- (1.) The appeal is directed against a judgment and order dated 27th September, 2004 passed by the learned Income Tax Appellate Tribunal "B" Bench, Kolkata in ITA NO.1492/K/02 pertaining to the assessment year 1994 -95 by which an appeal preferred by the assessee was dismissed. The assessee has come up in appeal. The following questions of law were formulated on 30th January, 2008 when the appeal was admitted: - "(a) Whether in the facts and circumstances of the case, the order of the Tribunal was erroneous in law in upholding and/or confirming addition under section 68 of the Act of loan credits without making full verification and without using statutory power of enquiry under section 131 of the Income Tax Act, 1961, in respect of the loan transaction (b)Whether on the facts and in the circumstances of the case, the orders of the Tribunal was erroneous in law in upholding order confirming addition of unexplained loan transactions under section 68 of the Income Tax Act, 1961, in absence of any material brought on record by the Assessing Officer to hold the loan transactions as unexplained the appellant having already discharged the initial onus of proof as per the decision of the Hon'ble Supreme Court of India - Additions were made; (a) on account of alleged share application money (b) on account of money allegedly borrowed by the assessee The learned Tribunal upheld the addition on account of money allegedly borrowed by the assessee for the following amongst other reasons: - "In the instant case the loan creditors were not available at the given address and no loan confirmations could be filed by the assessee. In absence of any particulars, the genuineness of the transaction, creditworthiness and identity of the loan creditors could not be established. The grievance of the assessee is that the Assessing Officer in the order passed after the order of the Ld.CIT(A) has not carried out the directions given by the Ld. CIT(A) in the original order. We find that in the earlier appellate order the Ld. CIT(A) has directed the Assessing Officer to make enquiries. For making the enquiries the Assessing Officer wrote letter to the creditors but those were returned unserved as the creditors were not available at the address given by the assessee. Thus to say that the Assessing Officer has not made compliance with the Ld.CIT(A) order will not be fully justified. Even at this stage, the correct address of the loan creditors could not be submitted. In the absence of the same the alleged loan can not be accepted as genuine." The learned Tribunal upheld the addition on account of money alleged received by the assessee on account of share application money for the following amongst other reasons: - "Further in the case of share application money received the assessee is required to prove the identity and the genuineness of the transactions. For proving the identity of the share application not even the full address of the share applicants either before any of the lower authorities or before us was filed. Copy of the share applicants were also not filed so as to prove the genuineness of the transactions."
(2.) These facts and discussion of the learned Tribunal in its judgment have not been disputed. Mr.Jhunjhunwalla learned advocate appearing for the assessee submitted that during the penalty proceedings he had furnished particulars of 19 creditors who had allegedly advanced money to him. Even that letter does not disclose any address with respect to 8 of the creditors and the creditors whose addresses were furnished by the assessee were not available, according to the finding recorded by the learned Tribunal at the address indicated by the assessee. We, as such, are unable to attach any importance to the submission advanced by Mr.Jhunjhunwalla. The burden is upon the assessee to prove the necessary ingredients of section 68. Once the assessee failed to do so the consequences were bound to follow. In that view of the matter, both the additions are upheld and the questions formulated at the time of admission of the appeal are, accordingly, answered against the assessee. In the result, the appeal fails and is dismissed.
(3.) We are told that a miscellaneous application registered as M.A. No.71 (Kol) of 2005 was filed by the appellant before the learned Tribunal after the appeal was dismissed. The miscellaneous application was also dismissed by the learned Tribunal. With respect to dismissal of the miscellaneous application no question of law was formulated. Therefore, we need not take into account the aforesaid dismissal of the miscellaneous application. Parties shall, however, bear their own costs.;