TMI Blog1994 (3) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... umari Agarwal Rs. 19,667 (minor, aged 7) ------------------------- Rs. 78,735 ------------------------ On 6-11-1987, as per the order sheet of the assessment record, a copy of which was made available to us, the ITO asked the assessee to explain the aforesaid credits. It was stated by the assessee that the minors had received petty gifts and that they had filed returns of income under the amnesty scheme. No comments are found to have been made by the ITO on the explanation. The assessment was completed on the same day. In the assessment, the credits were added as income under section 68. Obviously, the explanation of the assessee was not accepted. 3. The assessee took up the addition in appeal before the CIT(A). Before him the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whose powers are co-terminous with that of the ITO, the assessee has adduced evidence in support of the credits. It is not the case of the Revenue that the evidence was fresh evidence and Rule 46A would apply. We have to, therefore, proceed to a consideration of the evidence in this case. 4. The credits are by means of "Account Payee" cheques. No doubt they are from minors, the first three being daughters of one of the partners and the fourth being the daughter of one M.P. Agarwal who is not connected with the firm. But their sources have been furnished by the assessee. It has been pointed out that they received gifts and such gifts were also brought to in their hands as per returns filed under-the amnesty scheme. The donors have conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor was returned unserved. The assessee's case is "a fortiori", as notice under section 131 was not even issued. 5. Mr. Das relies on the case of Dr. (Mrs.) K.D. Arora v. CIT [1986] 162 ITR 481 (at page 484) (Pat.). That case is distinguishable on facts. The evidence of the nature adduced by the assessee in the present case had not been adduced by the assessee in the aforesaid decision. Mr. Das next relies on the case of Jamnaprasad Kanhaiyalal v. CIT [1981] 130 ITR 244 (SC) and the case of ITO v. Rattan Lal [1984] 145 ITR 183 (SC). In these cases, the only contention raised was that in view of the declaration made by the creditor under section 24 of the Finance (No. 2) Act, 1965, no enquiry into the genuineness of the credit in his nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adduced. He should have, with respect, focussed his attention on the substance of the matter. Not having made any attempt to disprove the sources of the minors--petty gifts--it was not justified on his part to confirm the addition. It is not expected of the income-tax authorities to sit back with folded hands till the assessee exhausts all the evidence in his control and possession and then merely reject the same, thereby converting "good proof into no proof" 8. For these reasons, we hold that the assessee has established the identity of the creditors, their capacity to advance the money, and the genuineness of the transactions. On the other hand, the income-tax authorities have not discharged the burden that lay upon them to show that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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