ITO 28 (1)(1), MUMBAI vs. GAHLOT CONSTRUCTION, MUMBAI

ITA. No.2475/M/21 CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction 4. Brief facts are that the assessee firm had filed its original return of income u/s 139 of the Act on 29.09.2008 disclosing income of Rs.10,92,965/-. The AO later on framed an assessment u/s 153C/143(3) of the Act on 03.11.2010 by assessing total income of assessee at Rs.73,16,965/-. Thereafter, the case of the assessee was re- opened u/s 147 of the Act on the reason that the assessee has taken accommodation entry in the form of bogus loans from two concerns i.e. (i) M/s. Mohit International (Rs.2.5 cr) and (ii) M/s. Natasha Enterprises (Rs.2.5 cr) which were managed and controlled by the entry operator Shri Pravin Kumar Jain (hereinafter “Shri P.K. Jain). Therefore, he re-opened the assessment, and noted that the assessee is in the business of Real Estate, [Builder & Developer]. The AO in the course of reassessment, asked the assessee to prove the “nature & source” of Rs.5 cr credited in its books. Pursuant to it, the assessee filed the relevant documents to prove that Rs.2.5 cr was received as loan from M/s. Natasha Enterprises and to support such an assertion filed the confirmation from M/s. Natasha Enterprises, ledger account of M/s. Natasha Enterprises in assessee’s book as well as confirmation of account which shows that the lender has given loan to the assessee. And the assessee also filed the bank statement as well as proof of payment of interest to M/s. Natasha Enterprises after duly deducting the TDS. In respect of M/s. Mohit International, the assessee filed the confirmation, bank statement, ledger copy and proof of payment of interest on loan after deducting TDS. However, the AO was not convinced. According to him, during the search action u/s 132 of the CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction Act on 01.10.2013 Shri Pravin Kumar Jain admitted that he was involved in providing accommodation entry to beneficiaries through his thirty (30) odd concerns and has further admitted that he controls these concerns through dummy directors. According to the AO, both (M/s. Mohit International and M/s. Natasha Enterprises) are concerns controlled and managed by Shri P K Jain. Further, according to AO, one Shri Dinesh Chaudhary (broker of accommodation entries) was also one of the key players and was the dummy director of concerns of Shri P. K. Jain and that his statement was also recorded and he also admitted that Shri P. K. Jain is involved in providing accommodation entries and not carrying out any genuine business. According to the AO, as per the loose papers found from the premises of Shri Nilesh Parmar and Dinesh Chaudhary (page no. 19 of the loose sheet), they accepted that contents of this paper shows circular trading between M/s. Mohit International, M/s. Natasha Enterprises and M/s. Josh Trading Company of Rs.2,13,20,000/-. According to the AO, these facts indicate that Shri Dinesh Chaudhary is the broker in respect of accommodation entries taken by M/s. Mohit International and M/s. Natasha Enterprises in active connivance with Shri P K Jain Group. The AO after explaining the modus operandi of Shri P K Jain in providing accommodation entry for beneficiaries, he noted that even though Shri P K Jain and Shri Dinesh Chaudhary has retracted their statements on the ground that the statements were extracted under- duress, however, according to the AO, the retractions after seven (7) months cannot be accepted. The AO on the strength of the statements CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction recorded of Shri Pravin Kumar Jain and Shri Dinesh Chaudhary was of the view that the assessee failed to satisfy him about the “nature & source” of Rs.5 cr collected by assessee. According to the AO, from a perusal of the bank statement of M/s. Mohit International & M/s. Natasha Enterprises, it revealed that prior to debit of the amount to assessee, there are credit entries on the same day from M/s. New Planet and M/s. Ostwal which shows that lender had no creditworthiness and routed money through the concerns run by Shri P. K Jain Group to issue bogus accommodation entries to assessee. Thus, according to the AO, the source of the loan advanced to the assessee by M/s. Mohit International & M/s. Natasha Enterprises has not been established and consequently, the genuineness of the loan of Rs.5 cr taken from these two concerns has not been established. And therefore, he added Rs. 5 cr u/s 68 of the Act. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A)/NFAC who was pleased to delete the same. Aggrieved, the revenue has filed the appeal against the action of the Ld. CIT(A) and the assessee has filed CO against the action of Ld. CIT(A) summarily rejecting the legal issue.

