1. The appeal is directed against a judgment and order dated 9th September, 2011 passed by the Income Tax Appellate Tribunal dismissing an appeal preferred by the Revenue against an order of the Commissioner of income tax (Appeals). The Revenue has come up challenging the said judgment and order of the learned Tribunal.

2. The facts and circumstances of the case briefly stated are as follows:

2.1 The respondent-assessee claims to be a commission agent dealing in fishes. She also has an ice factory. During the assessment of her income tax, for the assessment year 2006-07, a survey was conducted. Some of the books of accounts of the assessee were seized. One of them was a register, identified as GTI-1, which contained the following columns:

2.2 From the aforesaid register it had appeared that the sum of Rs. 42,78,717/- was receivable by the assessee from the buyers of fish. Similarly, a sum of Rs. 4,74,681/- was detected to have been advanced to the sellers of fish. These amounts were not reflected in the books of account of the assessee. The defence of the assessee was confession and avoidance on the plea that the sum of Rs. 42,78,717/- was receivable on account of the sellers of fish and the sum of Rs. 4,74,681/- had been advanced by the buyers of fish. The aforesaid sum is also the balance outstanding at the end of the financial year 2005-06.

2.3 The total income of the assessee as per the return was Rs. 1,64,995/-. The income tax Officer assessed the income at a sum of Rs. 59,70,687/-. The additions made by him were as follows:

2.4 Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal to the Commissioner of income tax (Appeals), who on his turn, disallowed all the additions made by the Assessing Officer without disclosing any convincing reasons.

2.5 The Revenue preferred an appeal to the Income Tax Tribunal only as regards deletion of the sum of Rs. 4,74,681/- and the sum of Rs. 42,78,717/-. The learned Tribunal dismissed the appeal agreeing with the views expressed by the Commissioner of income tax (Appeals). The Revenue has come up in appeal.

2.6 Notice was given to the assessee so that the appeal can be disposed of on merits. Pursuant to such notice, the assessee appeared and the matter was taken up for hearing.

3. The questions for consideration are:

(a) Whether the decision to delete addition of a sum of Rs. 4,74,681/- is perverse

(b) Whether the decision to delete addition of a sum of Rs. 42,78,717/- is perverse

4. Both the questions have common factual background in the sense that the assessee sought to explain that the sum of Rs. 42,78,717/- appearing to be receivable by her is really receivable by her for and on account of suppliers of fish also known as trawler owners and the sum of Rs. 4,74,681/- appearing to have been advanced by the assessee was really advanced by the Paikers, namely, the buyers of the fish. Both the explanations were held unsatisfactory by the Assessing Officer.

5. Mr. Sen, learned advocate appearing for the assessee-respondent, submitted that the assessee had furnished a list disclosing the names of the buyers to whom the sum of Rs. 4,74,681/- was payable and a list as regards the sellers of fish on whose behalf the assessee was to recover the sum of Rs. 42,78,717/-. He added that once a list was made over to the Assessing Officer, it was not open to him to add back the amount without holding an enquiry in that regard. He added that it was open to the Assessing Officer to find out whether such persons in fact existed and whether such money was in fact payable or receivable by them. He in support of his submissions relied on a judgment of this Court in the case of Hindusthan Tea Trading Co. Ltd. Vs. Commissioner of Income Tax, From page 293 of the aforesaid judgment, he drew our attention to the following views expressed by the Division Bench of this Court:

Once an explanation is offered, the Assessing Officer is bound to consider the same. Such consideration is guided by sound principles of law. The opinion so formed must be reasonable and based on materials and shall not be perverse. The extent of the power of the Assessing Officer while considering the materials produced by the assessee is very wide. It is a question of examining as to whether the apparent is real. The Assessing Officer is empowered to lift the corporate veil and examine the real nature of the transaction. In the process, he may exercise its power of examining the materials. He may require the assessee to produce further materials if so required. He may seek information from other sources on the basis of the material produced. In the process of enquiry, the assessee has no right of hearing. But the assessee has a right to challenge the conclusion arrived at on the basis of the enquiry made. The assessee may point out the perversity in the finding. It may question the validity of the process undertaken. It may point out that a particular material was not considered. It may also point out that the enquiry made was not reasonable or was half-heartedly done. The process of enquiry is such that the assessee has to offer the explanation and produce the material in support of such explanation and then it can do no further. The onus then shifts on the Revenue to scrutinise the materials and form an opinion on the basis thereof.

Even in this passage, the Division Bench opined that the assessee is expected, not only to offer of explanation but also to produce materials in support thereof, and it is thereafter for the Revenue to scrutinize the materials and form an opinion.

