TMI Blog2017 (6) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... f Revenue, the nature of information contained in or revealed by such document would have to be examined to link such document to undisclosed income of the assessee. Both the Commissioner and the Tribunal found no linking factor. Both these authorities rejected the reasoning of the Assessing Officer on this basis of which the latter came to his finding that the figures appearing on the said document could be computed to arrive at undisclosed income of the assessee. The findings of the Statutory Appellate Authorities cannot be held to be perverse or based on no evidence in this case. The Statutory Appellate Authorities had examined the said document and found that the same could not be connected with assessee's transactions for the relevant assessment year. - G.A. NO. 1685 OF 2016, ITAT NO.200 OF 2016 - - - Dated:- 15-6-2017 - Aniruddha Bose And Arindam Sinha, JJ. Ms. Smita Das De, Adv. for the Appellant. J.P. Khaitan, Sr. Adv., Avra Majumder and Ms. P. Ghosh, Advs. for the Respondent. JUDGMENT Aniruddha Bose, The subject of this appeal is direction made by the Assessing Officer in his assessment order dated 31st December 2008 for addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same to total income of the assessee. Further, it is seen from the seized document that the assessee has made investment in showroom on decoration, electrical fittings, furniture and other assets. The assessee has not furnished any copy of the Audited Balance-sheet etc. despite request being made in writing vide notice dated 12/9/2008. Therefore, the e-return of the assessee was examined but no such expenditure/investment was found therein. The assessee also did not submit any explanation and not produce any evidence, Books of a/cs etc. Under the circumstances, I do not find no other alternative but to treat the expenditure shown by the assessee as unexplained expenditure and add the same to the total income of the assessee. The addition comes to ₹ 6,84,768 + ₹ 2,70,677/- + ₹ 1,82,851/- + ₹ 36,96,085/- + ₹ 7,00,000/- + ₹ 1,50,000/- + ₹ 1,30,694/- + ₹ 2,95,145/- + ₹ 37,00,000/- = ₹ 98,10,220/-. So, the total addition on the basis of page - 7 of the seized document comes to ₹ 5,10,33,507/- + ₹ 98,10,220/- = ₹ 6,08,43,727/- 2. The assessee preferred appeal against the assessment order. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the A.O. and the rejoinder of the appellant. This document appears to contain some rough notings. It is undisputed fact that it does not indicate the name of the assessee or any other concern. In the remand report the A.O. has observed that certain 'pay', 'pur', 'sale' figures have been jotted down but neither any date nor any year to which the document relates have been mentioned specifically except a short mention of '06-07'against one row of 'pay' and 'pur'. The appellant denied the ownership of such seized document and further contended that there being no mention of specific date or specific year the document cannot be relied upon for any addition. After perusing this document and all the facts material to issue I find that this is only a 'dumb document' on the basis of which no interpretation can be made to establish the ownership of such document and the period to which it pertains. This document has evidentiary value only if it can be corroborated by any other cogent material or evidence. In the assessment order no definite finding regarding stock discrepancy detected in the course of survey was spelt out althoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Tribunal B Bench, Kolkata confirmed the order of the Commissioner. This order of the Tribunal is under appeal before us. In the order under appeal, inter alia, it was observed by the Tribunal:- 9. We find that such additions have been made on the basis of pg-7 of BRI/20 which comprises of loose sheets of pages 1-89. Copy of relevant loose sheet-7 on the basis of which addition has been made is enclosed in assessee's paper book at page-85. From the perusal of which, it is seen that in this sheet certain figures have been jotted but it neither gives any date nor gives any year to which it is related except a short mention of 06-07 against one particular item and it does not indicate any name which proves ownership. As regards stock found in the survey, the entire stock was found to have been duly accounted for and AO having not specifically pointed out as to how much unaccounted/un-disclosed stock was found during survey no adverse inference could be drawn only on the basis of stock arises in course of survey. 10. Similarly, the addition of ₹ 98,10,220/- has been made on the basis of same seized paper comprising of ₹ 6,84,768/- + ₹ 2,70,677/- + ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to be deemed to be in handwriting of the person and are deemed to be carrying such persons signature where they are signed as such. 5. As it would be evident from the question suggested by the Revenue, it wants us to interfere with concurrent finding of fact in relation to contents of a document by two Statutory Appellate Authorities. This we can do only if it is demonstrated before us that findings in the order of the two Statutory Appellate Authorities were perverse. Appearing on behalf of the Revenue, Ms. Das De, learned counsel, has submitted that the assessee disowned this document and, therefore, did not give any explanation. She wants us to hold that in such a situation the presumption would be that the content of the document would be true and the computation made by the Assessing Officer to which we have referred to earlier would be valid in terms of Section 69C of the Act. She has taken us through Section 292C of the Act, which stipulates:- 292C. [(1)] Where any 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 under section 132 [or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T [2006] 287 ITR 209/157 Taxman 325. In this judgment, dealing with the provision under Section 132(4A) of the Act, it was held by the Supreme Court:- 'A presumption is an inference of fact drawn from other known or proved facts. It is a rule of law under which courts are authorized to draw a particular inference from a particular fact. It is of three types, (i) may presume , (ii) shall presume and (iii) conclusive proof . May presume leaves it to the discretion of the Court to make the presumption according to the circumstances of the case. Shall presume leaves no option with the Court not to make the presumption. The Court is bound to take the fact as proved until evidence is given to disprove it. In this sense such presumption is also rebuttable. Conclusive proof gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combating that effect. In this sense, this is irrebuttable presumption. The words in sub-section (4) are may be presumed . The presumption under sub-section (4A) therefore, is a rebuttable presumption. The finding recorded by the High Court in the impugned judgment that the presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Statutory Appellate Authorities found insufficient evidence to link the document with the assessee in the first place. Thus, primary fact was not established from which presumption could be drawn. 10. In the subject proceeding, two Statutory Appellate Authorities have exercised their discretion against the Revenue and in favour of the assessee. The reason for exercising such discretion is that no stock discrepancy could be demonstrated and there was no corroboration of the figures forming the basis of addition to the income of the assessee as was directed by the Assessing Officer. No question about the said document was put to the Director of the assessee in course of search. This factor was also taken into consideration by the aforesaid Appellate bodies. The two Statutory Appellate Authorities doubted the inherent probative value or quality of the above-referred document upon applying their mind on it. In substance, the said authorities found no reason to draw presumption against the assessee on the basis of scribbled figures appearing on the document in question. This is how two fact finding bodies chose to deal with that document. In our view, even without proper explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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