Rajasthan High Court - Jodhpur
Aseem Kumar vs I.T.O.Ward-2(2),Sriganganagar on 18 April, 2011
Author: A.M. Sapre
Bench: A.M. Sapre
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
INCOME TAX APPEAL NO.3/2011
ASEEM KUMAR
Vs.
ITO, WARD 2(2), SRI GANGANAGAR
Date of Judgment : 18.04.2011
HON'BLE MR. JUSTICE A.M. SAPRE
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr. Suresh Ojha, for the appellant.
BY THE COURT : (PER HON'BLE SAPRE,J.)
This is an appeal filed by the assessee under Section 260- A of the Income Tax Act against an order dated 9.11.2009 passed by I.T.A.T., Jodhpur Bench, Jodhpur (for short called Tribunal) in I.T.A. No.507 and 515/JU/2008 for the period AY 2005-06 and 2004-05.
2. By the impugned order, the Tribunal dismissed the assessee's appeal thereby affirmed the order of Commissioner of Appeals on the issue raised in this appeal.
3. So the question that arises for consideration in this appeal is whether it involves any substantial question of law within the meaning of Section 260-A ibid?
4. Having heard the learned counsel for the appellant and on perusal of record of the case, we are inclined to dismiss the appeal in limine as in our opinion the appeal does not involve any substantial question of law as is required to be made out within the meaning of Section 260-A ibid.
25. The issue relates to additions of Rs. 2,13,000/- made by the A.O. in the course of assessment proceedings initiated against the assessee under Section 68 of the Act after rejecting the books of accounts and holding that cash credit entries made by assessee could not be explained properly by an assessee and hence the amount to that extent has to be included in his total income. The A.O. did not accept the explanation offered by assessee and threat the said amount to be that of assessee added in his totalincome. The CIT (Appeal) upheld it and the Tribunal too upheld the orrder of CIT(Appeal) and of AO. In other words, the CIT(Appeal) and Tribunal did not accept the factual explanation coupled with the evidence tendered by assessee in relation to the impugned additions made by A.O. in relation to certain cash credits and held that since the same has not been properly explained and hence, the disputed sum amounting to Rs. 2,13,000/- has to be included while computing the totalincome of the assessee.
6. In substance, the issue involved in the appeal was in relation to certain addition added by AO under the Act in the hands of assessee in the assessment year under consideration. The AO did not find explanation offered by assessee to be plausible and accordingly added the amount treating it to be an income from unexplained source. It was upheld by CIT (Appeal) and also upheld by Tribunal in an appeal filed by the Assessee when appeal filed by Assessee was dismissed in part in so far as the impugned additions was concerned.
7. This is how the Tribunal dealt with this issue relating to addition of Rs.2,13,000/- in para 10 of impugned order:
"Now coming to the issue of addition u/s 68 of the Act passed for assessment year 2005-06, it is found that the assessing officer has rejected the books as unreliable as they do not depict true and correct position of the business carried on by the assessee but at the same time the assessing officer is making addition u/s 68 of the Act as unexplained cash credits found in the very same set of books of account that 3 were rejected by him u/s 145 of the Act. This act of the assessing officer is not justifiable and sustainable for legal scrutiny. But however, while considering this issue the Ld. CIT(A) has upheld the addition made by the assessing officer for the reason that the assessee at one hand say that he cannot produce the creditors and sought for issue of summons u/s 131 but at the same time he filed affidavits of said cash creditors duly notarized in Sriganganagar on the date to which the assessment proceedings were adjourned. After taking into consideration this aspect as per record the Ld. CIT(A) found that as the assessee is able to produce the notarized affidavits of cash creditors duly attested at Sriganganagar he has to explain why he is not able to produce personally then before the assessing officer as the assessee is not able to explain this aspect the Ld. CIT(A) came to the conclusion that the assesse's contention is not tenable under law and hence took the stand that in view of the non production of cash creditors though produced confirmatory affidavits by them is nothing but not proving the claim of the assessee as to the genuineness of the cash credits. Thereby the Ld. CIT(A) has upheld the addition of Rs.2,13,000/- made by the assessing officer u/s 68 of the Act. Under these facts and circumstances, we are of the considered view that the action of the assessing officer as confirmed by the Ld. CIT (A) is also not suffering from any infirmity requiring interference hence the same is hereby upheld finding the issue as devoid of merits."
8. Learned counsel for the appellant (Assessee) contended that firstly Tribunal erred in not accepting the explanation offered by Assessee in relation to source of income. His second submission was that what was offered by the Assessee was an explanation and hence it should have been accepted. His third submission was to persuade us through factual scenario of the explanation to contend that it can be taken as satisfactory explanation for deleting the addition made by 4 Assessing Officer and in last, he contended that finding recorded by Tribunal is perverse as it is born out of statements contained in the diary seized. We do not agree to any of these submissions for more than one reason.
9. In the first place, what is involved in the case is a pure question of fact and not any question of law much less substantial question of law. Secondly, this Court cannot again in this appeal undertake the examination of factual issues nor can draw factual inferences on the basis of explanation offered by assessee. Thirdly, once the explanation is found not acceptable by 2 appellate authorities, then in such event, a finding recorded on such explanation is binding on the High Court.
10. Perusal of the impugned finding quoted above would go to show that Tribunal did examine the explanation offered by assessee in detail and then recorded a finding for its non acceptance. Such finding when challeng does not constitute a substantial question of law within the meaning of Section 260A ibid in an appeal arising out of such order.
11. In our opinion, therefore, once the CIT (Appeal) and Tribunal did not accept the explanation of assessee and accordingly, added certain additions made by A.O. then it would not involve any substantial issue of law as such. In other words, this Court in its appellate jurisdiction under Section 260-A ibid, would not again denovo hold yet another factual inquiry with a view to find out as to whether explanation offered by assessee and which did not find acceptance to the Tribunal is good or bad, or whether it was rightly accepted, or not. It is only when the factual finding recorded had been found to be entirely dehors the subject, or that it had been based on no reasoning, or based on absurd reasoning to the extent that no prudent man of average judicial capacity could ever reach to such conclusion, or that it had been found against any provision of law, 5 then a case for formulation of substantial question of law on such finding can be said to have been made out else not.
12. In our view, no such error could be noticed by us in the impugned order because as observed supra, the CIT (Appeal) and Tribunal did go into the details of explanation offered by assessee and then found explanation as not worthy of acceptance. As a consequence thereof, the additions made by Assessing Officer came to be upheld.
13. Learned counsel for the appellant placed reliance on decisions reported in 214 ITR 712 (Raj.), 206 ITR 648 (P&N), 286 ITR 318 (Gan), 154 DTB 591 (Patna), 265 ITR 526 (Kerla), 276 ITR 578, 324 ITR 170(SC) and 65 ITR 453 (Raj.) and contended that law laid down in all these cases support his contentions and hence impugned order is not legally sustainable. We have perused the decisions cited at the bar and are of the view that they are distinguishable on facts. We have no quarrel with the proposition laid down therein, but it has no application to the facts of this case. We, therefore, do not consider it proper to deal with each case to show its distinguishable features.
14. We thus, do not find any merit in the appeal. It fails and is dismissed in limine by holding that it does not involve any substantial question of law.
No costs.
[Kailash Chandra Joshi], J. [A.M. Sapre],J.
/Anil/