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TMI Blog2017 (9) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... , in dismissing the Appeal, according to Mr. Malhotra, by it's order dated 7th May, 2014, has not appreciated the factual materials in their proper perspective and consistent with the provisions of law. 3. The two questions proposed, according to Mr. Malhotra, are substantial questions of law. On the first question, he would submit that the assessee disclosed that he is a civil contractor. He is in the business of lifting and transporting municipal waste/refuse by hiring out its compactor trucks to Municipal Corporation of Greater Mumbai. The return of income was filed on 29th October, 2007 declaring income at Rs. 16,61,590/. The Assessing Officer finalized the assessment on 21st December, 2009 under Section 143(3) of the Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and without application of mind to the fact that the vehicles and the parties who have been engaged on such contract basis have no nexus, nor it could be established. It is in these circumstances that the Assessing Officer rightly concluded that these payments do not appear to be genuine. Such finding should not have been interfered with by the First Appellate Authority and it's order to that effect should not have been maintained by the Tribunal. 7. Equally, Mr. Malhotra would submit that the second question was the addition made under Section 68 of the Income Tax Act, 1961 by the Assessing Officer. A loan of Rs. 68,62,626/in the name of nine parties was shown but it was brought on record by the Revenue that there was no income wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and all the annexures thereto. 11. Taking up the second question first for consideration, what we find is that the addition of Rs. 54,00,000/was made by the Assessing Officer under Section 68 of the Income Tax Act on account of unexplained unsecured loans shown by the assessee in the balance sheet. This amount was shown as loan taken from nine parties. Out of the nine parties, according to the Assessing Officer, except three, there is no justification or explanation for the six remaining persons/creditors. The Assessing Officer held that the assessee has not proved the capacity or genuineness of the parties to undertake such huge loan transactions and due to various discrepancies in the papers produced before him, he has reached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n service of the summons or the absence of the party before the Assessing Officer cannot be the sole ground to doubt the genuineness of the transactions or capacity of the party. The party is identified and together with that, there is proof of its financial capacity. 14. Similarly, the First Appellate Authority found that there are sufficient materials even in cases of loans appearing in the name of Samir Jayantilal Shah, Shantiben S. Shah and Charmi A. Mehta. Like Mukti Exports, even these parties are assessed to Income Tax. Their documents together with that of one Vijay D. Shah have been referred in paragraph nos. 17.2, 17.3 and 17.4 of the C.I.T.'s order. In their cases as well, the records revealed that there is sufficient balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, and particularly when it proceeded to analyze the transactions and the issue in an overall manner. It did not agree with the Assessing Officer but with the First Appellate Authority because there was overwhelming documentary evidence on record to support the conclusion of the First Appellate Authority. 17. Hence, the second question proposed by the Revenue cannot be termed as a substantial question of law. 18. The first question is proposed by the Revenue because the Commissioner of Income Tax (Appeals), according to the Revenue, erred in deleting the addition of Rs. 2,31,39,030/made by the Assessing Officer towards transportation charges. The argument was that this deletion has been made without appreciating the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Appellate Authority approached the matter from the angle that it was the responsibility of the Assessing Officer to investigate from the bank accounts, and particularly the cheques issued, whether they were actually received by the parties or whether there has been no credit for the same in their books of account. More so, when the Assessing officer could have verified these facts by making inquiries from the Municipal Corporation of Greater Mumbai for it released a total sum of Rs. 4,67,62,320/to the Assessee. 22. It is clear from the order of the Tribunal that it did not rest its conclusions only on the finding that the Assessing Officer has not carried out a complete exercise. The Tribunal perused the material produced on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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