TMI Blog2012 (1) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO after rejecting the books of account by invoking the provisions of Section 145(2), without appreciating the fact that the sales, as declared by the assessee, had remained unsubstantiated in the absence of books of account/bills/vouchers and hence the AO was justified in taking an adverse view as per Section 114 of the Indian Evidence Act. Thus, the CIT(A) has erred in not following the decision of the Hon'ble Supreme Court in the case of S.N.Namasivayam Chettiar v CIT (1960) 38 ITR 579 (S.C) and the decision of the Hon'ble Bombay High Court in the case of Kishanchand Chellaram v CIT (1974) 114 ITR 671 (Bombay) relied upon by the AO, when the facts of the case are fairly covered within the ambit of the judgements. 2. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A). 6. Ld. 'DR' referred to page 4 of the Paper Book wherein details of GP, ranging from 10.21% to 10.53% from the assessment year 2005-06 to 2007-08 have been given. 7. The Revenue, in respect of Ground No.1 contended that the CIT(A) erred in deleting trading addition of ₹ 4,99,000/- validly made by the AO, after rejection of the books of account. The AO invoked the provisions of Section 145(3) of the Act on the ground of non-production of books of account, non-maintenance of stock register and stock tally and applied 12% GP in computing the trading addition of ₹ 4,99,000/-. The ld. CIT(A) observed that the AO, in the remand report stated that the books of account and bills etc. were produced. However, no stock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly, we deem it fit to refer the issue to the file of the CIT(A), for fresh adjudication, after bringing on record the relevant material and to adjudicate the issue as per law, after affording proper and reasonable opportunity. 9. The next ground of appeal raised by the Revenue is against the deletion of addition of ₹ 3,75,000/- on account of short term capital gain made by the CIT(A), without appreciating the facts of the case and in the absence of any supporting documentary evidence. In the course of present appellate proceedings, ld. 'DR' contended that the assessee had miserably failed to adduce evidence, justifying the claim of the said expenses, as also the nature and source of such expenses. Ld. 'DR' vehe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the assessee without any interest. The AO, on the basis of non production of any documentary evidence, made the addition of ₹ 3.75 lacs, on account of short term capital gains, on the sale of the said shop. Ld. CIT(A) deleted the entire addition of ₹ 3.75 lacs, on the ground that the AO has not disputed that the appellant did not incur any expenditure prior to the passing of the title. There has been a dispute regarding the said property as also there was settlement. Ld. CIT(A), held that the AO has not treated the explanation filed by the assessee as unsatisfactory as to the nature and source of the said sum. The relevant observation of the CIT(A) No doubt, mere filing of an affidavit in support cannot be a conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Hon'ble Allahabad High Court in the case of Ram Rattan V CIT (1983) 13 Taxman 309 (All) had the occasion to appreciate the ratio laid down by the Hon'ble Supreme Court in the case of Mehta Parikh Co. (supra). The observations of the Hon'ble High Courts are applicable to the facts of the present case. The Hon'ble Madhya Pradesh High Court held that An affidavit is a piece of evidence, which alongwith other material on record, has to be taken into consideration by the Tribunal, before arriving at a finding. However, a statement by a deponent can be held to be un-reliable by the Tribunal either on the basis of cross examination of the deponent or by reference to other material on record, leading to the inference tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted explanation in part. The view of the Tribunal that it was impossible for the appellant to have 61 notes on 18th Jan.,1946 and rejection of 30 such notes, was based on pure surmises and such appellant had furnished a reasonable explanation for possession of 61 notes, there was no justification for having accepted their explanation in part and discarded in relation to the sum of ₹ 30,000/- and no part of the sum of ₹ 61,000/- could, in the circumstances of the case, have been assessed as undisclosed profits. The ratio laid down by the Hon'ble Apex Court has been misconstrued in isolation and without reference to the context and entirety of the facts of that case. The cross-examination of the person who filed affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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