Commissioner Of Income Tax, Karnal v. Balbir Singh Mohinder Singh

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH I.T.A. No. 203 of 2009 (O&M) Date of decision: November 5, 2009 Commissioner of Income Tax, Karnal ...Appellant Versus Balbir Singh Mohinder Singh ...Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Sukant Gupta, Advocate, for the appellant. ORDER 1. This revenue has preferred this appeal under Section 260A ofIncome Tax Act, 1961 (for short, “the Act”) against the order of the IncomeTax Appellate Tribunal, Delhi Bench “I” New Delhi in IT (SS) No.381/Del/2005 dated 31.8.2007 for the block period 1997-98 to 2003-04,proposing to raise the following substantial questions of law:- “Whether on the facts and in the circumstances of the case, thefinding recorded by the Ld. I.T.A.T. are perverse and contraryto evidence and statements of parties on record ? Whether on the facts and in the circumstances of the case, theLd. I.T.A.T. Was right in law in allowing the appeal of theassessee thereby deleting the addition of Rs. 1,60,000/- madeby the Assessing Officer and confirmed by the CIT (A) ?” 2.During the course of checking by the police, cash was foundwith the respondent, which was seized under Section 132 of the Act. The I.T.A. No. 203 of 2009 same was followed by the assessment under Section 158BC/BD for blockperiod 1997-1998 to 2003-2004 and declaration of the amount asundisclosed income. The CIT (A) partly allowed the appeal of therespondent but the Tribunal accepted the explanation in entirety and heldthat the amount was not undisclosed income. The observations of theTribunal are as under:- “...In the present case the assessee has satisfactorily explainedthe source of money recovered from him. At the same time it isclear from a reading of Section 69 that before the amount issaid to be unexplained and is added as income of the assessee,opportunity should be provided to the assessee to explain thesource. The assessee's income is to be assessed by theassessing officer on the basis of material which is required tobe considered for the purpose of assessment and ordinarily noton the basis of the statement of third party unless and untilthere is a material to corroborate that statement. The mere factthat one of the accomplish tendered inconsistent statement thatitself cannot be treated as having resulted in an irrebuttablepresumption against the assessee specially when in the receiptseized alongwith the money names of these persons arementioned, the statements of these persons were duly recordedand they were examined by the assessing officer. Now, underthis situation, it can be said that burden shifted to the revenue.For this proposition, we can draw support from the decision inthe case of CIT Vs. N.Swamy (241 ITR 363 ) (Mad) and thedecision in CIT Vs. Daya Chand Jain Vaidya (98 ITR 280)the source of money recovered from him. At the same time it isclear from a reading of Section 69 that before the amount issaid to be unexplained and is added as income of the assessee,opportunity should be provided to the assessee to explain thesource. The assessee's income is to be assessed by theassessing officer on the basis of material which is required tobe considered for the purpose of assessment and ordinarily noton the basis of the statement of third party unless and untilthere is a material to corroborate that statement. The mere factthat one of the accomplish tendered inconsistent statement thatitself cannot be treated as having resulted in an irrebuttablepresumption against the assessee specially when in the receiptseized alongwith the money names of these persons arementioned, the statements of these persons were duly recordedand they were examined by the assessing officer. Now, underthis situation, it can be said that burden shifted to the revenue.For this proposition, we can draw support from the decision inthe case of CIT Vs. N.Swamy (241 ITR 363 ) (Mad) and thedecision in CIT Vs. Daya Chand Jain Vaidya (98 ITR 280) I.T.A. No. 203 of 2009 (All).” 3.We have heard learned counsel for the appellant. 4.The above finding of the Tribunal has not been shown, in anymanner, to be perverse. The questions proposed cannot be held to besubstantial questions of law. 5.The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE November 5, 2009 prem (GURDEV SINGH ) JUDGE