ORDER
Abdul Razack, J.M.
July, 1995.
1. These are cross-appeals filed by the assessee as well as by the Revenue. We shall first take up assessee’s appeal.
ITA No. 352/Pat/1989 :
2. Ground Nos. 2 and 3 state that the Appellate Commissioner (A/C) erred in confirming the deposit by Smt. Girja Devi of a sum of Rs. 18,000 treating it as assessee’s income and also disallowing the interest amount of Rs. 1,828 paid to that lady on her loan account.
3. The assessee obtained a loan from Smt. Girja Devi amounting to Rs. 18,000. No confirmation letter from this lady was filed. However, the assessee explained that she obtained loans from two different persons through account payee cheques which were deposited by her in her bank account and then the cheque was issued to the assessee. It was stated before the AO that both the lenders of Smt. Girja Devi were assessed to tax. Explanation was disbelieved and the amount of Rs. 18,000 was added to the assessee’s income under s. 68 of the Act at the same time adding Rs. 1,828, interest payable by the assessee in respect of aid loan amount on first appeal. It was confirmed on the ground that the assessee has failed to discharge the onus which lay on it under s. 68 of the Act.
4. We have heard both sides, and also perused the relevant documents placed by the assessee’s counsel in his paperbook. In our view, though there was no confirmatory letter from the assessee, the assessee tried to explain how that lady came into possession of Rs. 18,000 which was by loans obtained from two different parties who were income-tax assessees and who filed explanation in support of the explanation given by the assessee. The loans by the two persons to the lady Smt. Girja Devi were through account payee cheques and the lady Smt. Girja Devi also gave loans to the assessee by account payee cheques. In our view it can be safely said that the assessee discharged the onus which lay on him under s. 68 of the Act. The Hon’ble Patna High Court in the case of Addl. CIT v. Bahri Bros. (P) Ltd. (1985) 154 ITR 244 (Pat) have laid down that if the loan transaction is routed through bank channels, i.e., the account payee cheque then it is sufficient discharge of the onus which lay on the assessee. Respectfully following the principle laid down therein by the Hon’ble Patna High Court, we hold that the burden has been discharged by the assessee and direct deletion of the sum of Rs. 18,000 as well as the sum of Rs. 1,828 being interest thereon.
5. In that 4th ground it is stated that the AAC erred in confirming the addition of Rs. 11,555 which was made by the AO on the basis of loose sheets recovered during search operations under s. 132 of the Act. The AO has stated that in the course of search and seizure operations conducted in the residential premises of the assessee on 13th January, 1984, certain loose sheets were recovered and which were listed in Annexure ‘C’ of the Punchanama. On being asked, the assessee stated that those loose sheets were recovered from the bedroom of his son who was doing separate business and was separately assessed to income-tax by the ITO, A Ward, Gaya, and he should be called upon to explain the transaction. The AO did not heed to this request of the assessee and added the sum of Rs. 11,555 considering the amount recorded therein as unexplained for making purchases. The assessee was unsuccessful before the first appellate authority.
6. After hearing the rival submissions and perusing the material on record and examining the reasons given by both the lower authorities, we are of the view that the AAC ought to have deleted the addition and directed the AO to refer the matter to the AO assessing the son of the assessee and to make proper enquiries in the son’s individual assessment. Since the AAC has failed to do so, we deem it fit and proper to delete the addition and direct the AO to enquire from the assessee’s son if he is the AO, if not communicate this to the AO assessing Shri Indra Kumar, son of the assessee. We agree with the assessee’s counsel that whatever addition is required to be made on the basis of the noting of the loose sheets recovered during search operations should be enquired from Shri Indra Kumar and if the addition, if any, warranted should be made in the case of the assessee’s son, Shri Indra Kumar. With the above direction, we dispose of ground No. 4.
