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TMI Blog2015 (4) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... ench in Income Tax Appeal No.90/PN/2011, for assessment year 2002-2003. 2. The assessee is an individual. He is an Ophthalmologist. He runs an eye clinic and hospital. Pursuant to a search and seizure action conducted on his premises on 1st September, 2004, the assessee filed his return in response to the notice under section 153A of the Income Tax Act, 1961, showing a total income of Rs. 76,53,769/-. In the course of search, an agreement was found under which an amount of Rs. 40,00,000/- was paid to one Shri Renavikar. The payment was on 30th June, 2001, which was admittedly not accounted in the regular books of accounts. The cash balance in the assessee's book was to the extent of Rs. 10,22,850/-. The assessee took the stand that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in those years failed to note that there was income available with the assessee for making payment of Rs. 40,00,000/- to Shri Chandusheth Renavikar and, accordingly, no addition was required to be made of Rs. 40,00,000/- while determining the income of the assessee for this year. In dealing with this argument, the Tribunal noted that the amount paid to Shri Renavikar was not accounted in the regular books of accounts. The assessee took a plea that on the date of payment of the said amount to Shri Renavikar viz. 30th June, 2001, there was a cash balance in the books and to the extent of Rs. 10,22,850/-. Hence this amount was utilized for making payment to Shri Renavikar. The assessee declared the balance amount of Rs. 29,75,150/- towards una ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a stand and which is raised during the course of assessment proceedings cannot discharge the burden and which is on the assessee. The desired presumption that the assessee has made the investment to the extent from the available cash balance cannot be raised. It is not the case that there is no transaction after 30th June, 2001. The source of this transaction was not proved is the first conclusion. The alternate contention and from the transaction of Shri Doke would denote that there is no evidence except the statement of Shri Doke that the amounts were returned. Presuming that the transaction did not materialise and the amount was returned by Shri Doke, there has to be a supporting evidence to show that Doke returned the amount on or befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the report and then concluded that a number of circumstances of vital significance could point to the conclusion that the cash deficit or the cash credit could not reasonably be related to the amount covered by the intangible addition, but must be regarded as pointing to the receipt of undisclosed income earned during the assessment year under consideration. The observations of this Court must not, therefore, be seen de hors the factual position and that was a case of an addition twice over. The source of gold could easily be assumed to have come out of the intangible addition on account of the increased turnover. Therefore, the Tribunal held in favour of the assessee. That was because the assessee acquired the gold during the later hal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stained. 10. Mr. Naniwadekar would submit that this has been sustained by applying the ratio of the Hon'ble Supreme Court judgment in the case of Commissioner of Income Tax vs. HM Eusafali HM Abdulala (1973) 90 ITR 271 (SC). 11. However, how this reliance is misplaced could be explained by relying on the later judgment of this Court in Commissioner of Income Tax vs. Dr. M.K.E. Memon 248 ITR 310 (Bom.). There also a professional has been dealt with and the Supreme Court's judgment in Abdulala (supra) was followed. However, this Court cautioned as to how for a period of one year the estimation could not be made and it could be, therefore, arbitrary. An arbitrary method cannot be adopted and by relying on that judgment. In the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. It is in these circumstances the proportionate amount of refund could not have been considered as static for ten years. With the other admitted facts and pertaining to the reduction of migration to Gulf countries on account of Gulf war that this Court found complete arbitrariness in the estimation by the assessee. At the same time, this Court held that it is open for the Assessing Officer to make an estimation and in that process there could be a certain guess work as well. That element cannot be discarded totally. 12. We do not find as to how any reliance on these observations in isolation and abstract would give rise to a substantial question of law enabling us to entertain this appeal. As a result of the above discussion, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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