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TMI Blog2014 (10) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... s been sustained in the hands of the persons to whom the documents related/belonged, the addition again cannot be made on the same documents/loose papers in the hands of the assessee and the Tribunal rightly came to the conclusion. Same addition on the basis of same document cannot be made in the hands of two persons. Revenue does not deny that protective addition was made in the case of assessee whereas substantive addition was either made in the case of M/s Ghindmal Kauromal or/and in the case of Roop Chand or/and in the case of Nanak Ram (Dropadi Devi) and when the additions have finally been sustained, then it is a finding of fact and no question of law – Tribunal had rightly deleted the addition as the same cannot be or could not have been made in two hand - no substantial question of law arise for consideration – Decided against the revenue. - DB Income Tax Reference Application No. 34/1994 - - - Dated:- 17-9-2014 - Ajay Rastogi And J. K. Ranka,JJ. For the Petitioner : Smt. Parinitoo Jain For the Respondent : Mr. PK Kasliwal ORDER By the Court : (Per Hon'ble Ranka,J.) 1. This reference application u/s 256(2) of the Income Tax Act (for short, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and other incriminating documents/material were found and seized. During the course of assessment proceedings, the Assessing Officer (for short, 'AO') scrutinized the said documents and had made additions on account of some of the documents and it was claimed that these documents pertained to the assessee. The AO also made additions on account of some papers/documents in the case of firm M/s Ghindmal Kauromal on substantive basis but since the assessee being a partner and the documents having been found in the possession and custody and at the residence of the assessee, therefore, on protective basis, the addition was also made in the hands of the assessee as well. 4. The matter was carried in appeal before the CIT(A) and before the CIT(A) it was pleaded that the additions are made on protective basis and the main substantive addition stands made in the case of firm and same addition based on same documents cannot be made in the case of the assessee as well as the partnership firm. The CIT(A) vide its order dt. 12/04/1990 has observed that the (i) addition of ₹ 12,381/- on account of Annexure-1; (ii) addition of ₹ 88,000/- as per documents No. 5, 6, 7, 8 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssentially findings of fact and accordingly rejected the reference application. 7. Ld. counsel for the revenue vehemently contended that substantial questions of law arise out of the order of the ITAT. She contended that all these incriminating documents were found in the custody, control and possession and at the residence of the assessee and thus the revenue authorities were correct and justified in treating and making addition of the amount in the hands of the assessee. She contended that the assessee was unable to prove as to how these documents came in the possession of the assessee and since these were documents in his possession, it was primary duty of the assessee to explain the nature of the transactions. She contended that the assessee merely conveyed that these pertained to either firm or if not pertaining to the firm, then to Nanak Ram Roop Chand. She contended that no evidence was led by the assessee by placing evidence or material on record to justify shifting of the burden which lay heavily on the assessee and since it was not discharged by the assessee, therefore, she contended that addition was rightly to be made in the case of assessee and questions of law ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts have held that in case where it appears to the income tax authorities that certain income has been received during the relevant year or for that matter documents/loose papers have been found and it is not clear to whom it pertains or it is not clear who has received that income and prima-facie it appears that the income or/and documents/loose papers pertains to either A or B or by both together and thus it will be open to the relevant income tax authority to determine the said question by taking appropriate proceedings both against A and B. 11. Under the law, it is open for the department to make assessments on two person of the same income where there is some ambiguity as to the liability to charge or to make an addition on the basis of incriminating documents or loose papers or other material or other income in respect whereof A says, it pertains to B and B says it pertains to A but in that case, to safeguard the interest of the revenue, the Assessing Officer has liberty to pass order on protective basis or on substantive basis in one hand and vise-versa. 12. It is only to protect the interest of the revenue as, if the action is not taken in the case of A who says that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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