7. In the 5th ground the assessee states that the AAC erred in confirming the addition of Rs. 17,824 on account of difference in closing stock. The AO has stated in his assessment order that in the course of search operations silver account register for the period relevant to the asst. yr. 1983-84 was seized according to which the closing stock of the assessee’s business amounted to 39.406 kgs. as against 29.065 recorded in the trading account filed along with the return of income. The AO, therefore, added the value of the difference of 10.295 kgs. as no satisfactory explanation was tendered by the assessee. This addition was made as income from other sources. In first appeal it was stated that the difference in closing stock related to asst. yr. 1982-83 and the value in respect of the difference was added in that year. The AAC stated in para 13 of the impugned order that he found from the record that the amount of unexplained closing stock of silver was considered at 10.786 kgs. in the asst. yr. 1982-83 since the closing stock as per the seized stock register amounted to 41.882 kgs. whereas 31.069 kgs. was shown in the trading account and, therefore, the AO added Rs. 22,864 as income from other sources for the asst. yr. 1982-83. For the asst. yr. 1983-84, the AO has mentioned that the assessee had shown stock of silver at 29.065 kgs. whereas as per the seized register pertaining to this year its value amounted to 39.806 and, therefore, the value of 10.295 kgs. of silver was added to the returned income as income from undisclosed sources. The submissions of the assessee’s authorised representative were not found to be satisfactory by the AAC and he, therefore, confirmed the addition of Rs. 17,824 made by the AO.
8. We have heard the arguments of both sides and perused the relevant material. In our view the addition made for the year under appeal is wholly unwarranted because the closing stock of the asst. yr. 1982-83 became the opening stock of this year and, therefore, it shall be assumed that 39,306 kgs. was the opening stock and this represented closing stock. We, therefore, see no justification for making further addition in respect of discrepancies in respect of silver stock as per seized register. The difference in stock of silver has already suffered tax in the asst. yr. 1982-83 and subjecting the assessee again to tax in the year under appeal will be highly unjustified as it will amount to double taxation of the same income. We, therefore, direct deletion of the addition of Rs. 17,824. The assessee succeeds on 5th ground.
9. In the 6th ground, it is stated by the assessee that the AAC erred in confirming the addition on account of low withdrawals.
10. Heard both sides. We see no justification for sustaining the addition on account of low withdrawals made by the AO for household expenses. Apart from the assessee, other members of the family are also income-tax assessees and they have made withdrawals, viz., Smt. Saraswati Devi Rs. 4,400, Shri Jitendra Prasad Rs. 2,200 and Smt. Girija Devi Rs. 6,000. Thus the total funds available for household expenses during the year under appeal could be around Rs. 19,000 and the AO estimated the household expenses at Rs. 15,000. From the above it is clear that there was no need for making any estimated addition towards low withdrawals for household expenses. The addition of Rs. 6,000 is directed to be deleted. The assessee succeeds on this ground.
11. No other point was urged or argued.
12. In the result, the appeal is disposed of with the above directions.
13. ITA No. 337/Pat/1990 :
The below given two grounds are taken by the Revenue.
“For that the learned CIT(A) was not justified in setting the items of cash credits of Rs. 69,000, interest of Rs. 6,891 and investment of Rs. 4,00,000 in the purchase of house by the assessee since reasons were specifically mentioned by the AO while making the addition of these items.
For that the learned CIT(A) was further not justified in deleting the additions of Rs. 6,047 under s. 40A(3), Rs. 14,000 on low drawing and Rs. 1,02,329 on account of materials gathered from loose papers available from assessee’s premises. The additions were maintainable.
14. In respect of first ground, we are of the opinion, after hearing both sides that the AAC was not wrong in setting aside the assessment and remanding the matter for fresh investigation in respect of cash credits of Rs. 69,000 and the interest thereon amounting to Rs. 6,891. We also do not wish to find fault with the AAC in remanding the matter to the AO with a direction to re-examine the matter regarding the purchase of a house property of Rs. 4,00,000 claimed by the assessee to have been purchased by his family members and for which proper evidence was not appreciated by the AO in a right and proper perspective. We agree with the AAC and dismiss ground No. 1 of the Revenue’s appeal.
