TMI Blog2014 (2) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts – Held that:- The burden of proof is not a fixed concept it keeps on shifting from stage to stage - The burden of assessee was discharged when the statement was recorded of the cashier and of Dr. Gaur Hari Singhania on the same day, when the survey was made, subsequently, oral statement was made by Dr. Gaur Hari Singhania, giving the date of refunding - The authority has to take decision on the basis of evidence on record - The Tribunal has returned the findings after considering the evidence on record – Decided in favour of Assessee. - Income Tax Reference No. - 203 of 1987 - - - Dated:- 28-1-2014 - Hon'ble Ashok Bhushan And Hon'ble Mahesh Chandra Tripathi,JJ. For the Applicant : V. Gulati,R.S.Agrawal,Ravi Kant For the Respondent : B. Agarwal, C.S.C. ORDER Heard Sri R. K. Upadhyaya, learned counsel for the department, Sri Ravi Kant, learned Senior Advocate assisted by Sri R.S. Agrawal, for the assessee. This is a reference made by Income Tax Appellate Tribunal under section 256 of the Income Tax Act. The Income Tax Appellate Tribunal decided the Income Tax Appeal No. 1025 of 1983 and Income Tax Appeal No. 708 of 1983 by a Common order dated 29.01.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2005 passed in Income Tax Reference No. 41 of 1991 Commissioner of Income Tax, Central, Kanpur v. Juggi Lal Kamlapat Bankers. He submitted that similar question arose in assessment year 81-82 and 83-84 which were answered by the Division Bench judgment dated 06.07.2005, copy of the judgment of this Court has been produced before us. Sri R. K. Upadhyay, learned counsel for the department also has no dispute that the said questions have been decided in favour of the assessee. In the judgment dated 6th July 2005 both the questions, which were refereed at the instance of the assessee have been answered in favour of the assessee and against the revenue. Now we come to the questions, which had been referred by the Tribunal on the application made by the department. Sri R.K. Upadhyay, learned counsel for the department submitted that the assessee failed to establish that he refunded the money which was taken from the firm and which was found short on the date of survey i.e. 15th April 1977. He submits that no error was committed by the Income Tax Officer in directing an addition of Rs. 22,23,643/- by treating the amount as unexplained income of the assessee. Sri Ravi Kant, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper which had been torn off. A pointed question was asked from the Cashier as to whether the partners often used to take away cash for their personal purposes? The Cashier answered in the affirmative. He, however, showed his ignorance as to the purpose for which the money used to be taken by the partners. He also admitted that no interest was charged on such amounts. He further stated that generally such amounts were not debited to the accounts of the partners. He stated that they were debited if the partners so desired." On same day, the Income Tax Officer for finding out the truths cross over to Sri (Dr.) Gaur Hari Singhania, who stated that he has been receiving money from the assessee. He has stated that he does not know the correct figure, but the figure given by the cashier must be so. Sri Gaur Hari Singhania has made statement before Assessing Officer that he returned Rs.25 lacs on 16.04.1977 to the assessee and an odd amount were also returned. The Income Tax Officer made addition to the amount of Rs. 22,23,643/- as unexplained income to the assessee. The appeal was filed by the assessee and the Commissioner had deleted the said addition. The department as well as asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not only explained the non availability of cash in its hands but has also explained the availability of cash to the extent of Rs. 25 Lakhs on 16.4.1977 which obviously could be utilized by it for meeting the expenses between 22.4.1977 and 22.11.1977. It may also be mentioned here that in paragraph -11 (xx), the Income-tax Officer stated that as per statement of Dr. Singhania, he had returned Rs. 25 Lakhs on 16.4.1977. The opening sentence of paragraph 12 of his order states that the facts, as stated by him, earlier in paragraph 11, were not in dispute. In other words, he had not disputed the return of the amount of Rs. 25 Lakhs by Dr. Singhania to the firm on 16.4.1977. In face of these facts, which were not in dispute either by him or before him, it is difficult to say how the Income-tax Officer could take a somersault and then some to the conclusion that neither the money had been taken by Dr. Singhania nor the return of cash by him was believable. Why he could not believe the return of the cash is not spelt out by him in paragraph 19 of his order. The reason is not far to seek as he wanted to hold that the expenditure of Rs. 22,27,643.93 had been met out of the assessee's undi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. Findings of fact were recorded by the said authorities. In a reference there is no scope for interference with the factual findings, unless the findings are per se without reason or basis, perverse and/or contrary to materials on record. Merely because a different view on facts may be available to be drawn, that cannot be a ground to interfere with the findings of fact recorded by the authorities. 12. In cases of reference, only a question of law can be answered. Where the determination of an issue depends upon the appreciation of evidence or materials resulting in ascertainment of basic facts without application of law, the issue raises a mere question of fact. An inference from certain facts is also a question of fact. A conclusion based on appreciation of facts does not give rise to any question of law. if a finding of facts is arrived at by the Tribunal after improperly rejecting evidence, a question of law arises. Where the Tribunal acts on materials partly relevant and partly irrelevant, a question of law arises because it is impossible to say to what extent the mind of the Tribunal was affected by the irrelevant material used by it in arriving at the finding." The a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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