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TMI Blog2019 (12) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... second proviso of sub section (1) of section 153C of the Act. The impugned assessment proceedings became barred by limitation as on 31.12.2006 and the assessment order dated 29.11.2013, therefore, requires to be quashed. 1.2 That on the facts and in the circumstances of the case, the learned CIT(A) has erred in law in holding that the extant law on 16.05.2013 (the date on which the AO started the reassessment proceedings) is applicable and in rejecting the appellant's submission that the law prevailing on 31.12.2006 was applicable as far as limitation period for assessment year 2004-05 is concerned. 2.1 That on the facts and in the circumstances of the case, the learned CIT(A) erred in upholding an addition of Rs. 3,33,13,300/- made by the AO under section 69C of the Act on account of alleged unaccounted contributions made by the appellant to Uttar Pradesh Distillers Association (UPDA) in Financial Year 2003-04 solely on the basis of the statement of Shri R.K. Miglani recorded on 14.02.2006 at the back of the appellant and without allowing an opportunity to the appellant to cross examine Shri R.K. Miglani although a specific request in this regard was made by the appellant a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned assessment order on the ground that it is barred by limitation and, therefore, requires to be quashed. The appellant had sought my advice in this matter and a copy of my written opinion dated 07.06.2013 was filed before the learned Deputy Commissioner of Income Tax Circle 8(1). New Delhi (hereinafter called AO for short) and has also been filed in the statement of facts annexed to Form No. 35. It is submitted that the reassessment proceedings for Assessment Year 2004-05 stood time barred by limitation on 31.12.2006 because as on 31.12.2006 the provisions of Section 153A(2) of the Income Tax Act, 1961 (Act for short) were not in the statute of books. The provisions of Section 153A(2) of the Act were introduced only by Finance Act, 2008 w.e.f. 01.06.2003. It is submitted that it is trite law that the legislature does not intend to attribute to the amended provisions a greater retrospectivity than expressly mentioned nor does it authorize the Assessing Officer to commence proceedings which before the new law came into force had become time barred. If any authority is needed for this elementary proposition of law, reference can be made to the decision of Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troduced only by Finance Act, 2008 with retrospective effect from 01.06.2003. The appellant has argued that the legislature does not intend to attribute to the amended provisions a greater retrospectively than expressly mentioned nor does it authorize the AO to commence proceedings which before the amendment had already become time barred. The appellant has relied upon the decisions of Hon'ble Apex Court in the case of S.S. Gadgil Vs. Lai & Co. (supra) and K.M. Sharma vs. ITO (supra). 7.2. I have considered the facts of the case as well as the submissions made by the appellant on the issue. It is observed that the assessment proceedings for the year under consideration u/s 143(3) were already in progress when a search and seizure operation took place in the related case consequent to which proceedings u/s 153C of the Act were initiated in the appellant's case. As per the second proviso to section 153A of the Act, the pending assessment proceedings were abated. For the better appreciation of the facts the second proviso to section 153 A of the Act is reproduced as under: "Provided further that assessment or reassessment, if any, relating to any assessment year falling with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been completed by 31.12.2006 but here is a case where the AO had to abate the original assessment proceedings due to search operation in the appellant's related cases. Thus, the original assessment proceedings which were pending remained suspended unrelated to the merits of the case. As the arrangement of provisions in the Act provides such suspension of proceedings as justified since the AO is empowered to make all possible additions in assessment u/s 153C of the Act what he could have done in normal assessment proceedings. In addition to it, the AO is empowered to make additions based on seized/requisitioned assets or books of accounts, documents etc. which would not be done in normal assessment proceedings. It is in that sense the proceedings u/s 143(3) of the Act were merged and replaced by proceedings u/s 153C of the Act. Since the matter remained live in the shape of assessment proceedings u/s 153C of the Act till the new amendment through Finance Act, 2008 was introduced w.e.f. 01.06.2003 retrospectively, it cannot be concluded that the revenue was barred by any remedy on annulment of such pending assessment. It is the law applicable