ITA. No.2475/M/21 CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction When called-upon by AO to prove the “nature & source” of the credit entry of Rs.5 cr, the assessee filed the loan confirmation from both the parties along with copies of returns of income of both the parties for the AY. 2008-09 to 2012-13, copy of bank statements of both the parties reflecting the relevant entries, copy of bank statement of the assessee showing the receipt of money from both the parties on various dates, copy of ledger account of both the parties in the books of the assessee, confirmation from both parties that they have given loan to assessee of Rs.2.5 cr each etc. And assessee has shown that interest was paid to both these lenders and before remitting the same, due TDS was deducted and that both the lenders duly showed the interest receipt in their books of account and returned it as their income. In support of these claims, the assessee has filed relevant documents along with its written submission. However, the AO without making any inquiry with M/s. Mohit International & M/s. Natasha Enterprises and without finding any infirmity/deficiency in the relevant documents filed by the assessee has discarded it only on the strength of statement of Shri P. K. Jain and other entry operators. It is noted that the AO has taken note of search operation at the premises of Shri Pravin Kumar Jain wherein his statement was recorded on 01.10.2013. And he admitted to be a provider of accommodation entry in the form of bogus sale/loan through thirty (30) odd concerns managed by him or his dummy directors. The AO also took note of the statements of Shri Dinesh Chaudhary and Shri Nilesh Parmar who were brokers of Shri Pravin Kumar Jain for availing the accommodation entries. According to the CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction AO, certain loose papers were found from the premises of Shri Dinesh Chaudhary and Shri Nilesh Parmar wherein at page no. 19 of the loose paper details about transaction of total amount of Rs.2,13,20,000/- between M/s. Mohit International and M/s. Natasha Enterprises and M/s. Josh Trading Company were noted therein. And that the AO did not give any credence to the belated retraction made by both Shri P. K. Jain and Shri Dinesh Chaudhary. The AO further noted that the burden to prove the source of credit entry was on assessee and examined the bank statement of the M/s. Mohit International and M/s. Natasha Enterprises and noted (in his words) “on perusal of the said bank statements, it is seen that loan of Rs.5 cr has been advanced by M/s. Mohit International and M/s. Natasha Enterprises to the assessee on various dates. Just prior to the debit of this amount, there are credit entry on the same day from New Planet and Ostwal and Mohit which shows that lenders has no credit-worthiness”. Thus, he held that both M/s. Mohit International and M/s. Natasha Enterprises didn’t had creditworthiness to give loan of Rs.2.5 cr to the assessee. Therefore, according to the AO, the source of the lenders could not be proved, therefore, he was of the opinion that the assessee could not satisfy the nature and source of the loan of Rs.5 cr. And therefore, the AO made an addition u/s 68 of the Act. On appeal, the Ld. CIT(A) has deleted the addition taking note that the assessee during the re-assessment proceedings had furnished loan confirmation from both the parties along with copies of returns of income of both the parties for the AY. 2008-09 to 2012-13, copy of bank statements of both the parties ITA. No.2475/M/21 CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction reflecting the relevant entries, copy of bank statement of the assessee showing the receipt of money from both the parties on various dates, copy of ledger account of both the parties in the books of the assessee etc. And that TDS was deducted on the interest payment of the loans and both the lenders duly showed the interest receipt in their books of account and return of income. And that loan has been repaid to M/s. Mohit International on 23rd June, 2014 and repaid to M/s. Natasha Enterprises by 01st Aug, 2014. In support of these claims, the assessee has filed necessary documents along with its written submission. And thus according to Ld. CIT(A), the assessee had discharged the burden to prove the “nature and source” of the loan taken to the tune of Rs.5 cr from both M/s. Mohit International and M/s. Natasha Enterprises. According to the Ld. CIT(A), the AO failed to find any infirmity/deficiency in these documents produced by assessee and no inquiry has been conducted by AO to find any contrary material. The Ld. CIT(A) noted that the AO has disbelieved the loan taken by assessee from M/s. Mohit International & M/s. Natasha Enterprises based on the statement of Shri Pravin Kumar Jain, Shri Nilesh Parmar and Shri Dinesh Chaudhary which were never allowed to be cross- examined by the assessee, therefore, he has deleted the addition. Before we adjudicate the appeal of revenue, we note that the AO has made u/s 68 of the Act. Let us, look at section 68 of the Act as it stood during AY. 2008-09 which reads as under: - "68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year. "

