TMI Blog2011 (8) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... - I.T.A. No.324 of 2003 - - - Dated:- 2-8-2011 - Mr. Justice Bhaskar Bhattacharya, Mr. Justice Sambuddha Chakrabarti, JJ. For the Appellant: Mr. J. P. Khaitan, Mr. Sanjoy Bhowmik, Mr. C.S. Das. For the Respondent: Mr. D. K. Shome. Bhaskar Bhattacharya, J.: This appeal under Section 260A of the Income-tax ( Act ) is at the instance of an assessee and is directed against an order dated July 7, 2003 passed by the Income-tax Appellate Tribunal, C Bench, Kolkata, in Income-tax Appeal bearing ITA (SS) No.5(Cal) of 2001 for the block period comprising the Assessment Years 1987-88 to 1997-98 and thereby dismissing the appeal filed by the appellant. Being dissatisfied, the assessee has come up with the present appeal. The facts giving rise to filing of this appeal may be summed up thus: a) The appellant is assessed to tax under the Income-tax Act, and the present appeal arises out of the appellant s block assessment under the Act comprising the Assessment Years 1987-88 to 1997-98. b) On February 18, 1997, a search was conducted by the Income-tax Department at the place of the business and residential premises of the appellant. In course of the said se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating on oath that the seized paper was a list of quotations put through to the stock exchange and that there was no actual transaction of purchase or sale and such affidavit was annexed to the written notes of submission filed by the appellant before the Commissioner of Income-tax (Appeals) in the appeal against the block assessment order. h) By the block assessment order passed on February 25, 1999, the Assessing Officer made an addition of Rs.7,82,800/- on the basis of the said paper and the statement of the appellant recorded at the time of search. The Assessing Officer proceeded that the seized paper reflected particulars of the shares purchased by the appellant. i) Being aggrieved, the appellant preferred an appeal before the Commissioner of Income-tax (Appeals) and before the Commissioner of Income-tax (Appeals), the appellant filed written submission in respect of the said addition of Rs.7,82,800/-. The Commissioner of Income-tax (Appeals) by an order dated October 11, 2000 deleted the said addition of Rs.7,82,800/- made in the assessment. j) Being dissatisfied, the Revenue preferred an appeal against the said appellate order before the Income-tax Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions of the Supreme Court in support of his contentions: 1) Mehta Parikah Co. Vs. Commissioner of Income-tax, Bombay, reported in (1956) 30 ITR 181; 2) Dilip Kumar Roy Vs. Commissioner of Income-tax, Poona, reported in (1974) 94 ITR 1; 3) Hanutram Rampreasad Vs. Commissioner of Income-tax, Assam, reported in (1978) 114 ITR 19. Mr. Shome, the learned Senior Counsel appearing on behalf of the Revenue, has on the other hand, opposed the aforesaid contention of Mr. Khaitan and has contended that the so-called affidavit was annexed to the written argument but the same could not form part of record so long the appellate authority did not admit such additional evidence on the prayer of the appellant. According to Mr. Shome, the Tribunal below rightly ignored the aforesaid submission that the affidavit allegedly filed by the broker should be taken into consideration. Mr. Shome contends that in the case before us no application was even filed for taking into consideration the said affidavit and thus there is no occasion for taking into consideration such affidavit. Mr. Shome further contends that till today even the appellant has not filed any application for taking not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. had been shown, I would direct the assessing officer to delete the addition of Rs.7, 82,000/- from the total income of the appellant. In our opinion, the Tribunal was quite justified in setting aside such a perverse finding made by CIT (Appeals) in deleting the said sum of money. It was rightly pointed out by the Assessing Officer that the explanation offered subsequently was not sufficient to rebut the earlier statement and the subsequent explanation was not matching with the earlier statements. We do not find any substance in the contention of Mr. Khaitan that the learned Tribunal committed substantial error of law in not considering the affidavit of the broker. It is rightly pointed out by Mr. Shome that additional evidence can be adduced before the CIT (Appeals) on compliance of the statutory provisions for acceptance of the same and formal application must be filed and at the same time, specific order must be recorded by the CIT (Appeals) allowing such prayer and specifying the point on which such additional evidence should be taken. If such application is allowed, the other side must be given opportunity to adduce evidence of rebuttal. In the case before us, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hands on January 12, 1946 was pure surmise and had no basis in the evidence. The Assessee had furnished a reasonable explanation for the possession of the high denomination notes of the face value of Rs.61,000/- and there was no justification for having accepted it in part and discarded it in relation to a sum of Rs.30,000/-. There was, therefore, no materials out of the sum of Rs.61,000/- for Income-tax and Excess Profits Tax purposes representing the value of the high denomination notes which were encashed on January 18, 1946. In the case before us, the Tribunal rightly held that the admission made by the assessee at the time of search was not properly explained and thus, the principles laid down in the above decision where the finding was based on surmise cannot have any application to the facts of the present case. In the case of Dilip Kumar Roy (supra), the Bombay High Court held that the High Court can interfere with a finding of fact by the Tribunal if it appears that the Tribunal acted without any evidence or upon a view of the facts which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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