HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 71 / 2012 Commissioner of Income Tax, Jaipur-II, Jaipur ----Appellant Versus M/S Lok Vikas Leasing Ltd. 3-F-1, Shivanand Marg, Malviya Nagar, Jaipur ----Respondent For Appellant(s) : Mr. R.B. Mathur with Mr. K.D. Mathur For Respondent(s) : Mr. Sandeep Taneja HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI Order 09/10/2017 1. By way of this appeal, appellant has assailed judgment and order of Tribunal whereby Tribunal has partly allowed appeal of assessee. 2. This Court while admitting matter framed following substantial question of law:- Whether on facts and in circumstances of case, ITAT was justified in law in passing two orders in case of assessee for same assessment year on same issue. 3. However, when matter was heard on 14th September, 2017, following order was passed:- 1. By way of this appeal, appellant has challenged judgment and order of Tribunal whereby Tribunal has partly allowed appeal of assessee. 2. case has chequered history. Originally (2 of 3) [ITA-71/2012] against order of CIT(A), department preferred appeal which came to be dismissed vide annexure-3 and subsequently vide annexure- 4 appeal of assessee was allowed. However, vide annexure-5, M. A. of department was allowed. When it was pointed out to Tribunal that there are two contradictory orders, vide annexure-6 Tribunal held as under:- Hon ble Delhi High Court in case of CIT V. Samtel Colour ltd. 11 TOIL 53-Hon ble High Court- held, that assessee stand discharged its own onus by giving details available in application form. When all necessary details are available in application form then onus stands discharged by assessee and it was on Revenue to establish that such credit was not genuine. Revenue has not made any effort by issuing summons u/s 131. Of AO fails to issue summons u/s 131 then no addition u/s 68 can be made. Reference is made to case of CIT v. Orissa Corporation Provisions (P) ltd., 159 ITR 78(S.C.), Hence in this case Department has failed to pursue inquiry to testify correctness of assessee s explanation of cash credit and therefore, it is held that ld. CIT(A) was not justified in confirming addition mentioned in grounds No. 1 to 3 of appeal of assessee? 3. Mr. Mathur counsel for appellant is aggrieved by last order passed by Tribunal and he wants for restoration of order annexure-3. 4. In our opinion in this case he should withdraw MA. with view to enable him to take instructions, list on 19.09.2017. 4. Mr. R.B. Mathur, counsel for appellant seeks permission to withdraw original M.A. at annexure-5 to appeal memo. We permit withdrawal of M.A. However, appellant will be at liberty to challenge any consequential order and in that case matter will be restored to original order passed at annexure-4. (3 of 3) [ITA-71/2012] 5. It will be open for department to pursue in furtherance of order dated 30th April, 2007 and action will be taken in accordance with law. 6. appeal stands disposed of. (DINESH CHANDRA SOMANI),J. (K.S. JHAVERI),J. A.Sharma/96 Commissioner of Income-tax, Jaipur-II, Jaipur v. Lok Vikas Leasing Ltd