- (1.) THE appellant has put forward the following question in seeking admission of the appeal. For that the Learned Income Tax Appellate Tribunal erred in law in holding the interest free unsecured loan of Rs. 34,55,000/ - as the income in the hand of the petitioner for the period assessment year 2006 -07 when all the conditions of taking loans were fulfilled and the genuineness of the transactions were proved beyond any doubt before all the authorities below and thus the Order of the Learned Tribunal is perverse. On the face of it the question is a question of fact. Whether the finding is perverse may be a mixed question of law and fact, regard being had to the settled proposition that a perverse finding is erroneous in law. We, however, have no doubt in our mind that the finding in the impugned judgment is not at all perverse. It is a well reasoned finding based on evidence. We can do no better than to quote the relevant part of the judgment under challenge which reads as follows: 6. We find from the above facts that all (25) loan creditors have filed returns of income declaring same income on the same day i.e. on 27.03.2006 declaring same amount of income at Rs. 1,02,400/ - in each of the case. They have paid self assessment tax on same day i.e. on 10.03.2006 at Rs. 245/ - in each of the case. Even bank accounts were opened in the same branch i.e. Union Bank of India, Burdwan and that out of 25 creditors 12 creditors opened their bank account on 17.03.2006 and other 13 creditors on 27.03.2006. Seven loan creditors deposited Rs. 1,80,000/ - in cash and issued cheque for the same amount and remaining 18 loan creditors deposited Rs. 1,25,000/ - in their respective bank accounts on the same day i.e. 27.03.2006 and issued cheque in favour of the assessee for the same amount in each of the case. In such circumstances, we are of the view that there can be a coincidence occurs but it could not be anybody's case that all the above occurrences were on account of coincidence. In our view, in view of above facts, this is a thorough planning and design and all transactions have been orchestrated with an intent i.e. to show these transactions as genuine. The transactions do not appear to be real as it is most improbable that all 25 different persons would open bank account on the same day, depositing the same amount of money on the same day and will file returns of income declaring same income showing total income on the same day and will also pay self assessment tax exactly similar amount on same day.
(2.) WHEN can a finding of fact be said to be perverse was considered by a Special Bench of this court in the case of Collector of Customs v. Biswanath Mukherjee : 1974 CLJ 251. In that judgment the Special Bench noticed an earlier unreported judgment of this court in the case of Addl. Collector of Customs v. Padam Kumar Agarwalla 1974 CLJ 313 wherein the following views were expressed; It is, however, equally well settled that even in a writ petition under Article 226, the Court is entitled to interfere with the finding of the Tribunal on any question of fact which the Tribunal is competent to decide, if the Court is satisfied that the finding of the Tribunal is perverse and the finding of the Tribunal is considered to be perverse, if - (a) The Tribunal has come to the finding on no evidence. (b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials. (c) The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion. (d) The Tribunal has come to the conclusion by considering material which is irrelevant or by considering material which is partly relevant and partly irrelevant. (e) The Tribunal has disabled itself in reaching a fair decision by some considerations extraneous to the evidence and the merits of the case. (f) The Tribunal has based its finding upon conjectures, surmises and suspicion. (g) The Tribunal has based the finding upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found. (h) If the Tribunal in conducting the enquiry has acted in flagrant disregard of the rules of procedure or has violated the principles of natural justice, where no particular procedure is prescribed. There are as many as seven tests laid down in the aforesaid judgment. Not one is shown by the learned counsel to be applicable to the case in hand. Therefore, the ground of perversity raised by the appellant is altogether without any merit. The learned Tribunal has written out a well considered judgment which is under challenge. The learned Tribunal, however, missed the fact that the decision cited on behalf of the assessee in the case of CIT v. Data Ware (P.) Ltd. (ITAT No. 263 of 2011, dated 21 -9 -2011) had no manner of application to the facts and circumstances of this case. The creditor in the aforesaid case was a registered company assessed to tax and had been filing its return regularly and the loan which was under challenge had been reflected in its balance -sheet. Therefore, the judgment cited on behalf of assessee before the learned Tribunal had no similarity with the nature of the transaction including creditors considered in the case before us. In this case the creditors are men of straw. They have for the first time opened a bank account; have for the first time filed a return, have for the first time earned money and lent to the appellant. It is in such a make belief story that the assessing officer exercised jurisdiction under section 68 of the Income Tax Act. The assessee challenged the order of the assessment officer and lost at all stages. We find the order under challenge to be perfectly justified. There is thus no scope of entertaining the appeal. The appeal is dismissed.;