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TMI Blog2000 (6) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case, the decision of the Tribunal to restore the matter to the Assessing Officer is such as could have been arrived at ? Whether, on the facts and circumstances of the case, the decision of the Tribunal to allow the appeal and to restore the matter back to the Assessing Officer is such as could have been arrived at from the material on the record or is reasonable which could be arrived at instead of dismissing it ?" The relevant assessment year is 1985-86. The assessee was carrying on business on a small-scale in stainless steel utensils. He had filed a return of income for the said assessment year declaring a total income of Rs. 15,423. The assessee had received deposits from six parties on April 14, 25, 1984, and had rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h innings" be given to the Assessing Officer. The Tribunal held that the only course that was left was to restore to the Assessing Officer the matter so that he may cross-examine the creditors in the light of the statements, affidavits and other evidence on record arid also give an opportunity to the assessee for the purpose. On going through the decision of the Tribunal, it appears to us that the Tribunal has totally ignored the fact that the order of the Assessing Officer had merged in the appellate order of the Commissioner of Income-tax (Appeals) before whom the assessee had succeeded. The Commissioner of Income-tax (Appeals), in his order dated October 24, 1988, while deleting the addition of Rs. 2,80,000, held that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before me that the appellant did everything in his power to prove the genuineness of the loans. He filed confirmatory letters supplied to the Income-tax Officer, income-tax number and ward in which are assessed, produced the parties for his verification and cross-examination, he showed that all the loans were procured through intermediaries and were paid back by account payee cheques and the parties have given further loans to others which are also accepted by the Department. Thus, everything possible has been done by the appellant to prove the loans and in effect, I notice that the loans have definitely been proved as genuine. On the other hand, the Income-tax Officer has not brought any material on record to dislodge the evidence led by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account payee cheques to all the six parties. The appellant filed the confirmations, affidavits, counter-copies ; has given name, addresses, incometax numbers, etc. In my opinion, the appellant has proved the loans beyond a shadow of doubt and has discharged his burden to the fullest ability. I have considered each of the parties capability to give loans as per the details of their sources of income narrated in the written submission. I also find that they are capable of giving such loans. Evidence has been found even in the search operation. Nothing contrary has been alleged or proved. The Income-tax Officer has taken the easy course of avoiding proper scrutiny arid verification of the claim, but more or less acted on surmises not supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. In the appellate jurisdiction the appellate court has to consider whether there is justification for upsetting the order against which the appeal is filed. In this case, where the assessee had repeatedly produced the creditors before the Income-tax Officer and had filed affidavits in support of the credit entries and also filed confirmations and given names and addresses of the concerned parties as well as proved repayment of the amounts by account payee cheques and done all that was within his power to prove the genuineness of the loans, the finding arrived at by the appellate authority on the basis of such reliable material could not have been so cursorily dealt with by the Tribunal for the purpose of giving "one more innings" to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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