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TMI Blog1981 (8) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ed he (the donee) had deposited the said amount of Rs. 20,000 in his savings Bank Account No. 1347 with the State Bank of Bikaner Jaipur, Chippa Barod on that very date i.e. 30th Oct., 1975. The said gifted amount according to the accumulation of her agricultural income in respect of 15 bighas agricultural land. The GTO after investigation which involved examination of the witnesses etc., including the saving Bank Account of the donee Radhey Shyam, the Bearer Cheque No. L 061651 dt. 30th Oct., 1975 by the assessee firm on the aforesaid State Bank of Bikaner Jaipur, the pay-in-slip for the deposit of Rs. 20,000 filed in by Shri Ram Gopal the father of the donee for deposit of that amount in the Saving Bank Account of the donee aforesaid mentioned and the other documents of the said Bank came to the conclusion that the said donor Smt. Jadav Bai did not have the capacity to gift the aforesaid amount of Rs. 20,000 to Radhey Shyam and that the aforesaid amount of Rs. 20,000 deposited in the aforesaid account of the donee represented the amount of Rs. 20,000 withdrawn by the assessee firm on 30th Oct., 1975 on the strength of the aforesaid Bearer Cheque No. L 061651. The alleged gift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am u/s 132 of the Act. He also looked into the aforesaid Cheque No. L 061651 dt. 30th Oct., 1975 issued by the assessee firm, the same having been signed by Sri Daud Bhai and considered the facts (Sri Daud Bhai went to the Bank to collect the amount of Cheque the issuance of token No. 5 (not No.4) as wrongly stated by the ITO) the pay-in-slip signed by Shri Ram Gopal, the father of Shri Radhey Shyam for the deposit of Rs. 20,000 in Bank A/c No. 1347 of the latter, the entries in the payment scroll of the Bank regarding the payment of Rs. 20,000 by the aforesaid Bank in respect of the aforesaid bearer Cheque issued by the assessee-firm to Sri Daud Bhai, the receipt scroll regarding the deposit of Rs. 20,000 by Shri Radhey Shyam through his father Ram Gopal and the statement of Shri G.L. Gupta, the Manager of the said Bank on 27th Nov., 1978 (who was admittedly examined at the back of the assessee as is clear from the order sheet of the ITO of even date). On the basis of the material so collected and examined the ITO came to the conclusion that Smt. Jadav Bai did not have the capacity to gift the aforesaid amount of Rs. 20,000 to Shri Radhey Shyam and that the amount of Rs. 20,000 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aud Bhai, Partner of the firm, who had gone to the Bank for withdrawal of the money, does not figure in cash memo Col. of payments scroll maintained by the cashier. A perusal of the cashier's Register also reveals that the denomination notes allegedly deposited by Sri Radhey Shyam have not been mentioned. Although the said description has been given in all other transaction of the same day as well as of some other dates. That obviously leads to the conclusion that the amount withdrawn by the firm from its Bank Account was used for depositing in the account of Shri Radhey Shyam and similar amount credited in the books of account of the appellant firm represents its income from undisclosed sources. 7. Before we refer the arguments canvassed by the ld. counsel for the assessee Mr. N.M. Ranka and the Deptl. Rep. we have first to decide regarding the admissibility or otherwise of various documents appearing in the paper book filed by the assessee and the paper-book filed by the revenue. In so far as paper-book No. 1 filed by the assessee covering pages 1 to 22 is concerned, the Deptl. Rep has urged that the letter of the Manager of State Bank of Bikaner Jaipur dt. 3rd Dec., 1979 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration of the said evidence. In so far as the document at p. 2 of the paper-book filed by the revenue i.e. letter dt. 13th Aug., 1977 addressed by the Manager of the State Bank of Bikaner Jaipur to the ITO, Special Survey Circle dt. 13th Aug., 1977 is concerned, the same is also to be excluded from our consideration for deciding the present appeal. This letter was addressed by the said Manager to the GTO assessing Smt. Jadav Bai and not to the ITO assessing the assessee. This letter was also not put to the assessee by the ITO/AAC in the course of the assessment/appeal proceedings. We held likewise. 