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TMI Blog2020 (12) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the tribunal, however, he failed to do so. Even in second round of litigation, the Assessing Officer has placed reliance on the document seized during the course of search in the premises of the assessee and the aforesaid document admittedly relates to transaction in question in respect of which sale deeds have been executed in favour of the assessee. Therefore, the presumption arises that the payment was made to the assessee in view of Section 132(4A) of the Act. Despite opportunities being granted, the assessee did not lead any evidence in rebuttal and did not discharge the burden. Therefore, the finding recorded by the tribunal that a sum was an undisclosed income cannot be said to be perverse. Substantial question of law framed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he search, a paper containing notings about the above properties purchased was seized and assigned No.A/3/HMC/23. The said notings were neither in the handwriting of any of the partners of the firm nor in the handwriting of any of the employees of the firm. With regard to details of sale consideration paid, a statement was recorded from one Sri Y. Jayaram on 31.08.2001 who was a attesting witness to the left thumb impression of the sellers. As a consequence of the search, proceedings were initiated under Chapter XIV-B of the Act by issue of a notice under Section 158BC on 24.04.2002. The appellant filed return of income on 20.02.2003 declaring NIL income. The Assessing Officer by an order dated 29.05.2003 on the basis of the material seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee thereupon filed an appeal, which was dismissed by the Commissioner of Income Tax (Appeals) by an order dated 20.05.2014. The assessee thereupon approached the Tribunal by filing an appeal. The tribunal by an order dated 23.03.2015 dismissed the appeal preferred by the assessee. In the aforesaid factual background, the assessee has approached this court. 5. Learned counsel for the assessee submitted that the authorities under the Act failed to appreciate that the assessee was not given an opportunity to produce the party to whom the payment was made and the statement of Jayaram was recorded behind the back of the assessee and no opportunity was afforded to the assessee to cross-examine the aforesaid witness. It is also argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on against the assessee and the assessee has not rebutted the same by adducing either any material or evidence before the authorities, even though, six opportunities were available to the assessee. It is also pointed out that the seized document is admittedly in relation to the property in question and subsequent to which the sale deeds were registered in favour of the assessee, therefore, it can be safely presumed in the light of Section 132(4A) of the Act that the payment was made. It is also pointed out that the assessee filed an affidavit of Jayaram, before Commissioner of Income Tax (Appeals). However, the Commissioner of Income Tax (Appeals) found that there has been a discrepancy in the signatures of aforesaid Jayaram in the state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. Thus, the aforesaid provision raises a statutory presumption and the burden shifts on the assessee to rebut the aforesaid statutory presumption by leading cogent evidence. 8. In the instant case, the assessee was supplied a copy of statement of aforesaid Jayaram recorded on 31.08.2001, by the Assessing Officer by communication dated 31.05.2003 and the assessee was instructed to produce one G.Anand on 19.05.2003. However, on 19.05.2003, even though assessee appeared he did not produce G.Anand and on the said date, aforesaid Jayaram sought adjournment and did not appear before Assessing Officer. From the perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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