9911796707
TMI Blog1988 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... person recovered foreign exchange of 2400 US dollars secreted in the inner pockets of his trousers, which he was wearing The residential premises of the assessee at 1328, Maliwara, Delhi were also searched on 10th Aug., 1981 and some foreign exchange was recovered ands seized vide Punchnama dt.10th Aug., 1981. 3. The assessee had filed a return of his income for the assessment year under appeal declaring income of Rs. 14,550 from business run under the name and style of M/s Savita Stores and Rs. 10,000 as income from dairy farming with a claim for exemption for the same under s. 80(JJ) of the IT Act 1961. The ITO completed the assessment under s. 143(1) on26th March, 1985. It appears thereafter some developments took place and the ITO reacted sharply to reopen the assessment made on 26th March, 1985 on the same day with the approval of the IAC orally obtained as would appear from brief notes of inspection of the file with the permission of the Revenue taken by the counsel for the assessee appearing at page 15 which has not been controverted. The IAC accorded the approval under s. 143(2b) of the Act on file on 26th March, 1985 and later on confirmed by letter dt.28th March, 1985. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under s. 143(1) on 26th March, 1985 Apparently, this left the assessee aggrieved and the assessee when this assessment was received by him filed a letter on 5th May, 1985. In this letter appearing on pages 37 to 43 of the paper book, the assessee projected to the ITO that the assessment made ex parte was non est in law because this was made in violation of the principles of natural justice without providing reasonable opportunity of being heard and the additions made were unwarranted. The letter is in great detail and projects to the ITO various facts of the problem which he should have examined. The assessee went up in appeal to the CIT (A). 6. Before the CIT (A), the assessee took the objections, which were projected to the ITO and we find that the learned CIT(A) found force in them as recorded by him in para 5. In para 5.3, the learned CIT (A) records the contention of the assessee that "the ITO had casually rejected the evidence by way of several affidavits filed by the assessee without examining the documents". The learned CIT (A) records that this contention was also found to be correct on examination of the records. Therefore, he himself proceeded to give an opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTR (Pat) 306 : (1980) 124 ITR 94 (Pat) to make a point that if an addition under s. 68 could not be sustained because of non-maintenance of books of account by the assessee and non-recording therein of the mounts in dispute such amounts are liable to be assessed in terms of s. 69. 12. The learned counsel for the assessee on the other hand, submitted that the authorities below have proceeded as if the world at large is out to support the activities of the assessee, which presumption is absolutely unfounded and not in accordance with law, in view of the judgment of the Allahabad High Court in Sheo Narain Duli Chand vs. CIT (1969) 72 ITR 766 (All). It was submitted that it is the duty of the ITO to enforce the attendance of the witnesses if the evidence, which he wanted, was material and instead of doing that, the ITO threw the entire burden upon the assessee in a very unreasonable manner and raised huge assessment upon the assessee. He contended that there was practically no evidence worth mentioning to connect the sum seized by the Enforcement Directorate with any remittance from abroad and the ITO had not verified what was the final orders made by the Enforcement Directorate. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is clear that the learned CIT (A) was aware of these principles and was required to apply the same in the proceedings before him. However, when we proceed to examine the appreciation of the evidence by the learned CIT(A) we find a hesitant approach to come to terms with the bare facts of the case. This we are observing with regard to the evidence collected and contained in the statements of the parties summoned by his office. 15. In para 5.3, he recorded that consequent upon the direction issued summons were issued by his office to produce the following creditors before him for examination: (i) Sh. H.K. Bhargava (ii) Sh. Gopal Bhargava (iii) Sh. Arun Bhargava (iv) Smt. Urmila Bhargava (v) Sh. Shyam Lal (vi) Sh. Ram Karan (vii) Sh. Rajashwar The list of creditors showed that they were 11 in number. It is not clear whether the summons were issued to all the creditors or only to 7 of them. There is no clarification on these points. However, we find that when the examination on oath of witness R.C. Bhargava was carried out as appearing at page 6 to 8 of the paper book, a question was asked whether he was an income-tax assessee. He answered in the affirmative but in answer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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