10. After having cleared the above controversy, we now come to the arguments canvassed by the parties before us. The ld. counsel for the assessee, Mr. Ranka has strenuously urged that the tax authorities had filed to prove as sought to be made out that the amount of Rs. 20,000 withdrawn by the assessee-firm on 30th Oct., 1975 on the strength of Cheque No. L 061651 was used twice ever firstly by bringing that amount in the cash-book of the assessee dt. 30th Oct., 1975. and secondly by utilising the same in the deposit of the identical amount in the saving bank account of Shri Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200 notes of Rs.100 each was sought to be made by the tax authorities utilising for deposit in the saving bank account of Shri. Radhey Shyam in the said bank account No. 1347 dt. 30th Oct., 1975, According to Mr. Ranka, the assessee was not concerned as to how and where from Shri Radhey Shyam secured the said sum of Rs. 20,000 though the said sum according to it (the assessee) was nothing but the amount received in cash by gift by him (Shri Radhy Shyam) from Smt. Jadav Bai as witnessed by the gift deed of even date (30th Oct.,, 1975) at p.1 of the paper-book filed both by the assessee and the revenue. According to Mr. Ranka Smt. Jadav Bai had the capacity to gift that amount to Shri Radhey Shyam inasmuch as she had accumulated substantial amount which was more than Rs. 20,000 by way of Agricultural income from the agricultural land held by him. Mr. Ranka further urged that since the amount of Rs. 20,000 is shown by the State Bank of Bikaner Jaipur to have been paid on the strength of the aforesaid Cheque No. L 061651 dt. 30th Oct.,, 1975, in the shape of 200 notes of Rs. 100 each as brought out above which fact was duly supported by the entries on the aforesaid cheque and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 20,000 and did not make of gift of Rs. 20,000 to Shri Radhey Shyam. The tax authorities according to him have grossly erred in holding that the assessee had undisclosed income of Rs. 20,000 brought out in the cash book dt. 30th Oct., 1975 as there was no evidence on record to prove that the cash entry of Rs. 20,000 in the cash book of the assessee dt. 30th Oct., 1975 was nothing but the amount of Rs. 20,000 withdrawn in the shape of 200 notes of Rs. 100 each from the State Bank of Bikaner Jaipur on the strength of the aforesaid bearer Cheque No. L 061651 and cash by the assessee through its partner Shri Daud Bhai. There was no evidence and material on record to prove that this amount of Rs. 20,000 received by the assessee from the bank through its partner Shri Daud Bhai in the shape of 200 notes of Rs. 100 each was utilised in the deposit of the sum of Rs. 20,000 in the saving bank A/c No. 1347 of Shri Radhey Shyam when the intrinsic evidence on record matter disproves the cash of the revenue in that behalf, the amount having been received by the assessee from bank in the shape of 200 notes of Rs. 100 each and the deposit in the aforesaid account of Shri Radhey Shyam being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the ITO as the income of the assessee from undisclosed sources on the basis of the facts and circumstances of the case and the material on record and upheld by the AAC was perfectly justified. In support of his arguments Mr. Choudhury relied upon the evidence on record and the original cheque drawn by the assessee firm on 30th Oct., 1975, the original pay-in-slip of the deposit of Rs. 20,000 in the account of Shri Radhey Shyam, the payment and receipt scrolls of the bank dt. 30th Oct., 1975 produced before us in the course of the argument by the clerk of the Bank as also on the orders of the tax authorities. According to Mr. Choudhury the assessment was validly re-opened as held by the tax authorities. He also supported the order of the AAC upholding the addition of Rs. 500 under the head travelling and shop expenses. 13. We have given consideration to the above arguments. We have gone through the facts and circumstances of the case and the material on record. There are two versions in the present case; one by the assessee that it had issued a bearer cheque on 30th Oct., 1975 (drawn on the State Bank of Bikaner Jaipur) for Rs. 20,000. The said cheque was signed by one of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued by the said cashier the token bearing No. 5 after the formalities for payment of the said amount of Rs. 20,000 mentioned in the cheque were gone into by the bank authorities, Shri Daud Bhai surrendered the said token to the cashier once again signed the Cheque (token No. 5) appears in between the said two signatures of Daud Bhai made in the bank premises and thereafter Daud Bhai was paid by the cashier