on 16.05.2013, which was dul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidential premises of Mr. R.K. Miglani, General Secretary of UPDA on 14.02.2006 as well as at the premises of M/s Radico Khaitan (a leading distiller of Uttar Pradesh based company) Many incriminating documents were seized during search operation from both the places. Statements of various persons including Shri Miglani were recorded u/s 134(4)/133A of the I.T. Act, 1961. The documents so seized from Mr. Miglani's residence, General Secretary of M/s UPDA were regular accounts of money received date wise from the member distilleries during the financial year 2003-04 to 2005-06 (till 14.02.2006) represent the contribution by each-member Distillery on the basis of their production of country liquor. As per the statement of Mr. Miglani, the money so collected by the UPDA from its member Distillery on regular basis was given / distributed to various officials and politicians which basically represented illegal payments. This whole process/activity was coordinated through select committee known as "Core Committee" and Shri Miglani as General Secretary maintained regular accounts of this collection and payments. 14. Documents seized during the course of search coupled with the contents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter stands covered by the orders of the Tribunal in the related cases. We brought to our notice the page no. 81 & 82 of the order of the ITAT in ITA No.2678 & 2679/Del/2011 wherein the relevant issues have been discussed at page nos. 36 to 58. 17. During the arguments before us, the ld. DR argued extensively about the order of the Hon'ble High Court, regarding the seized material, non-consideration of seized material during the earlier proceedings, the order of the ITAT in the case of Mohan Meakins Ltd. in ITA No. 3787/Del/2008, findings in case of proceedings u/s 12AA in case of UPDA. The submissions of the ld. DR is as under: "A search and seizure action was conducted on 14.02.2006 at the residence of Sh R. K. Miglani, General Secretary UPDA, from where various incriminating documents were seized vide Annexure A-1 to A-10. The search warrant at the residence of Sh. R. K. Miglani contained name of M/s UP Distillers Association (UPDA) and hence proceedings u/s 153A were initiated in the case of UPDA. Hence, Annexures A-1 to A-10 constitute material seized from residence of Sh. R. K. Miglani during the course of search in the case of UPDA. On the same date i.e. 14.02.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cide with the figures available with the Revenue in the pending proceedings. It appears that the Tribunal has not rendered any specific findings on the status of such documents. For instance, if the production figures were in fact forwarded by the concerned unit under a letter or some other form connecting it with the material form seized, inference would be of particular kind. (iv) The directions of Hon'ble Delhi High Court have not been followed in the subsequent consequential order of ITAT. Hon'ble Delhi High Court had specifically directed to give specific findings on the status of such documents which has not been done. In Para 6.4 of the Assessment order, the AO has pointed out how production figures of assessee's books have been found to match with seized material at R.K. Miglani's residence. B. NON CONSIDERATION OF SEIZED MATERIAL BY HON'BLE ITAT AS DIRECTED BY HON'BLE DELHI HIGH COURT: The Assessing Officer has specifically relied upon incriminating seized documents Annexure A, Pages 1 to 175 & Annexure B, Pages 1 to 75. These pages were not considered in the ITAT order of Mohan Meakin Ltd in ITA no. 3787/Del/2008 dated 01.08.2017 (Copy Enclosed). These incrimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t recorded u/s 132(4) reliance is placed upon following judgments: (i) Kishore Kumar Vs CIT (62 taxmann.com 215, 234 Taxman 771) (Copy Enclosed) B Kishore Kumar Vs CIT (52 taxmann.com 449) Madras High Court confirmed (Copy Enclosed) (ii) Bhagirath Aggarwal Vs CIT (31 taxmann.com 274, 215 Taxman 229, 351 ITR 143) (Copy Enclosed) (iii) CIT Vs M. S. Aggarwal [2018] 93 taxmann.com 247 (Delhi) (Copy Enclosed) (iv) Smt Dayawanti Vs CIT [2016] 75 taxmann.com 308 (Delhi)/[2017] 245 Taxman 293 (Delhi)/[2017] 390 ITR 496 (Delhi)/[2016] 290 CTR 361 (Delhi) (Copy Enclosed) (v) M/s Pebble Investment and Finance Ltd Vs ITO (2017-TIOL-238-SC-IT) (Copy Enclosed) M/s Pebble Investment and Finance Ltd Vs ITO (2017- TIOL-188-HC-MUM-IT) Bombay High Court confirmed (Copy Enclosed) (vi) Greenview Restaurant Vs ACIT [2003] 133 Taxman 432 (Gauhati)/[2003] 263 ITR 169 (Gauhati)/[2003] 185 CTR 651 (Gauhati) (Copy Enclosed) (vii) Raj Hans Towers (P.) Ltd. Vs CIT (56 taxmann.com 67, 230 Taxman 567, 373 ITR 9) (Copy Enclosed) (viii) PCIT Vs Avinash Kumar Setia [2017] 81 taxmann.com 476 (Delhi) (Copy Enclosed) G. On the basis of documents seized from residence of