The Income tax Appellate Tribunal, Mumbai in Raw Presery (P) Ltd v. ACIT [143 Taxmann.com 158] has minutely pointed out difference between two, while discussing rigors of section 68 of the Income tax Act, 1961 as under:
“The said provision casts the initial burden to prove the nature of credit on the recipient, i.e. the assessee. There is a marked distinction between “onus of Proof” and “ burden of proof”. The “burden of proof” lies on a person who has to prove a fact initially and if he fails to prove it, when asked to do so by the Assessing Officer, then the Assessee Officer can draw adverse inference against the assessee under section 68 of the Act. But if the assessee discharges its burden / obligation and prove the nature and source of the credit entries to the Assessing Officer’s satisfaction, then the ‘onus of proof’ shifts on the Assessing Officer. However, for the purpose of section 68 of the Act, the ‘burden of proof’ begins with the assessee and once the assessee submits evidence in support of the credit and makes out a prime facie case, then the ‘onus of proof’ shifts to the Revenue. Such shifting of ‘onus’ is a continuous process in the evaluation of evidence. If the evidence on record weighs in favour of the assessee [based on pre-ponderance of probability which is the standard of proof required in income tax assessment] or that the explanation put forth cannot be said to be completely unsatisfactory, then the onus cast upon the assessee under section 68 of the Act can be said to have been discharged. In view of the foregoing we are of the considered view that the initial burden on the assessee was only to substantiate the source of its share premium inasmuch as the identity and creditworthiness of the investors along with the genuineness of the transaction”.
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Source: AIFTP Journal June 23