15. We have heard representatives of both sides in regard to ground No. 2 above and perused the relevant material brought on record for our consideration. In respect of addition of Rs. 6,047 made by the AO by invoking provisions of s. 40A(3), we are inclined to uphold the order of the AAC in this regard because he has followed order dt. 30th March, 1989, in assessee’s own case for the preceding year passed in ITA No. 204/Pat/88-89. We do not know whether the order of the AAC in this regard for the earlier year was reversed or upset. The deletion of the addition is, therefore, upheld.
16. Regarding the deletion of Rs. 14,000 on account of household expenses is concerned, we are in full agreement with the AAC that the addition on an estimate basis for household expenses was not proper. As observed by the AAC the withdrawals by the other family members far exceeded the estimate of household expenses by the AO. The addition was rightly deleted. No interference is called for at our hands.
17. Regarding the addition of Rs. 1,02,329 based on certain loose papers found in the bedroom of the appellant is concerned, we are of the opinion that the same should be enquired from the assessee’s son, Shri Indra Kumar and if any addition is required to be made the same shall be made in the assessment of the assessee’s son, Shri Indra Kumar and not in the assessee’s case. Identical dispute arose in the assessee’s appeal being ITA No. 352/Pat/1989 and we have given certain directions while disposing off ground No. 4 in that appeal. We order and direct that the directions given therein shall be complied and followed as directions being given in this appeal. With these observations, the above addition of Rs. 1,02,329 deleted by the AAC appears to be correct.
18. In the result, the Revenue’s appeal is disposed of as indicated above.
ITA Nos. 337/Pat/1990; Asst. yr. 1984-85 & No. 352/Pat/1989; Asst. yr. 1983-84
V. K. Sinha, A.M.
8th November, 1995.
19. Consolidated order has been proposed in respect of the two appeals. I agree with the proposed order of my learned brother in ITA No. 337/Pat of 1990 for the asst. yr. 1984-85.
20. In respect of the proposed order for appeal in ITA No. 352/Pat of 1989 for the asst. yr. 1983-84, I agree with the conclusion except in the matter of cash credit of Rs. 18,000 in the name of Smt. Girija Devi, which was added to the assessee’s income, and disallowance of interest amounting to Rs. 1,828 paid to her on the loan. I, therefore, with respect, propose a separate order in respect of the above.
21. According to the assessment order, the assessee showed loan of Rs. 18,000 from Smt. Girija Devi in his books of account. The assessee was asked to do the following by a letter dt. 26th November, 1985 :
(1) establish the identity of the cash credit,
(2) prove the capacity of the creditor to advance the loan,
(3) adduce evidence regarding the genuineness of the loan transaction.
The assessee was also required to produce the cash creditor for examining her in the office.
22. The reply was received from the assessee saying that Smt. Girija Devi had furnished confirmatory letter regarding deposit of Rs. 18,000 with the sources. However, it is stated in the assessment order that no confirmatory letter was filed. Nothing whatsoever had been stated by her regarding the source of the amount in the reply mentioned above. However, subsequently during the assessment proceeding, two letters were filed – one was a letter from one Shri Onkar Nath, who stated that he advanced Rs. 8,000 to Smt. Girija Devi. The second letter, signed by one Smt. Damyanti Devi, merely stated that Smt. Damyanti Devi gave a loan of Rs. 10,000 as Smt. Girija Devi on a monthly interest of 1 per cent. Nothing else was stated regarding the source of advancing the loan by Smt. Girija Devi.
23. The AO observed that no confirmatory letter was filed from Smt. Girija Devi and, therefore, her identify had not been disclosed. Her capacity to advance the loan had also not been established. There was nothing to indicate that the lady was assessed to tax. Smt. Girija Devi was not produced although specific request had been made. He, therefore, added Rs. 18,000 under s. 68 and disallowed the interest.
