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2008 (4) TMI 731 - HC - Income TaxAddition u/s 69 - Cash credits - identity of the creditors - onus to prove source of credit - burden to prove the identity, capacity and genuineness - whether the assessee appellant had not sufficiently discharged the primary onus casted upon him? - HELD THAT:- It was noticed, that the Tribunal itself doubted about the correctness of its own conclusions, thus, this judgment is no authority for the proposition, that source of the source is required to be established by the assessee. Then, so far as judgment in Kishorilal's case [1995 (2) TMI 14 - RAJASTHAN HIGH COURT] is concerned, six requirements noticed by this Court. Examining the present case even on these parameters, so far as 6th requirement is concerned, it is very much there in existence, inasmuch as the amount has been advanced by Account Payee Cheques, through bank, and is duly supported by documentary evidence, as well as the evidence of the two lenders, and that satisfies the 2nd requirement also, about the discharge of burden on the part of the assessee, to prove identity and genuineness of the transaction. So far as capacity of the lender is concerned, in our view, on the face of the judgment in Daulat Ram's case [1972 (9) TMI 9 - SUPREME COURT], and other judgments, capacity of the lender to advance money to the assessee, was not a matter which could be required of the assessee to be established, as that would amount to calling upon him to establish source of the source. In that view of the matter, since this part of the judgment runs contrary to the judgment of Daulat Ram's case, while this Court in a subsequent judgment in Mangilal's case [2006 (10) TMI 100 - RAJASTHAN HIGH COURT], relying upon Daulat Ram's case, has taken a contrary view, we stand better advised to follow the view, which has been taken in Mangilal's case. The net result is that all the three questions are answered in favour of the assessee, and against the revenue. The appeal is accordingly allowed, and the additions with respect to the entries of Vijay Kumar and Dharm Singh, for the amounts of ₹ 50,000 each, respectively made in the income of assessee, are ordered to be deleted.
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