I.T.A. NO.30 OF 1978-79, DECIDED ON 9TH JULY, 1980. Versus I.T.A. NO.30 OF 1978-79, DECIDED ON 9TH JULY, 1980.

ORDER

In this appeal against the A.A.C.'s order the appellant is aggrieved on two counts each of which shall be disposed of as follows.

2. The appellant had a commission agency business, the receipts of which amounted to Rs.53,408. Income-tax Officer added back Rs.15,000 to the receipts on the ground that complete addresses of the parties were noted and they were only noted in the cash book. The assessee s A.R., however, showed his accounts which revealed that the details were available in the ledger and there was no discrepancy at all. The D.R. also looked into the accounts and found nothing wrong with them. If the Income-tax Officer had desired to know the complete addresses of the parties, 'he could have asked the assessee to give him the complete addresses. As the Income-tax Officer did not shift the burden on the assessee, we cannot uphold the addition based on presumption. We, therefore, delete the addition made in commission on account.

Cash credits

In this account, the Income-tax Officer added back Rs.87,000. The persons, in whose accounts credits stood, submitted affidavits and also appeared before the Income-tax Officer when called upon to do so under section 37 of the Income-tax Act, 1922. The Income-tax Officer, however, did not believe the statement made by the creditors as in his opinion they could not have been in possession of the said amount. Now this is not a proper way of looking at the matter. If the persons in whose names the credit stood accepted having made the payments to the assessee, the Income- tax Officer should have pursued them if he did not believe that the money could come out of agricultural land owned by them. The assessee had proved to a reasonable probability that the money carne from certain persons. In order to prove the assessee wrong, the Income-tax Officer should have proved beyond all manner of doubt that the money came from the assessee during the year of account. The department has not proved that the money came from the assessee, hence we are unable to uphold the addition made in the assessee's income. When the Income-tax Officer does not believe the source from which the creditor had alleged it had come he is free to pursue the creditor and not the recipient. In these circumstances, we uphold the assessee's appeal in toto, and delete the addition.

3. In the result the appeal succeeds as noted above.

M.B.A./530/Trib. Appeal accepted.