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TMI Blog2013 (5) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case. Hence, the decision of the Tribunal in the impugned order for distinguishing any judgement cited before it on the basis of difference in facts, stands approved by Hon'ble Gujarat High court as per this decision and hence, there is no merit in this contention that the decision cited before the Tribunal should be followed on the basis of ratio laid down in the decision without examining and comparing the facts of the cited case and the case in hand before the tribunal. Also regarding gift tribunal has decided this issue after considering all the facts and the decision and concluded that the assessee could not show that there is any relationship of the assessee with the donor and there is any occasion for the gift because as per the theory of preponderance of probabilities, gift could not be established as genuine because no person will gift 50% of his capital to a person with whom he has no relationship, blood relation or friendship. See Abhai Devilal Rathod Vs DCIT (2010 (6) TMI 497 - ITAT, AHMEDABAD) wherein held that in respect of gift, the assessee is required to discharge this onus of submitting complete details of gift before the A.O. such as identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajor creditors as per the statement furnished on 13-03-2006. In the above context, it is held that the appellant had discharged the onus of proving the credits in respect of the following persons where confirmations with full addresses including PAN were furnished." Please refer Page No. 14 of the CIT(A) Order for list of unsecured loans of Rs. 9,14,918. The addition of which was deleted by CIT(A). The CIT(A) confirmed the addition of Rs. 6,17,000 on the ground that the PAN were not furnished and that the sources were not explained and therefore the identity, creditworthiness and genuineness were not established. The AR submitted Four PAN at the time of hearing in a separate paper were the PAN are given under the heading Ground No.l of Appeal by assessee. They are reproduced for ready reference:- Sr. No. Name Address P.A.No. Amount Rs. Remarks 15 Maulik B. Amarseda 256, Ghee Kanta Road, Opp. CBI, Ahmedabad AFIPA7963H 1,00,000 by Cheque Out of business of readymade garments 26 Meena Lalchand A/12, Nirnankar Society, Bhairavnath Road, Maninagar, Ahmedabad AJFPV1553M 40, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not the facts. The kind attention is drawn Delhi High Court Full Bench decision in the case of Lachman Dass Bhatia Hingwala (P) Ltd. V/s. ACIT 330 ITR 243. The Delhi High Court observed as under: "A judgment has to be read in context, and discerning of factual background is necessary to understand the statement of principles laid down therein. It is obligatory to ascertain the true principle laid down in the decision and it is inappropriate to expand the principle to include what has not been stated therein. A decision is only an authority for what is actually decides and it is the duty to ascertain the real concrete or ratio decidendi which has binding effect. Mechanical application of a decision treating as a precedent without appreciating the underlying principle is not allowable. " It was held by the Gujarat High Court that when PAN is furnished, the identity of the creditor is established and that it is not necessary to prove the sources of source. 2.6 And whereas non-consideration of material on record is apparent mistake on record [CIT V/s. Mithalal 158 ITR 755 (MP). Non- consideration of jurisdictional High Court decision is a mistake apparent from record [ACIT V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aused, the order can be rectified [Lachman Dass Bhatia Hingwala (P) Ltd. V/s. ACIT 330 ITR 243 (Delhi) Full Bench]. 4.1 It is necessary that every fact for against the assessee must have been considered with due care by the Tribunal and it must have given the findings in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings which on the evidence on record before it - Rameshchandra M. Luthra V/s. ACIT 257 ITR 460 (Guj). 4.2 The conclusion reached by the Tribunal should not be colored by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicious, conjunctures or surmises nor should it act on no evidence at all or improper rejections of material and relevant evidence or partly on evidence and partly on suspicious, conjunctures or surmises- Omar Salay Mohamed Sait V/s. CIT 37 ITR 151-170 (SC). 4.3 The procedure required to be adopted by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not justified in deleting part addition." 