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TMI Blog2017 (12) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... t view of the matter under Sec. 69, it will be open for the department to assess those four persons independently as it could not be established the income of the assessee. In that view of the matter, both the issues are answered in favour of the assessee - D. B. Income Tax Appeal No. 124 / 2017 - - - Dated:- 22-11-2017 - K. S. Jhaveri And Deepak Maheshwari, JJ. For the Appellant : Mr. Siddharth Ranka For the Respondent : Mr. Daksh Pareek for Mr. Sameer Jain JUDGMENT 1. By way of this appeal, the appellant has challenged the judgment and order passed by the Tribunal, whereby the Tribunal has allowed the appeal filed by the assessee for statistical purposes and they have rejected the part of the appeal and added inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of paper-book wherein all the four persons entered into the agreement and the balance-sheet as on 31.03.2009 has clearly shown the liability of this amount. 3.2 Counsel for the appellant has relied upon following decisions :- 1. CIT Vs. Daulat Ram Rawatmull [1973] 87 ITR 349 (SC) : The onus to prove that the apparent is not the real is on the party who claims it to be so. As it was the department which claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of B, the burden laid on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of B. A simple way of discharging the onus and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h lay upon him (assessee), in our view, stood discharged as he was able to prove identity of the creditors. Once the amount was advanced by account payee cheque from their respective own bank accounts and were being assessed to income tax, then in our view, capacity of the creditor and genuineness of the transaction stood proved. In so far as the respondent-assessee is concerned, it is correct that he is not required to prove source of the source and if the Assessing Officer had any doubt, then the Assessing Officer, assessing the respondent-assessee, could have sent the information to the Assessing Officer, assessing the cash creditors for appropriate action in their cases but in so far as the respondentassessee is concerned, in our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amounts credited in the accounts of DS and VK, though the Tribunal found that their identity was established; that they had also confirmed the credit by making statements on oath; and that transactions had taken place through bank accounts and through cheques, yet notwithstanding all that, the Tribunal proceeded to consider other circumstances and found that those persons had very meagre income; and that issuance of cheques on the vary day of opening of the bank account without there being ample amount available in the account, in itself, was a proof of ingenuity of the transactions in question. It, therefore, confirmed the additions of the amounts found credited in their accounts. 4. Aravali Trading Co. v. ITO [2010] 187 Taxm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s established and such deposits/advance/loan is owned by such existing person. On such proof the assessee s onus is discharged. 5. Kanhaiyalal Jangid v. Asstt. Commissioner of Income Tax [2008] 217 CTR 354 (Raj.) : While it is the assessee s burden to furnish explanation relating to cash credits, the assessee s burden does not extend beyond proving the existence of the creditor and further proving that such creditor owns to have advanced the amount credited in the account of assessee to him. However, the burden does not go beyond to put the assessee under an obligation to further prove as to wherefrom the creditor has got or procured the money to be deposited or advanced to the assessee. The explanation furnished by the credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of the investments may be deemed to be the income of the assessee of such financial year. 5. We have heard learned counsel for the parties. 5.1 In our opinion, the Tribunal has committed a serious error inasmuch as in view of the exemption which has been shown as a demand draft was taken on behalf of those persons which has come on record and it clearly established it was a business arrangement which was made. The A.O. has considered it to be as an investment but the amount which was deposited, was not either going to be deposited in terms of the investment or is going to get any interest on it. In that view of the matter under Sec. 69, it will be open for the department to assess those four persons independently as it could not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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