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TMI Blog2015 (6) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30.12.2010. 2. At the outset, it is noticed that the revenue's appeal in ITA No.1446/Kol/2011 for AY 2008-09 is barred by limitation by 17 days. Revenue has filed Condonation petition supported by affidavit in which certain reasons are given. On query from the Bench, Ld. Counsel for the assessee has not opposed the Condonation rather he conceded that delay can be condoned. In view of the above reasons given in the Condonation petition and concession given by Ld. Counsel for the assessee, we condone the delay and admit the appeal. 3. The only common issue in these cross appeals of revenue and assessee is as regards to the order of CIT(A) restricting the addition of Rs. 10,04,557/- out of total addition made by AO at Rs. 54,43,228/- o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of Rs. 54,43,228/- pertaining to 33 creditors did not appear in the Balance Sheet of the assessee's proprietary concern M/s. S. Kundu rather it appears in the personal Balance Sheet of the assessee. The AO required the assessee as to why this should not be disallowed under the provisions of section 41(1) of the Act. The AO deputed his Inspector to make enquiries in respect to these creditors but according to the Inspector's report these creditors are fake and for this, Inspector has reported to the AO, which is reproduced in the assessment order as under: "The Inspector visited Jhantipahari to enquire into the transaction with Gobinda Rakshit. He enquired a few persons at Jhantipahari dealing in lottery about Gobinda Rakshit. But none ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his report has stated that the following three persons happen to be the namesakes of the relatives of the assessee: i. Abhay Lottery Agency Abhay is assessee's nephew (sister's son) ii. Rindu Kundu Assessee's sister in law. iii. Bishwnath Pal Brother in law Addresses of all the persons happen to be the same as mentioned in the list of the creditors as furnished by the assessee and none of the above named three persons were said to have ever dealt in lottery." Accordingly, the AO treated the trade creditors as bogus and added to the returned income of the assessee amounting to Rs. 54,43,228/-. Aggrieved, assessee preferred appeal before CIT(A), who restricted the addition at Rs. 10,04,557/- in respect of eight sundry credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in that view of the matter, the assessee would be allowed to contest such findings. Nevertheless, even if such facts were established through bi-parte inquiries, the liability as it stands perhaps holds that there was no cessation or remission of liability and that, therefore, the amount in question cannot be added back as a deemed income under section 41(1) of the Act. This is one of the strange cases where even if the debt itself is found to be non-genuine from the very inception, at least in terms of section 41(1) of the Act there is no cure for it. Hence, we have no alternative except to confirm the findings of CIT(A) in respect of deletion but reverse qua the confirmation of addition. 6. In the result, appeal of revenue is dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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