9. The phraseology of section 68 is clear. The Legislature has laid down that in the absence of a satisfactory explanation, the unexplained cash credit may be charged to income-tax as the income of the assessee of that previous year. The words used by legislature in this section is not ‘shall be charged to income-tax as the income of the assessee of that previous year" but, may be charged to income-tax as the income of the assessee of that previous year. The Hon’ble Supreme Court while interpreting similar phraseology used in section 69 has held that in creating the legal fiction, the phraseology employs the word "may" and not "shall". Thus the un-satisfactoriness of the explanation does not and need not automatically result in deeming the amount credited in the books as the income of the assessee as held by the Hon’ble Supreme Court in the case of CIT v. Smt. P. K. Noorjahan [1999] 237 ITR 570.

10. In a case wherein the AO made the addition u/s 68 of the Act because the lenders of loan to assessee did not turn up before him [AO], the Hon'ble Apex Court in the case of M/s Orissa Corpn. (P) Ltd. (supra) 159 ITR 78, held that onus of the assessee (in whose books of account credit appears) stands fully discharged, if the identity of the creditor is established and actual receipt of money from such creditor is proved. In case, the Assessing Officer is dissatisfied about the ITA. No.2475/M/21 CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction source of cash deposited in the bank accounts of the creditors, the proper course would be to assess such credit in the hands of the creditor (after making due enquiries from such creditor). In arriving at this conclusion, the Hon'ble Court has further stressed the usage of word "may" in section 68 of the Act. The Hon’ble Gujarat High Court in the case of Dy CIT Vs. Rohini Builders (2002) 256 ITR 360 had dealt with a similar case and has taken note of the decision of Hon’ble Apex Court in the case of Orrisa Corporation (supra) and the decision of the Hon’ble Bombay High Court in the case of M/s. Orient Trading Co. Ltd V CIT (1963) 49 ITR 723 (Bom) were taken note by the Hon’ble Gujarat High Court in the case of Dy CIT vs Rohini Builders (supra) wherein the Hon’ble High Court observed at pages 369 and 370 of this order are reproduced hereunder:-

Thus it is clear that the assessee had discharged the initial onus which lays on it in terms of section 68 by proving the identity of the creditors by giving their complete addresses, GIR numbers/permanent account numbers and the copies of assessment orders wherever readily available, It has also proved the capacity of the creditors by showing that the amounts were received by the assessee by account payee cheques drawn from bank accounts of the creditors and the assessee is not expected to prove the genuineness of the cash deposited in the bank accounts of those creditors because under law the assessee can be asked to prove the source of the credits in its books of account but not the source of the source as held by the Bombay High Court in the case of Orient Trading Co, Ltd. v. CIT [1963] 49 TTR 723. The genuineness of the transaction is CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction proved by the fact that the payment to the assessee as well as repayment of the loan by the assessee to the depositors is made by account payee cheques and the interest is also paid by the assessee to the creditors by account payee cheques. Merely because summons issued to some of the creditors could not be served or they failed to attend before the Assessing Officer, cannot be a ground to treat the loans taken by the assessee from those creditors as non-genuine in view of the principles laid down by the Supreme Court in the case of Orissa Corporation [1986] 159 ITR 78. In the said decision the Supreme Court has observed that when the assessee furnishes names and addresses of the alleged creditors and the GIR numbers, the burden shifts to the Department to establish the Revenue's case and in order to sustain the addition the Revenue has to pursue the enquiry and to establish the lack of creditworthiness and mere non-compliance of summons issued by the Assessing Officer under section 131, by the alleged creditors will not be sufficient to draw an adverse inference against the assessee. in the case of six creditors who appeared before the Assessing Officer and whose statements were recorded by the Assessing Officer, they have admitted having advanced loans to the assessee by account payee cheques and in case the Assessing Officer was not satisfied with the cash amount deposited by those creditors in their bank accounts, the proper course would have been to make assessments in the cases of those creditors by' treating the cash deposits in their bank accounts as unexplained investments of those creditors under section 69

