2006 (9) TMI 111 - HC - Income Tax

Assesee s appeal against tribunal decision of making additions on account of unexplained investment Assessee contend that while criminal proceedings are pending, tribunal isn t justified to impose tax liability on assessee held that there is no merit in contention of assessee, because criminal case is independent of income-tax assessment proceedings addition made by ITAT on basis of documents found in search & daily cash book of third person are justified no infirmity in order of ITAT

Issues Involved:
1. Whether the order passed by the learned Tribunal is perverse being self-contradictory?
2. Whether the liability under the Income-tax Act, 1961, can be foisted on an assessee when the issue regarding the receipt of money is yet to be adjudicated upon by the competent court where that issue is pending?
3. Whether the income-tax authorities should have awaited the final adjudication on the issue regarding the alleged receipt of money, the amount of which is being sought to be added to the income of the assessee?
4. Whether the addition to the assessee's income can be made on the basis of presumptions, conjectures and surmises?
5. Whether corroboration of funds leading to the addition of an amount to the assessee's income is put on the basis of certain entries in a diary of a third person who has specifically denied on oath giving the payment?
6. Whether the learned Tribunal erred by deciding the issue without referring to the material on record?

Detailed Analysis:

Issue 1: Perverse and Self-Contradictory Order
The appellant argued that the Tribunal's order was perverse and self-contradictory. However, the Tribunal upheld the view taken by the Commissioner of Income-tax (Appeals) with the observation that the addition of Rs. 79,325 made by the Assessing Officer was based on loose papers found at the premises of the assessee coupled with the entries in the diary of Shri Suresh Sharma. The Tribunal found that the diary entries were corroborated by the expenditure recorded on the loose papers found during the search.

Issue 2: Pending Adjudication of Receipt of Money
The appellant contended that the liability under the Income-tax Act, 1961, should not be imposed while the issue regarding the receipt of money was pending adjudication by a competent court. The court dismissed this argument, stating that the scope of proceedings in a criminal case is different from the scope of proceedings in an income-tax assessment. The assessment of income-tax is based on the preponderance of probabilities, not the stringent proof required in criminal proceedings.

Issue 3: Awaiting Final Adjudication
The appellant argued that the income-tax authorities should have awaited the final adjudication on the issue of the alleged receipt of money before adding the amount to the assessee's income. The court rejected this argument by referring to the different standards and objectives of criminal and income-tax proceedings. It cited precedents indicating that departmental and criminal proceedings could proceed simultaneously without one affecting the other.

Issue 4: Basis of Presumptions, Conjectures, and Surmises
The appellant questioned whether the addition to his income could be made based on presumptions, conjectures, and surmises. The Tribunal found that the entries in the diary of Shri Suresh Sharma, indicating payments to the assessee, were corroborated by the loose papers found during the search. This evidence was considered sufficient for income-tax purposes, even though it might not meet the higher standard of proof required in criminal proceedings.

Issue 5: Corroboration of Funds Based on Diary Entries
The appellant challenged the corroboration of funds leading to the addition of an amount to his income based on entries in a diary of a third person who denied giving the payment. The Tribunal noted that the diary was found during a search and presumed to be correct unless otherwise proved. The court emphasized that the mere denial by the assessee was insufficient to disprove the diary entries, especially when the entries were corroborated by other evidence.

Issue 6: Material on Record
The appellant argued that the Tribunal erred by deciding the issue without referring to the material on record. The Tribunal's decision was based on the evidence found during the search, including the loose papers and the diary entries. The court found that the Tribunal had adequately considered the material on record and that its decision was a possible one based on the appreciation of evidence.

Conclusion
The court found no merit in the appellant's submissions and dismissed the appeal. It held that the Tribunal's view was a possible one, based on the appreciation of evidence, and that no substantial question of law arose. The appeal was thus dismissed.

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