TMI Blog2015 (6) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... order has also become final. Assessee has placed reliance on the judgment of the Apex Court in Income Tax Officer, A Ward, Lucknow v. Bachu Lal Kapoor Kewal Ram [1965 (12) TMI 24 - SUPREME Court] and submitted that the Act does not envisage taxation on the same income twice over. The principle that assessment should be in the hands of the right person and that there cannot two assessments for the same income, are too well settled. Therefore, if, as contended by the counsel for the assessee, Annexure G assessment order has become final against Sri.Francis Joseph, the very same amount cannot again be assessed in the name of the assessee also. We find that this issue was neither raised nor considered by the assessing officer nor was this issue properly dealt with by the Tribunal. Since, prima facie, there is force in what is argued, this is an issue that needs to be considered by the Assessing Officer, who will reconsider the liability of the assessee on this account, duly adverting to Annexure G order in the name of Sri.Francis Joseph and with notice to the assessee. Deposit of ₹ 5,60,000/- in the name of the assessee in the capital account of the firm Hotel Mariya, of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng ITA 149/14 as the leading case. 2. In these appeals, the relevant assessment years are 1996-1997 to 2000-2001, and in I.T.A.149/14 the assessee is challenging the additions made on three counts. First one is deposit of ₹ 3,00,000/- in the bank account of one Sri.Francis Joseph, the brother-in-law of the assessee. The second one is the unexplained credit of ₹ 5,60,000/- in the capital account of the firm Hotel Mayura of which the assessee is a partner and the third one is relating to a loan of ₹ 4,00,000/- taken by the assessee from one Mr.George Joseph. 3. In so far as the addition of deposit of ₹ 3,00,000/- in the bank account of Mr.Francis Joseph is concerned, facts show that Sri.Francis Joseph is the brother-in-law of the assessee. Sri.Francis Joseph had given a statement to the DDIT (Inv) that he had opened S.B.Account No.3075 in his name at the Federal Bank, Poovarani Branch and that he had made initial deposits aggregating to ₹ 2,00,000/-, which was withdrawn by him. According to the Mr.Francis Joseph, thereafter all other transactions in the account were operated by the assessee herein using blank cheque leaves signed and given by him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the further question that remained was whether he was acting for and on behalf of Sri.Francis Joseph as claimed by him. The burden to prove a factual assertion made is upon the person makes the assertion. Therefore, the burden to prove that he was acting on behalf of Sri.Francis Joseph was not on the Department, but on the assessee himself. When the burden is on the assessee to prove the aforesaid factual question, it was the assessee's burden to make available Sri.Francis Joseph for cross examination. In this context, we should also record that the assessing officer had repeatedly issued summons to Sri.Francis Joseph, and that though he stood by his statement, he declined to appear for cross examination for one reason or the other. This was despite the fact that the burden was that of the assessee to produce him for examination. Therefore, in the facts of this case, we are unable to find fault with the Department for not making available Sri.Francis Joseph for cross examination. 7. In so far as the judgment of the Apex Court in Commissioner of Income Tax v. K.Chinnathamban [292 ITR 682] (SC), relied on by the counsel for the assessee is concerned, it is true that the prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is for the firm to explain such a credit and the assessee cannot be called upon to explain the same. In support of this contention, he placed reliance of a judgment in Commissioner of Income Tax v. Shiv Shakti Timbers [229 ITR 505]. However,as rightly contended by the learned Standing Counsel for the Department, ₹ 5,60,000/- was shown as the deposit made by the assessee in the capital account of the firm and this amount was not reflected in the cash flow statement filed by him before the assessing officer. This, therefore, shows that ₹ 5,60,000/- deposited by him in his capital account is an unexplained investment made by the assessee attracting Section 69 of the Income Tax Act. Facts being so, we do not find any illegality in the order of the Tribunal confirming the said addition. 12. The third addition that is complained of is ₹ 4,00,000/- allegedly borrowed by the assessee from one George Joseph. According to the learned counsel for the assessee, Sri.George Joseph in his statement has explained source of this ₹ 4,00,000/- by pointing out that ₹ 3,00,000/- was availed by him as loan from a bank and ₹ 1,00,000/- was from his personal savin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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