2.1 Whereas the Hon'ble Tribunal noticed on Page No. 9 10 of paper book that some of the creditors do not have even PAN. However, the Hon'ble Tribunal failed to notice that there are many creditors whose PAN were furnished and that the CIT(A) on the basis of such PAN and confirmations held that the assessee has discharged the onus as stated on Page No. 14 of the CIT(A) Order as under:- "However, it is seen that confirmations along with the addresses and PAN were furnished in respect of the major creditors as per the statement furnished on 13-03-2006. In the above context, it is held that the appellant had discharged the onus of proving the credits in respect of the following persons where confirmations with full addresses including PAN were furnished." Please refer Page No. 14 of the CIT(A) Order for list of unsecured loans of Rs. 9,14,918. The addition of which was deleted by CIT(A). The CIT(A) confirmed the addition of Rs. 6,17,000 on the ground that the PAN were not furnished and that the sources were not explained and therefore the identity, creditworthiness and genuineness were not established. The AR submitted Four PAN at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible to state as to whether the Tribunal was aware as to what the controversy was before it and what were the factors pro and con in relation to the said issue and the reasons which ultimately weighed with the Tribunal for arriving at a decision." If there is a factual mistake, the order can be rectified [Champalal Chopra V/s. State of Rajasthan 257 ITR 74 (Raj)]. 2.5 And whereas the Hon'ble Tribunal distinguished the Gujarat High Court decision in the case of CIT V/s. Rohini Builders 256 ITR 360 on facts. What is to be seen is ratio and not the facts. The kind attention is drawn Delhi High Court Full Bench decision in the case of Lachman Dass Bhatia Hingwala (P) Ltd. V/s. ACIT 330 ITR 243. The Delhi High Court observed as under:- "A judgment has to be read in context, and discerning of factual background is necessary to understand the statement of principles laid down therein. It is obligatory to ascertain the true principle laid down in the decision and it is inappropriate to expand the principle to include what has not been stated therein. A decision is only an authority for what is actually decides and it is the duty to ascertain the real concrete or ratio decidendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement of recording reasons in an important safeguard to ensure observance of the rule of law. It introduces clarity, checks the introduction of extraneous or irrelevant considerations and minimizes arbitrariness in the decision making process - CIT V/s. Palwal Co.op. Sugar Mills Ltd. 284 ITR 153 (P H). Mere reference to decision of another Bench without mentioning the facts of that case is not proper [CIT V/s. Matrix Intel P. Ltd. 294 ITR 257 (Mad)]. When prejudice result from an order attributable to Tribunal's mistake, error or omission, then it is duty of Tribunal to set it right [Honda Siel Power Products Ltd. V/s. CIT 295 ITR 466 SC]. Non consideration of material on record is apparent mistake on record [CIT V/s. Mithalal 158 ITR 755 (MP) and ACIT V/s. Saurashtra Kutch Stock Exchange Ltd. 262 ITR 146 (Guj)]. 4. Your honours are therefore prayed to modify / recall the order. Place : Ahmedabad Date: 16-07-2012 Appellant" 2. In the course of bearing before us, it was submitted by the Ld. A.R. that in para 7 of the impugned order, the Tribunal has noted that on pages 9 and 10 of the paper book are the details of various unsecured loans taken by the assessee in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no finding, as to whether the donor has taken back the money directly or indirectly and this contention is not considered by the Tribunal. He also submitted that the tribunal has treated the gift as not genuine on presumptions, conjectures and surmises. Various contentions raised by the assessee in the miscellaneous applications were reiterated and since the contentions of the miscellaneous applications itself have been reproduced above, we are not noting down the same again. Regarding revenue's appeal, it was submitted that the ITAT has not stated how Ld. CIT(A) is wrong in reversing the decision of Ld. CIT(A) in respect of relief allowed by him and, therefore, on this account also, the Tribunal order contains apparent mistake. Reliance was also placed on the following judicial pronouncements: i) DCIT Vs Rohini builders 256 ITR 360 (Guj.) ii) Rameshchandra M Luthra Vs ACIT 257 ITR 460 (Guj.) iii) S J and S P Family Trusts VS DCIT 277 ITR 557 (Guj.) iv) Champalal Chopra Vs State of Rajasthan 257 ITR 74 v) Honda Siel Power Products Ltd. Vs CIT 295 ITR 466 (SC) vi) DIT (Exemption) Vs Shia Dawoodi Bohra Jamat 344 ITR 653 vii) CIT Vs Ranchhod Jivabhai Nakha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the creditors and genuineness of the transactions. Therefore, the CIT(A) was not justified in deleting part addition. The judgment of the Hon'ble Gujarat High Court in the case of Rohini Builders-(supra), we find that this is not of help to the assessee in the present case because the facts are different. In that case, it is noted by the Tribunal that the AO has recorded the statements of six creditors out of total 21 creditors and the assessee has furnished their complete addresses along with GIR / PA Numbers as well as confirmations along with the copies of assessment orders passed in the cases of some creditors and in the remaining cases, where the assessment orders were not readily available, the assessee has furnished the copies of returns filed by the creditors. On the basis of these documents, it was held by the Tribunal in that case that the assessee had established the identity and creditworthiness of the creditors and that decision of the Tribunal in that case was upheld