24. Subsequently, in first appeal, different arguments were advanced before the CIT(A) by the assessee’s counsel saying that the loan of Rs. 18,000 was advanced by a cheque on 3rd September, 1982. It is also stated that Smt. Girija Devi had taken loan from Shri Onkar Nath and Smt. Damyanti Devi, both assessed to income-tax, by cheque and deposited them in her saving bank account out of which loan by cheque was given to the assessee.
25. The CIT(A) has made no comment on the above fresh explanation given before him, and has only recorded it. He observed that the assessee did not furnish any confirmation from the creditor nor was she produced for examination. He, therefore, confirmed the addition of Rs. 18,000 and declined interest of Rs. 1,828.
26. In the written submissions filed before the Tribunal, the assessee has gone one step ahead and stated that the loan to the assessee was advanced by Smt. Girija Devi by cheque No. 0021927, dt. 3rd September, 1982, drawn on Bank of India, Gaya. It was, therefore, claimed that she was a genuine person and the source was fully explained from the scrutiny of bank account. A copy of the bank account has also been placed in the paper book. Not only that, Annexure A to the paper book is a letter purporting to be a confirmatory letter from Smt. Girija Devi regarding the loan.
27. In my opinion, it is the evidence produced before the AO which is relevant and not the subsequent evidence. It was not mentioned before the AO that the loan had been advanced by cheque and relevant particulars were not given. This claim was made for the first time before the CIT(A). Rule 46A of the IT Rules, 1962, lays down certain conditions for admission of additional evidence and also obliges the CIT(A) to record the reasons for admission of the additional evidence. It is quite clear that the CIT(A) did not admit the additional evidence, though he has not specifically said so. This conclusion is evident since he has made no observation on the submission regarding payment by cheque before him and has not recorded any reason for admission of additional evidence. In the facts and circumstances of the case, when no case was made out by the assessee for production of additional evidence, I agree with the CIT(A) that it could not have been admitted.
28. Similarly, additional evidence is not admissible before the Tribunal, where even a letter, claiming to be a confirmatory letter from Smt. Girija Devi, has been filed. I, therefore, decline to consider it, including photocopy stated to be of bank account of Smt. Girija Devi. This is particularly so since no reason has been advanced before us for producing the additional evidence and also because no opportunity has been allowed to the Department to rebut it.
29. In the above circumstances, the case of Addl. CIT v. Bahri Bros. (P) Ltd. (1985) 154 ITR 244 (Pat), relied upon in the proposed order of my learned brother, becomes distinguishable on facts. In that case, it was an accepted position that lenders made payments by account payee cheques, which is not established in the present case. In that case, assessee repaid the loan and interest and brokerage, all by account payee cheques, which is not established in the present case. In that case, the assessee produced certificate from the bank. This is not so in the present case. In that case, the AO did not make a request for producing the creditor, but in this case a request was made but there was no compliance. In that case, the assessee sent a letter or request to the creditor for confirmation of loan but it came back with a postal remark “addressee left” and the Hon’ble Judges observed that this was on account of lapse of time as the loans in question were taken in 1963 and the assessment proceedings started in 1969. Such is not the case here. In the present case, the loan was taken on 3rd September, 1982. The date of starting assessment proceeding is not available but the proceedings ended on 31st December, 1985, when the assessment order was passed. The lapse of time was not much. In fact, a letter, purporting to be a confirmatory letter, has been placed in the paper book before us on the date of hearing on 17th May, 1995. Thus, the lady was not untraceable but very much available. I, therefore, hold that the ratio of the above judgment does not help the assessee.
30. The addition of Rs. 18,000 as cash credit is upheld and the disallowance of interest to the creditor, amounting to Rs. 1,828 is also upheld. The assessee’s ground of appeal relating to these two additions is rejected.
