TMI Blog2016 (2) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer of capital asset by way of distribution of capital asset on dissolution of firm or otherwise. Such profit and gain would be chargeable to tax as income of the firm in the previous year in which said transfer took place and, for the purpose of Section 48, the fair market value of the asset on the date of such transfer shall be deemed to be full value of the consideration received or accrued as a result of such transfer. However, the sine qua non of the applicability of this Section is the transfer of capital asset by way of distribution of capital asset. In the case under appeal before us, it has not been pointed out by the Assessing Officer or the learned DR whether there was any distribution of capital asset. The Assessing Officer le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of the assessee from large number of persons. In the bank account of the creditor, there was cash deposit immediately before issue of cheque to the assessee. That no satisfactory explanation was given by the assessee for cash deposit in the bank account of the creditor and the creditor was not produced for examination before the Assessing Officer. Therefore, the Assessing Officer was fully justified in treating the credit to be unexplained cash credit u/s 68 of the Income-tax Act, 1961. Learned CIT(A) deleted the addition without properly appreciating the facts of the case. She, therefore, submitted that the order of learned CIT(A) should be reversed and that of the Assessing Officer may be restored. 4. Learned counsel for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 10 11 of the assessment order are either irrelevant or very weak in the given facts and circumstances of the case. Once the evidence of their being assessed to tax along with copies of I.T. returns and confirmations are furnished; the nature of source of income in their hands can very well be ascertained. Some ladies were not produced on religious grounds but even then the appellant s counsel had offered that, if necessary, they would be produced and that, preferably an Inspector can go to their residence and record their statements. The Assessing Officer could have favourably acceded to assessee s request to that extent. The appellant has offered to produce these creditors before me; but on the face of more than satisfactory details, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Apex Court in the case of Orissa Corporation P.Ltd. (supra) would be squarely applicable. In the said case, there was credit balance in the account of the assessee in the name of three parties. The assessee gave confirmation of all the three creditors who were assessed to tax. Their general index numbers with the Department were also given. The Assessing Officer issued summons u/s 131 of the Act to the creditors which were returned unserved with the remark left . 7. Thereafter, the Assessing Officer made the addition of ₹ 1,50,000/- as unexplained cash credit. The ITAT deleted the addition holding that merely because the assessee could not produce the parties, an adverse inference should not be drawn that the amount represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue was not satisfied about the creditworthiness of the creditors, it could have examined the creditors as they were assessed to income tax and all particulars relating to them were with the Assessing Officer. In view of the above, in our opinion, the above decision of Hon ble Apex Court would be squarely applicable to the facts of the assessee s case and, respectfully following the same, we do not find any justification to interfere with the order of learned CIT(A). The same is upheld and ground No.1 of the Revenue s appeal is rejected. 9. Ground No.2 of the Revenue s appeal reads as under:- That the ld.CIT(A) has erred in law and on facts by deleting the addition of ₹ 36.93 lacs on account of long term capital gain a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r association of persons or body of individuals (not being a company or a co-operative society) or otherwise, shall be chargeable to tax as the income of the firm, association or body, of the previous year in which the said transfer takes place and, for the purpose of section 48, the fair market value of the asset on the date of such transfer shall be deemed to be the full value of the consideration received or accruing as a result of the transfer. 13. Section 45(4) of the Act would be applicable if there is transfer of capital asset by way of distribution of capital asset on dissolution of firm or otherwise. Such profit and gain would be chargeable to tax as income of the firm in the previous year in which said transfer took place an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
