TMI Blog1996 (8) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... nce relates to the assessment year 1982-83. The Assessing Officer found that there was a cash credit of Rs. 2 lakhs as on April 1, 1981, standing in the name of six persons including minors. The Assessing Officer asked the assessee to produce the creditors, but the assessee replied that the parties had confirmed the credits by their letters given earlier. The Assessing Officer observed that the assessee did not give any reason for non-production of the creditors in spite of the specific direction given by him. He examined the records of some of these parties and held that those parties would not have made the credits as claimed by the assessee. The Assessing Officer also observed that as the assessee was reluctant to produce the persons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove that the creditors were genuine. However, the assessee failed to discharge his burden. Thus, the Appellate Tribunal was of the opinion that the Income-tax Officer was justified in not accepting those materials. The assessees requested the Tribunal to refer the above question. This reference was heard by this court at some length on March 30, 1994, and after hearing the parties, this court felt that in order to answer the question certain more facts were necessary. Accordingly, an order was passed by this court under section 258 of the Act by observing thus : " In the statement of the case drawn up by the Tribunal we do not find anything in this regard. Therefore, we direct the Income-tax Appellate Tribunal to prepare a suppleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Tribunal. On the rival contentions of the parties, it is to be seen whether in the facts and circumstances of the case the question referred can be said to be arising out of the order. Mr. Bhuyan vehemently argues that the question of maintenance of books of account was never raised at any stage and the Tribunal had no opportunity to go through that aspect of the matter, therefore, it cannot be said to be an order arising out of the order. In this connection, Mr. Bhuyan has drawn our attention to a decision in CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC). Referring to this decision, Mr. Bhuyan submits that the question does not arise out of the order of the Appellate Tribunal. He has also drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under section 68 of the Act, therefore, the first condition necessary for invocation of the power is the existence of the books of account. The Tribunal restored the order passed by the Assessing Officer, who in his order clearly mentioned that he invoked the power under section 68 of the Act as the assessee could not explain the income satisfactorily. Now, the question is whether the order of addition of the amount by the Assessing Officer was challenged before the appellate authority. The Commissioner of Income-tax (Appeals) allowed the appeal filed by the assessee and thereafter, the Revenue preferred appeal before the Tribunal. In order to justify the addition of the amount, it was the duty of the Tribunal to look to section 68 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked for such comments. In our opinion, the Tribunal was a little over zealous in giving the information which was not called for. The next submission of Mr. Bhattacharjee is that invocation of power under section 68 was not applicable inasmuch as the condition necessary for invocation of power under section 68 was the existence of books of account. Before the Tribunal, the representative of the Revenue has very categorically stated that there were no such books of account. However, reference was made regarding books of account by the firm stating that cash credits had been found and those were added under section 68 of the Act by the Assessing Officer, rejecting the assessee's submission that the cash credits would be accepted as genuin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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