9911796707
TMI Blog1979 (4) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; 3. In the aforesaid two assessment years cash credits to the extent of ₹ 90,000 and 91,000 respectively were shown in the books of the assessee. The details whereof may be stated. 1962-63 Rs. (1) Gajanand Agarwal 10,000 on 13th Sept., 61 10,000 on 20th June, 63 20,000 (2) Pushker Lal Agarwal 10,000 on 29th Sept., 61 (3) Smt. Sita Devi 10,000 on 11th Oct., 60 20,000 (4) Smt. Jamuni Devi 20th Dec., 60 25,000 20th Dec., 60 25,000 90,000 "1963-64 (1) Smt. Rukmini Devi 9th April, 62 31,000 (2) Smt. Sarda Devi 7th May, 62 30,000 (3) Pushar Lal Agarwal 10th Nov., 61 10,000 (4) Smt. Jamuni Devi 6th Aug., 62 5,000 (5) Smt. Sita Devi 5,000 (6) Gajanand Agarwal on 10th Nov., 61 10,000 91,000 The assessee was called upon to explain the nature and sources of these deposits. The ITO, the AAC, as also the Tribunal after examining the materials adduced have come to the conclusion that the cash credits could not be accepted as genuine, Relying on s. 68 of the IT Act, 1961 the sums so credited were charged to income-tax as the income of the assessee in the previous year. Having failed to satisfy the authorities concerned, the petitioner filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been rejected on some surmises or conjectures then it has become a question of law as to whether the finding recorded by the Tribunal or the Departmental authorities is binding in a reference case. It has also been held that if the finding is recorded upon no evidence or is so perverse that any reasonable body or person could not have taken that view then also the finding is not binding on the High Court. If the money was found to have been deposited by the partners in the books of account of their partnership firm and if the fact of deposit was believed then the mere failure of the partners to explain from where they got the money did not justify the addition of the amount of cash crediting the firm's income." The difference brought about by the introduction of s. 68 of the Act has also been noticed in the aforesaid decision. What the legal position is, even after introduction of s. 68, is clear from the following observations :' "if the assessee offers no explanation for the sum fund credited in his books, the sum so credited has got to be added to the income of the assessee. To that extent there is no difficulty in saying that previously the law was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first year itself, namely, 1957-58 which can not be accepted. (ii) Returns have been filed by Gajanand for five years, namely, 1955-56 to 1961-62 on one date i.e., 17th Sept., 1962, very close to the date of the credits as shown in the books of accounts of the assessee. (iii) The register that had been produced before the ITO was very similar in size and colour to the registers produced in case of the other creditors, which showed that it was the assessee and not the alleged creditors who had got the registers prepared. In order to show that Gajanand had enough capital to advance the loan personal expenses has been shown to be ₹ 500 to 600 per annum. This was impossible to accept. In view of these circumstances the ITO came to the conclusion that Gajanand was not in a position to advance the sums claimed by him to the assessee. The AAC has, apart, from the reasons aforesaid mentioned that the appellants, statement made before him was that he was doing Hosiery Business but as per assessment order he was stated to be doing mica brokerage and money lending business. The Tribunal has not dealt with the case individually but has observed that it is not known what were the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital initially employed was locked up in the business itself. Taking all these into consideration it cannot be said that any error or law was committed by the taxing authorities concerned in arriving at the conclusion to which they have arrived at in relation to the case regarding advance made by Pushker Lal Agrawal. 9. Case of Sita Devi and Jamuni Devi are also similar. nether of the two ladies appeared before the ITO in compliance to the summons under s. 131 of the IT Act, Affidavits were, however, sworn to explain the cash-credits. The affidavits have not been accepted for the following reasons:' (i) There was no evidence to prove that they had saved the amount claimed by them and they were available to them to be invested with assessee. (ii) That income-tax return for 5 years were filed on the same date i.e., 10th Sept., 1963. At the time of assessment neither accounts nor details of pawn brokering or money lending business were produced. It was thus not possible to verify whether the sums claimed had been earned. (iii) That the registers maintained by them were similar in size and colour to the registers maintained by the other creditors. (iv) The hand-writing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. The learned counsel for the assessee pointed out that the material adduced before the ITO definitely showed that Rukmani Devi was carrying on independent business. He referred to the assessment order for the year 1958-59 (page 40 of the brief) wherein it is observed as follows: "On the basis of local enquiry it was learnt that the assessee was in the habit of giving small amounts of loan against pledges or ornaments and house hold utensils and has been deriving taxable income therefrom." The learned counsel contended that the authorities have made a wrong assumption in thinking that there was no material to show that Rukmani Devi was carrying on brokering business. The contention appears to be correct. The assessment order is based on the basis of a local enquiry made by the ITO or one of the Officers of the Department. This order could be relied upon to show that Rukmani Devi was, in fact, carrying on business. In the absence of any cogent material to contradict the statement made in the assessment order the assessee can, in our view, rightly contend that the taxing authorities have made a wrong assumption that there was no evidence to show that the lady was carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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