(Per : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Revenue is in appeal against the judgment of the Tribunal dated 31.7.2008 raising following questions for our consideration:-
"[A] Whether the Appellate Tribunal is right in law and on facts in settling aside the issue to the file of the Assessing Officer for disallowance of loss on sale of shares of Rs.1,33,57,551/- though the assessee failed in discharging the primary onus cast upon it?"
[B] Whether the Appellate Tribunal is right in law and on facts in settling aside the issue to the file of the Assessing Officer for addition of Rs.4 crores being amount advanced to Shri Sanjay Amin though the assessee failed in discharging the primary onus cast upon it?"
2. Question [A] pertains to claim of loss of shares of Rs.1.33 crores made by the assessee, which was however disallowed by the Assessing Officer. After detailed discussion, CIT(Appeals), allowed the claim of the assessee. Thereupon, the Revenue approached the Tribunal. The Tribunal by the impugned order remanded the issue before the Assessing Officer making following observations:-
"4. We have heard the rival contentions and gone through the facts and circumstances of the case. We have also perused the case records including the assessment order, the order or CIT(A) and the documents filed by the assessee. We find from the records and arguments of Ld. CIT-DR that till now, the assessee could not produce the confirmations from M/s.R.K. Consultancy and even the Assessing Officer has required the assessee to produce the said broker for examination. But the assessee failed to produce the same. Ld. Counsel for the assessee agreed that this is off market transaction and this is not through Stock Exchange and even the details of Demat A/c. has not been produced before the Assessing Officer. Once the confirmation is not produced and even broker is not produced for examination in respect of transaction carried on by him, the transaction cannot be treated as genuine. On query from the Bench, Ld. Counsel for the assessee stated that the issue can be remitted back to the file of Assessing Officer for re-verification of this transaction and he undertook on behalf of the assessee that he will file the confirmations and other detail from M/s. R.K. Consultancy for examination before the Assessing Officer. Similar arguments were made in the case of JGPL. No. doubt the assessee has filed details as available in its books of account, the copy of account of M/s.R.K. Consultancy, the bank transaction through broker and payment is through account payee cheque etc. But the vital information that the identity of the party is not established. Accordingly, taking into consideration the facts in entirety, we feel that his common issue need re-examination at the level of Assessing Officer afresh. The assessee is also directed to produce the details in respect of M/s. R.K. Consultancy and the transaction of shares of Alps Industries. Accordingly, this common issue of these appeals of the Revenue is set aside to the file of the Assessing Officer and allowed for statistical purposes."
3. Question [B] pertains to the receipt of Rs.4 crores, which the assessee claimed he had received by way of an advance from one Shri Sanjay Amin. The Assessing Officer doubted the claim of the assessee. The assessee produced relevant material at his command. He, however, could not produce confirmation of said Shri Sanjay Amin as he had left the country. The Assessing Officer, therefore, did not accept the version of the assessee and made the addition of said amount of Rs.4 crores as unaccounted income invoking the provisions of Section 68 of the Income Tax Act. Here also in further appeal before the Commissioner, additions made by the Assessing Officer were deleted. Revenue thereupon approached the Tribunal. The Tribunal remanded the proceedings before the Assessing Officer for proper verification making following observations:-
"7. We have heard the rival contentions and gone through the facts and circumstances of the cases. We find that the assessee has received amount of Rs.6 crore and Rs. 4 crore from Shri Sanjay C. Amin as unsecured loan. The assessee could not produce Shri Sanjay C. Amin for examination before Assessing Officer by stating the reason that Shri Amin is out of India and even confirmation could not be obtained. The assessee filed informations before the CIT(A) for the first time like copy of bank account no.2871 maintained with Vijay Bank, Navrangpura and stated that the amount the received by Shri Amin by cheque from M/s. Alps. Infosys Ltd. from this account in the assessee's bank account maintained with the same bank. It was the contention of the assessee that the necessary evidences proving the identity of Shri Amin was filed in the shape of block assessment order of Shri Amin for the block period 01-04-1995 to 14-02-1996 ( it seems that the block period mentioned by the CIT(A) is not correct block period) and the assessee before us has not filed the copy of block assessment order. The assessee has filed the details from its books of account regarding the creditor Shri Sanjay C. Amin and not the independent informations. In view of these facts, we are of the view that the assessee is unable to prove the cash credit and the information was filed before the CIT(A) for the first time and without verifying the same, the CIT(A) accepted the genuineness of the transaction. In view of these facts, we set aside this common issue in both the appeal. We direct the Assessing Officer to decide the common issue in terms of the provisions of Sec.68 of the I.T. Act and also consider the decisions of Hon'ble jurisdictional High Court and Hon'ble apex court laying down principles as regard to identity, capacity and genuineness of the transaction of cash credits. This common issue in these appeals of Revenue is allowed for statistical purposes."
4. We are of the opinion that for valid reasons the Tribunal having remanded the proceedings before the Assessing Officer no question of law arises. In so far as first issue is concerned, the Tribunal though set aside the order of Commissioner (Appeals), remanded the proceedings to enable the assessee to produce details with respect to M/s. R.K. Consultancy and the transactions of shares of M/s. Alps Industries. Therefore, the Tribunal has not concluded any of the issues.
5. With respect to Question [B] the assessee, as has already been noted, produced necessary evidence at his command. With respect to receipt of Rs.4 crores, by way of advance from Sanjay Amin, the assessee could not produce the confirmation and other details regarding to said person and that therefore the claim was disallowed. CIT(Appeals), however, taking into account, further materials produced by the assessee, accepted the claim. The Tribunal was of the opinion that without proper verification such material ought not to have been accepted and relied upon by the CIT(Appeals), it was for this reason that the issue was remanded to the Revenue authorities.
6. In our opinion the Tribunal have merely remanded the proceedings that too for proper verification and after sufficient reasons. No question of law arises. Tax Appeal is, therefore, dismissed.
(Akil Kureshi, J. ) (Ms.
Sonia Gokani, J. ) sudhir Top