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TMI Blog2010 (4) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... the unexplained investment made by the assessees and the interest mentioned therein had been accrued to them. No opportunity of cross-examination to Sri D.P. Kanodia was given to the assessees. The entries in the parcha, therefore, remained uncorroborated. Moreover, the entries against Sri S.P.Kanodia and Smt. Premlata Kanodia were found scored out. What is the reason for scoring out such entries is not explained and, therefore, in the absence of corroborative evidence, the Tribunal has rightly held that no adverse inference can be drawn from the entries of parcha No. 56 against the assessees. The finding of the Tribunal is finding of fact based on the material on record, which cannot be said to be perverse, which requires any interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 to the facts of the present case? 2. The brief facts giving rise to the present reference is that there was a partnership firm in the name of M/s Shadiram Ganga Prasad, in which Sri B.M. Kanodia, Sri D.P. Kanodia, Sri G.P. Kanodia and Sri S.P. Kanodia were the partners. It had four industrial units known as M/s Ganges Dal Mills, Ganges Oil Mills, Ganges Tin Works and Ganges Flour Mills. During the aforesaid assessment year, the first three units did not function and only fourth unit was functioning. On 1.10.1981, a search was carried out at the business premises of the partnership firm. In the course of said search, loose parcha bearing serial No. 56 (annexure S.R.G.P.II) to the panchnama was recovered from the Leather wallet kept in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, calculated a rough estimate for the funds required for the said project. It was further contended that the alleged entries did not relate to the assessees, inasmuch as no corroborative evidences are available. It was further contended that the entries of Sri S.P. Kanodia and Smt. Premlata Kanodia have been scored out in the parcha itself. Various other pleas had also been taken. The Tribunal has not accepted the explanation that said parcha was relating to the proposed project, however, deleted the additions on the other grounds. The Tribunal held as follows: 14. The question still remains as to what is to be made of the contends of the aforesaid paper No. 56. The first presumption raised by law as noted earlier, with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How can then it be said on the basis of the said paper that two amounts were, in fact given. If they had been given, why were then struck off and why others were not struck off. Sticking off the aforesaid item shows that they were not correct and, if this be so how, does the department discharge the burden which was on it of presuming something which is contrary to the contents of the paper in question. Second difficulty, is that there is no other corroborative evidence brought to our attention to support the contention of inference that M/s Shadi Ram Ganga Prasad had made investment of ₹ 2 lacs outside the books of account and that Sri S.P. Kanodia and Smt. Prem Lata Kanodia had made similar investment outside the books of account. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Kanodia from whose possession, the said parcha was seized but no reference has been filed in the case of Sri D.P. Kanodia against the order of Tribunal deleting the addition. He further submitted that in the statement recorded at the time of search as well as at the time of assessment proceeding, Sri D.P. Kanodia no where stated that the entries in parcha No. 56 related to the investment made by the assessees and the interest had been accrued to them. He submitted that no opportunity of cross-examination to Sri D.P. Kanodia was given to the assessees and, therefore, the entries in the parcha are uncorroborated and in the absence of any corroborative evidence, the Tribunal has rightly deleted the additions. Moreover, the Tribunal has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shadulli and Nalla Kandy Yusuf, 1977 UPTC 363 has held that where the entries are detected in the account books of other dealer are being relied upon against the assessee, the burden is on the Department to prove the authenticity of such entries and for that to produce that dealer for cross-examination and if the Department fails to do so no adverse inference can be drawn against the assessee. It is useful to refer para 4 of the aforesaid judgment, which reads as follows: Apart from anything else, the second part of the proviso itself confers this specific right on the assessee. It is difficult to conceive as to how the assessee would be able to disprove the correctness of the accounts of Haji P.K. Usmankutty or the other wholesale dealers, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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