TMI Blog2017 (3) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... tors or transporters for establishing that the liability has ceased could not be shifted upon the respondent - assessee. We do not find any material brought on record by the Assessing Authority to establish that such transporters could be actually brought before the Assessing Authority and upon their cross examination, their transactions were found to be fake or incorrect. On the contrary, the documentary evidence which was brought on record by the assessee perused the learned Tribunal, who had returned the a foresaid findings of facts in favour of the respondent-assessee. These findings of the facts appear to be just and proper and correct. - Decided against revenue - INCOME TAX APPEAL NO. 100139/2015 - - - Dated:- 20-2-2017 - DR. VINEET KOTHARI AND MR. SREENIVAS HARISH KUMAR JJ. Mr. Y.V. Raviraj, Adv. for the appellants. Mrs. Jinita Chatterjee, Adv. for respondent. JUDGMENT DR. VINEET KOTHARI. J, 1. The Revenue has filed this appeal U/S. 260A of the Income Tax Act, 1961 (for Short, the Act ) aggrieved by the order passed by the Income Tax Appellate Tribunal, whereby allowing the assessee s appeal in ITA No. 399 /PNJ/2 014 for the Assessment Year 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing channel, we are of the view that this party do exists at a relevant time. The Department has also accepted the written off for the same party. Therefore, in our opinion, no addition can be made u/S. 41(1) of the Act. 9) In respect of Aniketh Enterprises, the assessee has produced copy of ledger account at page Nos. 20 and 21, which reveals that amount has been paid by the assessee through RTGS. The assessee has filed the confirmation letter of the said party and also filed copy of income tax return. Therefore in our opinion, no addition can be made in respect of Hanuman Traders Veerabhadreshwara Enterprises, the assessee has submitted that these are the transport creditors and payment has been made to both the parties through RTGS. The parties do exist with the Income Tax Department and they have also filed the return of income. We find that the assessee has incurred the expenditure towards transportation and transport contractors received the bills in the month of March and payments were made through banking channel in 2010 and confirmation letters were obtained from them and closing account copy of the same was produced at the time of assessment proceedings. The Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the revenue. In this case, all the relevant details i.e. names of the creditors and their addresses, PAN was available with the Assessing Officer and it is duty of the Assessing Officer to prove that those creditors were fiction. Therefore, in our opinion, action of the Assessing Officer as well as Ld. CIT(A) is not justified, hence we allow the appeal. In the result, the appeal of the assessee is allowed. 4. The learned counsel for the Revenue, Mr. Y.V. Raviraj submits that, these findings of the Tribunal cannot be sustained in view of non-production of the creditors before the Assessing Authority by the assessee. 5. On the other hand, the learned Counsel appearing for the respondent-assessee, Mrs. Jinita Chatterjee, relied upon the decision of the Division Bench of this Court in the case of The Commissioner of Income Tax and Others V/s. M/s. Alvares Thomas (ITA No. 658/2015), decided on 24.03.2016. She has submitted before us that, the Division Bench of this Court, in turn relying upon the decision of the Delhi High Court, in the case of The Commissioner of Income Tax-III V/s. Shri. Vardhman Overseas Ltd. reported in (2012) 343 ITR 408 (Delhi), has rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be traced and therefore debt could not be verified then also, by no stretch of imagination can it be held that it would satisfy the requirement of cessation of liability. In legal parlance, merely because the creditor could not be traced on the date when the verification was made, same is not a ground to conclude that there was cessation of the liability. Cessation of the liability has to be cessation in law, of the debt to be paid by the assessee to the creditor. The debt is recoverable even if the creditor has expired, by the legal heirs of the deceased creditor. Under the circumstances, in the present case, it can hardly be said that the liability had ceased. If the liability had not ceased or the benefit was not taken by the assessee in respect of such trade liability, in our view, the conditions precedent were not satisfied for invoking Section 41(1) of the Act in the instant case. 10. The Tribunal has rightly relied upon the decision of Delhi High Court in the case of Vardhman Overseas Ltd., The discussion of the decision of Delhi High Court was relevant, for consideration of the facts of the case in order to find out as to under what circumstances it could be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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