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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 ..... uired to be paid to Shri Renavikar. The Tribunal noted that the assessee also took the stand that there was one transaction with Shri Doke. That was a sum given to Shri Doke, but that transaction did not materialise. Shri Doke returned the entire sum. The assessee, therefore, pleaded that ₹ 25,00,000/- returned by Shri Doke and cash available with assessee was utilised for making payment to Shri Renavikar and to that extent the set off of the amount may be given. Thus, the Tribunal found that such 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 suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of ₹ 29,77,150/- to tax as unaccounted investment. 3. This is the first part of the grievance raised before us by Shri Naniwadekar. He submits that insofar as this aspect is concerned, the Assessing Officer rejected the assessee's plea of set off and made an addition of ₹ 10,22,850/-. Further, he also made an addition on account of estimation of undisclosed income over and above the figure disclosed by the assessee. The Commissioner of Appeals also maintained this order of the Assessing Officer. That is how the assessee approached the Tribunal. The argument of Mr. Naniwadekar and based on a Division Bench judgment of this Court in the case of Commissioner of Income Tax, Poona vs. Jawanmal Gemaji Gandhi, (1985) 15 ITR 353 is that there was no material whatsoever to justify any addition on account of this payment of Shri Renavikar. The argument is that the assessee had to demonstrate that he had used an available fund to make an investment. That burden of proof was on the assessee. He has discharged the same. Thereafter, the Tribunal could not have maintained the direction of the Commissioner and that of the Assessing Officer. 4. Upon perusal of the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ikar and to that extent the set off of the amount may be given. Thus, the Tribunal found that such 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 before the date of the transaction with Shri Renavikar. Therefore, both contentions have been rightly rejected in our view in paragraphs 36 and 37 of the order under challenge. 5. As far as Jawanmal's case is concerned, there the assessee was a dealer in gold and silver ornaments. The excise authorities seized and confiscated certain quantity of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another transaction and which has been referred in the alternate contention. In such circumstances, we are unable to agree with Mr. Naniwadekar that the appeal raises substantial question of law. 8. The concurrent findings are consistent with the materials placed on record. 9. With regard to the suppressed professional receipt of ₹ 14,30,225/- once again the Tribunal found and in paragraph 40 that for a substantial period the assessee was maintaining parallel record suppressing professional receipts. It is true that there is no specific evidence for the period 1st April, 2001 to 30th June, 2001. However, the assessee himself admitted the modus operandi that he was not fully recording the receipts in the books of account. That is how the Assessing Officer's order has been confirmed. In paragraph 40 the Tribunal found that though there is no direct evidence, but the circumstances indicating to the contrary and against the assessee, the addition to the extent of 10% has alone been sustained. 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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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