(PER :
HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Revenue is in appeal against the judgment of the Income Tax Appellate Tribunal ( the Tribunal for short) dated 12.10.2012 raising following question for our consideration:-
Whether the Appellate Tribunal has substantially erred in holding that the provisions of Section 41(1) are not attracted in respect of the creditors worth Rs.40,11,315/- particularly when the creditors were not found existing during the assessment proceedings and the creditors were being shown since 1997-98 i.e. for more than 9-10 years without making any payment during this period?
2. Issue pertains to addition of Rs.1.29 crores( rounded off) under Section 41(1) of the Income Tax Act, 1961( the Act for short) made by the Assessing Officer. The Assessing Officer after gathering evidence when found that some of the creditors did not respond, made such addition. The assessee carried the matter in appeal. CIT(Appeals), on the basis of available material on record, deleted part of the additions to the extent of Rs.40.11 lakhs.
3. Revenue thereupon carried the matter in appeal. The Tribunal confirmed such decision of CIT(Appeals). Hence, this appeal at the hands of the Revenue.
4. The Tribunal in the impugned judgment, in this context, made following observations:-
We have heard the rival submissions and perused the material on record. The factual matrix of the case is that the assessee has shown in its balancesheet the amount payable to its creditors. The Assessing Officer had issued letters under Section 133(6) of the Act to all the creditors. Some of the creditors have denied having any transactions with the assessee. In those cases the learned CIT(A) has confirmed the addition for the reason that the assessee could not prove their genuineness. In the Paper Book placed by the assessee which has been placed on record, the assessee has placed copies of confirmation but the confirmations are not signed by the counter parties nor does it have their Permanent Account Numbers. The decisions relied upon by the learned AR are distinguished on facts. Thus in view of the totality of facts, we are of the view that the learned CIT(A) has rightly confirmed the additions made by the Assessing Officer.
5. In our opinion entire issue is based on appreciation of facts. When CIT(Appeals) and the Tribunal concurrently on the basis of evidence on record, found that certain addition was not justified, in our opinion, no question of law arises. Tax Appeal is, therefore, dismissed.
(AKIL KURESHI, J.) (MS SONIA GOKANI, J.) SUDHIR Page 2 of 2