- (1.) THE Tribunal, Delhi Bench, has referred the following question of law for opinion of this Court under s. 256(1) of the IT Act : "Whether, on the facts and in the circumstances of the case, the Hon'ble Tribunal was correct in law in deleting the addition of Rs. 1,13,500 made under s. 68 of the Act, being unexplained deposit, notwithstanding the fact that the capacity or the creditworthiness of the depositor remained unsubstantiated as the assessee failed to discharge his onus (that) lay upon him to prove the capacity or the creditworthiness of the depositor and further categorically refused to examine the depositor, his wife Smt. Mamta Devi. Mere filing of confirmatory letters, copies of assessment orders and payment by cheque do not prove genuineness of credits nor they make a non -genuine transaction/loan genuine."
(2.) THE dispute relates to the asst. yr. 1990 -91. The brief facts giving rise to the present writ petition (sic) are as follows : The assessee is an individual and in his return he disclosed cash credit of Rs. 1 lakh in the name of his wife, Smt. Mamta Devi. The assessing authority asked the assessee to produce Smt. Mamta Devi, but he failed. The assessing authority accordingly treated the cash credit of Rs. 1 lakh as unexplained income of the assessee. The addition was agitated in appeal before the CIT(A). The appeal was dismissed. The assessee filed second appeal before the Tribunal and the Tribunal allowed the appeal and noted that Smt. Mamta Devi, the creditor was being regularly assessed by the Department in respect of her income as also wealth and the returns filed by Smt. Mamta Devi stood accepted by the Revenue. The Tribunal allowed the appeal.
(3.) HEARD Sri Shambhu Chopra, learned standing counsel for the Department and Sri R.S. Agarwal, advocate, for the assessee. The only argument raised by Sri Shambhu Chopra for the Department that since the assessee has failed to produce Smt. Mamta Devi, therefore, an adverse inference should have been drawn against the assessee.;