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1993 DIGILAW 100 (GAU)

Commissioner of Income Tax, NE Region, Shillong v. Shree Gopal and Co, Thana Road, Tinsukia

1993-04-27

R.K.MANISANA SINGH, U.L.BHAT

body1993
U. L. Bhat, C.J.— The following two questions have been referred by the Appellate Tribunal at the instance of the Revenue under section 256 (1) of the Income-tax Act, 1961 for the period 1974-75, and 1975-76 and 1976-77 respectively. "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the order of the Commissioner of Income-tax (Appeals) deleting the addition of Rs.85,000/-towards the total income of the assessee made by the Income tax Officer as unexplained cash credit ? 2. Whether, on the facts and in the circumstances of the case, the Tribu­nal was justified in confirming the consolidated order of the AAC dele­ting the disallowance of Rs.6,000/- for each of the two years, towards interest on the cash credits ?" 2. The assessee is a trading HUF doing business. The assessee's account for the assessment year 1974-75 showed cash borrowings of a total amount of Rs.85,000/- on six different dates from M/s SK Verma & Co, Dibrugarh. The Income-tax Officer required the assessee to adduce evidence regarding the borrowings. The assesses produced a letter of confirmation fro n the creditor. The assessee explained that Rs. 25,000/- was paid on two separate dates through Askaran Verma and the balance amount was paid on four different occasions by Mahabir Prasad Soni, one of the two then partners of the creditor firm. The Income-tax Officer recorded the statement of Askaran Verma who affirmed payment of Rs. 25,000/- on two different occasions but did not remember who instructed to pay and who handed over the money to him. The Income-tax Officer recorded the statement of Mrs. Santoshi Devi Verma, a partner of the creditor firm who stated that she did not know about the day-today activities of the firm but she had gone through the file accounts and was satisfied that Rs. 85.000/- had been advanced to the assessee. The Income-tax Officer wanted to record the statement of Mahabir Prasad Soni who meanwhile retired from the partnership and according to the assessee returned to Rajasthan to which place he belongs. Summons were issued to the assessee to produce the retired partner. The assessee was not able to produce him. The Income-tax Officer said to have made enquiries with the police who reported that there was no such person in the particular place suggested by the assessee. Summons were issued to the assessee to produce the retired partner. The assessee was not able to produce him. The Income-tax Officer said to have made enquiries with the police who reported that there was no such person in the particular place suggested by the assessee. The accounts of the creditor firm mentioned the payments made to the assessee. The creditor was assessed to income-tax on the basis of the accounts. For the two succeeding years the assessse's account showed payment of Rs. 6,000/- per year as interest to the creditor. The accounts of the creditor shows receipt of these payments. The assessment of the creditor's income for the three years was finalised and for the latter two years assessment was made on the basis that Rs. 6.000/- formed part of the creditor's income. 3. Having regard to the failure of Askaran Verma to remember certain details regarding the payment, the failure of the assesses to produce Mahabir Prasad Soni for recording statement and the fact that for the assessment year 1974-75 the total income of the creditor was Rs.9,000/- odd and the fact that Mrs. Santoshi Devi Verma did not have personal knowledge in regard to the creditor's transaction, the Income-tax Officer held that the assessee failed to prove that the creditor is a genuine firm and the entries were genuine and consequently held that Rs.85,000/- formed part of the undisclosed income of the assessee and added the same of the assessee's income for the year in question and finalised the assessment. Consequently for the next two years in finalising the assessment, he disallowed the alleged payment of Rs. 6,000/-as interest. 4. In appeal, the Commissioner of Appeals, disagreed with the fiuiding of the Income Tax Officer, held that the entries represented borrowing from the creditor and set aside the impugned part of the orders passed by the Income Tax Officer. The Appellate Tribunal dismissed the appeals filed by the Revenue. Hence, their reference. 5. When there is suspicion about entries regarding the alleged borrowings of substantials amounts, it is for the assssee to show that the entries are genuine and represented borrowing from a genuine concern. If the assessee produced prima facie evidence in discharging the burden, the onus shifted to the Revenue to make out a case that the entries were not genuine. When there is suspicion about entries regarding the alleged borrowings of substantials amounts, it is for the assssee to show that the entries are genuine and represented borrowing from a genuine concern. If the assessee produced prima facie evidence in discharging the burden, the onus shifted to the Revenue to make out a case that the entries were not genuine. The weight to be attached to various documents is a matter for appreciation of evidence and circumstances depending on a variety of circumstances, such as, existence or absence of relationship between concerns of the assessee and the creditor or the members of the assessee's HUF and partners of the creditor firm, existence or absence of other personal relationship between them and the other documentary or oral evidence. The Reference Court is not expected to re-appreciate the evidence and circumstances and to arrive at a finding on such appreciation and differ with the conclusion of the statutory authority or the appellate authority. That the Reference Court on a consideration of the entirety of the circumstances would have been include to arrive at a finding different from the finding of the statutory authority or the appellate authority is no justification to entertain with such conclusion. 6. We have referred to the various circumstances adverted to by the Income-tax Officer to hold that the entries in the assessee's book of accounts are suspicious and the suspicion was not removed by satisfactory evidence. We find that every one of these circumstances has been considered by the Commissioner of Appeals who arrived at a quite divergent conclusion. The Appellate Tribunal agreed with the conclusion arrived at by the Commissioner of Appeals. We are concerned in this case with the justifiability of the conclusion of the Appellate Tribunal which merely agreed with the finding of the Appellate Authority. Having regard to the facts and circumstances of the case, it cannot be said that the conclusion arrived at by the Appellate Authority is devoid of reason or is unsupported by materials. In these circumstances, we find no ground to hold that the view taken by the Appellate Tribunal is not justified. 7. We answer the two questions in the affirmative, that is, in favour of the assessee and against the Revenue. 8. A copy of this judgment under the signature of the Registrar and seal of the High Court be transmitted to the Appellate Tribunal. 7. We answer the two questions in the affirmative, that is, in favour of the assessee and against the Revenue. 8. A copy of this judgment under the signature of the Registrar and seal of the High Court be transmitted to the Appellate Tribunal. There will be no direction as to costs.