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TMI Blog2009 (6) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... d:- 16-6-2009 - F. M. IBRAHIM KALIFULLA and B. RAJENDRAN JJ. R. Venkatanarayanan for M/s. Subbaraya Aiyar for the appellant. K. Subramaniam for the respondent. JUDGMENT The judgment of the court was delivered by B. RAJENDRAN J.- The assessee is the appellant. The assessee is an individual deriving income from business as a dealer in radio and spare parts. In the course of the assessment proceedings for the assessment year 1992-93, the assessing authority found that there was a total sum of Rs. 90,000 appearing as credit in the assessee's books of account in the name of R. Subramanian and the assessing authority did not accept the claim that this was a genuine credit from the said person and he treated the said sum as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red this appeal raising the following questions of law, viz., "1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in sustaining the order of the respondent in rejecting the explanation offered for the credit entry of Rs. 90,000 pertaining to Sri R. Subramanian and consequential addition with interest while determining the taxable total income for the relevant year ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in justifying the addition when the appellant discharged the burden of proving the identity of the creditor and source from which he received the money ? 3. Whether, on the facts and in the circumstances of the case, the Tribunal was right in reversing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced to him only by the assessee. (2) Thereafter, when the said R. Subramanian was cross-examined by the assessee, he again reiterated that the amount belonged to him and he had only paid it. Therefore, he backtracked the original stand as if he has advanced a sum of Rs. 90,000. (3) The assessing authority has also stated in the order that even though the said R. Subramanian had a bank account jointly in the name of his wife, for the purpose of this transaction, he opened a new bank account only in the year April, 1991, and deposited a sum of Rs. 50,000 on May 20, 1991, and again a sum of Rs.10,000 on May 21, 1991, and thereafter issued a bearer cheque in the name of the assessee herein on January 25, 1991. He has also further deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to the conclusion that the loan transactions are genuine transactions. But as rightly pointed out by the Tribunal, in the evidence given by the said Subramanian, before the assessing authority, he has categorically stated that the money was kept by him in cash in the house. Nowhere he has stated that the money was paid into the bank and from which the loan was given. Even this point of the alleged sale and money received, as rightly pointed out by the Tribunal was the claim of the assessee only and not that of Subramanian. Therefore, there is contradiction of statement even in respect of the source where it was kept, whether it was in the house or in the bank. So the said Subramanian has contradicted every statement of his and as rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has miserably failed in proving such a transaction especially in view of the contrary statement and withdrawal of the statement by the alleged lender R. Subramanian. 11. In the other decision reported in Shankar Industries v. CIT [1978] 114 ITR 689 the Calcutta High Court came to the conclusion and as rightly held that for the burden of proof of genuineness, the assessee must prove not only the identity of the creditor, capacity of the creditor to advance money and genuineness of the transaction. A mere proof of identity of creditor is not sufficient. 12. As rightly pointed out by the Tribunal, apart from this transaction of Rs. 90,000 in the new bank account the subsequent transaction to the tune of Rs. 30,000 would relate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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