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TMI Blog2019 (8) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... t of all surrounding circumstances. The genuineness of the loan transaction, financial capacity, and the surrounding circumstances are some criteria for determination in such matters. It is in this background that the claim of the Appellant it is dealing with Moxdiam was not for accommodation entry, but a genuine loan transaction, had to be tested by the authorities. Two authorities and the Tribunal have evaluated each piece of evidence to conclude that this transaction was not a genuine loan transaction. If the Tribunal has given more weight to some pieces of evidence vis-a-vis others, the conclusion is in the realm of assessment of the evidence. It cannot be said that the pieces of evidence relied upon by the Tribunal are irrelevant. The view taken by the Tribunal is thus on the assessment of evidence is not perverse, and merely because another view by re-appreciating the evidence is possible, it cannot give rise to a question of law as envisaged under Section 260A of the Income Tax Act. Tribunal has noted the decisions referred to by the Appellant and also by the Revenue. Following the principles laid down in the decisions in the case of CIT v. Durga Prasad More [ 1971 (8) TMI 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer disbelieved the version of the Appellant and held that the loan was fictitious and a sum of Rupees One crore needs to be credited as it is not satisfactorily explained. Further, the interest of ₹ 93,000/- purportedly paid by the Appellant was not genuine and was disallowed being a fictitious expenditure. The Assessing Officer passed the order regarding the Assessment Year 2007-08 on 26 November 2009. 4. The Appellant filed an Appeal before the Commissioner of Income Tax Appeal. In the proceedings before the Commissioner (Appeals), the Appellant filed an affidavit of the partners of Moxdiam retracting the statement made before the Investigating Officer. The Appellant claimed that the loan transaction with Moxdiam was genuine and produced a confirmation letter. The Appellant also filed two affidavits of partners of Moxdiam dated 22 August 2008 and 18 February 2011. The Commissioner (Appeals) called for a report from the Assessing Officer. 5. Upon the remand report received from the Assessing Officer, the Commissioner (Appeals) considered the case of the Appellant regarding the theory of loan. The Commissioner (Appeals) noted the financial position of Moxd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the amount was received through crossed cheques and was repaid by the Appellant by crossed cheques. He submitted that tax was deducted at source which all will show that the loan was genuine. He submitted that the Appellant had discharged a burden and onus had shifted on the Revenue to show that the transaction was not genuine, which the Revenue has failed to discharge. He submitted that the Tribunal has not considered various decisions relied upon by them. The learned Counsel submitted that the following questions of law as framed in the memo, therefore, arise for consideration in these Appeals:- (1) Whether on the facts and circumstances of the case and in law the order of the Tribunal was justified in confirming the addition of ₹ 1.00 crore u/s. 68 of the Income Tax Act, 1961, when the Appellant has discharged its burden by producing the lender, bank statements showing the impugned transactions and financial statements, returns of income of the lender, payment of interest with tax deducted thereon ? (2) Whether on the facts and circumstances of the case and in law the order of the Tribunal was right in not appreciating that when the Assessee satisfies the ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion offered by the Appellant was satisfactory. 12. A statement of the partner of Moxdiam, Mr. Basant Jain was recorded under Section 131 of the Income Tax Act. To the question regarding the financial position, Mr. Jain stated under:- Due to my unsound financial conditions and to earn bread and butter I used to issue accommodation bills, and therefore, I do not have equipment and apparatus used in diamond trade and under these circumstances, there is no stock or place for stock found in this premises, I have also no capacity to invest such huge sum or huge amount in purchase/import of diamonds. In real sense all the investment made belong to other, and I am not in a position to tell you their names and address as I disclose their identity there will be danger to my life. Thus, Mr. Jain has admitted that he cannot invest any considerable sum, and due to his unsound financial condition and to earn bread and butter, accommodation bills had to be issued. Though sought to be retracted, this admission before the officers is a significant circumstance. Further, Mr. Jain retracted his statement after two years and eight months. Such retraction was rightly held as not bonafide. An admi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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