by the Hon'ble High Court by holding that no substantial question of law arises. In the present case, the assessee has merely furnished confirmations and in some of the confirmations, no PA Numbers are me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, the assessee has merely furnished confirmation and in most of the confirmations, no PAN was mentioned and the assessee has not furnished the copies of the assessment order of the creditors or copy of their income tax returns filed by them along with the statement of income/balance sheet. This is also by now a settled position of law that any judgement is in respect of the facts of that case and, therefore, if the facts are different, then the judgement rendered in respect of different facts, cannot be said to be a binding precedent for deciding the issue in a different case having different set of facts. When we go through the judgement of Hon'ble Gujarat High court rendered in the case of Rohini Builders (supra), we find that in that case, this is noted that in respect of all the 21 creditors, the assesses had furnished complete addresses along with their GIR/PAN as well as confirmation along with copies of assessment orders passed in the case of creditors in respect of 11 creditors and in the remaining cases, where the assessment orders were not readily available, the assessee had furnished copies of their returns filed with the department along with their s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Regarding giving reasons for its decision, we have already seen that for reversal of the decision of Ld. CIT(A) in respect of those additions which were deleted by Ld. CIT(A) on the basis of availability of PAN, clear reasoning is given by the tribunal in the impugned order that merely furnishing of PAN does not amount to establishing and satisfying the requirement of establishing identity and creditworthiness of the loan creditors and on this basis, it was held that Ld. CIT(A) was not justified in deleting the part addition. Hence, it is also not correct to say that the decision of the tribunal is without reasoning. Therefore, this judgement is also not applicable in the present case. 10. The 3rd decision cited by the Ld. A.R. is the judgement of Hon'ble Gujarat High Court rendered in the case of SJ and SP Family Trust (supra). In that case also, the ratio laid down is this that the tribunal should give reasoning for its decision which may be brief also. We have already seen that sufficient reasoning is given by the Tribunal in the impugned order and, therefore, this judgment is also not applicable in the present case. 11. The next decision cited by the Ld. A.R. is the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is judgement also, there is no apparent mistake in the tribunal order. 14. The next judgement cited by the Ld. A.R. is also the judgement of Hon'ble Gujarat High court rendered in the case of Ranchhod Jivabhai Nakhava (supra). In that case, the facts were that the assessee filed confirmation letters of loan creditors along with photocopy of PAN. It is also noted by Hon'ble Gujarat High court in that case in para 8 that the assessee had produced before the A.O. not only confirmation with the lender who are assessed to tax but the assessee has also given their pass books and it was also stated that they had received loan from the above enterprises and the source of money deposited by them is the loan from M/s. Vaibhav Enterprises. This goes to show that in addition to providing confirmation and PAN, the assessee has also established the creditworthiness of the loan creditors by providing the bank pass book of the loan creditors and the assessee has also explained the source of the loan creditors by stating that loan creditors have received loan from Vaibhav Enterprises. This goes to show that the assessee has established both the identity and creditworthiness of the loan creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases and the present case and therefore, this contention of the Ld. A.R. is without merit that cited cases cannot be distinguished on the basis of facts. 16. Regarding the 2nd aspect i.e. regarding gift also, we find that the tribunal has decided this issue after considering all the facts and the decision of the tribunal on this issue is on the basis that the assessee could not establish the genuineness of transaction because the assessee could not show that there is any relationship of the assessee with the donor and there is any occasion for the gift. The main basis of the Tribunal decision on this issue is this that as per the theory of preponderance of probabilities, gift could not be established as genuine because no person will gift 50% of his capital to a person with whom he has no relationship, blood relation or friendship. In this regard we find that Ld. D.R. placed reliance on the Tribunal decision rendered in the case of Abhai Devilal Rathod Vs DCIT 40 SOT 354 (Ahd.) wherein it was pointed out that it was held by he Tribunal in this judgement that in respect of gift, the assessee is required to discharge this onus of submitting complete details of gift before the A.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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