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TMI Blog2000 (1) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... asion) inspected the business premises of the assessee and found one black coloured diary along with 63 loose papers containing entries regarding sale transactions of bearings. The assessing officer recorded the statement of the assessee and the diary and loose papers along with the ledger, journal and cash book were seized by the assessing officer. The diary consisted of two parts, one related to the transactions of the assessment year 1992-93 and the other of the year 1993-94, which were marked as exhibits 1 and 2 respectively. Loose papers were collectively marked as exhibit 3. The ledger, journal and cash book of the assessee were also seized and marked as exhibits 4, 5 and 6 respectively. 3.. Thereafter, the assessee was called upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Year 1992-93: (a) Tax on undisclosed sale ... Rs. 5,01,234.00 (b) Penalty on evaded tax under section 16(1)(i) of the Act ... Rs. 5,40,000.00 (c) Interest on evaded tax ... Rs. 1,36,779.00 (d) Interest on undisclosed ST-17 on amount of Rs. 68,640 ... Rs. 3,460.00 (e) Interest on undisclosed ST-17C on amount of Rs. 61,448 ... Rs. 2,753.00 ------------------ Total Rs. 11,84,226.00 Advance deposited tax Rs. 2,14,540.00 ------------------ Amount recoverable Rs. 9,69,686.00 -----------------Assessment Year 1993-94: (a) Tax on undisclosed sale ... Rs. 3,28,018.32 (b) Penalty under section 16(1)(i) ... Rs. 6,56,036.00 (c) Interest ... Rs. 45,500.00 ------------------- Total Rs. 10,29,554.32 --------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mally the burden of proving that the entries in certain loose papers found in the premises of the assessee relating to the sales or purchases made by the assessee during the relevant period of assessment was on the department and normal rule of evidence requires that it is the tax collecting authority which has to prove that the tax is payable by the assessee, but in a case where any books of accounts are found in any place of business of a dealer during any inspection, there shall be a presumption that they relate to his business unless the contrary is proved by the dealer. Such presumption is only a rule of evidence and can be rebutted by cogent evidence by the person against whom such presumption is raised, which is apparent from the use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessing authority come to Rs. 5,57,087, as mentioned in his order and, therefore, without going into the detail, we hold that the aforesaid cash entries of Rs. 5,57,087 should be excluded from the total concealed turnover." 10.. As a result of the above finding, the appeal No. 599 of 1995 filed by the assessee relating to assessment year 1992-93 was partly accepted and the levy on cash transactions of Rs. 5,57,087 and on miscellaneous sales amounting to Rs. 1,63,690 also not proved to be relating to sale transactions and on the transactions made by Shri Abhay Kumar Moondra amounting to Rs. 3,66,082 totalling to Rs. 10,87,127 were set aside and the total concealed sale arrived at by the assessing authority was reduced from Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 21, 1996 passed in Appeals Nos. 503 of 1994 and 599 of 1995. 13.. I have heard Mr. Sangeet Lodha, the learned counsel appearing for the Revenue and Mr. Rajendra Mehta, the learned counsel for the assessee and have gone through the material placed before me. 14.. As stated above, the learned Tax Board has recorded a finding that certain transactions disclosed in the documents seized at the time of search, viz., exhibits 1, 2 and 3 relate to the sale transactions of Shri Abhay Moondra, son of the present dealer, who has been assessed in respect of such transactions as a registered dealer. That is a finding of fact. The very important aspect of the matter is that the diary and loose papers were from the beginning claimed to be of son o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is simply that the fact that the Tax Board has wrongly recorded that the assessee has challenged only to the extent of levy mentioned in the order is incorrect. In my opinion, if any statement of fact about what happened during the hearing is incorrectly recorded, ordinarily the aggrieved party must approach the same forum for the purpose of securing correcting the record if any, so that the correct picture may come out. The learned counsel for the assessee has candidly stated that he has moved such a rectification applications but the learned members of the Tax Board has held that they do not remember about what has been recorded in the proceedings. Ordinarily contemporaneous recording of such statement by the Tribunal is to be accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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