9911796707
TMI Blog2013 (10) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee is engaged in trading and service of two wheelers. During the year under consideration, the assessee had shown gross profit of Rs. 30,43,890/- against a turn over of Rs. 2,92,65,368/-. During the course of assessment proceedings, the assessee was provided with opportunities to attend the hearing and to present the requisite details in support of the income declared and to respond to the queries of the AO; and, on its failure to respond, a final show cause notice dated 05.11.2008 containing the proposed grounds of concluding the assessment was issued and served upon the assessee. However, on the date fixed, neither the assessee nor its authorized representative attended the assessment proceeding nor any details of books of account were produced. 3. In the given circumstances, the AO proceeded to conclude the assessment proceedings ex-parte wherein, inter alia, the AO made the additions of Rs. 13,15,000/- on account of unexplained share capital contribution; and Rs. 39,40,000/- on account of unexplained unsecured loans. 4. In the appeal before the CIT(A), the assessee, however, submitted the details, confirmations, returns, affidavits, bank statements etc. from various pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made the payment by cheque, having their PAN, filing their return of income and furnished copies of return of income in the appellate proceedings and therefore, now there is no justification for the said addition of Rs. 13,15,000/- on account of addition for new share capital contribution and the same is hereby deleted." 6. Similarly, in relation to the addition of Rs. 39,40,000/- on account of unsecured loans received in the year, the CIT(A) again found that all the requisite confirmations with particulars of the creditors had been furnished; and the identity of cash creditors was not in doubt. Hence, the CIT(A) proceeded to delete such an addition too with reference to several decisions of this Court while observing as under: - ".....On this issue recently Hon'ble Rajasthan High Court in the case of Labhchand Bohra v. ITO dated 28.4.2008 reported in 8 DTR 44 has held that when the amount has been advanced by account payee cheque through bank then requirement on the part of asessee to prove identity and genuineness of the transaction is satisfied. Further, capacity of lender to advance money to the asesee was not a matter which could be required of the assessee to be establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharged and assessee is not required to prove the source from which the creditor could have acquired the money deposited with him. When identity of the cash creditor is not in doubt and assessee has filed confirmation letter where said creditor owned the credit and under these circumstances the addition made u/s 68 as unexplained cash credit were deleted. Considering the aforesaid factual and legal analysis of submission and evidence in my considered view the assessing officer was not justified in making aforesaid addition of Rs. 39,40,000/- u/s 68 of I.T. Act and AO is hereby directed to delete the same." 7. In the appeal preferred by the revenue, the ITAT, in its impugned order dated 30.05.2011, found the approach of the CIT (A) justified and proceeded to dismiss the appeal with the following observations: "10. After considering the orders of the AO and ld. CIT(A) and various details in shape of confirmations from the share applicants as well as from the creditors who also directors of the company, copies of returns of income and computation along with their Balance Sheets, we find that all necessary requirement to prove the loan as genuine has been satisfied. Assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealt with the issues 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 appeal. 10. The points as sought to be raised by the appellant-revenue in the present case are all the matters relating to appreciation of evidence. The relevant factors have been taken into account and considered by the appellate authorities before returning the findings in favour of the assessee. Even as regards the three referred share capital contributors, it is noticed that they are existing assessees having PA numbers; and are being regularly assessed to tax. The appellate authorities cannot be said to have erred in deleting the additions in their regard too at the hands of assessee-company. 11. Ultimately, the question as to whether the source of investment or of credit has been satisfactorily explained or not remains within the realm of appreciation of evidence; and the Courts have consistently held that such a matter does not give rise to any substantial question of law. In the case of CIT v. Orissa Corpn. (P.) Ltd. [1986) 159 ITR 78 (SC), the Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 based on no reasoning, or based on absurd reasoning to the extent that no prudent man of average judicial capacity could ever reach to such conclusion, or that it had b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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