Sh.R.K.Miglani, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO and the CIT(A) took note of not merely the document which listed out the payments made in a tabular form for different purposes, but also other documents and materials in the form of production figures, the statement of Mr. R.K. Miglani, and the circumstance that the production figures coincide with the figures available with the Revenue in the pending proceedings. It appears that the Tribunal has not rendered any specific findings on the status of such documents. For instance, if the production figures were in fact forwarded by the concerned unit under a letter or some other form connecting it with the material form seized, inference would be of particular kind. B. NON CONSIDERATION OF SEIZED MATERIAL BY HON'BLE ITAT AS DIRECTED BY HON'BLE DELHI HIGH COURT: In this regard, it is submitted that the following seized documents clearly prove the fact that the incriminating documents found from premises of Sh RK Miglani pertain to the distilleries as well: (i) Page 114, Annexure A-1 has the heading "Total account upto date 02-03, 03-04, 04-05 upto Feb 05". It records payment received from different Distilleries and payments to different persons/heads. It has been signed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each distillery, amount to be collected and amount received Annexure B Pg 30 &31 Detail calculation sheets for F.Y. 2003-04 and 2004-05 giving details of dispatch schedule of each distillery and amount to be collected from 11 Annexure B Pg 51 Detailed account of Modi Distillery as on 23.04.2004 11 Annexure B Pg 2 A-1,Page 123 Money received from members for period April to December 2004 for each distillery 11 Annexure B Pg 5 A-1, Page 115 "Old Govt. Account of 2.00 crores". It shows collection were for purposes of further payments to bureaucrats and politicians 12 Annexure B Pg 17 A-2, Page 43 "Overhead Expenses distillery Monthly". It shows regular payments to district Excise Officer, Dy. Excise Commissioner, Inspector, 12 Annexure B Pg 4 A-1, Page 118 Shows use of funds upto March, 2005 of Rs. 11,24,07,500 12 Annexure B Pg 8 A-1, page 103 "Summary of Payments" upto February 2005 12 Annexure B Pg 9 A-1, page 94 "Payments made AKG" and Payments made to GDY" 12 Annexure B Pg 6 A-1, Page 114 "Total Account upto Date 2002-03, 2003-04,2004-05 upto February 05" it records payments received from dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h. R.K. Migalni during the course of search on 14.02.2006 and referred to various pages of seized annexures. However, nowhere, the learned CIT DR has been able to show any such document, which could suggest that any document showing production figures was in fact forwarded by the assessee to Sh. R.K. Miglani or M/s UPDA. He again placed reliance on the statement of Sh. R.K. Miglani recorded during the search on his residential premises and also at the business premises of M/s UPDA, wherein Sh. Miglani had stated that production figures had been recorded by him on the basis of fax messages forwarded by various member distilleries of UPDA. However, not even one such alleged fax message with regard to the assessee has been produced before us by the revenue as seized annexure does not contain any such document. These arguments placed by learned CIT DR have already been dealt by Tribunal in the first round of proceedings and nothing new has been brought on record by the Revenue even though specific plea was raised by the Revenue before the Hon'ble High Court of Delhi." Thus, Hon'ble ITAT allowed relief on the following two grounds: (i) Annexures A-1 to A-10 found from premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishes that all the transactions covered by the documents which are confronted to him are in pursuance of the interest of the members of the assessee Association and there is nothing personal interest involved in it. In such a situation the natural inference that follows is that it's not as though Mr Miglani was acting in his personal capacity but he was acting in furtherance of the interest of the members of the assessee Associations. In such a situation it is not permissible for the assessee to say that whatever Mr Miglani has done by way of the transaction covered under these documents , was done in his individual capacity. Should there be any personal benefits to Mr. Miglani de horse the interest of the members of the Association, such an arguments would hold water. But in this matter it seems that all the transaction covered under the seized documents were in furtherance of the members of the Association, maybe by way of illegal means. 10. Amounts were received from members and a records is also contain the details of expenses to be incurred by each members of the assessee with the expenses attributable to various embers of the assessee. When the persons owning the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the assessere before the authorities is not on the lines argued before us by the Ld. AR. The ground for non-production of Secretary General of the assessee association was something different. It is not open for the assessee to say that Mr Miglani is a third person as though he has nothing to do with the assessee association. 