TMI Blog2013 (11) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... -2013 - Shri B. R. Mittal, JM And Shri Sanjay Arora, AM,JJ. For the Appellant : Shri Vijay Mehta For the Respondent : Shri Surinderjit Singh ORDER Per Sanjay Arora (AM): This is a miscellaneous petition by the assessee arising out of the order u/s. 254(1) of the Income Tax Act 1961('the Act' hereinafter) dated 26.12.2012 by the Tribunal disposing its appeal for assessment year 2006-07. 2.1 It would be relevant to briefly recount the facts of the case. A computer print- outs sheet was found during the course of survey proceedings at the assessee's business premises on May 11 12, 2007, which reflected sums (aggregating to Rs.18.44 lacs) received from one, Mr. Pervez, a partner in the assessee-firm, for being used as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, stood rightly brought to tax in the assessee's hands and was to be confirmed (para 3.2 of the IO). 2.3 The tribunal dealt with the matter comprehensively. With reference to section 292C of the Act, it was of the view that there is statutory presumption as to the truth of the document found. This presumption is rebuttable, though, of course, with evidence. The assessee had not led any evidence at any stage. Therefore, it was under a legal obligation to explain the nature and source as found reflected in the said document, placing reliance on the decision in case of Chuharmal vs. CIT [1998] 172 ITR 250 (SC). The assessee's explanation of Mr. Pervez as the source of the funds had to be given due credence; the Revenue having not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion on the merits of the case vis- -vis the said sections, and which the assessee is precluded from in the rectification proceedings. So, however, as it has been specifically questioned in the matter, the prejudice could be in terms of the power of the tribunal in changing the section; the year for which the addition could be made; and so on. What the assessee's argument/s would be is premature to consider and spell out at this stage. The impugned order was, therefore, prayed for being recalled, to allow an opportunity for being heard to the assessee. 3.2 The ld. DR, on the other hand, would submit that the whole issue was argued before the tribunal, as apparent from a reading of the impugned order, as to whether the assessee has, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, and confirmed the addition. However, as the sums were not admittedly reflected in the books, in view of the ld. CIT(A), section 69 or s. 69A would apply, and not sec.68, as invoked by the A.O., further stating that section 69 was more appropriate as no money was actually found. The assessee preferred an appeal before the tribunal. It did not specifically raise the issue of applicability of section 69, much less move a rectification application before the first appellate authority, raising an issue of being prejudiced on account of change of section by him, or his power to do so, as it does before us. Quite simply for the reason, as afore-stated, that the receipt of money from Mr. Pervez as reflected was required to be satisfactorily ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was required to explain, but only as to its source. Further, the assessee also disputing the applicability of s. 69 during arguments on the basis that no investment had been made, in its view the same was of no moment in view of the assessee having not led any evidence to rebut the statutory presumption; rather, explaining Mr. Pervez to be the source of cash received. However, in view of this admitted position, section 69A would apply; sec. 69 being in respect of an unexplained investment (refer paras 4.1 to 4.3 of the Order). This thus is the Tribunal's answer to the assessee's said plea. The assessee is aggrieved, even as going by assessee's own explanation the money has been received in cash (which fact the tribunal found the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be to no consequence. Further, it is the correct legal position that is relevant, and is to be applied, and not the view that the parties may take of their rights in the matter [CIT v. C. Parakh Co. (India) Ltd. [1956] 29 ITR 661 (SC); Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC)]. The assessee could, in our view, challenge the said finding of applicability of section 69A (or, for that matter, s.69) only under review proceedings, as it could the finding of the explanation being not satisfactory, but not in rectification proceedings. The assessee has relied on the decision in the case of CIT vs. S. S. Gupta [2002] 257 ITR 440 (Raj) [119 Taxman 626] for the proposition that non-grant of opportunity would tantamount to a m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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