TaxTMI 
TaxTMI 
2013 (5) TMI 499
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....e assessee in the present year. Out of this, for many creditors, even PA Numbers are not mentioned. In addition to the confirmations, the assessee has not furnished any other document in support of the identity of creditors or their creditworthiness. Under these facts, we are of the considered opinion that the assessee has not discharged his onus of establishing the three ingredients of Section 68 of the Act i.e. identity and creditworthiness of the creditors and genuineness of the transactions. Therefore, the learned CIT(A) was not justified in deleting part addition." Whereas the Hon'ble Tribunal noticed on Page No. 9 & 10 of paper book that some of the creditors do not have even PAN. However, the Hon'ble Tribunal failed to notice that there are many creditors whose PAN were furnished and that the CIT(A) on the basis of such PAN and confirmations held that the assessee has discharged the onus as stated on Page No. 14 of the CIT(A) Order as under:- "However, it is seen that confirmations along with the addresses and PAN were furnished in respect of the major creditors as per the statement furnished on 13-03-2006. In the above context, it is held that the appellant had discharge....
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.... 557 (Guj). The Gujarat High Court has observed as under: "The procedure required to be adopted by the Tribunal so as to ensure that the order is an appelable order, must be one which reflects not only its conclusion, but the decision making process also. Reasons, however, brief are the soul and backbone of an order. In the absence of such reasons, which must be reflected on a reading of the order, it is not possible to state as to whether the Tribunal was aware as to what the controversy was before it and what were the factors pro and con in relation to the said issue and the reasons which ultimately weighed with the Tribunal for arriving at a decision." If there is a factual mistake, the order can be rectified [Champalal Chopra V/s. State of Rajasthan 257 ITR 74 (Raj)]. 2.5 And whereas the Hon'ble Tribunal distinguished the Gujarat High Court decision in the case of CIT V/s. Rohini Builders 256 ITR 360 on facts. What is to be seen is ratio and not the facts. The kind attention is drawn Delhi High Court Full Bench decision in the case of Lachman Dass Bhatia Hingwala (P) Ltd. V/s. ACIT 330 ITR 243. The Delhi High Court observed as under: "A judgment has to be read in co....
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....ntion is also not considered by the Hon'ble Tribunal. The Hon'ble Tribunal treated the gift as not genuine on presumption, conjuncture and surmises. 3.2 Non-consideration of the contention raised is the mistake apparent from record. The reliance is placed on the decisions cited in Para No.2. The kind attention is drawn to the Gujarat High Court decision in the case of DIT(E) V/s. Shia Dawoodi Bohra Jamat 344 ITR 653. The catch- note is as under: "Appeal to appellate tribunal - duty of tribunal - tribunal should give reasons for its decision - mere mention of SC or High Court cases without specifying how they were applicable to the facts of the case - not sufficient - I.T. Act, 1961." Non-consideration of jurisdictional High Court decision is also a mistake apparent from record ACIT V/s. Saurashtra Kutch Stock Exchange Ltd. 262 ITR 146 (Guj)] affirm by SC 305 ITR 227 and Honda Siel Power Products Ltd. V/s. CIT 295 ITR 466 SC. 4. If the prejudice is caused, the order can be rectified [Lachman Dass Bhatia Hingwala (P) Ltd. V/s. ACIT 330 ITR 243 (Delhi) Full Bench]. 4.1 It is necessary that every fact for against the assessee must have been considered with due care by th....
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....nt" Miscellaneous application No.136/Ahd.2013: "1. I am in receipt of ITAT Order dated 23-03-2012 for A.Y. 2003- 2004. There are apparent mistakes in the said order, which are as under. 2. Ground No. 1 of the Appeal by Revenue:- The Hon'ble Tribunal stated in Para No. 7 of the Order as under: "We have considered. ....................... We find that on Pages 9 & 1 0 of the paper book are the details of various unsecured loans taken by the assessee in the present year. Out of this, for many creditors, even PA Numbers are not mentioned. In addition to the confirmations, the assessee has not furnished any other document in support of the identity of creditors or their creditworthiness. Under these facts, we are of the considered opinion that the assessee has not discharged his onus of establishing the three ingredients of Section 68 of the Act i.e. identity and creditworthiness of the creditors and genuineness of the transactions. Therefore, the learned CIT(A) was not justified in deleting part addition." 2.1 Whereas the Hon'ble Tribunal noticed on Page No. 9 & 10 of paper book that some of the creditors do not have even PAN. However, the Hon'ble Tribunal failed to n....
