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TMI Blog2015 (4) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid, we are of the opinion that the judgement under challenge cannot be sustained and, therefore, judgement of the Tribunal is set aside. The judgement of the CIT(A) that AO has rightly held that There is no material on record to show that cash of ₹ 21,55,950/- was received on sale of share. Similarly, there is no evidence on record to show that cash of ₹ 10,61,834/- was received from M/s. M L Dhingra & Associates. Confirmation from the said party was not filed before the AO is restored. - Decided against assessee. - GA No.1706 of 2014, ITAT No.61 of 2014 - - - Dated:- 13-1-2015 - GIRISH CHANDRA GUPTA AND ARINDAM SINHA, JJ. For The Appellant : Ms. Soma Chatterjee, Adv. For The Respondent : Mr. Sourabh Bagaria, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the order under challenge is plainly contrary to the statute. Mr. Bagaria, learned Advocate appearing on behalf of the respondentassessee submitted that explanations were duly furnished, if the Assessing Officer was not satisfied he could have made the necessary enquiry which he did not do. For omission of exercise of power on the part of the Assessing Officer the assessee cannot be held liable. Therefore, the order passed by the learned Tribunal, according to him, is perfectly justified order and this Court should not interfere. He also drew our attention to a Division Bench judgement of this Court in the case of Exoimp Resources (India) Ltd. V. Commissioner of Income Tax, reported in [2005] 276 ITR 87 (Cal). He relied upon the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttedly received in cash. In case of sale of shares by a broker a sold note and bought note is issued in the usual course of business. But, no such sold note issued by the broker was issued by the assessee. Both the sale of shares and recovery of the alleged existing dues are in the special knowledge of the assessee and the alleged buyer and the alleged debtor. During the assessment the assessee was present. He could have adduced evidence which was in his special knowledge which is also the requirement of law in Section 106 of the Evidence Act. 106. Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him . In a catena of judgments S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a sum of rupees ten lakhs were found which the Revenue thought was unaccounted money, but it transpired that it had duly been reflected in the books of accounts. Double taxation could not have been permitted and that was not also a case of Section 68. Section 68 is squarely applicable in this case because the money was found credited in the books of accounts of the assessee and the assessee was unable to satisfy the Assessing Officer by adducing proper evidence. Which evidence was not adduced by the assessee will appear from the judgement of the Assessing Officer which reads as follows: It is further found that assessee has shown cash receipt from M.L. Dhingra Associates for ₹ 10,61,834.44 and from sale of shares amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the AO has rightly held that the appellant has failed to explain the source of the cash deposits totalling to ₹ 32,17,784/-. The addition made by the AO is confirmed. The grounds raised by the appellant are liable to be dismissed. The judgement of the Assessing Officer and the CIT(A) disclose in no uncertain terms that the evidence including steps which the assessee could have taken were not resorted to. Therefore, the Assessing Officer was entitled in law to draw an adverse inference which is authorized by Section 114(g) of the Evidence Act which permits a presumption as follows: That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; For the reasons af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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