C.I.T. vs. ACHHELAL JAISWAL

order of the Income Tax Appellate Tribunal, Na9pur (for brevity 'the tribunal') dated 22.1.1999 on the following substantial questions of law:- • Whether in the facts and circumstances of the case, the tribundt was justified in holding that the case for Rs.3,00,000/- deletion is made out by the assessee? • Whether the finding of the tribunal is concrete to the law as laid down by the Supreme Court of India reported in 51 ITR 291 and 86 ITR 44? 2) Briefly stated, facts of the case are that a search and seizure operation was conducted in the.premises of the respondent-assessee on 20.4.1986 and a sum of Rs.3,00,000/- was sejzed from the residence of the respondent assessee. In the assessment proceedings the aforesaid amount was taxed in the hands of the assessee as income from undisclosed sources. Explanation offered by ir ^ f% K:iMS:"s!Si?SS?B!' the assessee was rejected as not convincin9. In the.appeat preferred by the assessee, tbe case was remanded to the Assessing Officer- (for short 'AO') by the CIT (Appeals) on the ground that stutement of one <Ar. Jaiswal und Mr. Khemani are not available in the filies of thc Income Tax Officer and the same has bearing over the issue involyed. After remand, the AO, after considering thestatement of above two persons, held that statements of above two persons were not reliffble and confjrmed its earlier order. 3) The CIT (Appeals) allowed the appeal of the asaessee and deleted the addition of Rs.3 Lac with an observation that the AO ought to have summoned those two persons and mcde enquiry from them. Reven'u^'s appeal was again djsmtssed by the tribunal vide impu9ned order and the order of the CIT (^ppeals) was uphetd. 4) lAr. Shrivastava, learned counset for tbe appellant-revenuc submits that the AO, after remand by the CIT (Appeals), has obtained copy of the $tatement of the respondent- assessee and bevkinandan Khemani from the Economic Offence Wing (for short>EOW')ttnd after elaborately considering their statement, expltmation of the assessee that cash of Rs.3 Lac found in his residence was given to him by the said Oevkinandan Khemaani for safe custody has been disbelieved by assigning valid reasons detailed in the order of the AO. The AO. after discussing the inconsistency in the statement of Oevkinandan Khemani and his brother namely Madan Mohan Khemani and the fact that they did not have cash available with them and they introduced M/s Balaji Steels to prove adequacy of their source, held thct the assessee has devised later to prove the source of cash seized on 30.4.1986 and receipt of cheque and tts encashment is an afterthought. Claim of Shri Radhe Shyam Sharda that he handed over a cheaue in favour of ;f: ir ^•!:ws Devkinandan (Chemani has been disbelieved after <examining the bank records, us there were some corre^tions. + The CIT (Appeals), without adverting to the reasons assigned by the AO, retied upon the icopy of cash book 4<tted 28.4.1986 certified by the Income Tax Officer, Na9pur which shows withdrawat of Rs.3,01,000/-, copies of assessment orders under Se.ction 143 (1) of the.Act of the said bevkinandan Khemani for the asse^sment yeur 87-88 & 88-89, and held that the AO could have issued commission to the ITO assessing Shri &eokinandan ((hemflnj to make enquiries .and ascertain the veracity of statement of said Shri Khemani. Since this was not done and the appellant discharged his oous to explain the source of amount of Rs.3 Lac seized from his premises, tbe department hus not been abte to place sufficient evidence on record to conclusively establish that the averments made by the appellant were false. The Coromissioner also took into account the fact that the assessee's returned the sum to tbe said Shri t)evkincndan Khemani by account payee bank drafts after he received legal notice from him. The tribunal again confirmed the order^of the CIT (Appeals) without meeting the.-jceflsons assigned by the AO rejecting the SiXplan&tion of Income Tax & Another reported in (2002) 176 CTR (Raj) 300, it is submitted that it is recognized principle that cash credits, which are not explained satisfactorily, may be assessed as income and Section 68 of the Act empowers the AO to make enquiry specificnlly to be satisfied regarding the cash credit. Where he is satisfied that the entries are •w not genuine, the amount may be added as income from other sources and it is equally well settled that the gssessee is required to prove identity of the creditpr, the copgctty of such creditor toadyance money and .genyjnenegs of the transaction. Once hedischarges that pnus, the onus shifts on the department. 5) On the other hand, Mr. Bhaduri, learned counsel for the respondent assessee submits that the questjon raised by the appellant is purely a question of fact. The tribuna! after considering every aspect of the matter has negat the obseryations of the AO by a reasoned order andheld that the AO has passed the order on the basis of presumptions and probabilities. The tribunai being the final fact finding authority, no interference is called for in the finding of fact recorded by the tribunal. In the instant case, identity of the creditor is established, as he has confirmed before the EOW as well as the Income Tax Department that he gave money to the assessee. In these circumstances, the AO could not have rejected his version without cross- examination. The finding of the tribunal is a findin9 of fact based on the facts, circumstances and evidence on record and the same cannot be termed to be perverse. 6)

We have heard learned counsel for the parties. We have gone through the order passed by the ^O as also order \\ recorded by the tribunal unless findings are beyond the evidence available on record and perverse. + 8) In the instant case, the CIT (App»als)and the tribunal, keeping in view the foct that Shri Devkinandan Khemnni confirmed before the EOW as also Income Tax Depurtment that he ya.ve Rs.3 Lac to ,the assessee, his identity was established, he was assessed to income tax and assessee repaid him the aforesaid sum through drafts, held that the assessee had discharged hils onus to explain Rs.3 Lec found in hispremises during search and sei?ure operation. It has been further observed that the AO could not have disbelieved the above version of the gssessee without issuing summons to said Shri Devkinandan Khemani. Thus, we are of the opinjon thut finding of fact recorded by the CIT (Appeal) and subsequently confirmed in an appeal by tha tribunal cannot be termed to be perverse or beyond the evidence available on record. 9) Since there is no questjon of law involved in this appeal, as the only question which ariscs for adjudication was whether the explanation offered by the assessee with respect to Rs.3 Lac found in his premises was rightly accepted by the tribunal, and since we have already held that the finding of the tribunal connot be termed to be perverse, we are of the opinion that no question of la—as proposed by the appellant arises for adjudicatjon of this appeal. In the resuit, the.appeat being devoi<;l of . substance deserves to be dismissed and is, accordingly, dismjssed. No order as to costs. ± Dhirendra Mishra Judge R.N. Chandrakar Judge \