1. P.G. AGARWAL, J.---Under section 256(2) of the Income Tax Act, 1961, as per direction of this Court, the Appellate 'tribunal has referred the following question to this Court: "Whether, on the facts and circumstances of the case, the assessee had discharged its onus as required under section 68 of the Income Tax Act, 1961, in relation to the two cash credits of Rs.9,000 each from Smt. Probha Bothra and Kumari Sonita Bothra?"
2. The relevant facts are that in the course of assessment proceedings for the year 1987-88, the Income-tax Officer was not satisfied about the genuineness of the two entries of cash credit in the name of Smt. Probha Bothra and Kumari Sunita Bothra of Rs.9,000 each. The Income-tax Officer called upon the E6sessee to produce the creditors, whereupon one Kamal Chand Bothra, elder brother and legal guardian of the two minor girls, appeared and the statement under section 13 1' of the Act was recorded. The Income-tax' Officer, however, was not satisfied and was of the view that the above amounts are not genuine transactions and added the same to the income of the assessee.
3. The Commissioner of Income-tax (Appeals) was also of the opinion that though the identities of the creditors have been proved but the credit worthiness of the creditors and genuineness of the loans have been proved and the Income-tax Officer was justified in adding a sum of Rs.18,000. The assessee made another futile attempt before the Income-tax Appellate Tribunal. Aggrieved by the decisions, the assessee approached this Court and the above reference was directed to be made.
4. We have heard learned counsel for both the parties.
5. Mr. U. Bhuyan, learned counsel for the Revenue, has raised a preliminary objection to the effect that in the present reference no question of law is involved and, as such, this Court may decline to answer the question. The question before us is, whether the assessee could discharge his onus under section 68 of the Income-tax Act? The facts are definitely involved to answer the above question but that does not make it a pure question of fact. Relying on the decision of the apex Court in the case of CIT v. Smt. Anusuya Devi (1968) 68 ITR 750, we reject the preliminary objection.
6. This is a case of cash credit and the primary burden is, on the assessee. In the case of CIT v. United Commercial and Industrial Co. (P.) Ltd. (1991) 187 ITR 596 (Cal.), reliance on which has 'been placed by learned counsel for the Revenue, the Calcutta High Court has laid down the following three propositions.
7. The assessee must prove---
(i) identity of creditors,
(ii) their creditworthiness, and
(iii) the genuineness of the transaction.
8. As regards the genuineness of the transaction, it is submitted that the assessee-firm belongs to the own maternal uncle of the two creditors. Hence, if the assessee offered to invest their savings in their own firm and paying them interest at 18 percent., there was nothing to- disbelieve the transaction. There is no requirement of law that the amount should have been paid by way of cheque. Confirmation letters were duly produced before the Income-tax Officer.
9. Considering the facts and circumstances of the case, in our view, the assessee satisfactorily discharged the primary on us which lay on him to prove the nature and source of the credits. There cannot be any inference under the law that the confirmatory letters given by the assessee are bogus.Learned counsel for the Revenue has relied on a decision of the Calcutta High Court in the case were ofCIT v. Precision Finance (Pvt.) Ltd.(1994)208 ITR 465.The facts of the case were altogether different as in that case the Assessing Officer had conducted enquiries through the inspector; but in the instant case, no enquires were made by the Revenue.