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....ision in the case of Rameshchandra M. Luthra V/s. ACIT 257 ITR 460 (Guj). The catch-note is as under:- "Appeal to appellate tribunal - duty of tribunal to consider all facts and give reasons for its decision - tribunal giving finding contrary to decision of CIT(A) without giving reasons - matter remanded - I.T. Act - Section 254". The kind attention is also drawn to the Gujarat High Court decision in the case of S.J. & S.P. Family Trust V/s. DCIT 277 ITR 557 (Guj). The Gujarat High Court has observed as under:- "The procedure required to be adopted by the Tribunal so as to ensure that the order is an appelable order, must be one which reflects not only its conclusion, but the decision making process also. Reasons, however, brief are the soul and backbone of an order. In the absence of such reasons, which must be reflected on a reading of the order, it is not possible to state as to whether the Tribunal was aware as to what the controversy was before it and what were the factors pro and con in relation to the said issue and the reasons which ultimately weighed with the Tribunal for arriving at a decision." If there is a factual mistake, the order can be rectified [Champa....
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.... assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its findings on suspicious, conjunctures or surmises nor should it act on no evidence at all or improper rejections of material and relevant evidence or partly on evidence and partly on suspicious, conjunctures or surmises- Omar Salay Mohamed Sait V/s. CIT 37 ITR 151-170 (SC). The procedure required to be adopted by the Tribunal so as to ensure that the order is an appelable order, must be one which reflects not only its conclusion, but the decision making process also. Reasons, however brief are the soul and backbone of an order -S.J. & S.P. Family Trust V/s. DCIT 277 ITR 557 (Guj). Every judicial / quasi-judicial body / authority must pass a reasoned order which should reflect the application of mind of the concerned authority to the issues / points raised before it. The requirement of recording reasons in an important safeguard to ensure observance of the rule of law. It introduces clarity, checks the introduction of extraneous or irrelevant considerations and minimizes arbitrariness in the decision making process - CIT V/s. Palwal Co.op. Sugar Mills Ltd. 284 ITR 153 (P&H). M....
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....gifts against the assessee on this basis that as per the theory of preponderance of probabilities, the gifts cannot be accepted as genuine because no person will gift 50% of his capital to a person with whom he has no relationship being blood relation or friendship. He submitted that while deciding this issue also, the tribunal has failed to appreciate the ratio laid down by the cases relied upon by the Ld. A.R. The Ld. A.R. has already submitted before the Tribunal in respect of both these issues that the assessee has discharged initial burden by placing reliance on two judgements of Hon'ble Gujarat High Court rendered in the case of Rohini builders (supra) in respect of the issue about loan and on the judgement of Hon'ble Gujarat High Court rendered in the case of Murlidhar Lahorimal Vs CIT as reported in 280 ITR 512 in respect of the issue about receipt of gift. He further submitted that there is no finding, as to whether the donor has taken back the money directly or indirectly and this contention is not considered by the Tribunal. He also submitted that the tribunal has treated the gift as not genuine on presumptions, conjectures and surmises. Various contentions raised by the....
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....e impugned tribunal order as per which this issue was decided by the Tribunal. Relevant para is para 7 of the impugned tribunal order which is reproduced below: "We have considered the rival submissions, perused the material on record and have gone through the orders of the authorities below as well as the judgment cited by the learned AR of the assessee. We find that on pages 9 and 10 of the paper book are the details of various unsecured loans taken by the assessee in the present year. Out of this, for many creditors, even PA Numbers are not mentioned. In addition to the confirmations, the assessee has not furnished any other document in support of the identity of creditors or their creditworthiness. Under these facts, we are of the considered opinion that the assessee has not discharged his onus of establishing the three ingredients of section 68 of the Act i.e. identity and creditworthiness of the creditors and genuineness of the transactions. Therefore, the CIT(A) was not justified in deleting part addition. The judgment of the Hon'ble Gujarat High Court in the case of Rohini Builders-(supra), we find that this is not of help to the assessee in the present case because the ....
