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TMI Blog2017 (6) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the basis of a document in the form of a sheet found in course of a search and seizure operation under Section 132 of the Act, which contained certain figures scribbled on it. This document had been marked (Page-7 BRI/20) by the Assessing Officer. The nature of the information contained in the document and the inference of the Assessing Officer from such information would be revealed from the following passage of the assessment order:- "No explanation whatsoever was submitted by the assessee and also no Books of a/cs and supporting evidences were produced. It is seen from the above page of the seized document that the assessee had made a purchase of Rs. 7,77,35,924.55 during the year against which it made a payment of Rs. 6,43,28,726.61. Similarly, it made a sale of Rs. 3,11,85,100.90 against which the assessee company received payment of Rs. 2,63,58,743.31. On perusal of the e-return of the assessee for the A.Y. 2007-08, it is found that the assessee has shown a sale of Rs. 3,19,13,094/- and purchase of Rs. 2,67,02,417/-. It is clearly shows that the assessee company has grossly suppressed its purchase, which comes to Rs. 7,77,35,924.55 - Rs. 2,67,02,417/- = Rs. 5,10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 98,10,222/- on account of undisclosed purchase and unexplained expenditure made in show room respectively. These additions have been made on the basis of a seized paper BRI/20 Page- 7. In your remand report you have stated that the figures regarding purchase, payment and sales could not be linked with stock discrepancy detected in the course of survey. Neither quantum of stock discrepancy detected and worked out was discussed in the assessment order. In this connection you are requested to clarify after examining the seized documents whether any stock discrepancy was detected during the course of survey. You are also requested to state whether any statement of the appellant regarding stock found during the course of survey was recorded. Further, you are requested to state whether any statement of the appellant has been recorded regarding the contents of the seized documents BRI/20 Page-7 during the course of search or during post search investigation. Copies of relevant statements and stock inventory may please be enclosed." 9.5 The A.O. vide his letter dated 21.12.2011 responded to this letter by more or less reiterating the facts stated in the earlier remand report dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /20 Page - 7 during the course of search or post search investigation. However, the A.O. has remained silent on this point. I found that a statement of Sri. Subrata Banik, Director of the assessee company was recorded during the course of search & seizure operation on 07.11.2006. In this statement although questions were asked about several seized documents including Page - 9 of seized document BRI/20, no question was asked about the seized document BRI/20 Page - 7 which implies that this page was not considered important at the point of time. From the above discussion it is clear that no cogent material was unearthed during the search or post search investigation or assessment or remand proceedings to suggest that the assessee has indulged in making huge purchases in excess of Rs. 5 Crores outside its regular books of accounts. Similarly no cogent material has been adduced at any point of time to suggest that amounts have been spent on show-room decoration outside the books of accounts. I have already given a finding that the seized document BRI/20 Page - 7 is a dumb document. Since no cogent material could be adduced by the A.O. at any point of time to corroborate either the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;pay', 'pur', 'sale' e.t.c. relate. It is also a fact on record that while passing the assessment order, no definite finding regarding stock discrepancy detected in course of the surveys has been spelt out in the order. The figures regarding purchases (mentioned as 'pur'), payment (mentioned as 'pay') and sales could not be linked with stock discrepancy detected in course of survey, neither quantum of stock discrepancy detected and work out of such detection was discussed in the assessment order. Here also, the AO having failed to pin point the value of any stock found during survey as unaccounted or un-disclosed it was argued that no addition cold be made on this account." 4. The Revenue has approached us invoking the jurisdiction of this Court under Section 260A for invalidation of the decision of the Tribunal. The Revenue in substance seeks restoration of the assessment order. The Revenue has suggested the following question of law for admission of the appeal:- "whether on the facts and in the circumstances of the case the Learned Tribunal was justified in law to treat the document BRI-20 Page 7 seized during the course of search and seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed or attested.] [(2) Where any books of account, other documents or assets have been delivered to the requisitioning officer in accordance with the provisions of section 132A then, the provisions of sub-section (1) shall apply as if such books of account, other documents or assets which had been taken into custody from the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub- section (1) of section 132A, had been found in the possession or control of that person in the course of a search under section 132.]" 6. On the basis of the aforesaid provisions, Ms. Das De has argued that content of the document ought to be held to be true and as the document was recovered from the assessee's custody or possession, the same should be treated to have had belonged to the assessee only. She points out that considering the presumption available to the Revenue under Section 292C of the Act, there was no necessity of independent examination of the assessee or further enquiry for corroborating the contents of the document. Ms. Das De had relied on a judgment of the Delhi High Court in Mahavir Woollen Mills v. CIT [2000] 245 ITR 297/111 Taxman 566 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion of law. A question of fact becomes a question of law, if the finding is either without any evidence or material, or if the finding is contrary to the evidence, or is perverse or there is no direct nexus between conclusion of fact and the primary fact upon which that conclusion is based. But, it is not possible to turn a mere question of fact into question of law by seeking whether as a matter of law the authority came to a correct conclusion upon a matter of fact." 9. The interpretation given by the Hon'ble Supreme Court in the case of P. R. Metrani (supra) so far as the construction of the expression "may be presumed" is concerned does not support Ms. Das De's submission. Ms. Das De seeks to counter this submission referring to provisions of 292C of the Act. Her stand is that the Statutory Appellate Authorities ought to have concluded that unexplained expenditure reflected in the aforesaid document constituted undisclosed income of the assessee and such conclusion was inevitable. We, however, find applying the ratio of the judgment of the Supreme Court in the case of P. R. Metrani (supra), that the legislature in employing the expression may be presumed left it to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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