11. In the case of Nemi Chand Kothari 136 Taxman 213, (supra), the Hon'ble Guahati High Court has thrown light on another aspect touching the issue of onus on assessee under section 68 of the Act, by ITA. No.2475/M/21 CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction holding that the same should be decided by taking into consideration also the provision of section 106 of the Evidence Act which says that a person can be required to prove only such facts which are in his knowledge. The Hon'ble Court in the said case held that, once it is found that an assessee has actually taken money from depositor/lender who has been fully identified, the assessee/borrower cannot be called upon to explain, much less prove the affairs of such third party, which he is not even supposed to know or about which he cannot be held to be accredited with any knowledge. In this view, the Hon'ble Court has laid down that section 68 of Income-tax Act, should be read along with section 106 of Evidence Act. The relevant observations at page 260 to 262, 264 and 265 of the order are reproduced herein below:-

"While interpreting the meaning and scope of section 68, one has to bear in mind that normally, interpretation of a statute shall be general, in nature, subject only to such exceptions as may be logically permitted by the statute itself or by some other law connected therewith or relevant thereto. Keeping in view these fundamentals of interpretation of statutes, when we read carefully the provisions of section 68, we notice nothing in section 68 to show that the scope of the inquiry under section 68 by the Revenue Department shall remain confined to the transactions, which have taken place between the assessee and the creditor nor does the wording of section 68 indicate that section 68 does not authorize the Revenue Department to make inquiry into the source(s) of the credit and/or sub-creditor. The language employed by section 68 cannot be read to impose such limitations on the powers of the Assessing Officer. The logical conclusion, therefore, has to be, and we hold that an inquiry under section 68 need not necessarily be kept confined by the Assessing CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction Officer within the transactions, which took place between the assessee and his creditor, but that the same may be extended to the transactions, which have taken place between the creditor and his sub- creditor. Thus, while the Assessing Officer is under section 68, free to look into the source(s) of the creditor and/or of the sub-creditor, the burden on the assessee under section 68 is definitely limited. This limit has been imposed by section 106 of the Evidence Act which reads as follows:

Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden) of proving that fact is upon him.

******** What, thus, transpires from the above discussion is that white section 106 of the Evidence Act limits the onus of the assessee to the extent of his proving the source from which he has received the cash credit, section 68 gives ample freedom to the Assessing Officer to make inquiry not only into the source(s)of the creditor but also of his (creditor's) sub-creditors and prove, as a result, of such inquiry, that the money received by the assessee, in the form of loan from the creditor, though routed through the sub-creditors, actually belongs to, or was of, the assessee himself. In other words, while section 68 gives the liberty to the Assessing Officer to enquire into the source/source from where the creditor has received the money, section 106 makes the assessee liable to disclose only the source(s) from where he has himself received the credit and IT is not the burden of the assessee to prove the creditworthiness of the source(s) of the sub-creditors. If section 106 and section 68 are to stand together, which they must, then, the interpretation of section 68 are to stand together, which they must, then the interpretation of section 68 has to be in such a way that it does not make section 106 redundant. Hence, the harmonious CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction construction of section 106 of the Evidence Act and section 68 of the Income- tax Act will be that though apart from establishing the identity of the creditor, the assessee must establish the genuineness of the transaction as well as the creditworthiness of his creditor, the burden of the assessee to prove the genuineness of the transactions as well as the creditworthiness of the creditor must remain confined to the transactions, which have taken place between the assessee and the creditor. What follows, as a corollary, is that it is not the burden of the assessee to prove the genuineness of the transactions between his creditor and sub-creditors nor is it the burden of the assessee to prove that the sub-creditor had the creditworthiness to advance the cash credit to the creditor from whom the cash credit has been. eventually, received by the assessee. It, therefore, further logically follows that the creditor's creditworthiness has to be Judged vis-a-vis the transactions, which have taken place between the assessee and the creditor, and it is not the business of the assessee to find out the source of money of his creditor or of the genuineness of the transactions, which took between the creditor and sub-creditor and/or creditworthiness of the sub- creditors, for, these aspects may not be within the special knowledge of the assessee. "

