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TMI Blog2010 (7) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal has not adjudicated upon the case of the assessee in the light of the evidence as found by the Commissioner of Income-tax (Appeals). We also found no single word has been spared to up set the fact finding of the Commissioner of Income-tax (Appeals) that there are materials to show the cash credit was received from various persons and supply as against cash credit also made. Hence, the judgment and order of the Tribunal is not sustainable. Accordingly, the same is set aside. Appeal allowed. - ITA No. 158 of 2002 - - - Dated:- 29-7-2010 - SENGUPTA, KANCHAN CHAKRABORTY, JJ. JUDGMENT This appeal was admitted by this court on the following substantial questions of law : "I. Whether, on the facts and in the circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cash as against the supply of bidis. On failure of production of those creditors summons were issued under section 131 by the Income-tax Officer. Despite issuance of summons none of the creditors turned up and even some cases summons returned back with the endorsement made by the postal authority "no such person concerned was found". In view of such circumstances, the Income-tax Officer disbelieved the case of cash credit under section 68. Hence, the claim of deduction was disallowed. The matter was taken to appeal and the Commissioner of Income-tax (Appeals) after going through the evidence and materials on record came to the fact finding that there are sufficient materials to hold that the said cash credit received by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax (Appeals). Therefore, the failure of the person to turn up pursuant to the summons issued to any witness is immaterial when the material documents made available, should have been accepted and indeed in subsequent year the same explanation was accepted by the Income-tax Officer. He further contended that when the Tribunal has relied on the entire judgment of the Commissioner of Income-tax (Appeals), therefore, it was not proper to take up some portion of the judgment of the Commissioner of Income-tax (Appeals) and to ignore the other portion of the same. The judicial propriety and fairness demands that the entire judgment both favourable and unfavourable should have been considered. By not doing so the Tribunal comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income-tax (Appeals) on facts having examined the documents that the advance given by the creditors have been established the Tribunal should not have ignored this fact finding. Indeed the Tribunal did not really touch the aforesaid fact finding of the Commissioner of Income-tax (Appeals) as rightly pointed out by the learned counsel. The Supreme Court has already stated as to what should be the duty of the learned Tribunal to decide in this situation. In the said judgment noted by us at page 464, the Supreme Court has observed as follows : "The Income-tax Appellate Tribunal performs a judicial function under the Indian Income-tax Act ; it is invested with authority to determine finally all questions of fact. The Tribunal must, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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