9911796707
TMI Blog2016 (6) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... 995-96 respectively, the assessee has preferred the present Tax Appeals. 1.1 These appeals were admitted by this Court for consideration of the following substantial question of law: "Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in confirming the addition made as unexplained investments on account of demand drafts allegedly purchased by the appellant in cash?" 2. During the course of assessment proceedings the Assessing Officer reopened the assessment u/s 147. The Assessing Officer also made an addition of Rs. 6,50,593/- u/s 69 of the Income Tax Act on the ground that the assessee had purchased demand drafts of the value stated from The Baroda Traders Co-operative Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is possibility by bringing proper evidence on record for the burden of showing that the amount was remitted by the assessee was on the revenue." 3.1 Mr. Shah submitted that considering the aforesaid decision, even if things are assumed against the assessee, the factum of money being that of assessee is not proved by the revenue. He submitted that even assuming that as per the decision in the case of Kishinchand (supra) the two letters were to be taken into account, those letters would at the highest establish that Trilokchand, an employee, remitted the amount from Madras and N, another employee, received it at Bombay. From this it did not follow that the remittance was made at Madras and received at Bombay on behalf of the assessee. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Mr. Atul Shah has prepared the list on the basis of the DD application forms. He submitted that Mr. Atul Shah admits that the name of the assessee is not mentioned on any of the application forms and that he has filled the column for the purchaser on the basis of his memory. Mr. Atul Shah stated that the DDs were handed over on production of counter foils. He submitted that this can be interpreted to mean that the bank did not obtain any acknowledgements from the person who came to collect the DD. 3.5 Mr. Shah submitted that the DD clerk Mr. Atul Shah would not have been in a position to know as to who had deposited cash for purchase of DDs. His contact with the applicant came only when the draft was to be delivered. He submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per old records. He submitted that the assessee has not even furnished the copies of accounts or confirmations from the parties in whose name demand drafts have been purchased and sent. He submitted that the statement of Shri Hasmukh Shah cannot be said to be incorrect since in case of other four parties they have accepted of having purchased the demand drafts by depositing cash and hence the statement of bank authorities cannot be said to be just 'hearsay' evidence as contended by the assessee. 4.2 Mr. Parikh further contended that the contention of the assessee that the bank manager cannot know the employees of the assessee since the procedure of making demand drafts is such that bank manager in no way comes into direct dealing with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee." 5.1 It is very well clear from the decision hereinabove that the burden of proof lies on the revenue to prove its case and in the present case, the revenue has failed to discharge the same. The Tribunal has wrongly observed that the aforesaid decision shall not apply and that the onus is on the assessee to disprove the findings arrived at by the Assessing Officer. We are of the opinion that the Tribunal has erred in arriving at the said conclusion. 5.2 In this context we have also perused the statement of Hasmukhbhai Shah dated 19.08.2003 before CIT(A) and as per questions no. 19 and 21 the revenue has not been able to prove that the demand drafts purchased in cash belong to the assessee. Even if the onus in respect of the two ..... X X X X Extracts X X X X X X X X Extracts X X X X
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