TMI Blog2013 (12) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has satisfied the above ingredients of Section 68 of the Act. - Decided against the assessee. - I.T.T.A.No.477 of 2013 - - - Dated:- 23-10-2013 - Kalyan Jyoti Sengupta And Sanjay Kumar, JJ. JUDGEMENT:- PER: Kalyan Jyoti Sengupta This appeal is preferred against the judgment and order dated 11.03.2013 passed by the learned Tribunal in relation to the assessment year 2005-06 and sought to be admitted on the following suggested questions of law: (1) Whether on the facts and in the circumstances of the case, the Tribunal is right in holding that the First Appellate Authority is not correct in reaching satisfaction about the explanation and evidence produced before him meets the requirements as to the identity, creditworth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction of the First Appellate Authority? (5) On the facts and in the circumstances of the case, the Tribunal is correct in creating an imaginary standard of proof that can only stand the test of satisfaction of the lower authorities ignoring the most accepted test of preponderance of probabilities depends upon facts and circumstances of each case as such cannot be guided by a set standard. We have heard the learned Counsel for the appellant, who has strenuously argued that the learned Tribunal ought not to have reversed the decision of the Commissioner of Income Tax (Appeals), who held, on appreciation of fact, that the assessee/appellant has been able to discharge the initial burden as required under Section 68 of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capital company as referred to in clause (23FB) of Section 10. Thus, from the aforesaid Section, it will emerge that the assessee has to offer explanation on the following subject: (1) about the nature and source thereof and (2) the explanation offered by him is not in the opinion of the Assessing Officer, satisfactory. Thus, it is clear that until and unless the explanation is offered as to the source of income and such explanation is satisfactory up to the expectation of the Assessing Officer, the assessee cannot be said to have discharged the initial burden. In this connection, we quote the fact-finding on this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the element of proof and this proof has to be produced and established by the assessee at the first instance. In the background of the aforesaid facts, the learned Tribunal has come to the fact-finding as follows: We are of the opinion that the assessee is expected to establish proof of identity of the creditors, capacity of the creditors and genuineness of the transactions in order to discharge the onus cast on the assessee. By merely filing bank account details of the alleged creditors, it is not enough to hold that the assessee has satisfied the above ingredients of Section 68 of the Act. Learned Counsel for the appellant submits that when the assessment of the Assessing Officer and the Commissioner of Income Tax (Appeals) i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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