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1981 (3) TMI 66

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..... he assessee was shown to have won. The ITO, therefore, came to the conclusion that the winnings shown by the assessee were not really made by, him and added the amount of Rs. 92,575 as income of the assessee from undisclosed sources. On a scrutiny of the account books of the assessee the ITO also found several credits in the names of Multani bankers, the net peak of which came to Rs. 1 lakh. The ITO held that these cash credits have not been proved and added the sum of Rs. 1 lakh as the income of the assessee from undisclosed sources. The assessee preferred an appeal to the AAC who was of the opinion that there was no admission by the assessee that the amounts standing in the account of Majula (P.) Ltd. related to him. With reference to the sum of Rs. 10,000 standing in his own personal account, the AAC held that the assessee had not proved the genuineness of the alleged loan. He, therefore, upheld the addition of Rs. 10,000 only and deleted the balance of Rs. 90,000. As regards the winnings from the races, the AAC remanded the matter to the ITO to re-examine the books of Shri Chakraborty and obtain complete particulars regarding the persons who had lost their bettings on the s .....

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..... days and lost only on one day, and that a sum of Rs. 11,225, when the winnings on all other days were much more. It was next pointed out that as the ITO had strong enough material to discredit the accounts of Shri Chakraborty, the burden against him shifted on to the assessee to prove the genuineness of the suspected entries. But then the assessee did not produce the accounts for further scrutiny, not even Shri Chakraborty for further examination. Instead, an affidavit of Shri Chakraborty was produced to the effect that the accounts had all been lost in a theft on the night of 21st November, 1965. The AAC's effort to get at Shri Chakraborty was also in vain, as he could not be traced. In his affidavit, Shri Chakraborty had stated that the theft was reported by him to the police on the morning of 22nd November, 1965, and was registered by the Tollygunge Police as Case No. 618. When the assessee furnished the affidavit of Sri Chakraborty and placed reliance thereon, it was very much for him to have produced the deponent before the ITO for cross-examination to test the veracity of what he had sworn to. It transpires from the deposition of Sri Chakraborty taken in connection with an .....

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..... d that the sum of Rs. 92,575 represented the assessee's undisclosed income and that the assessee merely created a facade in the form of bank account operated by Shri K. N. Chakraborty for inducing the said concealed income? (ii) Whether the aforesaid finding and/or conclusion arrived at by the Tribunal was perverse in the sense that no reasonable man would come to it on the material on record and that the said conclusion was based on conjectures, surmises and suspicion and on a failure to consider the relevant evidence on the record ? (iii) Whether there was any evidence and/or material to support the finding of the Tribunal that the sum of Rs. 10,000 represented the income of the assessee from undisclosed sources and that the said conclusion was perverse ?" It was contended at the outset on behalf of the assessee that the assessee did not like to press question No. (iii). So, we decline to answer question No. (iii). As regards questions Nos. (i) and (ii) Dr. Pal contends that it was the specific finding of the Tribunal that the assessee was successful in discharging the initial onus which lay on it, but still then the Tribunal came to the conclusion simply on conjectures a .....

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..... his matter by calling Shri K. N. Chakraborty u/s. 131. But the summons came back with the post remark 'Left'. It is understood that Shri K. N. Chakraborty is not traceable at the moment. In the course of my personal enquiries I also came to know that certain gross irregularities had been detected in the books of account of Shri K. N. Chakraborty for the year 1968-69. On the basis of enquiries a prima facie case of bogus betting and bogus payment of prize money was discovered against the bookmaker, Shri K. N. Chakraborty. It was found that Shri Chakraborty was normally accepting bets of Rs. 40 to Rs. 100 but in two cases he had accepted bets of Rs. 1,000 each. Subsequently, the licence of Shri Chakraborty was cancelled by the RCTC, whereafter Shri Chakraborty's whereabouts are not known. I have already observed that the ITO found serious defect in the account books of Shri Chakraborty, namely, that some person had lost on the same horses on which the appellant had won. In the grounds of appeal submitted in writing, the appellant had not challenged this particular finding of the ITO. As an appellate authority could have given a finding in favour of the appellant only if this particul .....

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..... he records of RCTC has no relevance in this connection. Since the credit is in the appellant's books, u/s. 68, it was his responsibility to prove its genuineness to the hilt. This he has failed to do. In such circumstances, the ITO was within his rights to treat it as his concealed income. It is also immaterial that the payment of race money was by cheques. I wanted to examine the genuineness of the deposits in the bank a/c. of Shri K. N. Chakraborty out of which the amounts were paid to the appellant. But I am informed by the learned counsel for the appellant that the bank a/cs. were stolen along with other books of a/c. Since Shri K. N. Chakraborty himself is untraceable, it would serve no purpose to call for his bank a/cs. from banks. His presence was necessary to explain the deposits preceding the issue of cheques to the appellant. In view of those circumstances, I uphold the finding of the ITO that Shri Chakraborty had accommodated the appellant in respect of introduction of his concealed income to the extent of Rs. 92,575 by bogus entries in his books of account. The addition of Rs. 92,575 is therefore sustained." It may be mentioned in this connection that Shri Chakraborty .....

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..... the Tribunal should be read as a whole to determine whether every material fact, for and against the assessee, has been considered fairly and with due care: whether the evidence pro and con has been considered in reaching the final conclusion and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice and that, reading the order of the Tribunal it makes it sufficiently clear that in considering the possibilities properly arisen from the facts alleged or proved, the Tribunal did not indulge in conjecture, surmise or suspicion. Reliance is also placed on the decision of the Supreme Court in the case of Homi Jehangir Gheesta v. CIT [1961] 41 ITR 135. Thus, on the evidence and facts and circumstances, we are in agreement with Mr. Sen that the earnings on the races on the dates claimed by the assessee could have been verified from the betting register of Shri K. N. Charkraborty, but that was not available for verification. It may be mentioned that at the initial stage some discrepancies were found in the books of account and as such the ITO had considered those entries as bogus. According to Mr. Sen, because of this nature .....

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