K .B.ASTHANA - (1.) We have heard learned counsel for the petitioner and the learned counsel for the opposite party. We do not think on the judgment and order of Tribunal of the assessee that the Tribunal has discarded the evidence of the witnesses on affidavit on certain surmises and conjectures as also on a misreading of the record. May be in certain particulars in regard to one or two of the witnesses the Tribunal's estimate was inaccurate but substantially, we think, on a reading of the judgment of the Tribunal, that it has considered the evidence fully and we cannot say that its assessment is vitiated on account of ignoring some positive rules of law and procedure. The Tribunal was the final Court of fact that it was for it to assess the evidence. If on one of the reasons given by the Tribunal there can be doubt about the credibility of the witnesses but other reasons are valid and good reasons this will not be a ground to hold that in rejecting the evidence the Tribunal erred in law.
(2.) LEARNED counsel relied on CIT Calcutta vs. Daulatram Rawatmull 87 ITR 349 but we do not think the law declare in the case by the Supreme Court any way helps the petitioners. Here is the question of only assessment of the evidence of a witness and not the recording of any finding as to the rights of the parties. We are also not impressed with the argument raised that the rule of burden of proof has been wrongly applied and prima facie the assessee had established the loans that were advanced to him and it was then for the Department to prove by cogent evidence that the transactions entered were fictitious. We think only questions of fact arose before the Tribunal. We cannot say that the findings recorded by the Tribunal are erroneous. This petition is dismissed. Since some factual crrors in the judgment of the Tribunal led to the filing of this application we make no order as to costs.;