2002 (4) TMI 31 - HC - Income Tax

Unexplained Investment - Whether, the Tribunal has erred in law in not following settled legal position and established law on the said subject of rules, practice and procedure of evidence, natural justice and fair play while confirming the addition of Rs.1,40,000 relying upon inadmissible evidence and ignoring undisputed evidence adduced by the assessee - we hold that the Tribunal had not committed any error while confirming the addition of Rs.1,40,000 as the income of the assessee as was ordered by the Income-tax Officer and the question referred to us is answered against the assessee and in favour of the Revenue.

Issues Involved:

1. Whether the Tribunal erred in law by confirming the addition of Rs. 1,40,000 relying on inadmissible evidence and ignoring undisputed evidence.
2. Whether the Tribunal's findings were vitiated due to non-furnishing of the Income-tax Inspector's report to the assessee.
3. Applicability of Section 69 of the Income-tax Act, 1961, in treating the source of investment as income.
4. Whether the Tribunal's findings were based on hearsay evidence and whether the affidavit of Smt. Vidyaben B. Doshi should have been relied upon.

Issue-wise Detailed Analysis:

1. Tribunal's Reliance on Inadmissible Evidence:

The Tribunal confirmed the addition of Rs. 1,40,000 based on the statement of Bhupatrai C. Doshi, who admitted that the assessee paid Rs. 1 lakh to his wife Vidyaben for handing over the possession of the shop premises and Rs. 40,000 to the landlord. The Tribunal noted that the statement of Doshi was corroborated by the assessee's books of account, which recorded a payment of Rs. 20,000 by cheque for furniture. The Tribunal found the statement of Doshi reliable and concluded that the amount was paid out of undisclosed income.

2. Non-furnishing of Income-tax Inspector's Report:

The assessee argued that the Tribunal's findings were unsustainable as the report of the Income-tax Inspector, Mr. Vyas, was not furnished to them. However, the court noted that there was no record indicating that the assessee had not received the report. The Tribunal and the Income-tax Officer primarily relied on the statements of witnesses, not the Inspector's report. Therefore, the contention of non-supply of the report was dismissed as devoid of substance.

3. Applicability of Section 69 of the Income-tax Act, 1961:

The assessee contended that Section 69 was not applicable as the firm commenced business in November 1979, and the amount could not be considered as investment from the income in the first year of business. The court held that this argument was not raised before any authority, including the Tribunal, and thus, it did not arise from the Tribunal's order. The court emphasized that it could not opine on questions not arising from the Tribunal's order, as established in CIT v. Scindia Steam Navigation Co. Ltd.

4. Hearsay Evidence and Affidavit of Smt. Vidyaben B. Doshi:

The Commissioner of Income-tax (Appeals) had initially deleted the addition, considering Doshi's evidence as hearsay and relying on Vidyaben's affidavit denying receipt of "pagri." However, the Tribunal found Doshi's statement credible, noting that he had personal knowledge of the transaction. The Tribunal considered Vidyaben's affidavit an afterthought and upheld the Income-tax Officer's addition. The court supported the Tribunal's appreciation of evidence, finding no perversity in its conclusions.

Conclusion:

The court held that the Tribunal did not err in confirming the addition of Rs. 1,40,000 as the income of the assessee. The Tribunal's reliance on Doshi's statement was justified, and the non-furnishing of the Inspector's report was not substantiated. The applicability of Section 69 and the reliance on Vidyaben's affidavit were dismissed as they did not arise from the Tribunal's order. The reference was disposed of in favor of the Revenue, with no order as to costs.

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