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TMI Blog2004 (8) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant that it was from the savings/withdrawal of the partners, had not been established. Moreover, the assessment has been made on the partners on the protective basis - It is seen that where an assessee is found to be the owner of any money, which is not recorded in the books of account and the explanation offered by him is not found to be satisfactory, the money is to be deemed the income of the assessee for such financial year. Here the explanation offered by the applicant has been disbelieved. The findings recorded by the Tribunal are based on appreciation of evidence and material on record and do not suffer from any illegal infirmity. - - - - - Dated:- 10-8-2004 - Judge(s) : R. K. AGARWAL., K. N. OJHA. JUDGMENT The Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was about 12 per cent. He further found that the stock account maintained by the applicant was not correct as it was not maintaining stock details in the course of its day to day business. The books of account have also been disbelieved by the Sales Tax Officer and the turnover has also been increased. Applying the provisions of section 145 of the Act, the Income-tax Officer rejected the trading results and estimated the sales at Rs. 10,75,000. He applied a gross profit rate of 11 per cent. and made an addition of Rs. 20,914. He further found that a survey was conducted by the Income-tax Officer and the customs authorities on November 5, 1975, as a result of which an amount of Rs. 1,46,436 was found in two almirahs. In one almirah, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue. Learned counsel for the applicant submitted that in view of the finding recorded by the Tribunal that no suppression has been found, it was not open to the Tribunal to uphold the invocation of section 145 of the Act. He further submitted that the partners having admitted the amount of Rs. 52,000 having been found in the almirah as their own, it could not have been added to the income of the applicant. He relied upon a decision of the Calcutta High Court in the case of Suganchand Chandanmal v. ITO [1976] 105 ITR 743. Sri A. N. Mahajan, learned counsel for the Revenue, has, however, submitted that as the applicant has not maintained the stock register on daily basis, the books of account had not been maintained in a true and corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of imposition of penalty under section 271(1)(c) where the Tribunal had found that there was no proof that cash belonged to the assessee. In the present case, the amount of Rs. 92,000 was found from the possession of the assessee and, therefore, there was a natural presumption of its belonging to the assessee. Of course, the presumption was rebuttable for which evidence had to be led and was led by the assessee. It is another matter that the assessee's explanation was believed only in regard to Rs. 40,000 but was not believed with regard to the remaining amount of Rs. 52,000. Thus, it was a question of proof pure and simple. We have gone through the replies of the assessee as also the various statements of the assessee's partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year." From a reading of the aforesaid section, it is seen that where an assessee is found to be the owner of any money, which is not recorded in the books of account and the explanation offered by him is not found to be satisfactory, the money is to be deemed the income of the assessee for such financial year. Here the explanation offered by the applicant has been disbelieved. The findings recorded by the Tribunal are based on appreciation of evidence and material on record and do not suffer from any illegal infirmity. The decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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