the sum of Rs. 20,000 in the shape of 200 notes of Rs. 100 each. These facts are also abundantly proved on rendered by the photostat copy of the said cheque at p. 22 of the paper-book filed by the assessee, the endorsement on the said cheque reading "pay cash Sd/-P.C. Goyal, Agent" and "....paid in cash Rs. 20,000 Sd. G.L. Bhargava, Head cashier and the entry in the cashier's payment scroll of the said cheque dt. 30th Oct., 1975,copy thereof appears at p. 3 of the paper-book filed by the Revenue which records under serial No. 3 that in the account of the assessee firm against token No. 5 an amount of Rs. 20,000 was paid to Shri Daud Bhai in the shape of 200 notes of Rs. 100 each. The other facts which are also proved on record are that Shri Radhey Shyam, the son of the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the assessee firm so as to say that that very amount deposited in the aforesaid manner in the aforesaid account of Shri Radhey Shyam. 14. To determine the question posed by us towards the end of the proceeding paragraph we have certain admitted facts. Shri Daud Bhai one of the two partners of the assessee firm was present in the bank premises with the cheque and he withdraw the amount Rs. 20,000 in the shape of 200 notes of Rs. 100 each on the strength of Cheque No. L 061651. Shri Ram Gopal, the father of Shri Radhey Shyam was also present in the bank premises. He filled in the pay-in-slip for deposit of Rs. 20,000 in the account of Shri Radhey Shyam bearing saving bank A/c No. 1347. We have also on record the evidence of Shri G.L. Gupta, the manager of the Said bank recorded on 27th Nov., 1978 at p. 9 of the paper-book filed by the revenue. Shri Gupta in the said statement had stated on oath that Shri Daud Bhai one of the partners of the assessee firm had taken cash payment in the shape of 200 notes of Rs. 100 each totalling Rs. 20,000 in lieu of Cheque No. L 061651 dt. 30th Oct., 1975, drawn by the assessee firm in favour of self and that as per cashier's payment scroll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat being the position, the statement of Shri Gupta and with the aforesaid facts as they emerge from the facts and circumstances of the case and the material or record leads us to conclude that the money, Shri Daud Bhai in the shape of 200 notes of Rs. 100 each never went into the payment made by Shri Ram Gopal of Rs. 20,000 for deposit into the aforesaid account of Shri Radhey Shyam. It is not correct as has been made by the ITO on the strength of letter of the assessee relevant extract whereof appears at p.3 of the assessment order that the contents thereof provides the link to connect the amount withdrawn by Shri Daud Bhai in the shape of 200 notes of Rs. 100 each with the amount of Rs. 20,000 deposited in the aforesaid account of Shri Radhey Shyam on the strength of pay-in-slip filled in and signed by Shri Ram Gopal. It is unfortunate that the vital link in the shape of positive evidence to connect the aforesaid amount of Rs. 20,000 withdrawn by Shri Daud Bhai with the amount of deposited by Shri Ram Gopal in the aforesaid account of Shri Radhey Shyam on one and the same date when both of them were present in the bank premises is wanting to prove that the very amount was deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes of Rs. 100 each paid by bank to Daud Bhai and that the deposit in the said account of Shri Radhey Shyam was by adjustment assuming without admitting lead us, in our opinion, they lead to more suspicion that the amount deposited by Shri Ram Gopal in the account of Shri Radhey Shyam might be the amount withdrawn by the assessee through Shri Daud Bhai. But suspicion, however, strong cannot take the place of proof. We held like-wise. 16. By balancing our findings in paragraph 14 above against what we have stated in the proceeding paragraph the irresistible conclusion is that it is not proved on record as held by the tax authorities that the amount of Rs. 20,000 drawn by the assessee firm through Shri Daud Bhai from the State Bank of Bikaner Jaipur on 30th Oct., 1975 on the strength of the self/bearer Cheque No. L 061651 has been used twice over, firstly by showing as the cash brought in the cash-book of the assessee firm on 30th Oct., 1975 and second time by Shri. Ram Gopal in the aforesaid saving bank A/c of his son utilising it for deposit by Shri Radhey Shyam. Once that conclusion is reached, it has to be further held that the addition of Rs. 20,000 made by AAC to the to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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