12. The search and seizure operation were conducted on 14.02.2006 and the statement was recorded on the date itself. As per reply dated 29.02.2009 filed by the assessee before the CIT, it is only by letter dated 03.03.2008 Mr. Miglani retracted his statement, stating that there was coercion while recording the statement on 14.02.2006. In the circumstances, the best opportunity was given to the assessee was to produce its Secretary General before the authorities for giving clarification on this aspect. Retraction of any statement more than two years after its original making does not carry much weight. Further there is no acceptable explanation as to why the assessee was not producing its Secretary General before the authorities to give a clarification as to his stand viz-a-viz the stand of the assessee. In these circumstances, we hold that the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4 of the assessment order, summons u/s 131 were issued to him on 01.03.2006, 10.08.2006, 30.11.2007, 04.08.2008 & 17.10.2008 during post search investigation as well as during assessment proceedings. Every effort was made by the department to allow cross examination. However^Sh R.K.MigIani did not appear for cross examination to assist the assessee who had employed him explicitly/ implicitly. On page 15 of the assessment order, AO has stated as follows: 'As already stated above, in view of these circumstances since Mr. Miglani is implicitly/ explicitly an employee of the assessee (the assessee being a member of UPDA) & Mr. Miglani acts and works under the whims of the members of UPDA what postulates is that he is not appearing for cross examination under the influence and if the assessee wants to take any benefit from his cross examination, it was quite open for the assessee to produce Sh Miglani for such cross examination In this regard, reliance is placed upon the judgment of Hon'ble Supreme Court in the case of ITO Vs M. Pirai Choodi (2012) 20 taxmann.com 733 (SC)/(2011) 334 ITR 262 (SC)/(2011) 245 CTR 233 (SC) (Supreme Court) (Copy Enclosed) where Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially owns these documents containing data of dispatch of country made liquor and computation of illicit payment made to Govt. Officers/politicians, and details of such money received and amount due. In any case, these documents cannot be said to belong to Sh. R.K. Miglani or UPDA as these two persons are not engaged in the business of manufacturing of country liquors. Therefore on this ground also belongingness/ownership of these paper lie with the member of UPDA needless to mention that name of members of UPDA is specifically mentioned on various seized documents and Sh. R.K. Miglani has explained that these documents specially dispatch figure was received from members. (iii) Not providing cross examination of Sh. R.K. Miglani is irrelevant:- Ld. AR has relied on various judicial pronouncements that statement without cross examination cannot be considered as evidence. These judicial pronouncements are distinguishable on facts as in those cases witness was independent and not related person. In present case as Sh. R.K. Miglani is Secretary General of UPDA in which the appellant is a member. Therefore, if the statement of Sh. R.K. Miglani which was adverse to the member was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belong to the members. This finding is not factually correct as AO of UPDA in Para 6.15 has himself held that these documents belong to the members. Further, UPDA is not manufacture of Alcohol, therefore question of dispatch of Alcohal in UPDA's case has no meaning. Therefore, essentially all computation and receipt of money and reimbursement based on such dispatch belong to members of UPDA who are in Alcohal manufacturing business. (vi) Findings of CIT(A) in appellant's case: Findings of CIT(A) in appellant's case in the order that the document pertains to the appellant firstly does not prove that these documents do not belong to appellant as finally CIT(A) has dismissed the appeal and held that these documents belong to the appellant and therefore Section 153C has rightly been invoked. Further words 'pertains to' is a bigger set and 'belonging to' is submerged in that bigger set. (vii) Ld. AR's argument that statement of Sh. Ashok Dutt & Sh. Rahul Jain of M/s PDL that the financial power vests with appellant cannot be relied as cross examination was not offered, cannot be accepted. In this case also Sh. Ashok Dutt & Sh. Rahul Jain was the empl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. 