- (1.) HEARD learned Counsel for the appellant.
(2.) THE following two questions are stated to be substantial questions of law arising for consideration in this appeal against the order of Tribunal, Jodhpur Bench, Jodhpur, dt. 20th Sept., 2005: (i) Whether on the facts and in the circumstances of the case as well as in the law, the learned Tribunal is justified in upholding the decision passed by the CIT(A) deleting the addition of Rs. 21,64,500 made by the AO under Section 68 of the Act have unexplained share application money and cash credit ignoring the substantial fact given by the AO on the basis of material available on record? (ii) Whether on the facts and in the circumstances and in law, the learned Tribunal was justified in allowing the relief of Rs. 9,63,744 out of trading addition of Rs. 10,48,743 made by AO by relying on the decision of Howrah Trading Co. (P) Ltd. v. CIT : [1968]67ITR582(Cal) while approving the decision of the CIT(A) in rejecting the books result? So far as question No. 1 is concerned, it is stated by learned Counsel for the appellant that the issue embedded in the said question has already been decided by this Court and governed by the ratio laid down in Barkha Synthetics Ltd. v. Asstt. CIT (2005) 197 CTR (Raj) 432. It has been pointed out that share applications are made by number of persons, may be in their own names or benami, but the fact that share applications received from different places accompanied with share application money, no presumption can be drawn that same belong to the assessee and cannot be assessed in his hands as his undisclosed income unless some nexus is established that share application money for augmenting the investment in business has flown from assessee's own money. In coming to this conclusion, the Court relied on CIT v. Steller Investment Ltd. (1991) 99 CTR (Del) 40, which has since been affirmed by the Supreme Court in CIT v. Steller Investment Ltd. (2000) 164 CTR (SC) 287. In view thereof, this question need not be decided again.
(3.) SO far as question No. 2 is concerned, it is finding of fact and no question of law is involved.;