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TMI Blog2022 (5) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order dt. 27/03/1987 passed by the Income Tax Officer [for short AO ] u/s 143(3) of the Act. 2. The Controversy in the present appeal lies in a thin compass, as to whether first appellate authority right in law and facts of the case in sustaining addition u/s 68 of the Act. 3. Before advancing the matter on facts for adjudication, it is essential to reproduce grounds assailed by the appellant assessee as; 1. The Learned CIT(A) erred in confirming the addition amounting to Rs.2,27,186/- under section 68 of the Income Tax Act, 1961. 2. Learned CIT(A) erred in not consider assessee s submission and various documents filed before A.O. CIT(A). 3. Learned CIT(A) erred in deciding the matter after 20 years of set aside the order by ITAT. (Emphasis supplied) 4. Now its turn to state the facts of the case succinctly as; 4.1 The assessee is a private trust with four identified individual (minor) as beneficiary with a determined (equal) share of 25% each, has for the AY 1984-1985 filed its return of income [for short ROI/ITR ] on 18/11/1984 u/s 139 of the Act declaring a taxable income of ₹NIL after apportionment of total income of ₹1,50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the premise that, the contents of all the confirmation were similar, claiming cash advances were extended out of saving from agricultural income. Consequently, an addition u/s 68 of the Act was carried out for sum of ₹2,27,186/- in the event of failure on the part of assessee to produce these creditors during the course of assessment proceedings in establishing the genuineness of cash credits appearing in the books of account and further by disallowing of certain expenses totalling to ₹1,11,666/-, the total income of the trust was computed at ₹4,89,360/- and after apportionment between four beneficiaries equally in the ratio of (25%) taxable income of the Trust was determined at ₹NIL, by an order dt. 27/03/1987 u/s 143(3) of the Act. 6.3 The impugned assessment order on a previous occasion was assailed before the first appellate authority [for short FAA ], however on account of non-appearance, the Ld. CIT(A) dismissed the appeal without touching the merits of the case by an order number 17/87/88 dt. 02/04/1993, consequently matter in the first round of appeal travelled before the Income Tax Appellate Tribunal [for short Tribunal ]. Considering the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment was passed u/s 143(3) in the financial year 1986-1987, whereas first appellate authority in first round dismissed the appeal in the year 1993. The Tribunal on earlier occasion set-aside the matter for de-nova adjudication and after almost twenty years therefrom, the matter was finally adjudicated by the Ld. CIT(A) by an order dt. 07/10/2016. We are mindful to quote that, provision of section 250(6A) prescribed the deadline for disposal of matter / appeal by the first appellate authority i.e. CIT(A) within a period of one year from the end of the financial year in which such appeal is filed with a rider that where it is possible , albeit such is a directive in nature, however if legal redress or equitable relief to an aggrieved party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all, it is as if Justice delayed is Justice denied , and the justice being one of civilisation s foundational goals, it is therefore imperative for the quasi-judiciary authority like Ld. CIT(A) to perform its duty in a manner to enable the aggrieved to continue its pursuit of peace, harmony and progress, which in this case has miserabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. . . . . . . . . . . . . . . . . Rs. . . . . . . . 25. . . . . . . . Rs. . . . . . . . Total Credits 2,27,186/- 9.4 The Ld. DR candidly submitted that, the order of the assessment is non-speaking and from the aforesaid para, it is not at all clear, whether such cash credits were newly credited in the books accounts during the previous year relevant to assessment year 1984- 1985 or the represents brought forward balances from the preceding previous year or years, if the said submission is taken on record, then prima-facie it shall be contra legem to apply the provisions of section 68 of the Act. Lex lata, section 68 triggers when any sum credited in the books during the previous year relevant to assessment year under adjudication and does not apply to opening balances. Thus, credit in the accounts during the previous year is condicio sine qua non for the application of section 68 and said view has been consistently taken in plethora of judicial precedents; some of such could be quoted here as; CIT Vs Usha Stud Agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered by the appellant trust remained unsatisfactory in terms of section 68 of the Act. It is a settled legal preposition that when the primary onus is discharged by the assessee, the burden shifts on the assessing officer to examine the material and in case he want to rebut the evidence supplied by the assessee, he has to collect the material or evidence and confront to the assessee before arriving at any adverse conclusion. In sum and substance, formation of adverse inference militates in the absence of depreciative material unless placed on record, and the said view has been fortified by the Hon ble High Court of Bombay in the case of Orient Trading Co. Ltd Vs CIT reported in 49 ITR 723 (Bom.), further in an identical situation, the Hon ble Kolkata High Court in Northern Bengal Jute Trading Co. Ltd. Vs CIT reported at 70 ITR 407 has categorically held that, the fate of the assessee cannot be decided by the revenue on the basis of surmises, suspicions or probabilities. In the light of aforesaid discussion, in our considered view, both the tax authorities have perfunctory arbitrarily brushed aside the submissions of the appellant, and without articulating the insufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X
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