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CIT Versus Mihir Kanti Hazra

2015 (5) TMI 319 - CALCUTTA HIGH COURT

Addition u/s 68 - ITAT deleted addition - Held that:- In this case the assessee was given fullest opportunity to prove his case. The view that the source of income of the creditors and their creditworthiness was required to be gone into militates against the view taken by the Tribunal.

The learned Tribunal, it is obvious, did not examine the correctness of the views expressed by the assessing officer and the CIT (Appeals). No reasons have been disclosed as to why the views expressed b .....

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d:- 28-4-2015 - Girish Chandra Gupta And Arindam Sinha JJ. For the Appellant :Mr. S.Mookherjee For the Respondent : Mr. Avratosh Mazumder,ld.Govt.Pleader & Advocate Mr. Avra Mazumder, Advocate ORDER The Court: The application for condonation of delay of 38 days in filing the appeal, after hearing the parties, is allowed. The application being G.A. No.904 of 2015 is thus disposed of. The subject matter of challenge in the appeal is a judgement and order dated 10th September, 2014 passed by th .....

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Assessing Officer under Section 68 of the Income Tax Act, 1961, and which was upheld by the Commissioner of Income Tax (Appeals) by ignoring the facts recorded by the Assessing Officer as also the Commissioner of Income Tax (Appeals) and whether in such view of the mater the decision of the Tribunal could be said to be perverse? (II) Whether on the facts and in the circumstances of the present case the Tribunal was justified in law in applying the ratio in the case of Dataware Private Limited (b .....

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. Notices were served upon the balance 30 persons. 22 of them did not turn up. 8 of them did. Some of them deposed that they never lent any money. Some of them were undecided. The assessing officer, for reasons recorded, was of the opinion that the creditworthiness of the alleged creditors and the genuineness of the transactions were not proved by the persons who responded to the summons under section 131. Those who did not turn up, naturally, were not examined. The assessee failed to furnish an .....

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the confirmation of the loans by all the loan creditors. Further a perusal of the paper book clearly shows that all the creditors are assessed to income tax and they have filed their returns on income for the assessment year 2006-07 in March, 2007. The assessment in the case of the assessee has been initiated only after March, 2007, so obviously it cannot be assumed that the returns had been filed by the creditors after the initiation of the assessment proceedings in the case of the assessee. Fu .....

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the case of Dataware Private Limited referred to supra as also the decision dated 15.07.2014 of the coordinate Bench of this Tribunal in the case of Jyoti Saraf referred to supra, the addition as made by the Assessing Officer and as confirmed by the Ld.CIT (Appeals) stands deleted. The learned Tribunal, it is obvious, did not examine the correctness of the views expressed by the assessing officer and the CIT (Appeals). No reasons have been disclosed as to why the views expressed by the CIT (App .....

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xpressed:- It is for the assessee to prove the identity of the creditors, their creditworthiness and the genuineness of the transactions. In our view, on the facts of this case, the Tribunal did not take into account all these ingredients which have to be satisfied by the assessee. Mere furnishing of the particulars is not enough. The enquiry of the Income-tax Officer revealed that either the assessee was not traceable or there was no such file and, accordingly, the first ingredient as to the id .....

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ot for the Income-tax Officer to find out by making investigation from the bank accounts unless the assessee proves the identity of the creditors and their creditworthiness. Mere payment by account payee cheque is not sacrosanct nor can it make a non-genuine transaction genuine. An appellate authority, it is well settled, does not interfere because the order is not right. The appellate authority has jurisdiction to interfere only when the order is wrong. Reference may be made to the judgement of .....

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d produced documentary evidence to show that the loan was backed by hundi transaction. Discharged hundies were also produced by him. But the lenders could not be produced for the purpose of giving evidence. The assessee wanted more time to adduce evidence in support of the loans he had obtained which the assessing officer refused to give. It is in that case that the Tribunal and the High Court had held in favour of the assessee and the Supreme Court refused to interfere. The views expressed by t .....

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ether they were creditworthy or were such who could advance the alleged loans. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the assesee could not do any further. In the premises, if the Tribunal came to the conclusion that the assessee has discharged the burden that lay on him then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the conclusion is based on some evidence on which a conclusion could .....

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