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TMI Blog1983 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... he depositor and also made certain enquires from the printings press, Nasik and came to the conclusion that the creditor was not in a position to have advanced the amount in question. Accordingly, he treated the case credit as assessee s income from undisclosed sources. On appeal before the AAC the AAC deleted the addition and also directed to allow payment of interest on the above deposit. On further appeal by the department, the ITAT restored the matter to the file of the AAC, and order passed by the AAC is now under consideration before us. 3. The facts of the case in brief are as under: Shri Sureschand Sadashivrao Sakorikar claimed to have income from soda water Factory right from 1967-68 and only Rs. 3,000 was his own money and ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22,000 during these three years from out of which he had advanced a loan of Rs. 17,000 to the assessee firm. The second reason given by the ITO is that the assessee claimed to have advanced the loan in 4 instalments starting with first instalment of Rs. 7,000 second Rs. 5,000 third Rs. 3,000 and the last at Rs. 2,000 but the promissory notes produced before the ITO show that the amount advanced was in three instalment namely, Rs. 2,000 Rs. 5,000 and Rs. 10,000 4. On appeal before the AAC, the AAC adopting the same reasoning as given by the ITO and further relying on the decision of the Calcutta High Court in the case of Shanker Industries vs. CIT (1978) 114 ITR 689 (Cal) observed that the three ingredients namely the identity of the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuineness of the transaction and the financial capacity of Sakorikar in a proper perspective and then only come to the conclusion on the basis of the admission made him in his statement recorded by the ITO and the affidavit filed on 14th Feb., 1977. According to the ld. counsel, the AAC has not followed the directions given by the Tribunal and he has come to the same finding on the same facts without going into further investigation as directed by the Tribunal. He further placed before us copy of the order of the CIT(A) for the asst. yr. 1975-76 in the case of the same assessee where the cash credit of Rs. 15,000 in the name of Sakorikar has been held to be a genuine one. He, therefore, contended that the lower authorities with examining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. The discrepancy is only with regard to the instalments and the amount paid, but there is no discrepancy with regard to the amount advanced which fact has not been taken into consideration by the AAC. Further it is seen from the orders of the ITO as well as AAC that the statement of account of Shri Sureshchand Sadashivrao Sakorikar in the books of the assessee, giving the details of payment of interest to the creditor, has not at all been considered by the lower authorities. From the aforesaid discussion, we are of the opinion that the test laid down by the decision of the Calcutta High Court in the case of Shankar Industries vs. CIT (1978) 114 ITR 689 (Cal) namely, the identity of the creditor, the capacity of the creditor to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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