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2016 (6) TMI 943

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..... assessee when it observed that the the onus is on assessee to submit the necessary details and evidence that those DDs were not purchased by the assessee. Thus, the department has not been successful in proving that the DDs were purchased by the assessee. In that view of the matter, the questions raised in the present appeals are required to be answered in favour of the assessee - TAX APPEAL NO. 520 of 2004 TO TAX APPEAL NO. 522 of 2004 - - - Dated:- 9-6-2016 - MR. KS JHAVERI AND MR. G.R.UDHWANI, JJ. FOR THE APPELLANT : MR JP SHAH, ADVOCATE WITH MR MANISH J SHAH, ADVOCATE FOR THE OPPONENT : MR KM PARIKH, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. Being aggrieved and dissatisfied with th .....

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..... Mr. J.P. Shah, learned advocate appearing with Mr. Manish Shah, learned advocate for the assessee has stated that the Tribunal has erred in not following the ratio laid down by the Supreme Court in Kishinchand Chellaram vs. Commissioner of Income Tax reported in 125 ITR 713 wherein it is held as under: ... It is to our mind impossible to hold, in the face of the application for the remittance signed in the name of Tilokchand that this amount was sent by the assessee and the finding to that effect reached by the Tribunal must be held to be unreasonable and perverse....... Even if we accept that Tilokchand and Nathirmal were employees of the assessee in Madras remitted the amount of ₹ 1,07,350 to another employee of the assessee .....

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..... ous proceedings when the Assessing Officer vide his letter dated 03.07.2003 addressed to CIT(A) made the following concession ... Shri Bharat Cooperative Bank Ltd was not following practice to obtain DD forms and hence the same are not available. As regards the purchase of DDs from Baroda Traders Cooperative Bank Ltd., the DD forms have been obtained and same are being produced before your honour for kind perusal. It is relevant to mention here that the assessee M/s. Laxmi Trading Co. has used various bogus names on the DD forms while purchasing the DDs obviously with the intention to avoid detection by the Enforcing Agencies. 3.3 Mr. Shah submitted that in other words, at the end of it all there is confession by the officer that h .....

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..... missioner of Income Tax reported in (2009) 310 ITR 227 (Guj). 4. Mr. K.M. Parikh, learned advocate appearing for the respondent revenue has supported the impugned orders and submitted that the same having been passed in accordance with law does not call for interference. He has submitted that the bank manager in his statement under section 131(1A) dated 21.07.1995 has confirmed that these demand drafts were purchased by the assessee s employees and that the bank also produced the demand draft register wherein names of the employees of the assessee were mentioned. He submitted that the copies of register and records of the bank were provided to the assessee for verification. 4.1 Mr. Parikh further submitted that the copies and reco .....

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..... the bank demand draft forms were not pertaining to the assessee. 5. We have heard learned advocates for both the sides. The decision of the Apex Court in the case of Kishinchand Chellaram (supra) is applicable on the facts of the present case. The Apex Court in the said decision has held as under: ... It was for the Revenue to rule out this possibility by bringing proper evidence on record, for the burden of showing that the amount was remitted by the assessee was on the Revenue. Unfortunately, for the Revenue, neither Tilokchand nor Nathirmal was in the service of the assessee at the time when the assessment was reopened and the assessee could not therefore be expected to call them in evidence for the purpose of helping the Revenu .....

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