TMI Blog2004 (3) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ion which was erroneous in law - we answer the question referred for our opinion in the negative and in favour of the Revenue and against the assessee. - - - - - Dated:- 8-3-2004 - Judge(s) : M. H. S. ANSARI., SOUMITRA PAL. JUDGMENT The instant reference is at the instance of the Revenue under section 256(1) of the Income-tax Act, 1961, whereby the following question of law arising out of the order dated September 6, 1993, of the Tribunal in I.T.A. No. 783/Cal of 1990 has been referred for the opinion of this court: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting the addition of Rs. 2,42,342 made under section 40A(3) of the Income-tax Act, 1961?" The brief facts of the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee during the assessment year in question (1985-86) in cash in excess of Rs. 2,500. In the light of the evidence produced by the assessee the same do not qualify for allowance under rule 6DD or the Board circular and, therefore, the requirements of the rule and circular having not been met, the Tribunal ought not to have interfered with the orders of the Assessing Officer as confirmed by the Commissioner of Income-tax (Appeals). On behalf of the assessee, Mr. J.P. Khaitan, sought to sustain the order of the Tribunal. It was submitted that disallowance made by the Assessing Officer as confirmed by the Commissioner (Appeals) is wholly unjustified in the instant case. It was further urged that there are exceptional circumstances for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Supreme Court in Attar Singh Gurmukh Singh's case [1991] 191 ITR 667, wherein the Supreme Court observed, as already noticed, that genuine and bona fide transactions are not taken out of the sweep of section 40A(3). The Commissioner of Income-tax (Appeals) in his order has considered the evidence on record also in the light of rule 6DD and the guidelines laid down by the Central Board of Direct Taxes in their Circular No. 220 dated May 31, 1977. The Assessing Officer as also the Commissioner of Income-tax in his order confirming the order of the Assessing Officer held that no evidence has been produced to show that there were exceptional or unavoidable circumstances justifying the payments in cash. The Tribunal as a final f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciated the facts as was found in Jeessop's case [1990] 181 ITR 358 (Cal). It is also not a case where the relevant facts have not been noticed or stated by the Tribunal as in Bengal Potteries's case [1980] 126 ITR 442 (Cal). Unlike the matter in CIT v. Indian Molasses Co. P. Ltd. [1970] 78 ITR 474 (SC) the case on hand is not one where the Tribunal gave no finding on the issue raised before it. A distinction has to be drawn between a case of no finding and the one on hand where a wrong conclusion is arrived at without arriving at a finding to the contra based on record before it. It is also not a case, in our view, that the Tribunal did not consider the relevant evidence. As already noticed supra, the finding of the Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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