********** " ... If a creditor has, by any undisclosed source, a particular amount of money in the bank, there is no limitation under the law on the part of the assessee to obtain such amount of money or part thereof from the creditor, by way of cheque in the form of loan and in such a case, if the creditor fails to satisfy as to how he had actually received the said amount and happened to keep the same in the bank, the said amount cannot be treated as income of the assessee from undisclosed source. In other words, the genuineness as well as the creditworthiness of a creditor have to be adjudged vis-a-vis the transactions, which he has CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction with the assessee. The reason why we have formed the opinion that it is not the business of the assessee to find out the actual source or sources from where the creditor has accumulated the amount, which he advances, as loan, to the assessee is that so far as an assessee is concerned, he has to prove the genuineness of the transaction and the creditworthiness of the creditor vis-a-vis the transactions which had taken place between the assessee and the creditor and not between the creditor and the sub-creditors, for, it is not even required under the law for the assessee to try to find out as to what sources from where the creditor had received the amount, his special knowledge under section 106 of the Evidence Act may very well remain confined only to the transactions, which he had' with the creditor and he may not know what transaction(s) had taken place between his creditor and the sub- creditor… "

********** "In other words, though under section 68 an Assessing Officer is free to show, with the help of the inquiry conducted by him into the transactions, which have taken place between the creditor and the sub- creditor, that the transaction between the two were not genuine and that the sub-creditor had no creditworthiness, it will not necessarily mean that the loan advanced by the sub-creditor to the creditor was income of the assessee from undisclosed source unless there is evidence, direct or circumstantial, to show that the amount which has been advanced by the sub-creditor to the creditor, had actually been received by the sub-creditor from the assessee …."

********** "Keeping in view the above position of law, when we turn to the factual matrix of the present case, we find that so far as the appellant is concerned, he has established the identity of the creditors, namely, CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction Nemichand Nahata and Sons (HUF) and Pawan Kumar Agarwalla. The appellant had also shown, in accordance with the burden, which rested on him under section 106 of the Evidence Act, that the said amounts had been received by him by way of cheques from the creditors aforementioned. In fact the fact that the assessee had received the said amounts by way of cheques was not in dispute. Once the assessee had established that he had received the said amounts from the creditors aforementioned by way of cheques, the assessee must be taken to have proved that the creditor had the creditworthiness to advance the loans. Thereafter the burden had shifted to the Assessing Officer to prove the contrary. On mere failure on the part of the creditors to show that their sub-creditors had creditworthiness to advance the said loan amounts to the assessee, such failure, as a corollary, could not have been and ought not to have been, under the law, treated as the income from the undisclosed sources of the assessee himself, when there was neither direct nor circumstantial evidence on record that the said loan amounts actually belonged to, or were owned by, the assessee. Viewed from this angle, we have no hesitation in holding that in the case at hand, the Assessing Officer had failed to show that the amounts, which had come to the hands of the creditors from the hands of the sub-creditors, had actually been received by the sub-creditors from the assessee. In the absence of any such evidence on record, the Assessing Officer could not have treated the said amounts as income derived by the appellant from undisclosed sources. The learned Tribunal seriously fell into error in treating the said amounts as income derived by the appellant from. undisclosed sources merely on the failure of the sub-creditors to prove their creditworthiness.”

