JUDGMENT
R.S. Garg, J.
1. Mr. S.N. Divetia, learned Counsel for the assessee, and Mrs. Mona M. Bhatt, learned Counsel for the Revenue, are heard.
2. At the instance of the assessee, the Tribunal has referred the following questions to this Court for our opinion:
1. Whether, on facts and in law, the Tribunal was justified in upholding the action under Section 147(a) of the IT Act?
2. Whether, on facts and in law, the Tribunal was right in treating the said cash credits as not genuine and sustaining the addition made of Rs. 66,475?
2.1. We will take up the second question first as it was vehemently argued by the learned Counsel for the assessee that the findings regarding the cash credit entries that those were not genuine, are perverse findings. The learned Counsel for the assessee submitted that the basic burden to prove the source of money would be on the assessee, but, he is not required to prove the sources of the source and as the taxing authorities and the Tribunal made an inquiry into the sources of the source, i.e., source of the person, who deposited the money, the findings are perverse. In support of his submission, he has relied upon a Division Bench’s judgment of this Court in the matter of Murlidhar Lahorimal v. CTT (2006) 200 CTR (Guj) 109 : (2006) 280 ER 512 (Guj).
3. After going through the facts of the said case, we must immediately say that the facts of the said case were totally different. In the present case, the AO when he was making a fact finding inquiry, he examined some of the creditors and after a thorough cross-examination, he was successful in obtaining the information from the witness that the witness, in fact, had no money with him, he was having certain agricultural lands and from the agricultural operations, he could hardly meet both the ends. Not only that, it is to be seen that a sum of Rs. 22,500 was deposited simply because the partner of the firm, namely, Yogeshbhai, came in contact with the said depositor, he did not charge any interest over it because the money was given in friendship and after receiving the same from the firm, he again gave it to Yogeshbhai, the partner. A dispassionate look at the facts and the conduct of the witness would provide that he was a cooked-up witness and was brought before the AO to save the skin of the original assessee, a partnership firm. We are unable to hold that the findings recorded by the AO, CIT(A) and the Tribunal into the genuineness of the transaction, call for any interference.
4. So far as the first question is concerned, the learned Counsel for the assessee submitted that before issuing a notice under Section 147(a) of the IT Act, the AO must be sure of the grounds available to him and he cannot be allowed to make a fishing inquiry. His submission is that simultaneous issue of notice to the firm, so also to the partner, not only would be bad, but, would show the mind of the AO.
5. The argument, unfortunately, is in oblivion of the fact that the present is a matter where the firm is opposing the proceedings under Section 147(a) of the IT Act; once the findings are recorded against the interest of the partnership firm that the entries were not genuine, then, that would be the end of the matter for the firm. Even for the partner, the officer would be entitled to take an action in view of the statements made by the witness.
6. Both the questions are answered in favour of the Revenue and against the assessee. The reference shall stand disposed of accordingly. No costs.