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TMI Blog2022 (5) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... h seized nor the department could altogether rebut the foregoing prima facie evidence to this effect. Faced with this situation, we deem it appropriate that a lump sum addition of Rs. 25 lakhs than that in issue of sum of Rs. 37.35 lakhs would be just and proper with a rider that the same shall not be treated as a precedent. The assessee gets relief of Rs. 12.35 lakhs in other terms. Necessary computation shall follow as per law. - ITA No. 97/Hyd/2020 - - - Dated:- 30-3-2022 - SHRI S. S. GODARA , JUDICIAL MEMBER AND SHRI L. P. SAHU , ACCOUNTANT MEMBER For the Appellant : A. Srinivas , Adv. For the Respondents : Sunil Gowtham , D. R. ORDER Per Shri S. S. Godara , JM This assessee's appeal for Asst. Year 2017-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and from the assessment order, it is seen that the police seized a sum of Rs. 37,35,000/- on 25.11.2016 during the course of normal vehicle checking. The seizure of the sum of Rs. 37,35,000/- was on 25.11.2016 from Sri Anthati Balakrishnan, Sri Mallam Narsimha and Mallam Ganesh Goud while travelling in Vehicle No. AP-24-BM-4122. It was stated by Sri Anthati Balakrishnan that the cash being carried belongs to him and the source of the same was sale from M/s. Durgamata Wines whose Proprietor was Naresh Vudayagiri i.e. the appellant. However as the possessors of the cash could not produce any receipt or valid source, the amount was seized by the police and the information was shared with the Income Tax Department. On basis of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of Rs. 37,35,000/- as additional income for A.Y. 2017-18. From the above, it is clear the appellant after four days of cash seizure by the police had given a statement and had admitted the seized cash of Rs. 37,35,000/- as his additional income on account of suppressed liquor sales. However, the cash book of the appellant is not reliable. From the assessment order, it is seen that as per the cash book submitted by the AR during the assessment proceedings, the opening cash balance as on 01.04.2016 was NIL, whereas as per the return of income for A.Y. 2016-17 filed by the appellant and as per the books of account audited the cash in hand as on 31.03.2016 was Rs. 76,458/-. Similarly there was a difference in closing cash balance as on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... look through the transactions thus, highlighting the 'substance over form'. It is clear from the assessment order that the appellant had adopted a suspect modus operandi which has been described in detail in the assessment order. There are a plethora of case laws which are relevant in the matter of establishing the settled proposition of law that the income tax liability is ascertained on the basis of materials available on record, the surrounding circumstances, the relevant human conduct and the overall balance of probability. Reliance is placed on: a. Sumati Dayal Vs CIT (1995) 80 Taxmann 89 (SC) It is no doubt true that in all cases in which a receipt is sought to be taxed as income, the burden lies upon the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant after the event. We are, therefore, unable to agree with the view of the Chairman in his dissenting opinion. In or opinion, the majority opinion after considering the surrounding circumstances and applying the test of human probabilities has rightly concluded that the appellants claim about the mount being her winnings from races is not genuine. It cannot be said that the explanation offered by the appellant in respect of the said amounts has been rejected unreasonably and that the finding that the said amounts are income of the appellant from other sources is not based on evidence. b. CIT, WB-II Vs Durga Prasad More (1971) 82 ITR 540: As laid down by this court the apparent must be considered the real until it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. The confirmation documentation remains mere documents and self serving, and they fail as evidence. In the case of DCIT Vs Smt. Phoolwati Devi (2009) 314 ITR (AT) 1 (Delhi) the Hon'ble judges have observed at page 9 that In our opinion, despite the documentation supporting the claim of the assessee superficially, the evidence cannot be accepted in view of the surrounding circumstances and human probabilities It is seen that merely documenting transaction do not render them genuine, more so in the face of overwhelming findings that they have been and are established to be make-believe. A taxing authority has always to give precedence of substance over form, and is not bound to recognize a transaction merely because it may have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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