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1973 (9) TMI 12 - DELHI HIGH COURTWhether the burden of proof that an amount of refund was actually allowed as deduction in an earlier year is on the department - " Whether, on the facts of this case, section 10(2A) of the Act could be invoked in bringing the sum of Rs. 21,107 to tax ? " - when the circumstances are capable of being construed either in favour of the department or in favour of the assessee, the rule is that they should be construed in favour of the assessee. The conclusion of the Tribunal that the amount in question had been allowed or deducted in any earlier assessment year is not based upon any evidence at all and is based on merely surmise and conjecture. We, therefore, hold that the amount of Rs. 21,107 is not includible in the assessee-company's income of this year under section 10(2A) of the Act. The question referred to us is answered in the negative, i.e., in favour of the assessee and against the department.
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