Pushp Trading Co. vs Commissioner Of Income-Tax
1990 Latest Caselaw 491 Del

JUDGMENT

B.N. Kirpal, J.

1. In this petition, in respect of the assessment year 1962-63, the petitioner has sought to refer the following questions to this court :

"(1) Whether the finding recorded by the Income-tax Appellate Tribunal that the assessed had not been able to produce any evidence to establish the genuineness of the cash credits aggregating to Rs. 25,000 has been recorded in disregard of the material available on record, thereby rendering such finding wholly unsustainable in law ?

(2) Whether the Income-tax Appellate Tribunal was justified in law in holding that even though the assessed had filed confirmation letters from the respective creditors and had furnished the complete names and addresses of such creditors with a request to the Income-tax Officer to enforce the attendance of the creditors, still the burden which lay upon the assessed to establish the genuineness of such cash credits had not been discharged, particularly in a situation where a period of almost 14 years had passed since the date of taking of the loans in question ?

(3) Whether the Income-tax Appellate Tribunal was justified in law in holding that even though the relevant assessment proceedings have been taken up almost 14 years after the date on which the loans in question had been taken, still the assessed was required to produce the parties in question in order to establish the genuineness of the cash credits appearing against their names in the books of account of the assessed ?

(4) Whether the Income-tax Appellate was justified in taking into Consideration the alleged incriminating statements given by certain creditors, even in a situation where the said statements were recorded behind the back of the assessed, and the assessed, despite a specific request in that behalf, was not provided with an opportunity to cross-examine the concerned parties ?

(5) If the answer to question No. 4 above is in the negative, and in favor of the assessed, and even otherwise, whether the Income-tax Appellate Tribunal was justified in law in holding that the cash credits amounting to Rs. 25,000 had remained unexplained and were, therefore, liable for inclusion in the assessed's income ?

(6) Whether, in the facts and circumstances of the case, the finding recorded by the Income-tax Appellate Tribunal that the assessed had not discharged the burden which lay upon it to establish the genuineness of the cash credits aggregating to Rs. 25,000, is based on a proper interpretation of the provisions of section 68 of the Income-tax Act, 1961 ?"

2. The questions relate to the cash credits of the sum of Rs. 25,000. The return was filed on October 5, 1962, and the assessment order was made on February 24, 1967. The assessment was, thereafter, set aside and a fresh assessment order was passed on February 27, 1982. Learned counsel for the petitioner states that, after the lapse of 14 years, it was not possible to have produced the creditors in question for their cross-examination. The petitioner had relied upon the confirmatory letters and, therefore, this question was being agitated by the petitioner since the filing of the return. It is not as if the petitioner was unaware of the evidence which he would be required to produce to substantiate his claim with regard to be genuineness of the cash credits.

3. The original assessment order was set at the instance of the petitioner himself. This order was set aside on the ground that the petitioner wanted further opportunity to substantiate his claim because it was alleged by the petitioner that full opportunity had not been granted to him by the Assessing Officer.

4. Having succeeded in his contention, it is not open to the petitioner now to turn around and say that after so many years it is not possible for him to lead any evidence. This stand of the petitioner is contradictory and we are of the opinion that the Tribunal was right in coming to the conclusion that no question of law arises. The petition is, accordingly, dismissed.