9911796707
TMI Blog2001 (11) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... g authority to decide afresh the point with respect to an addition of Rs.50,000 in accordance with law. This court by order dated April 27, 2001, admitted the appeal for hearing after framing the following substantial question of law: "Whether, in the facts and circumstances of the case, the Tribunal was justified in not quashing but merely setting aside the addition made on account of alleged unexplained cash credit of Rs.50,000 in the name of Manju Gugalia, whose affidavit has been filed and she was the existing assessee, and remitted a case for making fresh enquiry but not considering the fact that the appellant has discharged his onus to explain the cash credit standing in his books of account, when as per its own finding on the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mst. Manju Gugalia from undisclosed sources, was added to the total income of the assessee. Accordingly, the assessing authority disallowed depreciation of Rs.10,400 being erection charges, payment of salary to Smt. Sushila Jain, director of the company, amounting to Rs.7,000, addition of Rs.16,000 for loom permit, Rs.1,69,000 as unexplained investment, Rs.50,000 as unexplained loan and Rs.2,886 out of travelling expenses. Accordingly, the Assistant Commissioner of Income-tax, Circle Udaipur, by order dated March 31, 1989, directed to issue a demand notice for a sum of Rs.2,39,096. The appellant preferred an appeal before the Commissioner of Income-tax (Appeals), Ajmer. The said appeal was partly allowed with a relief of Rs.1,69,000. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit. The assessing authority asked the appellant to produce Smt. Manju Gugalia. The appellant failed to produce her. A letter of Smt. Manju Gugalia dated March 25, 1989, was produced wherein she stated that because of ill health, it was not possible for her to appear before the assessing authority. She also stated that she had advanced a loan of Rs.50,000 to the appellant-company at the interest of 16.2 per cent. per annum, which was repaid on the same day. The assessing authority issued a notice to the said lady under section 131 of the Act but she did not appear. The assessing authority observed that unless the said lady appears, it was not possible to cross-examiner to know the truth. It was also found that in her letter, she had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by her verified from the assessing authority of Smt. Manju Gugalia. It is contended by Mr. Gajendra Maheshwari that the assessee had not only given the address of Smt. Manju Gugalia but also the details of her income-tax return file. There is also the affidavit of the creditor, viz., Smt. Manju Gugalia. In such circumstances, the Tribunal instead of remitting the matter to the assessing authority, ought to have set aside the addition of Rs.50,000. It is also submitted that on the same material, the addition made on account of cash credit of Rs.16,000 standing in the name of Shri Rajkumar was quashed by the Tribunal. Thus, according to learned counsel, in the same order, the Tribunal has adopted two different yardsticks. On the other ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve prima facie the transactions, which result in cash credits in his books of account. Such proof includes the proof of identity of his creditor, the capacity of such creditor to advance the money and, lastly, the genuineness of the transaction. These things must be proved prima facie by the assessee and only after the assessee has adduced evidence to establish prima facie the aforesaid onus shifts on the Department. Mere filing of confirmatory letters do not discharge the onus that lies on the assessee. Similarly, mere furnishing of particulars is not enough. In Sreelekha Banerjee v. CIT [1963] 49 ITR 112 (SC), it is held that when a cash credit entry appears in the assessee's books of account in an accounting year, the assessee has a lega ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
