TMI Blog2016 (8) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... enuineness of the transactions. In the opinion of this court, taking into account the concurrent findings of fact recorded by the Commissioner (Appeals) and the Tribunal, it cannot be said that the conclusion arrived at by the Tribunal is, in any manner, contrary to the record or that the same suffers from any legal infirmity so as to give rise to any question of law, much less a substantial question of law warranting interference. - TAX APPEAL NO. 195 of 2016 with TAX APPEAL NO.196 of 2016 - - - Dated:- 22-3-2016 - MS. HARSHA DEVANI AND MR. G.R.UDHWANI FOR THE APPELLANT : MR SUDHIR M MEHTA, ADVOCATE ORAL ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. These appeals under section 260A of the Income Tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f return of income, bank statement, etc. before the Assessing Officer, even though the persons could not be traced at the given addresses as the summons issued by the AO were returned back or could not be served as those persons were not available at the given addresses? [2] Whether on facts and in the circumstances of the case and in law, the Hon ble ITAT is justified in doubting the attempt made by the Department in serving the summons in A.Y. 2007-08, when the AO had issued summons not only during the course of assessment proceeding on 18.12.2009 but also during the course of remand proceedings on 25.10.2010 to verify the identity of the alleged depositors through Ward Inspector and Notice Server and in both the occasions, it was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer has directed the assessee to produce following details, namely, name, address, PAN, of all the persons who had made advances to the assessee and also to produce all these persons before him. Such exercise was to be carried out by the assessee before 11.12.2009. The Assessing Officer observed that on 18.12.2009, no one had attended on behalf of the assessee, therefore, he issued summons under section 131 of the Act to the investors. The summons could not be served upon the investors by the process server and he reported that the addresses submitted by the assessee were incomplete. The Assessing Officer issued notice dated 22.12.2009 calling upon the assessee as to why these advances should not be treated as unexplained credit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals), who allowed the appeals. The revenue carried the matters in appeal before the Tribunal, but did not succeed. 4. Mr. Sudhir Mehta, learned Senior Standing Counsel for the appellant, assailed the impugned order by submitting that the Tribunal has failed to appreciate that mere filing of copy of acknowledgment of return filed and bank statement does not prove the creditworthiness of the transaction. It was pointed out that all the summons were issued to the alleged parties at the address mentioned in their respective latest return of income, however, none of them were found at the given address, not only by the employee of the Department, but also by the postal authorities. It was submitted that the assessee had fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before him. According to the Commissioner (Appeals), the physical presence of the customers was not required at all as all the relevant details related to them were available with the Assessing Officer and merely because the parties did not appear before him, the transactions cannot be held to be nongenuine. He was further of the opinion that the advances remained unproved but not disproved as held by the Jurisdictional High Court in the case of National Textiles v. Commissioner of Income Tax , (2001) 249 ITR 125, wherein the court held that if an assessee gives an explanation which is unproved but not disproved, that is, it is not accepted but circumstances do not lead to a reasonable and positive inference that the assessee s case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o how the Assessing Officer could not serve the notices upon these persons was not specifically discernible. It took note of the fact that there were two sets of evidences. The alleged assertions of the Assessing Officer on the basis of the alleged report of the process server which has not been placed on record by the revenue, nor reproduced by the Assessing Officer in the assessment. The Assessing Officer has not even made reference to any particular witness in whose presence the process server had tried to locate the alleged investors. Whereas on the other hand, the assessee has furnished copies of the income tax returns, bank statement, PAN coupled with the fact that the amounts have been returned through account payee cheques, which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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