REFERENCE UNDER S. 255(4) OF THE IT ACT, 1961 8th November, 1995. As we differ in our, views in the above case, we request the Hon'ble President to kindly refer the matter to the 3rd Member on the following point : "Whether in the facts and circumstances of the case and in law addition of cash credit of Rs. 18,000 under s. 68 of the Act and disallowance of payment of interest of Rs. 1,828 on the cash credit should be upheld or deleted ?" ORDER T.V. Rajagopala Rao, President
1. The appeal for asst. yr. 1983-84 is by the assessee, while the appeal for asst. yr. 1984-85 is by the Department. Both the appeals were consolidated and disposed of by the Division Bench. Only with reference to one of the grounds involved for asst. yr. 1983-84, there was difference of opinion between the members of the Division Bench and, hence, the differing point is referred to the Third Member for his opinion, which is as follows :
“Whether, in the facts and circumstances of the case and in law, addition of cash credit of Rs. 18,000 under s. 68 of the Act and disallowance of payment of interest of Rs. 1,828 on the cash credit should be upheld or deleted ?”
I want through the differing orders of the Members and I felt that the main question to be decided by me would be the admissibility of the additional evidence which was produced by the assessee before the Tribunal.
2. One Smt. Girija Devi was the cash creditor. The case of the assessee was that she had deposited an amount of Rs. 18,000 on 3rd September, 1982, in the books of account of the assessee. Smt. Girija Devi advanced this loan by means of a cheque No. 0021927 dt. 3rd September, 1982. Out of Rs. 18,000 thus deposited by Smt. Girija Devi, a sum of Rs. 8,000 was received as loan by her from Shri Onkar Nath, advocate, and a sum of Rs. 10,000 from Smt. Dayawanti Devi. Shri Onkar Nath, advocate, is an assessee with Permanent Account No. 17-005-PT-7731. Similarly, Smt. Dayawanti Devi was also an income-tax assessee with GIR No. D-890. After thus borrowing Rs. 18,000 from both Shri Onkar Nath and Smt. Dayawanti Devi, Smt. Girija Devi had remitted Rs. 18,000 in her Saving Bank Account in Bank of India, Gaya. Subsequently, she advanced Rs. 18,000 to Shri Dwarika Prasad (assessee) by cheque No. 0021927, dt. 3rd September, 1982 of Bank of India, Gaya. Thus, the case of the assessee was that the amount was advanced through a cheque drawn on Bank of India, Gaya. Smt. Girija Devi did not issue any confirmatory letter at the time when the assessment proceedings were pending with the ITO nor was she got summoned and examined under s. 131 of the IT Act. The ITO, by his letter dt. 26th November, 1985, asked the assessee to establish the identity of the cash creditor to prove the capacity of the creditor to advance the loan and adduce evidence regarding the genuineness of the loan transaction. A reply was received with a confirmatory letter from Smt. Girija Devi which had been furnished. However, the ITO observed in the assessment proceedings that the assessee did not furnish any confirmation from the creditor nor was she produced for examination and he, therefore, made an addition of Rs. 18,000 and declined to allow interest of Rs. 1,828 also. In the assessment proceedings itself, one letter issued by Shri Onkar Nath stating that he had advanced Rs. 8,000 to Smt. Girija Devi and a second letter from Smt. Dayawanti Devi saying that she gave a loan of Rs. 10,000 to Smt. Girija Devi on a monthly interest of 1 per cent were filed. While completing the assessment proceedings, the ITO observed that no confirmatory letter was filed from Smt. Girija Devi, that the identity of the creditor had not been established, that her capacity to advance the loan had also not been established and that she was also not produced although specific requests had been made. Therefore, he disallowed the cash credit of Rs. 18,000 and also disallowed interest thereon.
