TMI Blog2010 (10) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee was given due opportunity to explain the difference, but it could not give any satisfactory explanation. In these circumstances, the Commissioner (Appeals) was not justified in deleting the addition. The findings recorded by the Tribunal being a finding of fact did not call for any interference. - 186 of 2004 - - - Dated:- 6-10-2010 - ADARSH KUMAR GOEL and AJAY KUMAR MITTAL JJ. S. S. Narula for the appellant. Denesh Goyal for the respondent. JUDGMENT The judgment of the court was delivered by 1. Adarsh Kumar Goel J.-This appeal has been preferred by the assessee under section 260A of the Income-tax Act, 1961 (for short, "the Act") against the order dated January 30, 2004, of the Income-tax Appellate Tribunal, Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax (Appeals) deleted the additions by observing that without verification from the bank, the stock statement furnished to the bank could not have been relied upon. On further appeal, the Tribunal set aside the order of the Commissioner of Income-tax (Appeals) and restored that of the Assessing Officer. The observations made by the Tribunal are as under : "13. The matter has been dealt with by the Assessing Officer in reason No. (i) in the third para at page 4 of the assessment order. It has been mentioned therein, and the learned Commissioner of Income-tax (Appeals) does take note thereof, that the bank furnished the photo copies of the proforma for supervision/follow-up and monitoring of advances in respect of the visit report to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s require periodic check up by the bank. The fact that the bank admitted not having the records of visits to the assessee on other dates during the assessment year, could not undermine the value of the report of the visit conducted on December 31, 1994. In fact, this report supports the statement of the assessee, to which statement is attached a presumption of truth so far as regards the contents thereof. The bank authorities found that the stock shown in the stock statement was actually lying with the assessee. It was on these facts that the Assessing Officer concluded that the assessee had a stock of consumable stores valuing Rs. 30,72,570 as on August 24, 1994. The learned Commissioner of Income-tax (Appeals) has erringly ignored this at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This factual position remains unrebutted, meaning thereby, that the argument raised by the assessee does not hold water. Otherwise also, the statement in question was made by a director of the assessee-company and that too, a director looking specifically after the dealings of the assessee with the banks. So far as regards the stock statement given to the bank, that statement, as discussed above, in itself, is a signed statement, the contents whereof are duly verified by the deponent. The contents of that statement carry a presumption of truth. Rebuttable though, such presumption may be, it is not the case that such presumption stands rebutted. The stock statement, therefore, binds the assessee. Even if such statement were before Shri Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s shown to the bank at Rs. 30,72,570 and as shown in the books at Rs.1,88,950, is Rs. 28,83,620, which comes to seven times. It is not the case of the assessee that the difference was only on account of value and not on account of quantity. No reconciliation of the same has been brought on record at any stage. In fact, the learned counsel for the assessee conceded that this was a manipulation done by the assessee for the purpose of claiming higher loans. These material facts have wrongly been overlooked by the learned Commissioner of Income-tax (Appeals)." 3. We have heard learned counsel for the parties. 4. Learned counsel for the assessee submits that mere difference between the value of stock furnished to the bank and shown in the bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax (Appeals) was not justified in deleting the addition. The finding recorded by the Tribunal being a finding of fact does not call for any interference. 7. We may now refer to the judgments relied on on behalf of the assessee. In N. Swamy [2000] 241 ITR 363 (Mad), it was observed that the statement of the assessee to a third party could not be acted upon unless there was material to corroborate the same. The burden of showing that the assessee had undisclosed income was on the Revenue, which was not discharged by referring to the statement made to the third party. 8. The judgment relied upon is distinguishable on the facts. There is no doubt about the proposition that the burden of proving taxability of income is on the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
