- (1.) SUNIL Ambwani, Surya Prakash Kesarwani 1. We have heard Sri Dhananjay Awasthi for the appellant - department. Sri Ashish Bansal appears for respondent -assessee.
(2.) THIS Income Tax Appeal under Section 260 -A of the Income Tax Act 1961 (the Act) is directed against the judgment and order of the Income Tax Appellate Tribunal , 'B' Bench, Lucknow dated 30.09.2008 in ITA No. 164 (Luc)/08, for the Assessment Year 2001 -02. The assessee -appellant has raised the following substantial questions of law, for consideration: - "1. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was justified in law in upholding the order of the ld. CIT (A) -I, Kanpur in deleting the addition of Rs.22,00,000/ - made by the AO on a/c of unexplained cash credits u/s 68 of the Act without appreciating that the assessee failed to discharge the onus lay upon it to prove the identity and credit worthiness of the creditors/donors and the genuineness of the said transaction? 2. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was justified in law in upholding the order of ld. CIT (A) -I, Kanpur without appreciating the ratio of decision of Hon'ble Punjab and Haryana High Court in the case of Jaspal Singh Vs. Commissioner of Income Tax reported in (2007) 290 ITR 306, and the decision of Hon'ble Delhi High Court in the case of Sahjan Das Sons Vs. Commissioner of Income Tax reported in 264 ITR 435 (Delhi)?"
(3.) IT is submitted by Sri Dhananjay Awasthi relying upon judgment of Supreme Court in CIT Vs. P. Mohanakala [(2007) 291 ITR 278 (SC)] that the burden of proof that any income not taxable as it falls within exemption provided by the Act lies upon the assessee. In view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year the same may be charged to income tax as the income of the assessee of that previous year, if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory, in such a case there is, prima facie, evidence against the assessee, viz., the receipt of money, and if he fails to rebut the said evidence, it can be used against him by holding that it was a receipt of an income nature.;