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TMI Blog2024 (8) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... dentity, creditworthiness of the lender companies as well as genuineness of the transactions? (b) the assessee has failed to discharge its onus u/s 68 of the Act, among other aspects especially the burden under the first proviso thereof? 2. Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT was justified in setting aside the order of ld. CIT(A) which upheld the addition of Rs.3,73,00,000/- made on account of unexplained cash credits u/s 68 of the Income Tac Act, 1961 in respect of unexplained unsecured loans on the gound that AO failed to make certain further enquires, ignoring that : (a) Once the AO, through various opportunities given during assessment proceedings and later through remand report, having raised serious doubts on the information provided by the asessee, the burden u/s 68 had shifted to the asessee which the assessee miserably failed to discharge ? (b) Without prejudice to the above, the ITAT has grossly erred as the final fact finding authority in observing that the AO did not conduct independent inquiries since, assuming for a moment (without accepting) that the findings of the lower authorities had certain shortcomings in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act. Hence, the addition is confirmed. Thus, the sole ground of appeal is rejected." 6. Assessee being aggrieved by the order passed by the CITA has preferred an Appeal before the Income Tax Appellate Tribunal, Mumbai "D" Bench, Mumbai which has allowed the appeal and passed the following orders : "20. In view of the foregoing discussions, we are of the view that the assessee has discharged initial burden placed upon him u/s 68 of the Act in respect of all the creditors aggregating to Rs.3.73 crores. Accordingly, we are of the view that the tax authorities are not justified in assessing the above said amount u/s 68 of the Act. Accordingly, we set aside the order passed by ld. CIT(A) and direct the AO to delete the addition of Rs.3.73 crores u/s 68 of the Act." 7. Being aggrieved by the order passed by the Income Tax Appellate Tribunal, Mumbai, the present appeal has been preferred by the Revenue before this Court. 8. Learned counsel for the Revenue submitted that the AO did not commit any error in issuing notices to the assessee as well as rightly treated the unsecured loans amounting to Rs.3.73 crores taken by the assessee from several parties as unexplained cash credit u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question, (5) The High Court shall decide the question of law so formulated and deliver such a judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reasons of a decision on such question of law as is referred to in sub-Section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. " 15. In Hero Vinoth (Minor) Vs. Seshamma, (2006) 5 SCC 545, the Apex Court has observed that: " The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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