TMI Blog1992 (8) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... nts marked as Ann.C-1/46 were not found and recovered from the possession and control of the assessee, during the course of search of the assessee's premises on 5th Sept., 1985, despite clear mention of the said fact in the panchnama of this date? (3) Whether on facts and on proper construction of s. 132(4A) of the IT Act, 1961, the Tribunal was correct in holding that the documents marked as Ex-C-1/46 did not belong to the assessee firm but belonged to M/s Sobhraj Cold Storage and consequently deleting the addition of Rs. 6,87, 240? (4) Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in deleting the addition of Rs. 24,000 upheld by the CIT(A) on account of unrecorded transactions as per Ann. C-26 of the seized documents and further holding that s. 69 of the Act, did not apply as it is not a case where the assessee had made investments which were not recorded in the books of account, but it is a case where the investments are recorded in the books of account maintained by the assessee for its regular source of income? (5) Whether, on the facts and in the circumstances of the case and in law, the Tribunal was justified in delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the assessee. The Revenue rejected the claim of the partner Shri Kishanchand that it belonged to him personally and not to the firm. The Revenue thereafter added this amount to the income of the firm on a substantive basis as income from undisclosed sources. It also added the same amount in the income of Shri Kishan Chand on a protective basis. In the appeal before the CIT(A), the CIT(A) confirmed the addition on a substantive basis in the hands of the firm. The CIT(A) deleted it from the income of Shri Kishan Chand because he had confirmed it in the case of the firm. In both the cases the assessees came in appeal before the Tribunal. The Tribunal deleted the addition from the income of the firm accepting the contention of the assessee that the Sahi Bahi marked Ex-C-28 did not belong to the assessee but belonged to Shri Kishanchand, partner. In the case of Shri Kishanchand, the Tribunal held that Shri Kishanchand had not made the investment of Rs. 4,60,290 but it was only Rs. 1,82,000 which was in circulation. The Tribunal further held that the investment of Rs. 1,82,000 had been satisfactorily explained by Shri Kishanchand with reference to Rs. 1,22,000 available to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in the first instance the cases are on facts and based on evidence on record and have been discussed in detail by the Tribunal in its order and hence do not give rise to any question of law. However, even if the contentions of the learned Departmental Representative that they involved the question of presumption under s. 132(4A) are taken into account, they do not help the Revenue because as per the decision of the Hon'ble Rajasthan High Court in the case of Addl. CIT vs. Noor Mohd. Co. (1974) 97 ITR 705 (Raj) the question whether a statutory presumption had been rebutted by evidence in a given case is always a question of fact, and does not give rise to a question of law. Moreover, whether an investment is satisfactorily explained or not with evidence in a given case is a question of fact and does not require a reference to the Hon'ble High Court. In this way all the questions in RA No. 86/JP/1992 and question No. 1 in RA No. 87/JP/1992 are rejected. 5. In the case of the firm question No. 2 is obviously a question of fact as to whether the document marked as Annexure-C-1/46 was or was not found and recovered from the possession and control of the assessee firm during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, the assessee had given a reasonable explanation about them, all be it on behalf of M/s Sobhraj Cold Storage, and on that basis also the presumption and inferences drawn against the assessee by the Revenue could not be sustained. In this way it is obvious that firstly it is a question of fact and secondly since the investments worked out in that document had been reasonably explained, the question as proposed by the Revenue has become irrelevant and is rejected. 6. Question No. 3 is on the same issue and in addition to what we had mentioned in preceding para, in view of ratio of decision in the case of Addl. CIT vs. Noor Mohd. Co. as mentioned earlier, has to be rejected because whether a statutory presumption has been discharged or not with the evidence in a given case is always a question of fact. Question No. 3 is, therefore, also rejected. 7. Question No. 4 arises from the issue discussed by the Tribunal in detail in paras 8 and 9 of its order. The case of the Revenue was that during the course of search another Sahi Bahi marked Ex- C-26 had been found. Most of the transactions were admittedly verifiable with reference to other books of account except a few items. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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