9911796707
TMI Blog1992 (8) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ohana ". On verifying the bank passbook, the Assessing Officer found that the bank made payment of this cheque to the assessee on 12-11-1973. It was further noticed that on 9-11-1973, the opening cash balance with the assessee was only Rs. 1,903.18 and the total cash available on that day including the aforesaid amount of Rs. 1,10,000 stood at Rs. 1,21,955.88. The assessee had made payments of Rs. 1,08,645.80 on 9-11-1973 and the closing cash balance was shown at Rs. 12,310.08. It was thus noted that the assessee had utilised the aforesaid sum of Rs. 1,10,000 on 9-11-1973. The assessee filed letter dated 19-7-1978 from the then Manager of the Punjab National Bank, namely, Shri O. P. Gupta in which it was submitted that he in his discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Shri Gupta had nowhere disowned the said letter. It was also submitted that Shri Lakhi Ram Cashier was also examined by the Assessing Officer before whom he stated that the payment in fact was made on 9-11-1973. It was also submitted that 10th and 11th November, 1973 fell on holidays and in the bank's record payment of Rs. 1,10,000 to the assessee was shown as the first transaction of payment on 12-11-1973. It was, therefore, argued that there was no case for levy of penalty for concealment of income in this case. 4. The other legal submissions made by the learned Counsel for the assessee were two fold, namely, (i) that the Assessing Officer had come to a positive finding that the assessee had deliberately and consciously concealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alone reasonably could discharge the same. It was submitted that such onus had not been discharged in this case. Relying on the decision of the Punjab and Haryana High Court in the case Shiv Narain Khanna v. CIT [1977] 107 ITR 542 it was submitted that there was no basis for the assumption that some additional material should always be available for the levy of penalty in addition to the material on which the assessment was made and that the very same material could form the basis of assessment and penalty, depending on the facts and circumstances of the case. Reliance was also placed on the Punjab and Haryana High Court decision in the case of Kedar Nath Sanwal Dass v. CIT [1978] 111 ITR 440 for the proposition that finding given in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard is the letter dated 19-7-1978 signed by Shri O. P. Gupta, the then Manager of the Punjab National Bank. This evidence would have been of great value if in cross-examination the said Shri O. P. Gupta had stood by it. On the contrary, he took a different stand before the Assessing Officer and submitted a statement which tallied with the records of the Bank and not with the contents of his letter aforesaid. The addition of Rs. 1,10,000 has already been confirmed by the Tribunal vide order dated 19-8-1985 with the following observations : " 8. We have given our careful consideration to the rival submissions. We are unable to sustain the order of CIT(A). The CIT (A) has mainly relied on the letter dated 19-7-1978 issued by Shri O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established procedure of the bank. His statement that he did not take note of the date 12-11-1973 put by the Manager under his signature is unbelievable. The story put by him that the peon had changed the date to 12-11-1973 on 9-11-1973 is also unbelievable. The rubber stamp putting the dates, as pointed out by the ITO, is a very important item from the angle of a cashier and it could not be changed by the peon at his will even three days before the date of occurrence. Taking into consideration the totality of the circumstances of the case as discussed above, we are unable to sustain the order of the CIT (A). The same is reversed and that of the ITO is restored. " 7. As held by the jurisdictional High Court in the cases of Shiv Narain Kha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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