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TMI Blog2005 (2) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years 1986-87 to 1989-90. CCPL filed an application before the Commission disclosing the said sum for the assessment year 1989-90. According to the assessee, since the said sum was subjected to tax at the hands of CCPL, it cannot be taxed in his hands. So far as the sum relating to Rs. 1,00,000 is concerned, the assessee requested one S.K. Pincha to make payment of the said sum to RICCO on his behalf and debit it to his account. Accordingly, on November 16, 1988, Pincha got a draft of Rs. 1,00,000 and paid to RICCO. The said sum of Rs. 1,00,000 together with interest totalling to Rs. 1,05,625 was credited by the assessee in his books in the name of said Pincha. Confirmation letter from said Pincha along with income-tax file number and copy of receipt for filing return were adduced. According to the assessee, since the identity of the creditor and genuineness of the loan were established, the order of the learned Tribunal regarding the addition of the said sum on the ground of unexplained loan credit is erroneous and thus perverse. In this factual backdrop, let us examine how the Revenue dealt with the assessment. The assessee had filed its return of income. The Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Cosmopolitan Construction P. Ltd. These facts are not borne out of the order of the Settlement Commissioner under section 245D. We, therefore, confirm the addition." While dealing with the addition of Rs. 1,05,625 the Tribunal held as follows: "We have considered the rival submissions and have gone through the paper book submitted by the learned Authorised Representative and we have also perused the orders of the lower authorities. Prima facie, it appears that the assessee had made an investment amounting to Rs. 1,05,625 in purchasing of land at Bhiwadi. This fact has been clearly brought out by both the lower authorities who in the absence of any documentary evidence, creditworthiness of the creditor, bank statement and/or other evidence, in support of the claim of investment in land at Bhiwadi was made disallowed/added under section 68. The affidavit, copy thereof has been filed by the Authorised Representative, also leaves much to be desired which remained unfulfilled before the lower authorities. This affidavit speaks of refund of loan together with interest which has not been substantiated by the learned Authorised Representative before us. The creditworthiness of the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed diary marked UPD 10, which appears at page 78 of the supplementary paper book. The Settlement Commission taking note of project 206 assessed the entire additional income of CCPL for the assessment year 1989-90 at Rs. 4,13,840 which included the income from the said project 206 after taking into consideration the undisclosed cash receipts including those reflected in the seized diary UPD 10. It was contended that the cash amount mentioned in the seized diary UPD 10 relating to the construction business of CCPL, have already been assessed in its hands, the same cannot be included in the assessment of the assessee. The submission was made that though the assessee duly explained the factual position before the Commissioner of Income-tax (Appeals), yet he held that the cash receipts had not been accounted for by CCPL and that the same were required to be taxed in the hands of the appellant. According to Mr. Khaitan since the assessee had duly explained the nature and source of the sum in question, the finding of the Tribunal is perverse and the addition of Rs. 2,95,002 should be deleted. Regarding the addition of Rs. 1,05,625 on account of unexplained loan and relying on the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on upon the Revenue to apply its discretion judicially and rationally, it is to be seen whether while dealing with the issue, the identity of the person and creditworthiness were established and the genuineness of the transaction was tested. Before us pages 56 to 78 of the supplementary paper book reveal the names and details of payment made in cheques and cash which were disclosed by CCPL before the Settlement Commission. The identity of the persons was established. Creditworthiness was not in dispute. The transaction under project 206 in cheques and cash between the purchaser and CCPL was not disbelieved. If the transaction between the purchaser and the company is established, then the genuineness cannot be questioned. Therefore, once the transaction including cash transaction is accepted, until it is identified that a particular entry in UPD 10 was not included in the said disclosure in the settlement, no definite conclusion could be arrived at that this amount was not included within the said disclosure in the settlement. When this cannot be conclusively decided, the benefit, if there be any, would accrue to the assessee. Thus, in our view, the learned Tribunal was not justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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