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2015 (6) TMI 938 - HC - Income TaxUnexplained deposit in the bank account - Held that:- When the burden is on the assessee to prove the aforesaid factual question, it was the assessee's burden to make available Sri.Francis Joseph for cross examination. In this context, we should also record that the assessing officer had repeatedly issued summons to Sri.Francis Joseph, and that though he stood by his statement, he declined to appear for cross examination for one reason or the other. This was despite the fact that the burden was that of the assessee to produce him for examination. Therefore, in the facts of this case, we are unable to find fault with the Department for not making available Sri.Francis Joseph for cross examination. However, the contention of the assessee that by Annexure G assessment order,Sri.Francis Joseph himself was assessed to income tax for the year 1997-98, merits consideration. That assessment order also makes reference to the aforesaid bank account in the name of Sri.Francis Joseph and the amounts available therein. According to the assessee, Annexure G assessment order has also become final. Assessee has placed reliance on the judgment of the Apex Court in Income Tax Officer, A Ward, Lucknow v. Bachu Lal Kapoor Kewal Ram [1965 (12) TMI 24 - SUPREME Court] and submitted that the Act does not envisage taxation on the same income twice over. The principle that assessment should be in the hands of the right person and that there cannot two assessments for the same income, are too well settled. Therefore, if, as contended by the counsel for the assessee, Annexure G assessment order has become final against Sri.Francis Joseph, the very same amount cannot again be assessed in the name of the assessee also. We find that this issue was neither raised nor considered by the assessing officer nor was this issue properly dealt with by the Tribunal. Since, prima facie, there is force in what is argued, this is an issue that needs to be considered by the Assessing Officer, who will reconsider the liability of the assessee on this account, duly adverting to Annexure G order in the name of Sri.Francis Joseph and with notice to the assessee. Deposit of ₹ 5,60,000/- in the name of the assessee in the capital account of the firm Hotel Mariya, of which he is a partner - Held that:- Though this addition was confirmed by the Appellate Commissioner and the Tribunal, contention raised by the counsel for the appellant is that when ₹ 5,60,000/- was shown to the credit of the assessee in the accounts of the firm, it is for the firm to explain such a credit and the assessee cannot be called upon to explain the same. In support of this contention, he placed reliance of a judgment in Commissioner of Income Tax v. Shiv Shakti Timbers [1996 (5) TMI 21 - MADHYA PRADESH High Court]. However,as rightly contended by the learned Standing Counsel for the Department, ₹ 5,60,000/- was shown as the deposit made by the assessee in the capital account of the firm and this amount was not reflected in the cash flow statement filed by him before the assessing officer. This, therefore, shows that ₹ 5,60,000/- deposited by him in his capital account is an unexplained investment made by the assessee attracting Section 69 of the Income Tax Act. Facts being so, we do not find any illegality in the order of the Tribunal confirming the said addition. Addition of ₹ 4,00,000/- allegedly borrowed by the assessee from one George Joseph - Held that:- It is true that Section 68 talks about books of accounts and it is also true that in so far as this case is concerned, the assessee was not maintaining books of accounts. It is on this basis that the counsel contended that Section 68 could not have been invoked. We are unable to agree. If this logic is accepted, it will be possible for any defaulting assessee to escape from the payment of tax. In our view, Tribunal was perfectly justified in its' finding that in case of this nature the cash flow statement could be treated as the account of the assessee. Therefore, in such circumstances, we cannot accept the case of the assessee.
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