9911796707
TMI Blog1994 (11) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... in the paper, an amount with + sign was written which, according to the assessee, represented interest payable. Entry No. 17 contained a note that two months interest is to be reduced. At the end of the list, amounts of Rs. 1,42,000 and Rs. 1,61,000 were reflected under the letter J K respectively. The words J K were stated to be used for the partners, namely, Shri Jayantilal and Shri Kantilal. The assessee contended that the entire amount reflected on paper represents borrowings (including capital). These borrowings were utilised for the purpose of investment found in various assets during the search operation. In respect of the entries made in the assessee's books, confirmation were said to have been filed. 3. The contention of the assessee was not accepted by the Assessing Officer. In the order passed under s. 132(5) of the Act, the amounts were treated as advances due. After considering the repayment of Rs. 87,000 an amount of Rs. 32,69,745 was proposed for addition in that year. In view of the categorical statement made by the assessee that some of the amounts were collected out of the books, Assessing Officer held that the assessee had undisclosed income. In making the addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partner . Rs. 2,07,000 . . Rs. 30,80,300 Less : Cash shortage separately added set off . Rs. 26,660 . . Rs. 30,53,640 The assessee made a declaration of Rs. 15 lakhs. The Assessing Officer allowed deduction of Rs. 15 lakhs from Rs. 30,53,640 and brought to tax Rs. 15,53,640. This addition was confirmed by the CIT(A). 4. Shri K.A. Sathe, learned counsel for the assessee, appeared before us. Relevant documents and papers were filed. At the outset, it was submitted that addition of Rs. 15,53,640 should not be made separately and total of all additions may be taken at Rs. 19,25,025 in place of Rs. 40,63,522 as made by the Assessing Officer and as against Rs. 18,00,000 declared by the assessee. In support of the claim, the learned counsel stated that there is no evidence to show that the amounts mentioned on the piece of paper represented "advances due" to the assessee and not borrowings. According to the learned counsel, there is overwhelming evidence to support that the list contains the borrowings and not the amount of 'advance due'. (i) Statement of Jayantilal who was examined at the time of raid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e books. Here, the addition was made simply on the basis of a paper. A 'piece of paper' cannot be construed to be a 'book' within the meaning of s. 68. 6. The list on the basis of which the addition was made was found during the search operation. The assessee was not asked to explain the nature and source of various assets. The list was not meant to be produced for Income tax purposes. Considering the circumstances of the case and normal course of events, but for independent confirmation, one could give credence to the fact that the amount in the list could be really borrowings of the assessee. This gives rise to a question whether any addition can be made in respect of borrowings which, on the basis of circumstantial evidence, appears to be borrowings but for which the assessee cannot produce any confirmatory letter or evidence. In order to make such addition, s. 68 cannot be applied because these are not credits in the books of account. Secs. 69, 69A and 69C also do not apply because these are not investments and also do not represent any valuable asset. No addition on this count is, therefore, justified if the list is accepted to be that of borrowings. 7. Shri Sathe submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of asset also. In reconciling the total amount of Rs. 33,56,000, which includes amount of interest also with reference to various assets, it would be reasonable to exclude the amount of interest. According to Shri Sathe, the correct amount is not Rs. 2,55,000 but it is Rs. 2,19,375. 10. During the search another diary was found referred to in the order as IBICO diary. In this diary, there was an entry of Rs. 16,000 in the name of Vimla Rathod. This name appears respectively at S.No. 29 and No. 8 in the list. Since the borrowings in the list are separately being considered, these two credits of Rs. 21,000 are required to be deleted from the amount of Rs. 46,000. The addition to be made in respect of IBICO diary will then be confined to Rs. 25,000 of Tajraj Mangilal and other loans of Rs. 49,171. 11. The Assessing Officer allowed a deduction of Rs. 68,700 in respect of the amounts which appear in the list with the description 'given'. These are Rs. 26,000 in the name of V.K Kulkarni, Rs. 24,700 in the name of A-1 Trading and Rs. 18,000 in the name of Prakash Kavedia. These amounts were returned, therefore, these cannot be considered for reconciliation of assets. In any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , addition of Rs. 25,75,025 may be retained out of which of Rs. 19,25,025 may be retained in the firm's case, Rs. 3,00,000 and Rs. 3,50,000 already added in the partners' cases as per their declaration in respect of their contribution in Bhishi (Chit fund). The assessee gave details vide his declaration as per letter dt. 16th March, 1992 of Rs. 18,00,000. A copy of the said letter is appended at page 56 of the paper book. Shri Sathe further submitted that there is no difference in value of the items given above. Where difference lies, those items are given as under: . Letter (at p. 66) of PB Additions as above Gold Stock 6,00,000 6,24,400 All diaries 3,00,000 4,56,546 Cheques account 1,94,000 2,37,664 Investment Katraj 40,000 not covered Investment in cassets 60,000 not covered and also not considered in assessment Thus, as per letter, the assessee had consented for addition of Rs. 18,00,416 in the firm. In view of the above now in firm addition of Rs. 19,25,025 is acceptable to the assessee. In partners' case, the Assessing Officer had already adde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of search partner said that it is a list of creditors. Therefore, it cannot be accepted to be a list of borrowings. Shri Pathak further contended that if any doubt persisted as regard to the nature of the amount recorded in the list, the assessment may be set aside and direction for fresh examination may be given so truth can come out. Shri Pathak took us through various paras of the impugned order. He also read the various papers and documents including depositions as made by the assessee in order to demonstrate that additions as made by the Revenue authorities were correct and the impugned order calls for no interference on this count. He further supported the orders of the Revenue authorities for the reasonings given therein. 16. We have heard the rival submissions in the light of material placed before us and precedents relied upon. We have also perused the explanation submitted by the assessee. We have examined various documents and papers filed before us. It is a cardinal principal of law that no one should be twice harassed for the same cause. This principle is canonized in a well known legal dictum: "Nemo debet bis vexari pro eadem causa" The general cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one part and to reject the rest is against the fine norms of jurisprudence. The fact of the present case goes to show that Revenue made certain breach in regard to this tenet of law. 19. Coming to the aspect of onus probandi, we find that the fibre of our jurisprudence is borrowed from the Roman Law. The law as regard to onus is enunciated in the well known Roman dictum: (1) Incuinbit probatio qui dicit non qui negat (2) Affirmanti non neganti incumbit probatio. Underlying idea embodied in the dictum is that the burden lies upon one who alleges and not on one who denies the existence of the state of fact. Observes Lord Hansworth M.R. in Stoney vs. Eastbourne R.D. Council (1927) 1 Ch. 367, 397 "there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficiently prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side or the other, and on saying that it shift the onus. What is meant is, that in the first instance, the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence." 20. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Book means A collection of sheets of paper etc., bound together or made into a roll either printed, written on, or blank". As per Bouviro's Law Dictionary (Eignth Edition) Book is a general name given to every literary composition which is printed, but appropriately to a printed composition bound in a volume. In view of the above, the 'piece of paper' impounded at the time of search cannot be construed to be a book. The definition of the book as given in the Stroud's judicial Dictionary and relied upon by the learned Departmental Representative, deals with its meaning in the context of the Copyright Act, 1842. There the book is defined as every volume, part of division of a volume, pamphlet, sheet of letter press, sheet of music, map, chart or plan separately published. This definition is not relevant for our purpose. For the purpose of explaining the meaning in the context of the IT Act, in our opinion, the term 'book' is to be construed as it is understood in the common parlance. No special meaning can be assigned to that term. We are, therefore, of the opinion that the case of the assessee cannot be put within the ken of s. 68 of the Act. 24. Once the factum of borrow ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
