Delhi H.C : Whether, on the facts and in the circumstances of the case, the Tribunal was right in deleting the cash credits of Rs. 17,640 assessed in the hands of the assessee as income from undisclosed sources without leading evidence as to their genuineness ?

High Court Of Delhi

CIT vs. Chemi Kleen India (P) Ltd.

Section 256(2)

B.N. Kirpal & C.L. Chaudhry, JJ.

IT Case No. 222 of 1984

31st July, 1989

Counsel Appeared

Jain & R.N. Verma, Advocate, for the Revenue : Bishamber lal Khanna, Advocate for the Assessee

N. KIRPAL, J.:

The CIT is seeking reference of two questions of law to this Court. The same are as follows :

“(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in deleting the cash credits of Rs. 17,640 assessed in the hands of the assessee as income from undisclosed sources without leading evidence as to their genuineness ?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in deleting the addition of Rs. 4,00,000 made by the ITO as income from undisclosed sources on account of alleged undeclared stocks hypothecated in the banks for obtaining loans, when there is no evidence with the Tribunal for assuming that the loan was against some security other than the hypothecation of stocks ?”

In our opinion, both these questions are questions of fact. Question No. 1 pertains to four entries in the books of account of the respondents. According to the respondents, these entries represented advances which had been received from the parties to whom supplies were made subsequently. The Tribunal has found as a fact that these advances were squared up by supply of goods under the invoices. The Tribunal has also noted that they had seen the orders and the relevant papers and had then come to this conclusion. This being so, the conclusion of the Tribunal is a pure question of fact.

With regard to the second question, it appears that the assessee had taken overdraft from the bank for a sum of Rs. 5,10,717. Goods worth Rs. 33,000 were stated to have been hypothecated. The case of the petitioner herein is that the bank would not have given an overdraft of Rs. 5,10,717 without goods worth that amount, at least, having been hypothecated. The ITO, accordingly, treated the difference as income from undisclosed sources and added a sum of Rs. 4 lakhs to the assessee’s income. The Tribunal came to the conclusion that there was no basis on which the ITO could have made this addition. The certificate of the bank which was produced showed that overdraft had been made against hypothecation of stocks. There was no evidence on record to show that the stocks, as represented in the books of account of the assessee, had been undervalued. There was no certificate from the bank which showed that it had given the overdraft on the basis of hypothecation of stocks worth more than Rs. 33,000. If the ITO wanted to disprove the evidence which had been put forth by the assessee, it was open to the ITO to have summoned the necessary records from the bank and to have sought information from the bank as to whether the value of the stock which was hypothecated was Rs. 33,000 or more. In the absence of any evidence on record, there was no reason as to why the assessee’s contention should not have been accepted. The contention which was raised by the assessee was a pure question of fact and we see no question of law arising in this petition. The petition is dismissed.

No costs.

[Citation :181 ITR 198]

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