The Income Tax Appellate Tribunal (ITAT) Pune bench consisting of Partha Sarathi Chaudhury, Judicial Member and Dr. Dipak P. Ripote, Accountant Member held that when there is no clear documentary evidence to prove the identity of the assessee the burden of proof lies on him claiming the benefit of being the assessee. The assessee was represented by Pramod S Shingte and the respondents (Revenue) were represented by S P Walimbe.
There was a survey under section 133A of the Act in the business premises of M/s.Vijay Constructions and various documents were impounded during the said survey. On analysing the documents it was found that certain cash payments was made by Mr.Rajegaonkar to Mr. Mr. Vijay Jadhav on various dates. Before the Assessing Officer, the assessee claimed that Rajegaonkar is the Director of M/s.Suyojit Infrastructure Limited, who was also a partner in the firm called Suyojit Baug and that the assessee entered into an Memorandum of Understanding with Suyojit Baug for the sale of the Commercial cum residential complex. As per the said MoU, the assessee received cash advances on various dates. However, the transaction was cancelled vide Cancellation Deed and the advance was duly returned. The AO rejected the claim of the assessee. The assessee preferred an appeal aggrieved by the order of the Commissioner of Income Tax.
The bench observed that the documents were neither registered nor notarised and sufficient witnesses have not signed the documents. Hence, the validity and legality of the documents remains in the shadow of doubt. Taking into consideration Section 106 of the Evidence Act when there is no clear documentary evidence to prove the identity of the assessee the burden of proof lies on him claiming the benefit of being the assessee and in the present case the assessee has failed to prove the relevant facts beyond the shadow of doubt.
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