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TMI Blog2013 (6) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... in law. 2. The CIT(A) erred in law in not appreciating that u/s. 132(4A), the onus is on the assessee to rebut the evidence found in his possession and the same cannot be shifted to the department. 3. The CIT(A) erred in law in not appreciating the fact that the assessee did not utilize the opportunity provided in set aside proceedings persisted with den9al but did not produce any cogent proof for his claim. 4. The CIT(A) erred in law and on facts in granting relief to the assessee though the assessee did not discharge the onus of rebutting the evidence on record. 5. The CIT(A) erred on facts and in law in not considering the evidence on totality because certain other registers seized during the search offer admitted proof that the family members of the assessee are engaged in money lending business. 6. The CIT(A) erred on facts and in law in ignoring the evidence on record in the form of register containing money lending activity and also in holding that the evidence is a dumb record. 7……." 4. Facts of the case in brief are that the assessment in this case was originally framed under S.158BC read with S.143(3) of the Act, on 31.1.2005 as follows- 1. Unexplain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surmises. As of now material considered by the assessing officer for making the addition is only the seized material marked as A/GAR/05 which is a notebook containing the details of day to day ledger account of various persons to whom the money was advanced. In view of this, we have to consider the seized material A/GAR/05 to see whether it is enough to make addition. In our opinion, this document is only note book/loose slips. We have to look into the statement recorded u/s 132(4) or 132(4A) of the IT Act. The seized material A/GAR/05 found during the course of search and the statement recorded is some piece of evidence to make an addition. The assessing officer has to establish the link between the seized material A/GAR/05 and with other books of accounts of the assessee. It cannot be considered alone as conclusive evidence. The word 'may be presumed' appear in section 132(4A) gives an option to the authorities concerned to presume the things. But it is rebuttable and it does not give a definite authority and conclusive evidence. The assessee has every right to rebut the same by producing the same in support of his claim. The entire case depends on the rule of evidence. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments. The assessing officer has not established nexus between the note book/loose slips and business of the assessee. There is no narration regarding the address of the parties, the exact amount of loan, period of advance, rate of interest and instalments due. Also there is no evidence for repayment of money towards the loan. There is no valid seized material to come to the conclusion that the assessee has actually made an advance of that amount i.e. ₹ 2,55,50,000/- . The note book/loose slips marked A/GAR/05 found during the course of search is a dumb document having no evidentiary value, no addition can be made in the absence of corroborative material. If there is circumstantial evidence in the form of promissory notes, loan agreement and address of the parties or bank entries, the addition is to be made on that basis to the extent of material available. The assessee is not expected to explain the loose papers found as there is no evidence other than note book/loose slips carrying on money lending business of the assessee. The assessing officer has failed to prove the money lending business carried on by the assessee on the basis of seized material A/GAR/05. In our opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was relied on by the Assessing Officer the same is to be provided to the assessee. In the present case the assessee is having grievance for not providing the opportunity of cross examining the parties whose statements were relied on by the Assessing Officer while completing the assessment. The circumstances surrounding the case are not strong enough to justify the rejection of assessee's plea asking the opportunity of cross examination. In view of this, we set aside the block assessment order and remand back the matter to the file of the assessing officer. We direct the Assessing Officer to give an opportunity of cross examination of the parties as required by the assessee and thereafter if there is any sufficient evidence other than the unsubstantiated note book/loose slips marked as document A/GAR/5 or if this document (viz., A/GAR/05) substantiated by any other evidence to establish that the assessee is having undisclosed income, then the Assessing Officer shall complete the assessment in accordance with law determining the undisclosed income covering this block period in addition to the other undisclosed income uncontested before us. It is needless to say that the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused the material on record. In the earlier order, the Tribunal clearly observed that the two documents on which reliance was placed in the earlier proceedings were only dumb documents and cannot be relied upon to make any addition. The Assessing Officer was directed to make any addition, if he can gather any evidence to substantiate the entries in the seized material like note book and loose slips, which otherwise are only isolated and dumb documents, and that too after giving the assessee opportunity of cross examine the parties. If there was no sufficient evidence, other than the seized material marked as 'A/GAR/5' or if those documents are unsubstantiated by any other documents to establish that the assessee is having undisclosed income, it was held that no addition can be made. Being so, as held by the CIT(A) in the impugned order, the Assessing Officer cannot, once again, rely solely on the very same seized documents marked as 'A/GAR/5' and repeat the addition set aside by the Tribunal. Until and unless the Assessing Officer is able to establish any undisclosed income by gathering any material relevant to the seized material, he is precluded from relying on the loose s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal refuses to follow any decision of the High Court on the above grounds, it would be clearly guilty of committing contempt of the High Court and is liable to be proceeded against." At this juncture, it is also pertinent to mention the observations of the High Court, by placing reliance on the judgment of the Bombay High Court in the case of Subramanian ITO V/s Siemens India Ltd. (156 ITR 11), which are as follows- "Reference may also be invited to the decision of the Bombay High Court in Subramanian, ITO v. Siemens India Ltd. [1985] 156 ITR 11. The question that arose for consideration in this case is whether the Income-tax Officer is bound by the decision of a single Judge or a Division Bench of the Court within whose jurisdiction he is operating even if an appeal has been preferred against such decision and is pending. The following observations of the Bombay High Court may be extracted : "So far as the legal position is concerned, the ITO would be bound by a decision of the Supreme Court as also by a decision of the High Court of the State within whose jurisdiction he is (functioning), irrespective of the pendency of any appeal or special leave application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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