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TMI Blog2012 (11) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... t a search operation at the residential and commercial premises of the assessee at Ahmedabad and Bhavnagar. During the course of such search, some cash, gold ornaments and a loose paper was seized. Such loose paper contained reference to several amounts. Names of persons connected with such amounts were also written. During the search operation, a detailed statement of the assessee was recorded on 18.7.1987. A further statement was recorded on 4.11.1987. 3. The assessee filed the return of income for the assessment year under consideration, that is, 1987-88 on 3.11.1987 and disclosed an amount of Rs. 6 lacs as his extra income, which according to the assessee, was found during the course of the search. 4. The Assessing Officer framed an assessment under section 143(3) of the Income-tax Act, 1961 (hereinafter to be referred to as "the Act") on 26.3.1990. In addition to Rs. 6 lacs already disclosed by the assessee in the return filed, he made addition of further sum of Rs. 31,31,165/- under the head of "income from undisclosed sources". He made further dis-allowances of sundry nature, such as petrol expenses, depreciation etc. and computed the income of the assessee at Rs. 38,09,35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and confirming the order of the Tribunal, the Court noted that the Tribunal had dealt with the question of additions pursuant to search operation in detail. No material was available to show that the assessee had concealed an amount of Rs. 85 lacs. On the basis of such observation, the Court dismissed the Revenue's appeal. This decision, however, is based purely on the facts of the case and in our opinion does not lay down any ratio which can be applied in the present case. 6.2 The learned counsel contended that the statement of the assessee recorded during the search operation cannot be relied upon. He relied on the decision of this Court in the case of Kailashben Manharlal Chokshi v. CIT [2010] 328 ITR 411/[2008] 174 Taxman 466 to contend that such statement having been recorded in odd hours, the assessee would be understandably under considerable pressure. The learned counsel further contended that the Tribunal has confirmed the additions on mere presumption. Such additions are not backed by any evidence adduced by the Revenue. In this respect, the learned counsel relied on the decision of the Division Bench of the Orissa High Court in the case of CWT v. Ramniklal D. Mehta [198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scope of the High Court with respect to factual findings arrived at by the Tribunal. This, of course, was an appeal arising out of the Customs Act, 1962, however, the appellate powers of the High Court have been expressed in the statute in similar language. In this respect, the apex Court observed as under: "The scope for interference with findings recorded by the Tribunal if it has kept in view the correct legal position, has been dealt with by this Court in many cases. The position was illuminatingly stated by this Court in Collector of Customs v. Swastic Woollens (P) Ltd as follows: (SCC pp.801-02, para 9) 9. The expression 'wool wastes' is not defined in the relevant Act or in the notification. This expression is not an expression of art. It may be understood, as in most of financial measures where the expressions are not defined, not in a technical or any preconceived basis but on the basis of trade understanding of those who deal with these goods as mentioned hereinbefore. The Tribunal proceeded on that basis. The Tribunal has not ignored the Technical Committee's observations. We have noted in brief the Tribunal's handling of that report. The Tribunal has neither ignore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made several entries. Such entries included some amounts and the names of persons opposite such amounts. On both sides of the page such entries were made. In connection with such entries, the Revenue asked several questions to the assessee during the search operation itself. During such questioning, the assessee admitted that the contents of the documents were written by him. We find that not only had the assessee himself thus in his own handwriting made those entries, full figures were written on such document. This was therefore, not a case where the document required decoding. We also find that at the bottom of the page on each side, the assessee had himself made separate totals of all amounts written on the page. On the front side of the page such total came to Rs.12,31,165/-. On the reverse side, such total came to Rs. 25,50,000/-. Total of these two figures come to Rs. 37,81,165/-. It is true that such totaling (of the two totals) was not done by the assessee on the loose paper. However, it is clear that the Assessing Officer added up the two amounts and considered that the assessee had made entries worth Rs. 37,81,165/- in the said document. After giving benefit of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the contentions of the assessee but came to the conclusion that the theory of retraction of the statement cannot be accepted. The Tribunal was also of the opinion that the declaration made by Shri Bhanwarlal H. Shah was not in tune with the entries made in the loose paper. The Tribunal gave further reasons for not basing any reliance on such statement of Shri Bhanwarlal H. Shah. The Tribunal noted that the assessee had admitted having paid the amount in cash to other parties, with whom assessee was dealing over a period of time in relation to his business transaction. 17. The Tribunal, however, accepted the assessee's version that entry of Rs. 7,50,000/- was a mere error. Such entry pertained to purchase of Maruti Car. The Tribunal, therefore, found it believable that instead of a sum of Rs. 75,000/-, the assessee had, due to error, filled the figure of 7,50,000/-. The Tribunal also found that such expenditure on the purchase of Maruti Car was duly reflected in the book maintained by the assessee. The Tribunal thus, deleted entire sum of Rs. 7,50,000/- from the assessee's undisclosed income. The Tribunal, thereafter, gave further benefits on different heads. In total, the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the Tribunal's finding can be stated to be perverse. Quite apart from detailed reasons given by the Tribunal, we ourselves noted that on both the sides of the said document, the assessee had made a total of all figures appearing on the page. On the front side, the total came to Rs. 12, 31,165/-. On the reverse side of the page said total came to Rs. 25,50,000/-. This is significant for our purpose. Firstly, if this amount mentioned in the loose paper did not pertain to only credit entries as was contended by the assessee before the Tribunal and by his counsel before us, there was no need for the assessee to total all figures together. Surely, the person keeping even loose account would not total up the debit and credit entries as the same would give a completely distorted total. This is also significant from the context of the assessee's contention before us that even the scored items have been taken into account by the Assessing Officer and confirmed by the Tribunal. We believe that the assessee wants to contend that a figure which is scored out would represent the amount which the assessee has received back, and in that manner, reentered the circulation of the amount at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the real figure was Rs. 75,000/- expended for purchase of Maruti Car, the Tribunal accepted such an explanation. Further finding that such amount of Rs. 75,000/- was also reflected in the books, deleted the entire figure of 7,50,000/-. With respect to the note of Shri Bhanwarlal H. Shah, the Tribunal observed, and in our opinion rightly so, that the said Shri Bhanwarlal H. Shah claims to have lent money to the assessee and not received the same. He, however, does not remember when and what amount was lent. When the amount involved was in excess of Rs. 5,00,000/-, the Tribunal found it difficult to believe that a person making loan of such a large amount in cash would have no recollection of the same. The contention of the counsel for the assessee that such statement of Shri Bhanwarlal H. Shah has gone uncontroverted, cannot be accepted. In the present case, such statement was not made on affidavit. If the assessee had procured affidavit of Shri Bhanwarlal H. Shah, we would have perhaps expected the Revenue to either accept the contents of such affidavit or to controvert the same as permissible under the law. In the present case, a mere note purported to have been given by Shri Bhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on a reference unless it appeared that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this was so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal. In other words, such a finding could be reviewed only on the ground that there was no evidence to support it or that it was perverse. 24. Learned counsel for the assessee has argued before us that the Tribunal committed an error in appreciating the evidence on record and in particular the answers given by the assessee in his statement recorded by the Revenue Authority during the search and thereafter. Even if two views were possible, in view of the decisions noted above, it would not be possible for us to overturn the findings of fact arrived at by the Tribunal particularly when we find that the Tribunal had taken into consideration all relevant evidence. It is not a case of no evidence and in that view of the matter, the findings of the Tribunal cannot be categorized as perverse. 25. In the result, we answer the question in the affirmative, that is, against the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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