LABH CHAND BOHRA Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THIS appeal by assessee, is against the judgment of the Tribunal dt. 24th Sept., 2004, affirming the order of learned CIT(A), who in his turn had added a sum of Rs. 1 lac (Rs. 50,000 + Rs. 50,000), in respect of cash credits, in the name of Dharm Sudhir and Vijay Kumar. The appeal was admitted on 17th Oct., 2005, by framing the following substantial questions of law: 1. Whether in view of the findings of the Tribunal, that identity of the creditors Dharm Sudhir and Vijay Kumar is established; that their confirmation has come; that they have also confirmed the credit by making statements on oath and that transactions took place through bank accounts and through cheques, the impugned finding about non -genuineness of the credit is wholly perverse and stands completely vitiated?

(2.) WHETHER the onus to prove source of credit i.e. the origin of the origin was upon the assessee and whether the same can be used against the assessee?

(3.) ASSAILING the impugned judgment, it is contended by the learned Counsel for the assessee, that once the assessee furnishes explanation, and establishes identity of a person in whose name entry stands, and even when that person is examined, who owns that entry, and confirms the advance, at that the matter ends, and it is not contemplated by Section 68, that assessee should still further satisfy the creditworthiness of the lender i.e. to establish, source of the source, much less to prove in negative about want of genuineness, and since the learned Tribunal has confirmed the additions, only because, in view of the Tribunal, the assessee has failed to establish source of the source, the order proceeds on basically a wrong approach, and is vitiated. Reliance has been placed on the judgment of this Court, in Late Mangilal Agarwal through LRs v. Asstt. CIT (2007) 208 CTR (Raj) 159 and Mehta Parikh and Co. v. CIT (1956) 30 ITR 181 and also placed reliance on another judgment of Hon'ble Supreme Court in Omar Salay Mohamed Sait v. CIT : [1959]37ITR151(SC) apart from reiterating reliance on the judgments in Daulat Ram's case (supra), Credit Corporation's case (supra), Orissa Corporation's case (supra), and Rohini Builder's case (supra). On the other hand, learned Counsel for Revenue relied upon the judgment of this Court in CIT v. R.S. Rathore and CIT v. Kishorilal Santoshilal (199b) 129 CTR (Raj) 450 : (1995) 216 ITR 9 and submitted, that in order to determine whether any addition is to be made under Section 68 or not, six conditions are required to be considered, as mentioned in Kishorilal's case (supra), which include, that if the explanation is not supported by any documentary or other evidence, then the deeming fiction created by Section 68 can be invoked.