TMI Blog2011 (11) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... Held that:- All the evidences were discussed before the AO and no additional evidence was taken on record at the stage of CIT(A) proceedings or before the Tribunal. Thus, it cannot be held that there was no compliance of statutory requirement of Rule 46 of the Rules, 1962. - Appeal is dismissed - TAX CASE NO. 22 OF 2006 - - - Dated:- 8-11-2011 - SATISH K. AGNIHOTRI AND RADHE SHYAM SHARMA, JJ. Rajeev Shrivastava and Sameer Shrivastava for the Appellant. L.L. Sharma and Anand Dadariya for the Respondent. JUDGMENT Satish K. Agnihotri, J. The instant appeal has been filed by the Commissioner of Income Tax, Bilaspur (hereinafter referred to as 'the Revenue') against the order dated 19.04.2006 passed by the Income Tax Appellate Tribunal, Jabalpur, (for short 'the Tribunal') in I.T.A No. 301/Jab/1999. 2. The appeal of the Revenue was admitted by this Court on 13.02.2007 on the following substantial questions of law: "( i ) Whether on the facts and in the circumstances of the case, the Hon'ble Income Tax Appellate Tribunal were right in law in deleting the sum of Rs. 19,30,000/- added by the Assessing Officer to the assessee's total income as undisclosed loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posal to invest the aforestated amount mentioned against their names, for the hotel project of Naresh Wassan. According to the AO, the financial position of those persons were not mentioned in the affidavit. Out of 10 persons, statement of five persons namely Rajnarayan Singh, Nanjibhai Patel, Jagmohan Wassan, Haribhai Patel, and Shri Kushabraj Lamba s/o Late Manoharlal Lamba were recorded by the Inspector of Income Tax in his presence. It was further observed that out of five persons, two were not the income tax payee namely Rajnarayan Singh and Shri Najibhai Patel. It was further stated that it was only a proposal and the hotel project could not be initiated as the money could not be arranged by them. The AO observed that no deponent could tell the date of alleged meeting which took place regarding construction of the hotel, though, a copy of the application dated 20.01.1992 filed before the Chief Executive Officer, S.A.D.A. Korba, was produced. Thus, the AO came to the conclusion that the proposed contribution mentioned in the assessee's diary does not appear to be correct but it was the loan given to the said persons by the assessee. It was held that the amount remained unexpla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, 10 different names were written and against one entry, only term 'cash' was written, holding that the amount mentioned therein was advanced as loans to the persons, was not proper. The affidavits filed by the persons clearly stated that they proposed to contribute for the hotel project but no money have been received by the either side. Thus, it does not suggest that the loan amount was given to them by the assessee. In view of that, the findings recorded by the CIT(A) was confirmed and the appeal filed by the Revenue was dismissed. 6. Shri Rajeev Shrivastava, learned counsel appearing with Shri Sameer Shrivastava, learned Advocate for the revenue would submit that the CIT(A) as well as the Tribunal have committed mistake in accepting the additional evidence i.e. the affidavits in contravention of Rule 46 of the Income Tax Rules, 1962 (for short 'the Rules, 1962'). In support of his contention, he would rely on decision of this Court in Commissioner of Income Tax v. Hi-tech Abrasives Ltd. Shri Shrivastava would next submit that the affidavits could not have been believed for want of corroborative evidences as other circumstances clearly suggested that the statements on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. He would also rely on a decision of the High Court of Rajasthan in CIT v. S.C. Sethi [2007] 295 ITR 351 wherein it was held that the finding recorded by the Tribunal, being finding of fact, did not gave rise to question of law. It was similarly held in CIT v. Kailash Chand Sharma [2005] 146 Taxman 376 (Raj.). Shri Sharma would further contend that the addition of income cannot be made solely on the basis of noting without corroborative evidences. In support of this contention, he would rely on a decision of the High Court of Punjab Haryana, in CIT v Vishal Rubber Products [2003] 264 ITR 542/[2004] 136 Taxman 151, and would pray for dismissal of this appeal. 9. Having heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto, it appears that the basic question in the case on hand is as to whether the finding of the AO, which was set aside by the CIT(A) and confirmed by the Tribunal, was just and proper. There is no dispute that the AO recorded the finding on the basis of entries mentioned in the diary at page 36. The AO has ignored completely the contents of the affidavits filed by the named persons and even in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been applied in appreciating the evidence, or when the evidence has been misread. (See Madan Lal v. Gopi, Narendra Gopal Vidyarthi v. Rajat Vidyarthi, Commr. of Customs v. Vijay Dasharath Patel, Metroark Ltd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd. )". 13. This Court, in CIT v. Shri Mangalchand Parekh [IT Appeal Nos. 16 170 2004, dated 17-10-2004] GE Road, Rajnandgaon10, observed as under: "30. In view of the foregoing, we are of the considered opinion that the findings recorded by the CIT(A) and affirmed by the ITAT are based on proper appreciation of facts and are not perverse, being correlated with each and every transaction. Thus, the issue is purely question of facts. No question of law, more so substantial questions of law, as aforestated, arise in the facts of the case. 31. As an upshot, both the appeals being bereft of merit, are liable to be and are hereby dismissed." 14. The instant appeal involves only on the question of facts, as the facts have been determined by the CIT(A) and affirmed by the Tribunal. Thus, it is a question of facts alone and no question of law, much less substantial question of law, arise in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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