The initial onus lies upon the Revenue to raise a prima facie doubt on the basis of credible material. If the assessee furnishes all relevant facts within his knowledge and offers a credible explanation, the onus reverts to the Revenue to prove that these facts are not correct. The Revenue cannot draw an inference based upon suspicion or doubt or perceptions of culpability or on the quantum of the amount involved.

Rajive Bhalla, J.

1. The Revenue has filed IT Appeal Nos. 48, 49, 169 of 1999 and GT Appeal No. 10 of 2004 challenging orders passed by the Income-tax Appellate Tribunal, Chandigarh (for short "the Tribunal"). As the controversy and the substantial questions of law are common to all appeals, facts are being taken from IT Appeal No. 49 of 1999. The dispute in hand, briefly put, relates to the genuineness of two monetary gifts received by the assessee for and on behalf of his daughters on the occasion of their marriage. The gifts, as admitted, were received from Dr. O.S. Gill and Shri B.P. Bhardwaj, by demand drafts, while the assessee was in London. The AO, served a notice under s. 143 of the IT Act, 1961 (hereinafter referred to as "the Act"), addressed queries to the assessee, obtained information through the CBDT, from the Inland Revenue, Great Britain, examined Dr. O.S. Gill but as he was not satisfied with the explanation proffered by the assessee, on the basis of material on record, held that the assessee has not been able to prove the genuineness of the gifts. The AO, therefore, raised an inference, under s. 69A of the Act and held that the gifts represent the income of the assessee and added these amounts to the income of the assessee. A protective assessment was made in the hands of Ms. Monica and Ruchica Oswal.

2. The assessee and his daughters filed separate appeals, which were partly allowed by the CIT(A) by accepting the gift made by Dr. O.S. Gill but rejecting the gift made by Shri B.P. Bhardwaj.

3. Aggrieved by this order, both the assessee and the Revenue, filed separate appeals. The Tribunal, vide the impugned orders, accepted the appeals filed by the assessee and his daughters but rejected the appeals filed by the Revenue by holding that the assessee has proved the genuineness of the gifts. The Tribunal has held that the Revenue has not brought forth any credible material that would raise an inference under the deeming provision of s. 69A of the Act that the gifts represent the income of the assessee. The appeal against orders imposing gift tax was decided in terms of the order passed by the Tribunal.

4. The Revenue filed four appeals, one in the case of Jawahar Lal Oswal, two each in the case of his daughters and the fourth pertaining to gift-tax. The appeals came up for consideration before a Division Bench of this Court. After considering the questions framed, the Hon'ble Judges comprising the Division Bench differed in their opinion, with one opinion, allowing the appeals and the other dismissing the appeals. The appeals were, therefore, placed before a third Hon'ble Judge.

5. Before the third Hon'ble Judge, the Revenue urged that as the Division Bench has not framed the questions of divergence, the matter should be returned unanswered. The respondents, however, urged to the contrary and prayed that the matter may be decided by ascertaining and answering the divergence of opinion.

6. After examining the divergent opinion, it was held that though points of divergence have not been spelt out, this discrepancy is at best, a technical irregularity and after examining the divergent opinion, fresh questions of law can be framed and answered. A relevant extract from order dt. 8th April, 2002 reads as follows:

"In my opinion, failure of the Bench of two or more Judges which is entrusted with the task of hearing the appeal in the first instance to state the point of law upon which they differ is by itself not sufficient to decline an answer on the points of law which arise for determination: This omission can, at the best, be treated as a technical irregularity and the Bench to which the case is referred can, on its own, frame the point(s) of law on which the two members of the Bench have expressed divergent opinion.

Hence, it is held that omission on the part of the Division Bench to state the point of law is inconsequential and the appeals deserve to be heard with reference to the questions of law which arise f