TMI Blog2011 (2) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ird person on superdari. Thus answer the question in favour of the revenue and hold that order of assessment against respondentassessee K.D.Bali was justified and finding of the CIT(A) as well as the Tribunal in setting aside thereof is perverse. - 634 of 2005 - - - Dated:- 17-2-2011 - MR.JUSTICE ADARSH KUMAR GOEL, MR.JUSTICE AJAY KUMAR MITTAL, JJ. Mr. Vivek Sethi, Senior Standing Counsel for the appellant. Mr. Gagneshwar Walia, Advocate for Mr. K.D.Bali, Mr. Avneesh Jhingan, Advocate for Mr. Tarsem Singh,.Mr. M.S.Rakkar, Senior Advocate with, Mr. A.S.Syal, Advocate for Mr. Suram Singh and, Mr. Deep Chand, Mr. D.D.Sharma, Advocate for Directorate of Enforcement. ADARSH KUMAR GOEL, J ( Oral) . 1. This order will dispose of ITAs No.634 of 2005, 341 of 2009 and Civil Writ Petition No.9610 of 1994 as all the three matters are inter-connected. 2. On 12.9.1993 cash amount of Rs.50 lacs was seized from fiat car bearing registration No.PB-24-2300 at Garhshanker, District Hoshiarpur. Car was being driven by Deep Chand son of Khushi Ram and also occupied by Suram Singh son of Jai Chand. The said Suram Singh and Deep Chand are the writ petitioners in Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem under Sections 144/148 of the Act assessing Rs.25 lacs each as income of Suram Singh and Deep Chand in respect of the amount seized treating the amount seized as income of the said assesses. The assessment was made on protective basis as assessment on substantive basis had already been made in the hand of K.D.Bali. Since the amount was with the Chief Enforcement Officer, Jalandhar and the Manager of the Allahabad Bank, Civil Lines, Jalandhar, the Income Tax Department was entitled to recover the said amount towards tax dues. The Directorate of Enforcement did not deliver the amount to the Income Tax Department on the ground that writ petition was pending in this Court. The Department had attached the FDR with the Directorate of Enforcement. Deep Chand and Suram Singh had not challenged the assessment which had become final. In reply to the said application, the stand of the writ petitioners is that Deep Chand was merely a driver. Their statements that they were employees of K.D.Bali were not voluntary. No order of assessment under Section 144 of the Act was conveyed to them. As per assessment order annexed to the application as Annexure R/1, assessment had been made but the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronted with the order of assessment did not dispute that no proceedings against the said orders had been taken even though copies of order of assessment were annexed to the application filed in this Court in the year 2006 to which reply was also filed by the petitioners. Learned counsel for the Directorate of Enforcement stated that he had no objection if direction is issued to remit the money to Income Tax Department to recover the outstanding tax liability. 9. In view of above, Civil Writ Petition No.9610 of 1994 has to be dismissed with a direction to the Directorate of Enforcement to remit the amount available with it to the Income Tax Department within three months from the date of receipt of a copy of this order. 10. We now deal with ITA No.634 of 2005 filed by the department against K.D.Bali. If the said appeal is allowed, ITA No.341 of 2009 filed by the revenue against Tarsem Singh shall stand dismissed as not pressed as already noted. 11. Learned counsel for the revenue submitted that the assessee is partner of M/s Mahilpur Oil Store and declared total income of Rs.1,04,829/- for the assessment year in question. On receiving information from S.H.O., Police Station, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Kapil Datt and Sh. Deep Chand was employee of Sh. Shiv Datt Bali father of Sh. Kapil Datt Bali. Thus the persons from whom the said amount of Rs.50 lakhs was seized are associates of Sh. Kapil Datt Bali and the fiat car the registration of which shows that the car was owned by Sh. K.D.Bali in Benami name or his associate. The statements recorded at the time of an just after the incident reveals the absolute truth. Thereafter, the entire story is after thought, baseless and has no legs to stand. 9. On the basis of information on record and the analysis of the foregoing facts, I am of the opinion that the said amount of Rs.50 lakhs seized from the associates of Sh. K.D.Bali is nothing but the income of the assessee. Sh. Kapil Datt Bali from undisclosed sources and is, therefore, added in his total income for the asstt. Year 1994-95, for which he is also treated to have concealed as also furnished inaccurate particulars of his income. 12. On appeal the CIT(A) set aside the order of assessment and remanded the matter for fresh decision on the ground that statements of Suram Singh and Deep Chand could not have been taken into account in absence of opportunity of cross examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e names at his own accord. Moreover the statements on which the department is relying were not recorded by the police or the officials of the Enforcement department but these were recorded by the Inspector of this office, without any kind of pressure. ii) The statement of both them were recorded separately and the facts stated by them are in conformity and similar to each other. There is no any sign of contradiction. iii) Their statements are self explanatory and showing the sequence of events. iv) They clearly disclosed and admitted that they brought the cash of Rs.50 lacks from Shri J.P.Gupta which was to be delivered to Sh. K.D.Bali as per the directions of Sh. Bali. v) Sh. Suram Singh and Rajinder Singh were the employees of Sh. K.D.Bali whereas Sh. Deep Chand was the driver of Sh. Shiv Datt Bali father of Shg. K.D.Bali. Therefore, their association with Sh. K.D.Bali stands established. vi) As per their statements the money was brought from Sh. J.P.Gupta on the instructions of Sh. K.D.Bali, because Sh. Bali had some links with Sh. J.P.Gupta as admitted by him in this statement dated 13.9.93. Sh. Bali admitted that Sh. J.P.Gupta used to make telephonic calls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep Chand and Rajinder Singh alias Gorkha on the instruction of Sh. K.D.Bali and they being the employees of Sh. Bali and his father, were the associates of the assessee and the associate of the assessee. The retraction of Sh. Suram Singh and Sh. Deep Chand from their original statements and the claim of Sh. Tarsem Singh are based on the after thoughts which cannot be relied upon. Keeping in view the material and information placed on records and the facts and circumstances of the case. I am of the opinion that provision of Section 69A are applicable in this case. The amount of Rs.50 lacs seized from the associates of Sh. Kapil Datt Bali on 12.9.93 is therefore, treated as the income of the assessee from undisclosed sources and added to his total income for the A.Y. 1994-95. The assessee is also treated to have concealed and furnished inaccurate particulars of his income. 14. In the next round of litigation, the appeal of the assessee was accepted by the CIT(A) again, inter-alia, on the ground that car was taken on superdari by Sukhdev Singh and Suram Singh and Deep Chand being not available for cross examination, there was no material to connect K.D.Bali with the amount. Releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l evidence namely address of K.D.Bali in the registration certificate , K.D. Bali being acquainted to J.P.Gupta and Suram Singh being his employee. Though K.D.Bali took the plea that Suram Singh had left him it was for K.D.Bali to prove that Suram Singh has ceased to be his employee when admittedly at one time he was his employee. His mere statement that Suram Singh had left him was a self serving denial to avoid his liability. Version of mone being meant for Tarsem Singh was not found to be true. These facts having not been taken into account by the CIT(A) as well as the Tribunal, the view taken by the CIT(A) and the Tribunal being perverse cannot be sustained. Conclusion drawn by the Assessing Officer in the circumstances was fully justified. No doubt any quasi judicial authority has to follow principles of natural justice which include opportunity to cross examine the witness whose statement is relied upon but the principles of natural justice are not fixed principles. The same can vary depending upon the nature of enquiry. In the context of tax assessment it was observed in State of Kerala V. K.T.Shaduli Grocery Dealer (1977) 2 SCC 777:- It is, therefore, not possible to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