2. As a sample, copy of pages 32 and 33 of assessment order in the case of M/s Shadi lal Enterprises Ltd. are enclosed where the figures are found to tally. Hon'ble Delhi High Court had given specific direction to verify whether production figures of the assesses match with the documents seized from residence of Sh. R. K. Miglani. This answers an important query raised by Hon'ble Delhi High Court. 3. The Department has produced a number of evidences in support of the fact that the Distilleries had made unaccounted payments to UPDA. In this regard, reliance is placed upon the decision of Sumati Dayal Vs CIT 214 ITS 801 (SC) where it was held that matters have to be considered in the light of human probabilities. Preponderance of probability is that the Distilleries had made unaccounted payments to UPDA. 4. Presumption u/s 132(4A) & 292C is available in the case of 11 Distilleries since search was conducted in the case of UPDA and UPDA is nothing but a sum of its office bearers and the Distilleries. Presumption u/s 132(4A) & 292C is available in the case of UPDA where assessment has been made u/s 153A. The amounts added in the hands of UPDA as unaccounted receipts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t statement made u/s 133A could be relied upon for purposes of assessment, in absence of any contrary evidence or explanation as to why such statement made was not credible. M/s Pebble Investment and Finance Ltd Vs ITO (2017- TIOL-188-HC-MUM-IT) Bombay High Court confirmed (Copy Enclosed) 6. Greenview Restaurant Vs ACIT [2003] 133 Taxman 432 (Gauhati)/[2003] 263 ITR 169 (Gauhati)/[2003] 185 CTR 651 (Gauhati) (Copy Enclosed) "From facts, it was clear that there was a delay on the part of the appellant and its partner in retracting the statements recorded. The attention of the Court had also not been drawn to any material on record to establish that any attempt was made on behalf of the appellant to prove the al legation of inducement, threat or coercion through the witnesses. Having examined the impugned orders rendered by the Tribunal with the reasonings in support of its finding against the complaint of threat, inducement or coercion, no good and sufficient reason was found to differ from it. In the facts and circumstances of the case, having regard to the materials on record, the appellant had failed to establish that the statements of its partner had been recorded in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment proceedings. After the insertion of the section, the judgment of the Supreme Court cited above can no longer be called in aid to hold that the presumption is not available to the AO in making the assessment; the Tribunal has reasoned that the seized papers are loose papers and not books of accounts. We are unable to appreciate the significance or sequitur of the statement made by the Tribunal. It is not necessary that the seized documents should be in the form of proper books of accounts so that they can be relied upon for the purpose of making additions. They could be In any form, including loose papers on which notings or scribblings have been made. While commenting on the seized documents, the Tribunal contradicted itself by first observing that it cannot be stated that the figures in the papers were the actual investment or the actual sale proceeds and thereafter, in the very next sentence, stating that the seized documents "did give out certain figures regarding the four projects that the assessee had undertaken in the course of his business." If the seized papers did in fact contain figures relating to the four projects which were admittedly undertaken by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r framing regular assessment. 5. Ashok Kumar Vs CIT (2016) 69 taxmann.com 129 (Patna)/[2016] 239 Taxman 436 (Patna)/[2016] 386 ITR 342 (Patna)/[2016] 290 CTR 450 (Patna) (Copy Enclosed) where Hon'ble Patna High Court held that where Assessing Officer passed income escaping assessment on basis of a loose sheet found in premises of father of assessee, action of Assessing Officer was justified being based on relevant material and, merely, because he used wrong presumption in assessment order it would not change nature of order. 6. Baldev Raj Vs CIT [2010] 2 taxmann.com 335 (Punjab & Haryana) (Copy Enclosed) Assessee submitted that presumption under section 132(4A) of the Act was rebuttable and the assessee led evidence to rebut the said presumption. There is no dispute about the proposition that presumption can be rebutted nor the Tribunal has held to the contrary. The Tribunal has held that the assessee failed to rebut the presumption, which is purely a finding of fact. Hon'ble Punjab & Haryana High Court held that no substantial question of law arises from the impugned order." 