TMI Blog2012 (10) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... jay Kothari for the Respondent. JUDGMENT Dinesh Maheshwari, J. - This appeal by the revenue under Section 260-A of the Income-Tax Act, 1961 ['the Act'] is directed against the common order dated 18.10.2004 as passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur ['the Tribunal'] in cross-appeals [ITA Nos. 50/JU/2002 and 73/JU/2002], filed respectively by the assessee and the revenue. 2. This appeal has its genesis in the assessment order dated 30.03.2001 relating to the respondent-assessee for the assessment year 1994-1995, as passed under Sections 143(3)/148 of the Act, whereby the Dy. Commissioner of Income Tax, Circle Bhilwara ['the Assessing Officer'/'the AO'] disallowed the cash credits and interest thereupon, as pertaining to 28 different creditors; and made the addition of an amount of Rs.17,85,243/- in the total income of the assessee. However, by the order dated 08.11.2001, the Commissioner of Income Tax (Appeals), Ajmer ['the CIT(A)'] partly allowed the appeal [No. 149/2001-2002] preferred by the assessee and deleted the addition relating to 25 creditors. Then, by the impugned common order dated 18.10.2004, the Tribunal dismissed the appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions urged on behalf of the respondent-assessee and in consequence, to dismiss this appeal. 5. The relevant facts and background aspects of the matter are as follows: The assessee, a company incorporated in the year 1987, purchased a plot of land in the year 1988-89 and constructed thereat a commercial complex in the name of Murli Textile Towers in the financial year 1993-1994. The company filed its return for the assessment year 1994-1995 on 13.11.1994. It was alleged that the said commercial complex project was financed by the loans received from various persons to the extent of about Rs. 24.14 lacs. However, certain incriminating documents were reportedly seized in a search and hence, a notice under Section 148 of the Act was served; and in response thereof, the return declaring loss of Rs. 2,450/- was filed on 08.06.1998. During the re-assessment proceedings, the Assessing Officer served the questionnaire and sought various details; and also recorded the statements of some of the alleged creditors. 6. In his assessment order dated 30.03.2001, the AO grouped the creditors under different categories. In category (A), the AO considered the matter relating to 3 unsecured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraphs 6, 6.1 and 6.2 in detail and after considering the entire record, held as under:- "6.3 On careful consideration of the details/evidence on record, it is seen that the AO has placed undue reliance on the stated non-attestation of the signatures of the creditors in the confirmations filed, particularly in the face of the other corroborating evidence of the IT returns filed/GIR/ PAN etc. The confirmations have been signed by the creditor as well as Shri Mohd Ayub, the Director. The confirmations also contained details as the date, particulars of receipt, of interest, GIR/PAN and copy of account. After having received these details, it was for the AO to establish that the details were false or incorrect, if he had any doubts. Moreover, the observations made by him about the cash deposit on the same date in the bank account and of the improbability of the cash savings lying at home, in any case were not applicable or shown to be applicable in respect of these creditors, listed at S.No. 1 to 13, as above. The reasons for non-service of the letter u/s. 133(6) had also been explained in the reply dated 23-02-01. In these facts and circumstances, the addition of Rs. 3,18,896 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary particulars being available on record and proceeded to delete the said addition in the following:- "8.3 On careful consideration of the details/evidence on record, it is seen that the AO has placed undue reliance on the stated non-attestation of the signatures of the creditors in the confirmations filed, particularly in the face of the other corroborating evidence of the IT returns filed/GIR/PAN etc. The confirmations have been signed by the creditor as well as Shri Mohd Ayub, the Director. The confirmations also contained details as the date, particulars of receipt, of interest, GIR/PAN and copy of account. After having received these details, it was for the AO to establish that the details were false or incorrect, if he had any doubts. Moreover, the observations made by him about the cash deposit on the same date in the bank account and of the improbability of the cash savings lying at home, in any case were not applicable or shown to be applicable in respect of these creditors, listed above. In these facts and circumstances, the addition of Rs. 8,00,032/- made by the AO, is not sustainable and is therefore deleted." 