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TMI Blog2004 (6) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of his allegation that the transaction was not genuine. The mere reliance on the statement of third parties who were never examined by the AO himself cannot be held to be sufficient to come to the finding that the transaction was not genuine and moreso when there are other material and evidence to support the transaction. It is settled law that suspicion howsoever strong cannot take the place of legal proof as has been held by the Hon'ble Supreme Court in the case of Uma Charan Shaw Ors. vs. CIT [ 1959 (5) TMI 11 - SUPREME COURT] . In this case, the AO has not brought any evidence which can even remotely suggest that the material placed before him was unreliable, suffered from defects or were inconsistent. The learned Departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e income as declared in the original return. During the course of reassessment proceedings the assessee submitted his reply and furnished various evidences in support of his claim of long-term capital gain. However, the AO held that the assessee had failed to lead evidences to support the claim of long-term capital gain. The reasons for reaching such conclusion by the AO are as under: a. The statement recorded by the DDI (Inv.) of Mr. Shankar Harish Maheshwari and Mr. Praveen Mittal; b. The assessee did not furnish the address of the said company; c. The assessee could not adduce evidence in support of his claim of purchase of shares; d. The assessee failed to adduce any evidence regarding transfer of shares in his name; e. The assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was representing undisclosed income of the appellant. In this case the AO has not brought any evidence which can remotely suggest that the material placed before him by the assessee was unreliable, suffered from defects and were inconsistent. On the basis of above findings the CIT(A) deleted the addition. Aggrieved, the Revenue is in appeal before the Tribunal. 6. The learned Departmental Representative argued that the CIT(A) was not justified in deleting the addition by shifting the onus on the AO. The argument of the learned Departmental Representative is that it was the claim of the assessee and as such onus was upon him and the CIT(A) was not justified in shifting the onus. 7. On the other hand, the learned Authorised Representative h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Ltd. vs. Jt. CIT (2000) 163 CTR (Gau) 523 : (2000) 243 ITR 540 (Gau) and Jt. CIT vs. George Williamson (Assam) Ltd. (2003) 181 CTR (Gau) 69. The learned counsel informed that the sale proceeds have been duly accounted for in the account of the appellant and has been received through account payee cheque. That the statements of Mr. Maheshwari and Mr. Mittal did not at any point of time refer to the assessee having not entered into any transaction. According to learned counsel, the AO came to the conclusion entirely on the report of the Dy. Director of IT without making any independent inquiry as is apparent from the assessment order. It was further pointed out that the contention of the AO that the purchases had not been proved is incor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpreted against the appellant. On the contrary, it was the onus of the AO to enforce the attendance of Mr. Praveen Mittal and the absence of appearance of Mr. Praveen Mittal in the assessment proceedings and without giving opportunity of cross-examination of Mr. Praveen Mittal the statement made by him before a person who is not the AO cannot be relied upon. The learned Authorised Representative vehemently argued that it is an allegation of the Revenue on the basis of which the assessment has been reopened and it is for the Revenue to bring evidence on record to support the allegation. To conclude, the learned counsel supported the order of CIT(A) and said that the deletion has been rightly made. 8. I have gone through the arguments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The payment has been received through account payee cheque. All these facts are borne on record and accordingly the assessee has discharged his onus. On the other hand, the AO has not brought any material in support of his allegation that the transaction was not genuine. The mere reliance on the statement of third parties who were never examined by the AO himself cannot be held to be sufficient to come to the finding that the transaction was not genuine and moreso when there are other material and evidence to support the transaction. It is settled law that suspicion howsoever strong cannot take the place of legal proof as has been held by the Hon'ble Supreme Court in the case of Uma Charan Shaw Ors. vs. CIT (1959) 37 ITR 271 (SC). In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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