number of the creditors with Income-tax Department before the Assessing Officer. However, in the present case the assessee failed to file a proper confirmation in spite of number of opportunities. The second case law is also not applicable on the facts of the present case. In that case the issue relates to the scope of power available under section 263 of Income-tax Act with the Commissioner and there the Hon ble High Court has made certain observation. The High Court did not interfere in the order of the Tribunal on the ground that no law point is involved. This order of the Hon ble High Court has been upheld by Hon ble S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
