Madhya Pradesh High Court
Rameshchandra vs Commissioner Of Income-Tax on 21 September, 1988
Equivalent citations: [1989]176ITR503(MP)
JUDGMENT
G.G. Sohani, Actg. C.J.
1. This is an application under Section 256(2) of the Income-tax Act, 1961.
2. The material facts giving rise to this application, briefly, are as follows :
In the return filed by the assessee for the assessment year 1977-78, the assessee had disclosed an income of Rs. 1,500. While framing the assessment, the Income-tax Officer found that the assessee had invested a sum of Rs. 64,000 in the purchase of a plot and the construction of a house thereon. The assessee explained that he had invested Rs. 12,000 from out of his own savings and had raised loans of Rs. 45,000 and Rs. 8,000, respectively, from one Gyarsilal and Surajmal. The Income-tax Officer did not believe the explanation of the assessee regarding loans and added the amount of Rs. 53,000 to the income of the assessee as income from undisclosed sources. On appeal, the Appellate Assistant Commissioner accepted the assessee's contention that the sum of Rs. 8,000 was given to him as a loan by one Surajmal but the Appellate Assistant Commissioner held that the amount of loan alleged to have been advanced by one Gyarsilal was not proved to be genuine. The Appellate Assistant Com-missioner accordingly modified the order passed by the Income-tax Officer. Aggrieved by the order passed by the Appellate Assistant Commissioner, the assessee preferred an appeal before the Tribunal. The only contentions raised on behalf of the assessee before the Tribunal were that the assessee was not given proper opportunity to produce evidence to substantiate his contention that the sum of Rs. 45,000 was advanced by one Gyarsilal as a loan and that the said loan transaction was genuine. The Tribunal held that the contention urged on behalf of the assessee that he was not given an opportunity to adduce evidence, was falsified by the record, which showed that the assessee had been asked to produce the creditor and January 10, 1980, was fixed for that purpose. The Tribunal further held that no grievance was made by the assessee before the Appellate Assistant Commissioner that proper opportunity was not given to the assessee to prove the genuineness of the cash credit. The Tribunal further held that from the material on record, the genuineness of the cash credit was not established and, in this view of the matter, the Tribunal upheld the order passed by the Appellate Assistant Commissioner. Aggrieved by the order passed by the Tribunal, the assessee sought reference but the application submitted by the assessee in that behalf was rejected.
3. Having heard learned counsel for the parties, we have come to the conclusion that this application deserves to be rejected. The question whether proper opportunity was or was not given to the assessee to product the creditor, is a question of fact. The Tribunal has found from the material on record that proper opportunity was given and that no grievance in that behalf was made by the assessee before the Appellate Assistant Commissioner. Learned counsel for the assessee, however, contended that the Tribunal failed to appreciate that when the confirmation letter from the creditor was produced by the assessee, the burden shifted to the Department to prove that the transaction was not genuine. From a perusal of the order passed by the Tribunal, it is clear that the only contentions raised before the Tribunal were that no opportunity was given to the assessee to adduce evidence and that the alleged loan transaction was genuine. These contentions were not upheld by the Tribunal.
4. As regards the question of onus, apart from the fact that the contention that mere production of a confirmation letter purporting to be from the creditor was sufficient to discharge the onus on the assessee does not appear to have been raised before the Tribunal, that circumstance along with all other materials was considered by the Tribunal and after consideration of the entire material on record, the Tribunal found that the explanation offered by the assessee regarding the cash credit of Rs. 45,000 was not satisfactory. This is a finding of fact. In these circumstances, no question of law, as urged on behalf of the assessee, arises out of the order passed by the Tribunal.
5. The application, therefore, fails and is accordingly dismissed. In the circumstances of the case, parties shall bear their own costs of this application.