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TMI Blog1978 (7) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, the Tribunal was justified in holding that the ITO had not carried out the directions of the Tribunal properly when such a direction could not have been carried out under the circumstances of the case ? Inasmuch as, in our opinion, no referable question of law arises out of the aforesaid order of the Tribunal, we decline to refer any of the proposed questions and give our reasons therefor as below: 2. The assessee was a partnership firm deriving income from the business as a civil contractor during the asst. yr. 1962-63 with the previous year ended 31st Mar, 61 which is under consideration. Originally the assessment for this year was completed on 8th March, 67 on a total income of Rs. 10,20,524 including a sum of Rs. 9,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmatory letters from the creditors. The loans were in cash. Notices issued to the creditors came back unserved with the postal remarks "not known" or "left". He asked the assessee to produce the creditors but the assessee pointed to the direction of the Tribunal and expressed its inability to produce the creditors. The ITO observed that the assessee deliberately avoided the production of the creditors. Relying on the decisions in the case of Seth Kalekhan Md. Hanif (1), and Sree Lekha Banarjee (2), he held that the entire sum of Rs. 4,65,000 represented the assessee's income from undisclosed sources and assessed the same as such. As a consequence, he also disallowed the brokerage of Rs. 1,398 and interest of Rs. 46,774 on the above lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adequate by the Tribunal in respect Officer of five credits. It was pointed out that the earlier order of the Tribunal has become final within the meaning of s. 254 of the IT Act and consequently, the authorities below acted most unjustifiably by not following the clear directions of the Tribunal contained in the final order. Regarding the merits of the addition, it was urged that the assessee furnished the names, complete addresses, discharged hundis and confirmatory letters showing the Income Tax file numbers of all the creditors. The broker who was produced also confirmed that he arranged the loans which were not fictitious. Hence, it was urged that there was no case for doubting the genuineness of the credits and that was the reason wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; otherwise, that is, if the ITO cannot produce the creditors and afford the assessee an opportunity to cross examine them, then the cash credits were to be accepted as genuine. The reason is apparent from the reading of the aforesaid order of the Tribunal as a whole, apart from the alleged confessions behind the back of the assessee, the nature of the seven credits was found to be in way different from the five credits which were accepted. That order of the Income-tax Tribunal has become final and binding on the parties vide the decision in Rao Thakur Singh (3). Moreover, the Tribunal has no jurisdiction to go behind that order vide the decision in M.K. Mohammad Kunchi (4). Hence, all that has to be seen now is whether the finding of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loans appeared and confirmed the loans. The alleged confession of the creditors was not made available to the assessee or to it. It went through the letter dt. 17th Jan., 1969 of the ITO, E-Ward, Hundi Circle, Calcutta which was the sole material pointed out before it on the basis of which the ITO held that the creditors have made confessions. But it found nothing therein to come to a conclusion that the cash credits under consideration were not genuine. The letter said that the creditors could not be traced by the postal authorities at the addresses which was not unnatural after the lapse of long years. It further said that the Income Tax records did not show any loans to the assessee but that fact did not prove that the loans obtained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether certain cash credits appearing in the books of the assessee could be said to have been explained satisfactorily so that they could not be assessed in the hands of the assessee under s. 68 of the IT Act, 1961. The Tribunal after an appreciation of the evidences on record, and the contentions raised before them, held that the explanation regarding the cash credits given by the assessee was indeed satisfactory. The finding given by the Tribunal is essentially one of fact giving rise to no question of law. We find support for the above view of ours in the decisions of the Hon'ble Orissa High Court in Deo Narain Lal Jagdislal (5) Ghewarchand Kamal Kumar (6). Again the decision of the Tribunal which had become final under s. 254 of the IT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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