TMI Blog2012 (12) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... rthiness and genuineness of the transaction - The assessee has failed to discharge the onus cast on him within the meaning of section 68 as also under the general law - the assessee himself admitted non-traceability of such cash creditors - against assessee. Disallowance of Staff Welfare Expenses – Held that:- This disallowance has been made in the computation of income without giving any finding, whatsoever by AO thus disallowance is founded on surmises and conjectures, as not been supported by any evidence - disallowance need to be deleted - in favour of assessee. Disallowance of car running expenses & depreciation – Held that:- AO has disallowed 1/4th of care running expenses & depreciation in respect of personal use of the car without bringing any material on record - in the interest of fairness and justice, the disallowance is reduced to 1/10th in each head - partly in favour of assessee. - I.T.A. No.322/Lkw/2011 - - - Dated:- 4-7-2012 - SHRI S. K. YADAV AND SHRI MEHAR SINGH, JJ. Appellant by : Shri Abhinav Mehrotra, C. A. Respondent by : Shri R. K. Ram, D.R. ORDER PER MEHAR SINGH; A.M.: This appeal is filed by the assessee against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 331 (Raj) (iii) Gunwantibai Ratilal (Smt.) Vs Commissioner of Income-tax [1984] 146 ITR 140 (MP) 6. Learned D.R. , on the other hand, placed reliance on the order passed by lower authorities. 7. We have carefully perused the rival submissions, facts of the case and the relevant available records. The assessee filed return of income at Rs.1,19,520/- on 30/10/2001, for the assessment year 2000-2001. The assessment was completed, on 25/03/2004, u/s 143(3) of the Act, at an income of Rs.6,38,130/-. The Assessing Officer sought explanation regarding the addition made to the capital account of the assessee. The assessee submitted the details of such addition, before the Assessing Officer vide letter dated 18/12/2003 as under: Cheque received Rs.3,00,000/- Other receipts Rs.2,00,000/- Difference in capital adequacy Rs. 6,298/- Rs.5,06,298/- Less:Cheque issued for personal loan to HUF Rs.4,45,000/- Rs. 61,298/- 8. The Assessing Officer specifically afforded opportunities to the assessee and sought explanation, in respect of cheque received of Rs.3 lakhs and Rs. 2 lakhs. The assessee surrendered an amount of Rs.3 lakhs by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs, to reproduce the contents of the affidavit filed by the assessee with a view to explaining the credit entries. In the course of assessment proceedings, it was admitted by the assessee that he is not in a position to trace four persons from whom cheques of Rs.50,000/-, each was received. In the affidavit, it has been deposed by the assessee that the impugned amount of Rs.2 lakhs is a repayment of loan given to these four persons approximately 12 years back being familiar to my father. It was, further, contended that the assessee is absolute owner of Rs.2 lakh. The filing of affidavit by the assessee, without independent corroboration of the same by way of credible and cogent evidence, is of no legal evidentiary value. AFFIDAVIT I, Rishabh Kumar Omar S/o Late B. L. Omar R/o 607, Sangeeta Apartment, 14/59, Civil Lines, Kanpur do hereby solemnly affirm and state on oath as under: 1) That I have received four cheques of Rs.50,000/- each from Shri Ashok Kumar Bajpai, Shri Sonelal, Shri Ravi Shankar and Shri Sanjeev Kumar in the month of May in the year of 2000 as repayment of loan given to those persons approximately 12 years back through my father being closely familiar t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proving the source of any sum found credited in the books of the assessee is upon the assessee. If the assessee disputes the liability to pay tax, it is incumbent upon him to demonstrate that the receipt was not income of the assessee or the same is exempt from the payment of tax. It is the responsibility of the assessee, to adduce necessary evidence, to prove the nature and source of cash credit, as held by Hon'ble Supreme Court in the case of Sreelekha Banerjee v. Commissioner of Income-tax [1963] 49 ITR 112. The rule of evidence is embodied in section 68 itself. A bare reading of section 68 of the Act suggests that there has to be credit of amount in the books maintained by the assessee; such credit has to be of a sum during the previous year; and the assessee offers no explanation about the nature and source of such credit found in the books; or the explanation offered by the assessee in the opinion of Assessing Officer is not satisfactory. It is only then the sum so credited, may be charged to income-tax as income of the assessee of the previous year. In the present case the assessee has failed to file any evidence even prima facie, to discharge the onus cast, on him within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lays on the assessee. It was held that merely filing particulars is not enough. In the present case, the assessee failed to adduce any evidence, therefore, the decision relied by learned A.R. is not applicable to the facts of the present case being different and distinguishable. 12. We have carefully perused the relevant facts and decision of Hon'ble M.P. High Court relied upon by the assessee wherein it has been categorically held that an affidavit is a piece of evidence, which along with other material on record, has to be taken into consideration by the Tribunal before arriving at a finding. The evidentiary value of this affidavit remains to be established by the assessee, in the absence of any material, brought on record, to corroborate the deposition made in the affidavit. The decision relied upon by learned A.R. assist the case of the Revenue and not that of the assessee. In view of the above legal and factual discussion of the case, we are of the considered opinion that the assessee has failed to prove the necessary ingredients in respect of evidences required to be adduced, within the meaning of section 68 of the Act. In the context of section 68 of the Act, it is a set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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