12. Further, in the case of CIT v. S. Kamaljeet Singh [2005] 147 Taxman 18(Allahabad.) their lordships, on the issue of discharge of CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction assessee's burden in relation to a cash credit appearing in his books of account, has observed and held as under:-

4. The Tribunal has recorded a finding that the assessee has discharged the onus which was on him to explain the nature and source of cash credit in question. The assessee discharged the onus by placing (i) confirmation letters of the cash creditors; (ii) their affidavits; (iii) their full addresses and GIR numbers and permanent account numbers. It has found that the assessee's burden stood discharged and so, no addition to his total income on account of cash credit was called for. In view of this finding, we find that the Tribunal was right in reversing the order of the AA C, setting aside the assessment order.

15. It is now a settled law that while considering the question whether the alleged loan taken by the assessee was a genuine transaction, the initial onus is always upon the assessee and if no explanation is given or the explanation given by the appellant is not satisfactory, the Assessing Officer can disbelieve the alleged transaction of loan. But the law is equally settled that if the initial burden is discharged by the assessee by producing sufficient materials in support of the loan transaction, the onus shifts upon the Assessing Officer and after verification, he can call for further explanation from the assessee and in the process, the onus may again shift from the Assessing Officer to assessee. CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction 16. In the case before us, the appellant by producing the loan- confirmation-certificates signed by the creditors, disclosing their permanent account numbers and address and further indicating that the loan was taken by account payee cheques, no doubt, prima facie, discharged the initial burden and those materials disclosed by the assessee prompted the Assessing Officer to enquire through the Inspector to verify the statements.

8. Assailing the said judgment of the learned Tribunal learned counsel for the appellant submits that Income-tax Officer did not consider the material evidence showing the creditworthiness and also other documents, viz., confirmatory statements of the persons, of having advanced cash amount as against the supply of bidis. These evidence were duly considered by the Commissioner of Income-tax (Appeals). Therefore, the failure of the person to turn up pursuant to the summons issued to any witness is immaterial when the material documents made CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction available, should have been accepted and indeed in subsequent year the same explanation was accepted by the Income-tax Officer. He further contended that when the Tribunal has relied on the entire judgment of the Commissioner of Income-tax (Appeals), therefore, it was not proper to take up some portion of the judgment of the Commissioner of Income-tax (Appeals) and to ignore the other portion of the same. The judicial propriety and fairness demands that the entire judgment both favourable and unfavourable should have been considered. By not doing so the Tribunal committed grave error in law in upsetting the judgment in the order of the Commissioner of Income- tax (Appeals).

The Income-tax Appellate Tribunal performs a judicial function under the Indian Income-tax Act; it is invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its finding on all the contentions raised by the assessee and the Commissioner, in the light of the evidence and the relevant law.

13. Hence, the judgment and order of the Tribunal is not sustainable. Accordingly, the same is set aside. We restore the judgment and order of the Commissioner of Income-tax (Appeals). The appeal is allowed.”

In our opinion, in such circumstances, the Assessing officer of the assessee cannot take the burden of assessing the profit and loss account of the creditor when admittedly the creditor himself is an income tax assessee. After getting the PAN number and getting the information that the creditor is assessed under the Act, the Assessing officer should enquire from the Assessing Officer of the creditor as to the genuineness of the transaction and whether such transaction has been accepted by the Assessing officer of the creditor but instead of adopting such course, the Assessing officer himself could not enter into the return of the creditor and brand the same as unworthy of credence.

So long it is not established that the return submitted by the creditor has been rejected by its Assessing Officer, the Assessing officer of the assessee is bound to accept the same as genuine when the identity of CO. No.82/M/2023 A.Y No. 2008-09 Gehlot Construction the creditor and the genuineness" of transaction through account payee cheque has been established.

We find that both the Commissioner of Income Tax (Appeal) and the Tribunal below followed the well-accepted principle which are required to be followed in considering the effect of Section 68 of the Act and we thus find no reason to interfere with the concurrent findings of fact recorded by both the authorities.”