6. The assessee in the present case was directed to explain as to why should the sum of Rs. 42,78,717/- and the sum of Rs. 4,74,681/- be not added to her income. The assessee contented herself by furnishing a list indicating names of sellers and buyers who, according to her, had made the investment. She did not, however, produce any supporting material in favour thereof. The learned Advocate for the assessee contended that the Assessing Officer should have called upon those persons to verify the statement of the assessee. We are unable to accept this submission. It is for the assessee even according to the judgment noticed above to produce all relevant materials in support of the claims and contentions put forward by it. Until prima facie evidence in support of the claim or contention is adduced, the onus does not shift to the Assessing Officer to disprove the same. The assessee, by merely furnishing a list, did not discharge her burden. Acceding to the contention of the learned counsel would amount to laying down a rule that it is for the Revenue to find out whether the assessee has or may have an explanation to offer. When an explanation is called for from the assessee, he or she must take care to substantiate her explanation by such supporting evidence as may be in his or her power to produce. Who are the buyers; how or in what circumstances did they advance the sum of Rs. 4,74,681/- and who are the sellers How and in what circumstances did the sum of Rs. 42,78,717/- become payable to them was in the special knowledge of the assessee. It was, therefore, her obligation to disclose cogent evidence in that regard. She claims to be a commission agent. The column 5 of GTI-1 provides for deduction of commission. Therefore it should not have been difficult for the assessee to disclose the relevant evidence about the transactions allegedly made by the assessee on behalf of suppliers of fish or the trawler owners. Her failure to do so even prima facie amounts to no explanation at all. Reference in this regard may be made to the judgment in the case of Collector of Customs, Madras and Others Vs. D. Bhoormall, wherein the Apex Court opined that "The other cardinal principle having an important bearing on the incidence of burden of proof is that efficiency and weight of the evidence is to be considered according to the proof which it was in the power of one side to prove, and in the power of other to have contradicted." Can it be said that it was not in the power of the assessee to prove the aforesaid facts In the case of Commissioner of Income Tax Vs. P. Mohanakala, Their Lordships in construing the expression "the assessee offers no explanation" appearing in Section 68 of the I.T. Act held that the expression means "where the assessee offers no proper, reasonable and acceptable explanation as regards the sum found credited in the books maintained by the assessee."

7. Reference may also be made to the judgment in the case of Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, wherein Their Lordships opined that "In the absence of any cogent evidence, a bald explanation furnished by the assessee about the source of the credits in question viz. realization from the debtors of the erstwhile firm, in the opinion of the assessing officer, was not satisfactory. It is well settled that in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of that previous year, if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the assessing officer, not satisfactory. (See Sumati Dayal Vs. Commissioner of Income Tax Bangalore,

8. Mr. Sen, learned Advocate also drew our attention to the following views expressed by the Division Bench of this Court in the aforesaid case at Page-298.

Once the materials are there, it is incumbent on the assessing authority to enquire into the same. It cannot overlook one or the other materials nor can it undertake a half-hearted enquiry. When looking at the facts, the court has every right to scrutinize the situation and find out as to whether enquiry was made reasonably with the prudence of a reasonable man. If after such enquiry having regard to the materials, the officer had come to a conclusion then it would be a finding of fact, unless it is shown that the inference drawn on the basis of the proved fact was perverse. But if some of the materials are not considered or it is stopped there and does not undertake a reasonable enquiry, then the conclusion arrived at, cannot be said to be a legal inference on the basis whereof such conclusion could be arrived at. Then it does not remain a question of fact but becomes a question of law.

The views expressed by the Division Bench cannot be read in isolation. The view expressed has to be read in the context of the facts of the case which was under consideration by the Division Bench. In that case, the money was received by the assessee on account of share application money and the genuineness of such receipt was under challenge. It is, in that context that the aforesaid views were expressed which has no semblance with the case before us. The assessee in that case had disclosed relevant evidence to show that it had received applications for allotment of shares together with the requisite amount.

9. The second judgment cited by Mr. Sen is in the case of MADDI SUDARSANAM OIL MILLS CO. Vs. COMMISSIONER OF Income Tax, HYDERABAD AND ANDHRA., wherein the following views were taken.

Where the income tax authorities reject the books of account of the assessee and compute the gross profits of his business by applying a flat rate on the total turnover, they cannot rely on the books for the purpose of adding cash credits, which were part of the scheme of balancing accounts, to the profits so ascertained.

This judgment has no manner of application. The learned Advocate did not also demonstrate before us as to how does this judgment apply to the facts and circumstances of this case before us.

10. The third judgment cited by him is in the case of Commissioner of Income Tax, Ernakulam Vs. P.K. Noorjahan (Smt), wherein Their Lordships held that u/s 69 of the I.T. Act, the income tax Officer has a discretion, in a case where the source of investment has not been satisfactorily explained, to treat the source of investment as the income of the assessee. Their Lordships held that it was not obligatory on the part of the Income Tax Officer to hold that the source of investment must be from the income of the assessee. The facts of the case in which the aforesaid judgment was rendered was that a lady had purchased certain pieces of land at a sum of Rs. 34,628/- and a sum of Rs. 25,902/-. The explanation offered by her was that the lands were purchased from out of the savings from the income of the properties which were left by her mothers first husband. The income tax Officer rejected the explanation and made the necessary addition, which was upheld by the CIT (Appeals). The Tribunal, however, reversed the order holding that it was not mandatory on the part of the income tax Officer after having rejected the explanation to deal with the investment as an income of the assessee. The aforesaid judgment, in our view, has no manner of application to the facts of this case. In the aforesaid case, the properties left by the first husband of the mother of the assessee were not doubted. The income derived from that property was also not in doubt. Therefore, the possibility of there being some truth or some grain of truth could not be ruled out in that case. But in the case before us no such possibility has been proved even prima facie for reasons already discussed. The situation before us is only consistent with the hypothesis that money was not payable to any one nor was the money receivable on account of others, and therefore, the assessee did not maintain any books of accounts with regard thereto. We are, as such, of the opinion that the learned Tribunal erred in not realizing that the assessee had offered no explanation at all. Both the questions formulated above are as such answered in the affirmative. The appeal is allowed in favour of the Revenue.