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TMI Blog1989 (10) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee stated that the money had been handed over to him by his father Shri Ram Saran Aggarwal (R.S. Aggarwal), Proprietor of Aggarwal Oil Traders, 33 Basrurker Market Moti Bagh, New Delhi for the purchase of lubrication oil and that he was directed to spend ₹ 3,000 to ₹ 5,000 for the purchase of clothes for the domestic use by the members of the family. He said that the name in which the purchases were to be made was to be told to him later on. The statement of Shri R.S. Aggarwal was also recorded the same day when he stated that :he never asked him for any money. I have never given him any money either loan or gift." The assessee later on filed an affidavit on 4th June 1984 on the basis of which his statement was recorder by the ITO on 7th June 1984 and he also filed a written explanation on 5th June 1984 in which he stated that the brief case had been left by his brother Shri Kailash Chand in his room since he had to go to Barauni on 3rd April 1984 from where he was to reach Bombay and that that briefcase was lying in the room of his elder brother on the first floor and according to the instructions of the said elder brother, his father told him that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO took the view that none of the slips attached on top of the bundles of currency notes seized pertained to the banks in which P.S. Jain Motors accounts and, therefore, the cash found with the assessee could not be the same which was received from P.S. Jain Motors or the agriculturists (who had given loans allegedly out of cash lying at home). He also held that the case regarding the securing of loans from the agriculturists was an after thought. In this connection, he was influenced by the fact that in all these the land in acres and the loan amount in thousands were the same which could never be possible. An other point which also influenced the ITO was that in the course of the said search while inspecting the documents found in the brief case, the assessee snatched a bill of Munish Lubricants of Ghatkopar, Bombay from the hands of A.D.I. and ate the said paper and that the remaining 1/4th portion of the same showed that it was a credit bill dated 25th February 1984 of the said Munish Lubricants. The explanation of the assessee regarding this conduct was that he had become nervous. However, the inference drawn by the ITO was that it showed the guilty intention of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editworthiness of the letters of P.S. Jain Motors was doubtful and they appeared to be fabricated. He submitted that it may be for the reason that cheque dated 26th March 1984 had not been cashed. Shri Aggarwal referred to the decision of the Supreme Court in the well known case of Sreelekha banerjee v. Commissioner (1963) 49 ITR 112 (SC) regarding the burden of the assessee in respect of the source of the amount in question. Next, he referred to the decision of Hon'ble Delhi High Court in the case of Harichand & Premchand Bassi v. Commissioner (1974) 94 ITR 557 (Delhi) regarding the immediate source and the ultimate source. Lastly, he referred to the decision of the Hon'ble Punjab & Haryana High Court in the case of Lall Chand Kalrea v. Commissioner (1981) 22 CTR (P & H) 135 where it was held that one of the gifts being from a stranger and the other from a relative who had other more important liabilities, they could not be held to be genuine. The learned Departmental Representative therefore, urged that the addition was required to be restored. On the other hand, Shri B.N. Goswami, the learned counsel for the assessee strongly supported the order of the learned Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self as told by them is not improbable. Discrepancies often trifling in themselves when compared with the great mass of facts and small discrepancies quite consistent with the truthfulness of the person produced, cannot be made the ground for disbelief. The general rule is that whenever it is intended to impeach the credit of a person whose statement has been recorded, his attention must be drawn to the discrediting facts so that he may have an opportunity of explaining them. 6. The question whether the stand taken by the assessee was changed later on or that the stories set up initially and later on were reconciliable or not having regard to the probabilities of the case, has to be seen not only in the light of what has been stated above but also in the light of the material placed by the assessee on the record and other attending circumstances. In his letter before the ITO on 5th June 1984 the assessee had detailed the circumstances leading to his search at Bombay Airport and the subsequent treatment meted out to him. The assessee was not examined with reference to them when his statement was recorded on 4th June 1984. At first flush one may be inclined to think that the story f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors of Balmer Laurie whereas he is the proprietor of Roshan Transport Co. with effect from 1st day of April 1984, wherein the work of transporting oils for others is done. There are certain papers on the paper book filed by the department bearing dates prior to 5th April 1984 when the search was conducted and effort was made on behalf of the department by Shri D.C. Aggarwal to challenge their veracity. However, there is no material on the record on the basis of which such papers could be said to be fabricated or unreliable we would presently consider them. Papers existing prior to the date of the search when the controversy had not arisen would not only be relevant but also valuable. The first paper is dated 25th February 1984. It is letter from Ralson Cycles Ltd.,. Ludhiana addressed to Roshan Transport Co. to the effect that as per discussions (with Kailash Chand) regarding the transportation of CBFS-500 from Barauni or Bombay, it was in a position to give contract on the basic condition that Roshan Transport Co. had to produce a minimum fleet of 22 to 25 tankers before 31st day of March 1984 because the quantity was in thousands of tons. This letter shows the necessity on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paper book shows that the amount of ₹ 6 lakhs was paid in cash by P.S Jain Motors to Shri Kailash Chand on 30th March 1984. This had been duly corroborated by the statement of Shri Kailash Chand recorded on 8th June 1984 and by the statement of Shri. O.P. Sharma. The Accounts Officer of P.S. Jain Motors. There is nothing in their statements to discredit their testimonies or to show that the correspondence referred to above was sham or fictitious or fabricated. Shri Kailash Chand has also given a certificate dated 22nd May 1984 to the ITO regarding the above loan as also regarding the loan from 9 agriculturists which we would be dealing with hereafter. Shri Kailash Chand had also corroborated the assessee's case by means of a letter dated 28th June 1984 to the ITO. We are. Therefore, of the view that the case set up by the assessee regarding the obtaining of the loan of ₹ 6 lakhs by his brother Shri Kailash Chand from P.S. Jain Motors for the purchase of oil tankers in order to honour their commitment with Ralson Cycles Ltd. was duly established. 7. So far as the loans from the agriculturists are concerned, we find that all of them were examined by the ITO. They hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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