2012 (10) TMI 387

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..... cer made additions to the tune of Rs.21,50,000/- with regard to unexplained credit in savings bank account of the creditor of the assessee. The Assessing Officer made additions under the provisions of section 68 of the Income Tax Act, 1961. The assessee preferred an appeal before the CIT(A). The appeal of the assessee was dismissed. Aggrieved against the order of the CIT(A), the assessee approached the Tribunal. The Tribunal in ITA No.1545/Mds/1999 vide order dated 03.10.2005 set aside the issue of cash credit of Rs.21,50,000/- and remitted the file to the Assessing Officer for reexamination of whole issue after providing adequate opportunity of hearing to the assessee. The Assessing Officer, again after reexamination of the issue, vide as .....

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..... rve to be deleted. Accordingly, following the decisions of the Apex Court and the various High Courts (supra) this ground of appeal is allowed." 3. Aggrieved against the order of the CIT(A), the Revenue has come in appeal on the ground that the CIT(A) has failed to note that u/s.68 the onus first lies on the assessee to establish the identity and capacity of the creditor and also genuineness of the transaction. 4. Dr. Yogesh Kamat, DR appearing on behalf of the Revenue submitted that the assessee was not able to explain the credit of Rs.19,00,000/- in the savings bank account of Mr. Masqooth Ali, Director of the company who has further advanced loan to the assessee. In order to support his contentions, he relied on the orders of the Trib .....

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..... of Rs.19,00,000/- which has been reflected in the books of accounts of the assessee was received from Mr. Masqooth Ali. The assessee cannot be called upon to explain the source of the income of the creditor. The assessee was able to explain and prove the source of the credit in its account, it was not incumbent upon the assessee to prove the source of income of the creditor. The Revenue has relied on the orders of the Tribunal in Dhanalaxmi Steel Re-rolling Mills(supra) and Pradip Kumar Loyalka (supra). 8. The ratio laid down in Dhanalaxmi Steel Re-rolling Mills case is not applicable to the facts and circumstances of the present case . In Dhanalaxmi's case the assessee failed to discharge the primary onus that lay on him. The assessee cou .....

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