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TMI Blog2013 (10) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the additions made by the Assessing Officer ('AO') in the assessment order dated 24.11.2008 to the tune of ₹ 13,15,000/- on account of unexplained share capital contribution and ₹ 39,40,000/- on account of unexplained unsecured loans. 2. Put in brief, the relevant background aspects of the matter are as follows: The respondent-assessee is engaged in trading and service of two wheelers. During the year under consideration, the assessee had shown gross profit of ₹ 30,43,890/- against a turn over of ₹ 2,92,65,368/-. During the course of assessment proceedings, the assessee was provided with opportunities to attend the hearing and to present the requisite details in support of the income declared and to respond to the queries of the AO; and, on its failure to respond, a final show cause notice dated 05.11.2008 containing the proposed grounds of concluding the assessment was issued and served upon the assessee. However, on the date fixed, neither the assessee nor its authorized representative attended the assessment proceeding nor any details of books of account were produced. 3. In the given circumstances, the AO proceeded to conclude the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tribution in the case of the company keeping in view the latest decision of Hon'ble Supreme Court in the case of Lovely Exports Ltd. 216 CTR 195 and Hon'ble Rajasthan High Court judgment in the case of CIT v. Sh. Barkha Synthetics Ltd. 182 CTR 175 and in the case of CIT v. AKJ Granites (P.) Ltd. 212 CTR 25 in my considered view when the shareholders has submitted confirmation, made the payment by cheque, having their PAN, filing their return of income and furnished copies of return of income in the appellate proceedings and therefore, now there is no justification for the said addition of ₹ 13,15,000/- on account of addition for new share capital contribution and the same is hereby deleted. 6. Similarly, in relation to the addition of ₹ 39,40,000/- on account of unsecured loans received in the year, the CIT(A) again found that all the requisite confirmations with particulars of the creditors had been furnished; and the identity of cash creditors was not in doubt. Hence, the CIT(A) proceeded to delete such an addition too with reference to several decisions of this Court while observing as under: - ..On this issue recently Hon'ble Rajasthan High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters and affidavit of cash creditors and the owns is shifted to the department to prove that deposits made by the creditor is money belonging to assessee himself. They have referred Rajasthan High Court judgment in the case of Aravali Trading Co. v. ITO 8 DTR 199 in which it was held that once the existence of the creditor is proved and such persons owns the credit, the assessee's onus stands discharged and assessee is not required to prove the source from which the creditor could have acquired the money deposited with him. When identity of the cash creditor is not in doubt and assessee has filed confirmation letter where said creditor owned the credit and under these circumstances the addition made u/s 68 as unexplained cash credit were deleted. Considering the aforesaid factual and legal analysis of submission and evidence in my considered view the assessing officer was not justified in making aforesaid addition of ₹ 39,40,000/- u/s 68 of I.T. Act and AO is hereby directed to delete the same. 7. In the appeal preferred by the revenue, the ITAT, in its impugned order dated 30.05.2011, found the approach of the CIT (A) justified and proceeded to dismiss the appeal wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO had not committed any error in making the additions. The learned counsel submitted that the appellate authorities have failed to consider that the onus was on the assessee to prove that the creditors were the persons of means and about genuineness of the transaction; and deletion of addition merely on the basis of confirmation cannot be considered justified. 9. In this matter, where the appellate authorities have dealt with the issues in accordance with law and have returned the findings after examining the explanations offered by the assessee and by the creditors, we are of opinion that no interference is called for in appeal. 10. The points as sought to be raised by the appellant-revenue in the present case are all the matters relating to appreciation of evidence. The relevant factors have been taken into account and considered by the appellate authorities before returning the findings in favour of the assessee. Even as regards the three referred share capital contributors, it is noticed that they are existing assessees having PA numbers; and are being regularly assessed to tax. The appellate authorities cannot be said to have erred in deleting the additions in their reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less substantial question of law. Secondly, this Court cannot again in this appeal undertake the examination of factual issues nor can draw factual inferences on the basis of explanation offered by assessee. Thirdly, once the explanation is accepted by the two appellate Courts i.e. CIT(A) and Tribunal in this case, then in such event, a concurrent finding recorded on such explanation by two appellate Courts is binding on the High Court. 9. Perusal of impugned finding quoted supra would go to show that Tribunal did examine the explanation offered by assessee in detail and then recorded a finding for its acceptance. Such finding when challenged does not constitute a substantial question of law within the meaning of s. 260A ibid in an appeal arising out of such order. 10. In our opinion, therefore, once the CIT(A) and Tribunal accepted the explanation of assessee and accordingly, deleted certain additions made by AO holding the transaction of shares to be genuine, then it would not involve any substantial issue of law as such. In other words, this Court in its appellate jurisdiction under s. 260A ibid, would not again de novo hold yet another factual inquiry with a view to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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