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TMI Blog2011 (9) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... Das, Adv., for the Appellant P.K. Bhowmick and S.N. Dutta, Adv., for the Respondent JUDGEMENT The Court: By this appeal a common order disposing of three appeals passed by the Tribunal has been challenged. We direct the appellant to pay additional court fees for all the three appeals instead of one. Such court fees should be paid by tomorrow. This appeal under Section 260A of the Income Tax Act (hereinafter referred to as "Act") is at the instance of an assessee and is directed against order dated August 11, 2003, passed by the Income Tax Appellate Tribunal, Smc' Bench, Kolkata, in Income tax appeals bearing ITA No.2106 to 2108/Kol./2002 for the assessment years 1996-97 to 1998-99, by which the Tribunal allowed those appeals preferred by the Revenue and set aside the orders passed by the CIT(Appeal). Being dissatisfied the assessee has come up with the present appeal. The facts leading to the filing of the present appeal may be summed up thus: a) In the assessment year 1998-99 the Assessing Officer found a claim for interest of Rs.45,000/- in the name of M/s. East West Arbitrage Investment Pvt. Ltd. of 26/1/1A, Strand Road, Kolkata-1 (hereinafter referred to as "East ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed by the said assessee and that the loan of Rs.3 Lac was returned by the assessee in March, 2000 by means of three cheques, drawn on CITI Bank for Rs.1 Lac each. g) The Assessing Officer, however, held that since the genuineness of the company was not established, the loan claimed to have been received and interest paid thereon could not be accepted as genuine and thus, the addition of Rs.3 Lac was made in the assessment year 1996-97 besides disallowing the interest of Rs.15,164/-. h) Being dissatisfied the assessee preferred three appeals before the CIT(Appeals) and the said Authority on the basis of the materials on record held that the addition made by the Assessing Officer on account of loan and interest thereof for the respective years was not justified. He, accordingly, deleted the addition of Rs.15,164/- for the assessment year 1996-97, Rs.45,000/- each for the assessment year 1997-98 and 1998-99. i) Being dissatisfied, the Revenue preferred three appeals before the Tribunal and the Tribunal by the order impugned herein set aside the order of the CIT(Appeal) and restored the one passed by the Assessing Officer. j) Being dissatisfied, the assessee has come up w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal, it will be profitable to refer to the following observations of the Tribunal, which is the basis of reversing the order passed by the Commissioner of Income Tax (Appeal): "9. In the present case, the assessee had furnished confirmation from the company. Evidence that the amounts were received by account payee cheques was also furnished. Purported affidavit of one of the directors of the company was also furnished. It is pertinent to mention that the purported affidavit does not confirm to the requisites of an affidavit. The age and address of the deponent has not been given. There is no solemn affirmation. There is no statement that the averment have been made to the best of the knowledge and belief of the deponent. Verification is also missing. So at best it can be taken as a statement or confirmation of advance of loan. In the statement what has been stated by the director is of relevance. From the purported affidavit it is observed that Shri Uma Shankar Rathi has stated that the company, named as East West Abritrage Investment P. Ltd. was incorporated at Kolkata in the year 1995. The fact that the amount of Rs.3 lakhs was paid to the assessee in 1995 and returned in 2000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Uma Shankar Rathi, son of Late Krishna Gopalji Rathi that the affidavit was affirmed before a Notary Public on a Non-Judicial stamp of Rs.20/-. In the penultimate paragraph of the affidavit, the following statement has been averred:- "I do hereby solemnly verify that the contents of this affidavit are true to my personal knowledge and belief." Therefore, the finding of the Tribunal below that there is no averment that the contents of the affidavit were true to his knowledge or belief is based on total misreading of document. It further appears from page 54 of the Paper Book, at paragraph 2 of the affidavit, Uma Shankar Rathi's name is very much there, appearing as serial no.1 and his address is given as 501, A Wing, 5th Floor, Customs Colony Housing Cooperative House, Military Road, Marol, Andheri East, Mumbai-400 059. Therefore, the finding of the Tribunal below that the address of the deponent viz. Uma Shankar Rathi is not available from materials on record is not correct. Before us the xerox copy of the paper book of the Tribunal was produced and from page 12 of such paper book, it would appear that the cheque by which loan was repaid back to the East West was encashed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by applying Section 68 of the Act. In such circumstances, the Supreme Court held that there was no justification of setting aside of the finding recorded by the Assessing Officer. In the facts before us, the CIT(Appeals) on the basis of materials on record was satisfied that the identity of the creditor was disclosed, that the amount was paid by cheque and that the transaction was a genuine one. Such finding was set aside by the Tribunal on total misreading of the materials on record as if no affidavit was affirmed, that the affidavit did not disclose the address of the declarant, that the Mumbai address of the bank of the creditor was not available and that there was no valid affidavit by the director of the creditor. We, therefore, find that the said decision cannot have any application to the fact of the present case. In the case of Commissioner of Income Tax vs. Precision Finance Pvt. Ltd. (supra), the enquiry of the Income Tax Officer revealed that either the assessee was not traceable or there was no such file and accordingly, the first ingredient as to identity of the creditors had not been established. In such circumstances, the Division Bench was of the view that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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