TMI Blog2005 (10) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... ther on the facts and in the circumstances of the case, the Tribunal was right in law in rejecting the assessee's request of admitting in evidence the trust deed dated 4th April 1977 which was not filed at any earlier stage and was for the first time filed before the Tribunal on 16/8/1993? 2.The assessment years involved are 1978-79 to 1982-83 and the relevant accounting periods are the financial years respectively. The assessee, a trust, filed returns of income on 31/3/1987, seeking benefit of the Amnesty Scheme, as popularly described. In the return of income, the status was shown by the assessee as an Association of Persons (specific trust). The assessing officer called upon the assessee to submit details on the following points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is shows that the appellant wanted to deliberately mislead the I.T.O. and submitted untrue statements of income. 6.The assessee carried the matter in second appeal before the Tribunal. On 16/8/1993, the assessee filed an affidavit dated 10th August 1993 claiming, inter alia, that the trust deed dated 4th April 1977 had since been traced and should be admitted by the Tribunal as evidence. After hearing the representative of both the sides, the Tribunal, by its impugned order dated 9/9/1993, came to the conclusion that this was not a fit case for admitting in evidence the trust deed, whose copy was filed before the Tribunal for the first time on 16/8/1993. 7.Mr.D.K.Puj, the learned advocate appearing on behalf of the applicant assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trust, but also whether the trust was a specific trust or a discretionary trust. The nature of the trust could be determined only by considering the contents of the trust deed. The Tribunal has taken cognizance of the fact that the assessee not only chose to remain absent at the time of hearing, but did not produce any evidence despite being called upon to do so. As the record reveals, even summons under Section 131 of the Act had been issued and remained uncomplied with. It has been further found by the first appellate authority that even in the appeals before the authority, no document was placed on record. 10.Thereafter, when the appeals came up for hearing before the Tribunal, it is recorded by the Tribunal on the basis of its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts referred to a trust deed created in 1976 by a settlor, who is not the settlor insofar as the trust deed dated 4th April 1977 is concerned, a copy whereof was sought to be produced before the Tribunal. The findings of the Tribunal are in the following terms : 9. While still on this aspect, we may mention that in the statement of facts filed before the CIT(A), the opening part of the first sentence is as follows: `The appellant trust hereinafter referred to as appellant was created in 1976 by Narottambhai Bhagwanbhai Surti ......' Thus, it is specifically stated to have been created in 1976 and by Narottambhai Bhagwanbhai Surti. The copy of the trust deed produced before the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lower authorities and yet proceeded to take into consideration the contents of the correspondence to uphold the view expressed by the assessing officer. 14.In the present case, the Tribunal has not only not looked into the contents of the document, but categorically refused to admit the trust deed in evidence. The contention on behalf of the assessee that once the Tribunal had looked at the date of the trust deed, it would amount to considering the deed on merits, is misconceived. For the purposes of determining whether a document is relevant or not, all that the Tribunal has done is, look at the date of the deed in context of the averment made by the assessee in statement of facts before the Commissioner (Appeals). It is not even urge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly by placing the burden on the assessee to substantiate its claim made in the return of income, namely, the nature of the trust being specific and not discretionary. The evidence in the form of trust deed would be in the possession of the assessee, namely, the trustees and in case the assessee fails to produce evidence in support of its claim, if the Tribunal in exercise of its discretionary powers appreciates the conduct of the assessee to arrive at a conclusion that the primary onus was not discharged and the assessee should not be permitted to undertake to discharge the same at a belated stage, no infirmity can be found in the order of the Tribunal. 17.Rule 18 of the Appellate Tribunal Rules requires filing of the documents or state ..... X X X X Extracts X X X X X X X X Extracts X X X X
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