TMI Blog1993 (4) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd June, 1983 at the residence of the assessee, at 14, Nilima Park Society, Navrangpura, Ahmedabad. During the search operation two note books and 5 loose papers were seized. On scrutiny of such seized materials it was noticed by the Revenue authorities that monetary transactions for the period January, February and March had been recorded therein. Such materials consisted of a ledger, a cash book and five sheets containing various entries. 5. The statements of assessee were recorded on various statements (sic). In the said statements the assessee was said to have denied the ownership of those note-books and loose sheets. Assessee's case was that those note-books and loose sheets had not been written by him and he did not know who was the owner author of those note-books and loose papers and how the same had come in his house. In fact the assessee pleaded complete ignorance about the contents of the note-books and loose sheets. 6. The Assessing Officer, through a show cause notice of 19th Feb., 1985, required the assessee to explain his position with respect to the said materials found and seized. On behalf of the assessee, a written explanation dt. 1st Oct., 1985, was brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces and reference to various persons in the note books it can be presumed that (1) the assessee is the owner of the note books and loose papers, (2) the note book and papers have been written by him, (3) the contents of the note book are true, (4) the note books contain the record of undisclosed financial transactions of the assessee. The amount of Rs. 48,14,327 being the closing credit balances appearing in ledger are, therefore, treated as assessee's unexplained investments, source of which has not been explained satisfactorily by assessee and, therefore, same is deemed to be the income of the assessee." 8. Such action of the Assessing Officer was contested by the assessee, and before the learned CIT(A) detailed arguments and submissions are seen to have been made as is clear from pages 1 to 20 of the appellate order. It was denied that such documents were collected from the assessee's residence. Further contention was that the assessee or any of his associates had nothing to do with those documents and the contents thereof. Assessee thus exhibited total ignorance about such seized documents and certain provisions of IT Act. Evidence Act, etc., were also highlighted. Relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or that it was existing in his residence without his knowledge. It was the contention of the learned Departmental Representative before us that there is no iota of evidence brought on record on behalf of the assessee to establish his disconnection with the materials seized. Shri Mandal argued that the impugned finding was incomplete as was said to have not dealt with all the facts and aspects of the case. According to the learned Departmental Representative the finding under challenge was required to be vacated and that of the Assessing Officer restored. 11. On behalf of the assessee the learned counsel Shri K.H. Kaji supported the finding under challenge and invited our attention to paragraph 18 at page 14 of the impugned order to point that the Assessing Officer had satisfied and observed that the handwriting in the seized record was not of the assessee or any of those persons connected with the assessee. It was submitted by the learned counsel that the said material was not from inside the house and that the same were found and seized from the passage of the house. It was further denied that writings in the documents were in the assessee's hands. Further contention of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points before allowing relief to the assessee. The first issue raised is that the Assessing Officer was not justified in concluding that the relevant seized record actually belonged to the assessee. His further finding is that the Assessing Officer had not proved that the assessee had made writing in those documents and that he knew the contents thereof. In this connection provisions of s. 132(4A) is clear. For the sake of clarification and understanding, the same is being reproduced as under: "132(4A): Where any books of account, other documents, money, bullion, jewellery or other valuable articles or things are or is found in the possession or control of any person in the course of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the said submission it is seen to have been recorded that the Assessing Officer had satisfied herself that the handwriting in the seized records was not of the assessee or any of his persons. We thus naturally required the learned counsel to show us the basis for the assessee's said submission. Naturally the learned counsel very meticulously went through the assessment order but could not show therefrom that the Assessing Officer had made any such observation anywhere. From the above narration, it is clear that the learned CIT(A)'s observation about the Assessing Officer's satisfaction about the writing, was found to be baseless and the said finding to that extent again is erroneous. The learned CIT(A) thus was unjustified to draw such like inferences. In this respect also the learned CIT(A) is not seen to have properly arrived at a fair conclusion, on the basis of material placed on record and the relevant provisions. Impugned finding is not to have been properly recorded because of the above erroneous understanding of the factual position by the learned CIT(A). To this extent also the work completed by the learned CIT(A) is not proper and in accordance with law. This action aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence to the Assessing Officer's discussion in the assessment order. It means that while taking note of the assessee's submissions, discussions of the Assessing Officer in the assessment order should have been kept in mind. This is also not seen to have been done. This is another error. Last but not the least is seen to be the omission in the form that the learned CIT(A) not at all commented upon the applicability and otherwise of provisions of ss. 132(4A) and 69 of the Act. In the whole order we could not locate the finding wherein these provisions were discussed by the learned CIT(A). This also is an error, going to the root of the matter. 20. In the light of the preceding paragraph we are satisfied that the matter is not seen to have been discussed and decided by the learned first appellate authority in the manner it should have been. We have described hereinabove what the learned first appellate authority did which is considered to be erroneous by us and what was not done which is considered to be warranted by us. In nutshell the issue is not seen to have been decided properly. In absence of the proper application of mind, discussion and decision by the learned first appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this ground of the assessee is required to be allowed in view of the Tribunal's order wherein a similar issue for that year i.e. 1982-83 was decided accordingly. A.L.V. of the assessee's portion will thus be determined on the basis of the Municipal Corporation rates. 25. The C.O. is allowed in part. 26. In the end we take the Revenue's Appeal No. 2715/Ahd/1988 for asst. yr. 1984-85. The first issue raised before us is against the deletion of the addition of Rs. 32,000 made under s. 69A of the Act. 27. On perusal of records it is seen that the addition was made by the Assessing Officer on the basis of such addition for immediately preceding year i.e. 1983-84. Such addition was vacated also for the reasons of learned CIT(A) for that year. We had the occasion of deciding the Revenue's appeal on similar issue for that year i.e. 1983-84. After detailed discussions we have restored the matter to the file of the learned first appellate authority for fresh decision in the light of our observation made therein. Keeping that finding in focus, we vacate the finding under challenge and restore the matter to the file of the learned CIT(A) for fresh decision keeping our observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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