Case Law Details
RELEVANT PARAGRAPH
5. I have carefully considered the argument of both the sides and perused the material placed before me. It is a settled law that the onus is upon the assessee to prove the cash credit in his books of account. To discharge such onus, the assessee has to prove – (i) the identity of the creditor, (ii) the creditworthiness of the creditor, and (iii) genuineness of transaction. It would depend upon facts of each case whether all the above three ingredients to discharge the onus have been proved by the assessee or not. Before evaluating the evidences produced by the assessee, it is to be mentioned that some evidences were produced by the assessee before the Assessing officer and some were filed before the Income Tax Appellate Tribunal as additional evidences. The learned DR has pointed out that the learned JM has considered the additional evidences, while deleting the addition for cash credit, without allowing any opportunity to the Assessing Officer to cross examine such evidence. In principle I agree with the learned DR that when the Income Tax Appellate Tribunal admits additional evidence, it should allow a reasonable opportunity to the Assessing Officer to examine such additional evidence and to produce any evidence or document in rebuttal of such additional evidence. For this purpose, either the ITAT can call for the Remand Report from the Assessing Officer or may set aside the matter to the Assessing Officer for examination of additional evidence and thereafter re-adjudication. Admittedly, it has not been done by the ITAT in this case. However, being a Third Member, I am required to resolve the difference amongst the Members. In this case, unfortunately, both the learned Members have considered the additional evidence without allowing any opportunity to the Assessing Officer to cross examine such evidence. The learned JM, after considering the additional evidence, is of the opinion that the assessee has been able to discharge the onus of providing the cash credit; while the learned AM, even after considering the additional evidence produced before the ITAT, is of the opinion that the assessee is unable to discharge the onus. The question referred to me is also whether the addition should be deleted or to be confirmed. In the above circumstances, I am left with no alternative but to consider all the evidences, including additional evidence considered by the learned Members of the ITAT and then arrive at the conclusion whether the assessee is able to discharge the onus lay upon him.
6. Regarding identity: At page 28 of the assessee’s paper book there is a certificate by Shri Alliott Hadi Shahid, Chartered Accountant in which he has certified that he personally know Mr. Somendra Khosla since 2000. He has also certified that Shri Somendra Khosla is living in Dubai since the year 2000. His main business in Dubai is development of real estate. At page 30 of the paper book, there is a xerox copy of the passport issued by Government of United Arab Emirates. At page 32 of the paper book, there is a copy of trade license issued by Government of Sharjah to “Dome Services” in which owners are Shri Somendra Khosla and Sahil Khosla. At page 35 there is a copy of telephone bill in the name of Shri Somendra Khosla. At page 36 of the paper book, there is a copy of electricity and water charges bill issued by Dubai Electricity and Water Authorities. At page 46 there is a health card issued by Ministry of Health, United Arab Emirates in the name of Shri Somendra Khosla. In view of the above evidences, identity of Shri Somendra Khosla is duly established.
7. Regarding the creditworthiness: Shri Alliott Hadi Shadid, Chartered Accountant had issued a certificate, which reads as under:-
“DB: 249:2008
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