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2015 (12) TMI 518 - AT - Income TaxAddition u/s 68 - addition on account of share application money received by the assessee Held that:- In the instant case the addition is made u/s 68 of the Act on the ground of unexplained cash credit. As per the provisions of sec. 68, the initial onus lies upon the assessee to prove the nature and the source of amount credited in his books of accounts. We find that this initial onus was discharged in the instance case by the assessee by furnishing the documents like memorandum of association, article of association, share application, certificate of incorporation, acknowledgement of ITR’s, audited accounts, etc. of the concerned companies. Thereafter, in our view, the onus shifted upon the Department and it was for the Department to bring on record the relevant material to show that why inspite of the above stated documents, the addition is still to be made in the hands of the assessee. In the instance case, the Department has endeavored to discharge its burden on the basis of statements recorded by it of the persons mentioned above. We find that the assessee requested for cross-examination of the makers of the statements. But strangely, the Assessing Officer did not take any step to allow effective opportunity to the assessee to cross-examine the makers of the statements. The Assessing Officer did not pursue the matter further. Thus, we find that the assessee was not allowed any opportunity to cross-examine the persons who made the statements at the back of the assessee. In our considered view, the statements of those persons cannot be read against the assessee. See case of Kishinchand Chellarm (1980 (9) TMI 3 - SUPREME Court) and Chartered Speed Pvt. Ltd.[2015(3) TMI 809 - GUJARAT HIGH COURT]. We find force in the argument of the assessee that the statements of the persons mentioned above are not admissible evidence against the assessee. In absence of these statements, we find that no other material has been brought on record by the Revenue to show that why still the amount in question should be treated as income of the assessee when the assessee furnished all the documents which were available with it to discharge the onus which was upon it u/s 68 of the Act. In the above circumstances, in our considered view, the addition was made solely based upon the inadmissible and unreliable material - Decided in favour of assessee.
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