18. The ld. DR further submitted as under: "The ITAT Order dated 14.12.2018 has not consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch warrant. In fact claim of the Department is that since the search warrant at the residence of Sh. R.K.Miglani contained name of M/s UP Distillers Association (UPDA), proceedings u/s 153A were rightly initiated in the case of UPDA and Annexures A-1 to A-10 seized from residence of Sh. R.K.Miglani constitute incriminating material during the course of search in the case of UPDA and presumption u/s 132(4A) will apply to the assessee. Even this argument of the assessee with regard to presumption u/s 132(4A) has been conveniently ignored in the ITAT order. In para 208 of ITAT order it is stated as follows: "208. The Assessing Officer has mentioned that what was taken out from the computer at UPDA premises were only copies of papers impounded from the residence of Shri R.K. Miglani. What was found from the residence of Shri R.K. Miglani cannot be construed as documents belonging to the assessee to trigger the provisions of section 153 of the Act unless in the case of Shri R.K. Miglani his Assessing Officer is satisfied that these documents do not belong to Shri R.K. Miglani but belong to UPDA. However, having made these observations, we would like to make it clear that the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, 2018 Income Tax - SLP - Sections 12AA & 132(4) THE assessee, a trust, was registered under the Act. During the relevant AY, search operations were conducted at the premises of one an individual, who was the General Secretary of the assessee. His statements were recorded u/s 132(4). Later such statements were retracted, although the letter of retraction was filed after a considerable period of time. Meanwhile, based on the material and documents seized, the CIT invoked the provisions of Section 12AA(3) to cancel the registration of the assessee. Such order was later upheld by the Tribunal. Subsequently, the High Court too held that registration granted to a trust can be cancelled u/s 12AA(3), relying upon the statement of person concerned recorded u/s 132(4). Hence the assessee's appeal. On hearing the matter, the Apex Court was of the view that, Whether the registration of a trust can be cancel led u/s 12AA(3) based on statements of a person related to such trust u/s 132(4) - YES: SC There are no grounds to interfere with the order. Pending applications, if any, set aside as well. Assessee's SLP Dismissed JUDGEMENT Heard learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, where it has been held that before a document can be held to be belonging to other persons, it must be established that he has the right of ownership on such document. Courts have held that there is a distinction between the expression "belong to" of a document and "pertaining to" or "relating to" a document. In our understanding, the term "belongs to" is not synonymous to the expression "pertaining to" or "relating to". 48. This has prompted the Legislature to bring amendment to section 153C of the Act vide Finance Bill, 2015 wherein in clause (b) to section 153C, "belong to" has been replaced by "relates to". But the Legislature, in its wisdom, has given effect to this amendment w.e.f 01.06.2015. Therefore, the same cannot be applied to the assessment years under consideration. 49. Moreover, the Hon'ble Supreme Court in the case of Chuharmal Vs. CIT 172 ITR 250 has held that possession is proof of ownership and the seized documents were found from the possession of Shri R.K. Miglani. 50. As mentioned elsewhere, none of the documents referred to by the Assessing Officer belong to the captioned assessees nor it has been identified that which documents belong to whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to distilleries or any of the distilleries. 56. Ironically, none of the persons whose names have been referred to in the various impounded sheets as members of the core committee or any other person have been examined by the Assessing Officer during the course of assessment proceedings. There is no independent evidence that the captioned assessees have contributed any sum except notings in the seized documents, which have been conclusively held hereinabove do not belong to the captioned assessees." .............. ............... 64. The contention of the ld. DR that since Shri R.K. Miglani was related to the member distilleries of UPDA, therefore it was not necessary to allow cross examination is not acceptable. The Hon'ble High Court of Delhi in the case of Shri S.N. Aggarwal 293 ITR 43 has held as under: "11. In the present case the Assessing Officer has placed reliance on the statement of Smt. Sarla Aggarwal, daughter of the assessed while arriving at the conclusion, that the entries belong to the transactions of the assessed. This statement made by Smt. Sarla Gupta, cannot be said to be relevant or admissible evidence against the assessed, since the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person' s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.] Section 292C [l)] Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession ol of any person in the course of a search under section 132 20[or survey section 133A], it may, in any pro ..... 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