9911796707
TMI Blog2004 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... e find no substantial question of law arises in the appeal. - - - - - Dated:- 31-3-2004 - Judge(s) : ARUN MISHRA., N. S. AZAD. JUDGMENT The judgment of the court was delivered by Arun Mishra J.- These two appeals involve a common question for consideration. They are being dealt with together. M.A. No. 40 of 2004 has been filed by the Revenue relating to the assessment year 1997-98. M.A. No. 11 of 2004 pertains to the assessment year 1998-99. Briefly noted, the facts indicate that the assessee- M/s. Mohd. Ishaq Mohd. Gulam derives income from manufacture and sale of bidis, filed its return for the assessment year 1997-98 on October 31, 1997, declaring a total income of Rs. 1,12,30,640. Assessment was completed vide order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 998-99, as per common order. He has submitted that the source of the creditor was required to be verified and the Assessment Officer was rightly directed to allow 7 per cent, commission to Gulam Rasul. Thus, the Income-tax Appellate Tribunal has erred in law in setting aside the order passed by the Commissioner of Income-tax, in both the cases. With respect to the identity and source of the creditors, the order passed by the Assessment Officer indicates that due and proper enquiry was made. New loans in the name of 12 parties were noticed as apparent from the assessment order passed by the Joint Commissioner of Income-tax (Assessment), Special Range, Jabalpur. The assessee was asked to explain the genuineness of the creditors; in compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Assessing Officer was quite justified in passing the orders dated March 22, 2000 and March 26, 2001, which were passed after thorough inquiry. The Assessing Officer has allowed cash credit after verification of record as to capacity, genuineness of the transactions and identity of creditors. Roving enquiry cannot be permitted and in the facts it was unjustified. The question of creditors as well as commission has been dealt with in paras. 14 and 15 of the order, passed by the Income-tax Appellate Tribunal. The relevant paragraphs are quoted below: "14. We have heard the rival submission and perused the citations and paper book. We find there is sufficient force and effectiveness in the arguments submitted by counsel of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T [1972] 86 ITR 439 (SC) fully assist the claim of the assessee of allowing expenditure on the principles of commercial exigency. The reasonableness is to be judged by the assessee as the best judge. The decisions, i.e., CIT v. Dalmia Cement (B.) Ltd. [2002] 254 ITR 377 (Delhi); CIT v. Klas Engineering P. Ltd. [2002] 258 ITR 779 (Karn); Madhav Prasad Jatia v. CIT [1979] 118 ITR 200 (SC); 176 CTR 202 (Bom) (sic) and CIT v. Sinnar Bidi Udyog Ltd. [2002] 257 ITR 216 (Bom); [2002] 123 Taxman 559 are in favour of the assessee. Apart from that, the assessee has proved the cash credits appearing in the books of account of the assessee on the basis of submitting confirmation and affidavits along with PAN numbers. The decisions, i.e., CIT v. Orissa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usible and acceptable on the merits because the Assessing Officer has allowed 10 per cent, commission in compliance with the order of the learned Bench of this Tribunal. The decisions Russell Properties P. Ltd. v. A. Chowdhury, Addl CIT [1977] 109 ITR 229 (Cal) and Bank of Baroda v. H. C. Shrivatsava [2002] 256 ITR 385 (Bom) opine that the ofder of the hon'ble Tribunal are binding and the order passed by the Assessing Officer in compliance to the order of the Bench cannot be said to be erroneous and prejudicial with the interests of the Revenue. The Assessing Officer has allowed the cash credit after verification in regards to capacity, genuineness of the transaction and identity, therefore, the order passed by the learned Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in other similar decisions, 10 per cent, commission has been allowed. We find that in the facts and circumstances of the case, the order passed by the Income-tax Appellate Tribunal cannot be said to be suffering from any illegality. The submission, that the commission at the rate allowed is unjustified as rate for the year 1989-90 is disputed, cannot be accepted as several years have lapsed since then the Income-tax Appellate Tribunal has considered the question in extensive detail. We find no ground to make interference into allowing the commission at 10 per cent, as it is also a question of fact, not a substantial question of law. When in other similar cases the Tribunal has allowed 10 per cent, commission, we find that the Tribunal is j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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