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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 ..... 1986-87. 2. The revenue has proposed following questions for the opinion of the High Court arising out of RA No.17/JP/1993:- "1. Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in deleting the addition of Rs. 12,381/- made on the basis of seized document, marked Annex. A-1 notwithstanding the fact that this addition made in the hands of the firm on substantive basis, has been deleted by the Tribunal? 2. Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in deleting the addition of Rs. 88,000/- made on account of unexplained advances as per seized pronotes notwithstanding the fact that additions of Rs. 77,000/- in the asstt. year 1986-87 and Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;) 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 additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Roop Chand for the assessment year 1985-86 (ITA 757/JP/89) and another addition of Rs. 77,000/- has been made in the assessment year 1986-87 on the basis of same pro-note and thus when the addition has already been made on account of the same pro-notes in the case of Roop Chand for the assessment year 1986-87 then the ITAT deleted the addition on these terms; (iii) in so far as the addition of Rs. 8,600/- is concerned, this addition although was deleted in the case of the firm but was sustained in the case of one Roop Chand (ITA) 456/JP/89 and 771/JP/89) and in view of this factual finding, when the addition had already been made, the same was deleted in the case of assessee; (iv) in so far as the addition of Rs. 2,500/- is concerned, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contended that addition was rightly to be made in the case of assessee and questions of law arise for consideration of the court. 8. Ld. counsel for the respondent-assessee, on the other hand, contended that when these very additions have been made in other cases and even the AO in the assessment order himself held that the additions are being made on protective basis, then when additions have already been made in other hands, the addition cannot be made in the case of the assessee again. He further contended that the order of ITAT is based essentially on finding of fact and does not lead to any question of law. 9. We have considered the arguments advanced by counsel for the parties and perused the order passed by the ITAT in reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion. Same addition on the basis of same document cannot be made in the hands of two persons. 10. Under the Income Tax Act though there is no such word as substantive addition/assessment or protective addition/ assessment, however, the courts 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 appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 above additions have finally been sustained, as observed by the ITAT in the case of M/s Ghindmal Kauromal or/and in the case of Roop Chand or/and Nanak Ram (Dropadi Devi), then it is a finding of fact and no question of law can be said to arise with the facts found by the ITAT. When ultimately, the addition of these very documents had been sustained in some other case relating to the search or other partners or in the case of M/s Ghindmal Kauromal or/and in the case of Roop Chand or/and Nanak Ram (Dropadi Devi), then the ITAT had rightly deleted the addition as the same cannot be or could not have been made in two hand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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