JOYMALYA BAGCHI,J. - (1.) This appeal is preferred against the judgment and order dated 12th October, 2011 in relation to the Assessment Year 2004-05 on the following substantial questions of law - "a) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal erred in law in upholding the order of CIT(A) in deleting the addition of Rs. 35,55,000/- made under Section 68 of the Income Tax Act, 1961 without considering the fact that the assessee had failed to discharge the legal obligation of proving the creditworthiness of the share applicants and the genuineness of the transactions ? b) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal erred in law in upholding the order of CIT(A) in deleting the addition of Rs. 35,55,000/- made under Section 68 of the Income Tax Act, 1961 without considering the decision of the Hon'ble Apex Court in the case of Commissioner of Income Tax v. Biju Patnaik reported in 160 ITR 674 (SC) where it has been held that the burden of proving the source of the source is on the assessee ? c) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal erred in law in upholding the order of CIT(A) in deleting the addition of Rs. 35,55,000/- made under section 68 of the Income Tax Act, 1961 by ignoring the fact that the decision of Hon'ble Apex Court in the case f Commissioner of Income Tax v. Lovely Exports (P) Ltd. Reported in 216 CTR 195 (SC) is applicable to the facts of the case since the issues considered by the above judgment are completely different from the issues in the case under consideration ? d) Whether the impugned order is bad, arbitrary, illegal perverse and the same is nothing but a total non-application of mind of the concerned respondent and the same is liable to be set aside and/or quashed ?"
(2.) We have heard Mr. Dudhoria appearing for the Revenue/Department and have gone through the impugned judgment and order. We think that gross injustice would be done in a case of this nature as the learned Tribunal has found on fact as recorded hereunder. There has been no allegation of perversity.
(3.) We find that the assessee had produced complete details of receipt of share application money. This fact has been confirmed by AXIX Bank by confirming the fact that the cheques were for share application money. Once the assessee is able to establish the identity of share applicants and genuineness of transaction, it is for the revenue to look into the financial worthiness of share applicants that of assessee.;