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TMI Blog2017 (3) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments and the assessee, ignoring the fact that these were recovered from the premises of the assessee and there was no obligation on the department to prove any such nexus in view of the presumption u/s 132(4A) of the I.T. Act, 1961. II. Whether the learned Income Tax Appellate Tribunal was justified in holding that corroborative evidence was required in respect of transactions recorded in documents seized from the premises of the assessee whereas the onus is on the assessee to prove by giving evidence that the documents do not belong to her. III. Whether the learned Income Tax Appellate Tribunal was justified in holding that the onus on the assessee u/s 132 (4A) of the I.T. Act, 1961 stood discharged when the assessee stated that the documents belonged to another person of the family who in turn denied onwership of the document. 4. Learned counsel for the parties, therefore, have addressed us on aforesaid questions and we are proceeding to decide same after perusing record, arguments advanced by learned counsel for respective parties and considering relevant provisions and judicial authorities on the subject. 5. In order to appreciate the dispute some brief facts may be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to uphold its order and dismissed Revenue's appeal. 10. Learned counsel for appellant contended that documents were seized from premises of Assessee and she explained that said documents pertain to some other persons but when enquired those persons denied any concern or relation with those documents. It is in these circumstances, Assessee having failed to explain the contents of documents, entries contained therein were liable to be added in computation of income of Assessee. 11. We may notice hereat that additions pertain to only four documents discussed in paras 3, 4, 5 and 6 of assessment order. CIT(A) has reproduced photoprint of documents in its order in paras 7, 11, 15 and 19. The document Annexure-A17, the first document mentioned in para 7 of assessment order has following contents: Jijaji - Rs. 2,00,000/- Rs. 5,30,000/- Dasti 12. There is some other figures separately mentioned but it does not give any indication as to what it relate. Aforesaid document was explained by Assessee in her reply dated 20.12.2007 that this page was related to liquor business run in the name of Shri Raj Kumar Jaiswal, Shri Ram Dayal Jaiswal and Shri Radhey Shyam Jaiswal. All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s disowned and contradicted statement of Assessee. Thereafter Assessee did not furnish any otherwise explanation in respect of aforesaid documents. 20. In this regard it would be appropriate to refer Section 132(4A) of Act, 1961, which reads as under: "132. (4A) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person' s handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "may presume", (ii) "shall presume" and (iii) "conclusive proof". "May presume" leaves it to discretion of the Court to make presumption according to circumstances of case. "Shall presume" leaves no option with Court not to make presumption. Court is bound to take the fact as proved until evidence is given to disprove it. In this sense such presumption is also reputable. "Conclusive proof" gives an artificial probative effect by the law to certain facts. No evidence is allowed to be produced with a view to combating that effect. In this sense, this is irrebuttable presumption. Under sub-section (4A) the words are "may presume". Therefore, is is rebuttable presumption. It will depend on the facts and circumstances of the case authorizing Court or concerned authority to draw a presumption against the persons concerned. In the present case, ACIT had drawn presumption from aforesaid documents which is a corroborative piece of evidence also, i.e., assessment made by Assessee to explain documents which were contradicted by those persons to whom documents alleged to belong by Assessee and nothing further was substantiated by Assessee. 27. In Diwan Singh (HUF) Vs. Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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