TMI Blog1989 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/or inadmissible evidence and/or evidence contradictory and/or inconsistent with the material on record and/or the Tribunal have acted without any legal evidence and/or by rejecting improperly admissible evidence and whether such conclusion and/or findings are otherwise unreasonable and/or perverse ?" The facts shortly stated are that, in the course of the assessment proceedings for the years under consideration, the Income-tax Officer noticed hundi loans in each of the said years. He, therefore, called upon the assessee to prove the genuineness of the said loans. The assessee produced confirmatory letters and discharged hundis. He also filed copies of accounts to show that the receipts and repayments were made by cheques. The Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commissioner, the Revenue brought the matter by way of appeal before the Tribunal. It was contended that the cheque numbers and the bank certificates were riot produced before the Income-tax Officer and they were produced for the first time before him, The assessee has thus not proved the genuineness of the loan transactions in question. It was also submitted by the Department that the Appellate Assistant Commissioner had not given a clear finding with regard to the genuineness of the loan but he had mainly considered that the present credits came out of the earlier withdrawals. These contentions of the Revenue were controverted by the assessee who contended that the copies of the loan accounts were filed before the Income-tax Officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of account. The Income-tax Officer could have very well verified the details from there and he could have verified the bank accounts of the creditors ; but he did not do so. The assessee has also filed the confirmatory letters with the income-tax file numbers of the, creditors along with the discharged hundis. Since the amounts were received mostly by cheques and repaid by cheques in all cases, which are also supported by the bank certificates, in our view, the assessee has discharged the initial onus. The Department has not placed any evidence to rebut the evidence produced by the assessee. The alleged confessional statements have never been put to the assessee during the assessment proceedings. Hence, they cannot be relied on and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, at the instance of the assessee, notices under section 131 were also sent to the new addresses. They also came back unserved. In our view, the assessee failed to discharge the primary onus which lay on it to prove the nature and source of the credits. It was necessary for the assessee to prove prima facie the identity of his creditors, the capacity of such creditors to advance the money and lastly the genuineness of the transactions. Only when these things are proved by the assessee prima facie and only after the assessee has adduced evidence to establish the aforesaid facts, the onus shifts on to the Department. It is not enough to establish the identity of the creditors. Mere production of the confirmation letters before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to produce their complete books of account for scrutiny and verification. A number of other assessees had also admitted that loans obtained from these bankers against hundis were not genuine and that such hundi loans really represented their own concealed income. The assessee relied on the confirmatory letters given by the payee bankers. All these show that details were furnished by the assessee. None of these are the certificate copies of the assessee's accounts in the books of the payee bankers. The only inference is that the assessee has managed to get the confirmatory letters from the payee just as it had managed to get the bogus hundis. There can be no other inference. The transactions as well as the hundis and confirmatory letters a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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