3. Before the CIT(A), it was stated that the loan of Rs. 18,000 was advanced by a cheque issued on 3rd September, 1982, that Smt. Girja Devi had taken loans from Shri Onkar Nath and Smt. Dayawanti Devi, both of them being income-tax assessees and that after borrowing from them Smt. Girja Devi had deposited the amount in her SB A/c with Bank of India, Gaya, out of which she issued a cheque to the assessee. The learned CIT(A) did not make any comment on the fresh explanations filed before him or advanced before him except recording them in his impugned order. By simply observing that the assessee did not furnish any confirmation from the creditor and also by observing that the assessee failed to produce the cash creditor for examination, he confirmed the addition of Rs. 18,000 and disallowed the interest of Rs. 1,828 thereon.
4. When the matter was brought to the Tribunal in second appeal, written submissions were filed on behalf of the assessee. In those submissions, inter alia, it was submitted that Smt. Girija Devi advanced the sum of Rs. 18,000 by cheque No. 0021927, dt. 3rd September, 1982, drawn on Bank of India, Gaya. She was an identifiable and genuine person and the sources were fully explained and could be verified from scrutiny of her bank account. A copy of her bank account was also furnished in the paper book. A confirmatory letter purported to have been given by Smt. Girija Devi was also furnished in the paper book.
5. In the order of the learned A. M., Shri V. K. Sinha, it is stated that in the opinion of the learned A.M., it is the evidence produced before the AO which is relevant and not the subsequent evidence. Since, it was not mentioned before the AO that the loan had been advanced by cheque and relevant particulars of the cheque were also not given, and since this claim was also made for the first time before the CIT(A), and except stating in his order that additional evidence was filed, no reasons were recorded by the learned CIT(A) for admission of additional evidence. It must be deemed that the CIT(A) did not admit additional evidence though he has not specifically stated so in his order. The learned A.M. also stated to have agreed with the purported conclusion of the learned CIT(A) that all the conditions for admission of additional evidence under r. 46A of the IT Rules were not fulfilled and, therefore, the additional evidence was not rightly taken into consideration by the learned CIT(A) and he fully agreed with this conclusion in that behalf.
6. In my opinion, the understanding of law by the learned A.M. about the admissibility of additional evidence set out in paras 26 and 27 of his order is not correct under law. In the day-to-day human affairs, there may be several valid or explainable reasons as to why relevant evidence was not produced before the ITO. According to the learned A. M., whichever evidence is produced before the ITO should only be considered relevant and not the subsequent evidence which would go to prove that the subsequent evidence was all fake or cooked up evidence. If this is accepted as the correct position in law, then there is no scope at all to produce any additional evidence whatsoever either before the first appellate authority or the second appellate authority. This notion of the learned A.M. is quite against the purport of r. 46A of the IT Rules. There are different circumstances enumerated under r. 46A which authorise the assessee to produce additional evidence. The following are the instances contemplated :
(i) The AO refused to admit evidence which ought to have been admitted;
(2) The appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the AO;
(3) That the appellant was prevented by sufficient cause from producing before the AO any evidence which is relevant to any ground of appeal; or
(4) That the AO has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.
