[ASN] IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.15 OF 2009 The Commissioner of Income Tax-3. ..Appellant. Vs. M/s. Tania Investments Pvt. Ltd. ..Respondent. Mr.Vimal Gupta for the Appellant. Mr. Sanjiv M. Shah for the Respondent. CORAM : F.I. REBELLO & R.S. MOHITE, JJ. DATE : 30th March, 2009. PC : 1. Revenue is in appeal on the following question. Whether on the facts and in the circumstances of the case and in law the Hon’ble Tribunal was right in deleting the addition of Rs.7,41,17,495/- made by the Assessing Officer towards unexplained Cash credits even though the assessee company had not proved the credit worthiness of the creditors to advance the loans to the Assessee Company? 2. In the instant case, the Assessing Officer has disallowed the loss on the ground that there was no material. Before the CIT(A) remand report was called from the Assessing Officer. The Assessing officer on remand in his report admitted that the identity of the parties and also that there was corresponding entries [ 2 ] in the books of account. The CIT (A) consequently allowed the appeal. Revenue came in appeal before the ITAT which was dismissed and consequently, the present appeal. 3. At the hearing on behalf of the revenue, the learned counsel submits that in case of entries in books of accounts pertaining to cash credit, the assessee has to establish i) the identity of the party ii) capacity and (iii) the genuineness of the transaction. In the instant case, the learned counsel admits that so far as identity is concerned, the parties have been identified and similarly in the books of accounts produced by them corresponding entries were found. The learned counsel submits that one of the predicate namely capacity to advance loan was not established, and ITAT ought to have restored the matter to the Assessing Officer for reconsideration. 4. The learned Tribunal in its order, in order to answer the said contention, observed as under. "The learned Assessing Officer having any doubt with regard to capacity of the party to advance loan, no one prevented him to verify the capacity of the creditors". [ 3 ] 5. In our opinion, the books of accounts were available to the Assessing Officer. The books of accounts itself would indicate the capacity of the party to advance loan. There was no further need on the part of the assessee to prove the capacity of the creditors. 6. In the instant case, it is not possible to hold that the reasoning adopted by the Tribunal is devoid of merit and/or unsustainable. In the light of that, there is no merit in the appeal, which is accordingly, dismissed. ( R.S. MOHITE, J.) ( F.I.REBELLO, J.)