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TMI Blog2020 (10) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing substantial question of law was framed therein: "Whether on that facts and circumstances of the case, the Tribunal is right in law in accepting the contentions of the Assessee without giving an opportunity to the Assessing Officer by way of a remand, particularly, when the Assessee has withdrawn the statement unsuccessfully without legal basis ? 3. However, today, Ms. Razaq, the learned Standing Counsel for the Appellant points out that the aforesaid substantial question of law does not even arise in Tax Appeal No.9/2014 since, for the Assessment Year 2008-09, which is the subject matter of the present Appeal, there was no revised return filed by the Assessee. She, however, submits that the substantial questions of law to be found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construed the provisions in Section 68 of the Income Tax Act. She points out that the material on record establishes that M/s. Balaji Minerals and M/s. Matha Minerals were fictitious entities and despite opportunities, the Assessee failed to produce proprietors of such entities to whom huge amounts are alleged to have been paid by the Assessee. She points out that there is no material on record that Lokayukta of Karnataka had made any orders against the entities, on account of which the proprietors of these entities had made themselves scarce. She points out that merely because any payments made to these entities by cheques, does not mean that the Assessee were exempted from explaining the precise nature of such payments by adducing credibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he substantial questions of law at paragraph 5.A and 5.B in fact arise in the facts and circumstances of the present case. 10. The two substantial questions of law, now proposed by Ms. Razaq, read as follows : 5.A. Whether on the facts and circumstances of the case the Tribunal is right in law in allowing an amount of Rs. 50,00,000/- under Section 35E of the Income Tax Act ? 5.B. Whether on the facts and circumstances of the case, the Tribunal is right in law in deleting the addition of Rs. 13,66,35,554/- made by the Assessing Officer under Section 68 of the Income Tax Act ? 11. The material on record, does indicate that the amount of Rs. 5,00,00,000/- paid by the Assessee to the mining lessees, was not towards acquisition of right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is concerned, it is necessary to note at the out set, that, Section 68 applies to a situation where any sum is found credited in the books of an Assessee maintained for any previous year, and the Assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the Assessee of that previous year. 15. In this case, the AO, no doubt, recorded that he is not satisfied with the explanation furnished by the Assessee. However, the said dissatisfaction was on the sole basis that the two entities M/s. Balaji Minerals and M/s. Matha Minerals did not respond to the notices or otherwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used almost entirely on the solitary circumstance and thereby failed to even look into several other circumstances on record, which rendered the Assessee's version plausible. 18. The decision in Zuari Industries Ltd. (supra) cannot be said to be applicable to the facts and circumstances of the present case. In the said case, there was overwhelming evidence that the payments made were for acquisition of mining lease. 19. In Sumati Dayal (supra), the Hon'ble Supreme Court held that where any sum is found credited in the books of the Assessee for any previous year, the same may be charged to income-tax as the income of the Assessee of that previous year if the explanation offered by the Assessee about the nature and source thereof is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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