In all such cases, additional evidence can be produced before a first appellate authority. While admitting that additional evidence, the appellate authority should allow a reasonable opportunity to the AO to examine the evidence or document or to cross-examine witness produced by the assessee or to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. Thus, r. 46A(3) contemplates not only production of evidence but also examination of witness before the first appellate authority as additional evidence. Now, in this case, the assessee has been contending that he had already filed a confirmatory letter from Smt. Girja Devi. The AO denies this fact and says that it was never filed. One of the documents filed before the CIT(A) was the confirmatory letter from Smt. Girja Devi. It is not mentioned by the learned A.M. that the documents produced before the learned CIT(A) were not given notice of to the AO nor was it taken that no reasonable opportunity to examine the evidence or document or to produce any evidence in rebuttal was not given to the AO. Further, the learned CIT(A) did not specifically state that the additional evidence was not admitted and the reasons for doing so. Under r. 46A(4), the CIT(A), on his own, without being moved by either party, may call upon the assessee to produce a particular evidence or examine a particular witness if he feels that that evidence or examination would be material in order to know the truth of the matter and in order to arrive at a just decision in the case. In the facts of this case, before rejecting the additional evidence or considering the reasonableness or otherwise of the CIT(A)’s purported decision of refusing additional evidence, one has to examine what type of evidence the assessee produced before the learned CIT(A). One of the documents produced was the confirmatory letter purported to have been passed by Smt. Girja Devi. The said bank account of Smt. Girja Devi in Bank of India, Gaya, is filed only to show that she had got sufficient amount in the bank account and that she issued cheque No. 0021927 dt. 3rd September, 1982. Thus, the bank account is a crucial document which would establish the identity of the creditor, her capacity to pay and also to prove the loan transaction. When such is the crucial nature of the documents filed, can we say either the CIT(A) or the learned A.M. is justified in rejecting to receive that evidence. In this connection, r. 29 of the ITAT Rules is as follows :
“29. The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the IT authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow much evidence to be adduced.”
Powers of the Tribunal to receive additional evidence, in the appeal before them are just like the powers of a civil Court under O. 41 r. 27. If the Tribunal comes across a crucial document like bank account to prove all the three ingredients essential to establish the truth of the cash credit, in my opinion, it will not be in the interests of justice to deny admission of such crucial evidence into the records by simply stating that it was not produced before the AO but it was produced at a later stage. The bank account cannot be manufactured or concocted to suit the convenience of any party. An extract of the books of account maintained by the bank is very much relevant under the Bankers Books Evidence Act. I, therefore, hold that the learned A.M. is not justified in rejecting the additional evidence or in concurring with the purported decision of the CIT(A) in rejecting the additional evidence produced before him. Smt. Girja Devi was stated to be the wife of Shri Dwarika Prasad himself and she is also stated to be an assessee in Ward No. I, Gaya. It is stated now before me that Smt. Girja Devi was having SB A/c No. 2675 in Bank of India, Gaya. From that account, she had issued a cheque bearing No. 0021927, dt. 3rd September, 1982 for Rs. 18,000 in favour of her husband, Shri Dwarika Prasad. Under the circumstances. I completely agree with the learned J.M. that the ratio of Hon’ble Patna High Court in Addl. CIT v. Bahri Bros. (P) Ltd. (1985) 154 ITR 244 (Pat) stands attracted to the facts of the present case even though Smt. Girja Devi herself was not examined by the assessee. The fact that she had borrowed Rs. 10,000 from Smt. Dayawanti Devi and a sum of Rs. 8,000 from Onkar Nath, advocate, by means of cheques and the fact that these two cheque amounts totalling to Rs. 18,000 were remitted into her SB a/c in Bank of India, Gaya, would clearly show that she is an identifiable person and that she has resources enough to lend the amount. Further, when the matter was argued before the CIT(A), it was contended that she was having a loan account earlier and in that account an opening balance of Rs. 37,045 was standing to her credit. Therefore, the creditworthiness of the cash creditor cannot be in doubt. The distinguishing features said to be existing in the facts of the case on one hand and the facts in Addl. CIT v. Bahri Bros. (P) Ltd. (supra) said to be existing by the learned A.M., in my opinion, are not existing. In this case also, the persons from whom Smt. Girja Devi obtained Rs. 18,000 gave cheques. Smt. Girja Devi herself lent the amount of Rs. 18,000 on cheque to her husband on 3rd September, 1982 from her account in Bank of India, Gaya. Therefore, the Patna High Court decision fully applies to the facts of the case. I entirely agree with the learned J.M. in holding that the cash credit is a genuine cash credit and, therefore, the addition of Rs. 18,000 under s. 68 of the IT Act and the disallowance of interest of Rs. 1,828 should be deleted.
7. The matter should now go back to the Division Bench which would decide the issue according to the majority decision on the point of difference.