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TMI Blog2015 (3) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... n is discharged so far as explanation to be considered under section 68 of the Act. Thereafter, the burden would be upon the revenue to show that either the person was bogus or there was no financial capacity to make the payment and the arrangement of money was artificial or that the money has not passed over and it was only by way of an eye wash. Such could be proved by the Revenue in the present case through the statement of the persons, but unfortunately, they were not made available for crossexamination and therefore, the statements could be used as an evidence against the asseessee. No other evidence was available with the Revenue. Under these circumstances, if the Tribunal has found that the explanation under section 68 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere considered as unexplained income and therefore, added as income of the assessee. In the appeal before the Commissioner (Appeals), the order of the AO was confirmed. In the further appeal before the Tribunal, at paras 17 and 18, it was observed thus 17. We find that in the instant case, the addition is made u/s. 68 of the Act on the ground of unexplained cash credit. As per the provisions of section 68, the initial onus lies upon the assessee to prove the nature and source of amount credited in his books of account. We find that this initial onus was discharged in the instant case by the assessee by furnishing documents like MOA, AOA, share application board resolution, Certificate of Incorporation, Certificate of Commencement, ack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatives of Late Laxmanbhai S. Patel Vs. Commissioner of Income Tax (supra) (ii) CIT Vs. Indrajit Singh Suri (supra) (iii) DCIT Vs. Mahendra Ambalal Patel (supra) (iv) CIT Vs. Kantibhai Revidas Patel (supra) In view of the above settled position of law, we find force in the argument of the assessee that the statements of the persons mentioned above are not admissible evidence against the assessee. In absence of these statements, we find that no other material has been brought on record by the Revenue to show that why still the amount in question should be treated as income of the assessee when the assessee furnished all the documents which were available with it to discharge the onus which was upon it u/s. 68 of the Act. In the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter deserves consideration on the question raised. 5. As recorded by the Tribunal, the Tribunal found that the initial burden was discharged by the asseessee. In our view, once the Tribunal upon the appreciation of the material found and recorded the finding of the fact that the assessee had discharged initial burden, such a finding of fact would be outside the judicial scrutiny in the appeal before this Court unless the finding of fact is perverse to the record. It is an undisputed position that the statement of the persons concerned which were recorded by the department, those persons were not made available for crossexamination, may be for one reason or another inspite of the attempts made by the department. Therefore the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before this Court is limited to the substantial questions of law. The decision upon which the reliance has been placed by Mr.Bhatt in Tax Appeal No.800/12 (supra) is of no help to the Revenue because the facts and circumstances of the present case cannot be equated with the facts of the said case considered by this Court. It is hardly required to be stated that whether the explanation is sufficient or not would essentially depend upon the facts and circumstances of each case. But the principle remains that once the initial burden is discharged by the assessee, it would be for the Revenue to show that the transaction was bogus leading to conclusion for discarding of the explanation. In the present case, as observed by us hereinabove, the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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