11. In relation to the person in category (C), standin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of income and balance sheet of the creditor and also supplied information of income, tax ward etc. where the creditors were being assessed. The money given to this assessee had been shown in their balance sheet and accordingly the same supported by availability of funds. All the persons who were called by the AO did affirm the fact of giving money and explained the sources. The AO had not brought on record any adverse material to show that the money credited in the name of these creditors is assessee's money only. The mere observation that the money was deposited in cash in the account of some of the creditors cannot lead to a conclusion that the money had been deposited by the assessee company only when some transactions were reflected in the balance sheet of the creditors. In the given facts and circumstances of this case, we do not find any reason to interfere with the order of the CIT (A). So, the ground of appeal filed by the department is dismissed." 14. However, the Tribunal deleted the additions made in respect of 2 of the other creditors, Shri Suresh Uppadhya and Shri Jagdish Chand Somani; and restored the matter to the file of AO for further inquiry in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, he should have made further enquiry u/s 133(6) or he could have issued summons u/s 133 of the Act. It seems that the Assessing Officer did not ask any specific query or question from the assessee. Also, in view of the settled issue that the Assessing Officer cannot expect the assessee to explain source of source. So, in our considered opinion, without bringing anything on record to prove the explanation given by the creditor as false, this addition cannot be sustained in the hands of this assessee. So, we delete this addition as well. 34. The credit in the name of Shyam Sunder Jhanwar was of Rs. 30,000/- and interest of Rs. 1,260/-. The Assessing Officer did not make any query and the creditor himself wrote a letter to him confirming the deposit to this assessee. Apparently, no enquiry has been made in the case of this creditor. Under these circumstances, we find that the matter needs to be enquired into by the Assessing Officer. We, therefore, consider it just and equitable to restore this issue back to the file of the Assessing Officer for considering it afresh." 15. It is at once clear from the perusal of the orders as passed by the CIT(A) and the Tribunal that so far t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, we find no reason to enter into the factual inquiry so as to appreciate and evaluate the evidence over again. 18. In the matter of present nature, where the appellate authorities have dealt with the matter in accordance with law and have returned the findings after examining the explanations offered by the assessee and by the creditors, we are of opinion that no interference is called for in this appeal. The points as raised in the question formulated in the present case in regard to the deposit of the cash amount in the creditors' account or about similar nature confirmations of the creditors, are all the matters relating to appreciation of evidence. These factors have been taken into account and consideration by the appellate authorities before returning the findings in favour of the assessee. Similarly, the question as to whether the source of the credit has been satisfactorily explained or not, again, remains essentially within the realm of appreciation of evidence. Worthwhile it would be to refer to some of the decisions cited by the learned counsel for the assessee where, in relation to acceptance of the explanation of the assessee, the Courts have held that the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts i.e. CIT(A) and Tribunal in this case, then in such event, a concurrent finding recorded on such explanation by two appellate Courts is binding on the High Court. 9. Perusal of impugned finding quoted supra would go to show that Tribunal did examine the explanation offered by assessee in detail and then recorded a finding for its acceptance. Such finding when challenged does not constitute a substantial question of law within the meaning of s. 260A ibid in an appeal arising out of such order. 10. In our opinion, therefore, once the CIT(A) and Tribunal accepted the explanation of assessee and accordingly, deleted certain additions made by AO holding the transaction of shares to be genuine, then it would not involve any substantial issue of law as such. In other words, this Court in its appellate jurisdiction under s. 260A ibid, would not again de novo hold yet another factual inquiry with a view to find out as to whether explanation offered by assessee and which found acceptance to the CIT(A) and Tribunal is good or bad, or whether it was rightly accepted, or not. It is only when the factual finding recorded had been entirely de hors the subject, or that it had been base ..... X X X X Extracts X X X X X X X X Extracts X X X X
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