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.....e. identity and creditworthiness of the creditors and genuineness of the transactions. Regarding reversal of the order of Ld. CIT(A), this reasoning is given by the tribunal in the impugned order that in addition to the confirmation, the assessee has not furnished any other document in support of the identity and creditworthiness of the creditors and as per Section 68, the assessee has to establish three ingredients and hence, Ld. CIT(A) was not justified in deleting the part addition. This shows that the reasoning is very much given by the Tribunal for reversing the order of Ld. CIT(A) and hence, there is no apparent mistake in the tribunal order on this account. 7. Regarding the judgement of Gujarat Hon'ble High Court rendered in the case of Rohini builders (supra), it is seen that the same was duly considered and it was found that the same is of no help to the assessee in the present case because in the present case, the assessee has merely furnished confirmation and in most of the confirmations, no PAN was mentioned and the assessee has not furnished the copies of the assessment order of the creditors or copy of their income tax returns filed by them along with the statemen....
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.... rendered in the case of Rameshchandra Luthra (supra). As per this judgement, it was held by Hon'ble Gujarat High Court that it is a duty of the tribunal to consider all facts and give reasons for its decision. We have already seen that all the facts were duly considered by the tribunal in the present case as per which it is noted by the Tribunal that the assessee has simply filed confirmation of the creditors and for many of them, the assessee has not even furnished PAN and apart from this, assessee has brought nothing on record to establish the identity and creditworthiness of the loan creditors. This fact is specifically noted by the tribunal that assessee has not brought on record copies of assessment orders or copies of income tax returns filed by the loan creditors along with computation of income and balance sheet etc. Hence, this cannot be said that the tribunal has not considered all the facts. 9. Regarding giving reasons for its decision, we have already seen that for reversal of the decision of Ld. CIT(A) in respect of those additions which were deleted by Ld. CIT(A) on the basis of availability of PAN, clear reasoning is given by the tribunal in the impugned order th....
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....ed by the Ld. A.R. is the judgement of Hon'ble Gujarat High court rendered in the case of Shia Dawoodi Bohra Jamat (supra). This judgement is laying down this ratio that the tribunal should give reasons for its decision and mere mention of the judgement of Hon'ble Supreme Court or of Hon'ble High Court cases without specifying how they were applicable to the facts of the case is not sufficient. In the present case, we have seen that whatever decision is followed by the Tribunal or not followed by the Tribunal, is after giving sufficient reasons by stating that this judgement is applicable and / or how the judgement is not applicable in the present case and even if the tribunal has distinguished the judgement on the basis of facts, those facts were also discussed which were different in the present case and in the case cited by any of the parties in the course of hearing of the appeal and, therefore, as per this judgement also, there is no apparent mistake in the tribunal order. 14. The next judgement cited by the Ld. A.R. is also the judgement of Hon'ble Gujarat High court rendered in the case of Ranchhod Jivabhai Nakhava (supra). In that case, the facts were that the assessee f....
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....in the decision without examining and comparing the facts of the cited case and the case in hand before the tribunal. We also find that on page 3 of the miscellaneous application 135/Ahd/2012, the assessee has also cited a judgement of Hon'ble Delhi High court (full bench) rendered in the case of Laxmandas Bhatia as reported in 330 ITR 243 and as per the portion reproduced by the assessee on this page of the miscellaneous application, it was held by Hon'ble Delhi High court in that case, that a judgement has to be read in context and discerning of factual background is necessary to understand the statement principles laid down therein. This goes to show that as per this judgement of Hon'ble Delhi High court also, factual background and context has to be examined to decide and understand the ratio laid down in that decision and the Tribunal in the impugned order has done the same by examining the facts of cited cases and the present case and therefore, this contention of the Ld. A.R. is without merit that cited cases cannot be distinguished on the basis of facts. 16. Regarding the 2nd aspect i.e. regarding gift also, we find that the tribunal has decided this issue after consider....