Versusthe Asst. Commissioner Of Income Tax v. Bakre, Jj.-Date:21St February, 2012

IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 12 OF 2011 SMT. MAYADEVI K. AGRAWAL VersusTHE ASST. COMMISSIONER OF INCOME TAX ... Appellant... Respondent Shri. Ashok Kumar with Mr. Rivonkar, Advocate for the Appellant.Mrs. Asha Dessai, Advocate for the Respondent. P.C.:- -Coram:S. C. DHARMADHIKARI &U. V. BAKRE, JJ.-Date:21st February, 2012 The appeal is directed against the order of the Income TaxAppellate Tribunal (I.T.A.T.) dated 15/02/2011 in Income TaxAppeal no.144(PNJ)/ 2008. 2. The learned counsel appearing on behalf of the appellant submitsthat the question of law framed in the memo of appeal wouldsquarely arise in consideration and determination of this appeal. Hesummarized that the amount to the extent of Rs. 24,00,000/-, whichis stated to be recovered during search and raid has been dulyaccounted for and explained. It is received from the father of theassessee. The books of account were also produced. Once theywere produced and the entries were explained, then, the presumptionthat is contemplated by Section 132(4A) of the Income Tax Act,1961and section 292C of the said Act, would have to be raised. There is arebuttal as permissible in law. However, rebuttal of the entries in thebooks and what is stated therein, cannot be on the basis of thedocuments produced by the assessee to the extent thereof. In such circumstances, even Section 69A could not have been invoked bydetermination by assessing the money as unexplained. 3. It is not possible to accept these contentions of the learnedcounsel. On careful perusal of the order of I.T.A.T. impugned in thisappeal, it would be clear that search was conducted and cash wasfound in possession of Smt. Mayadevi Agrawal and Shri KrishnaKumar Agrawal, the assessees. Shri Krishna Kumar Agrawal'sstatement was recorded on 19th October,2005. Upon inventory ofcash seized, the sum ascertained was Rs.34 lakhs. It was stated byKrishna Kumar Agrawal that cash found includes the amount that hasbeen kept with him in safe custody by his father G.N. Agrawal whenhe left for foreign trip. Thereafter, the second statement of theassessee was recorded. The assessee further explained that sum ofRs.10 lakhs was kept by Mr. Shrivardhan Mohta, President of Bhasker Education Society, Kolkatta. 4. Before us the learned counsel appearing for the appellant, doesnot dispute the findings of I.T.A.T. in so far as the sum of Rs.10lakhs is concerned. However, the argument is raised in relation to thesum stated to have been kept by the father of the assessee with hisdaughter-in-law. The statements, which are referred to by theTribunal, include the answer to the specific question. The finding ofthe fact that is recorded by the tribunal on scrutiny of the entirefactual material is that the sum of Rs. 25 lakhs were given for beingkept in safe custody. However, Krishna Kumar Agrawal in answer toquestion no. 3 stated that money is given to the son for the purpose ofany usage that he may find necessary. In other words, the money wasgiven for son's requirements. The appellant or the father never statedthe exact date of giving this amount, but from the records it is clearthat the father of the assessee left for U.K. on 07/08/2005 andreturned on 15/08/2005, whereas action against them under Section 132 of the Income Tax Act was taken much later on 18/10/2005. Theappellant, who claimed to have maintained books of accounts has notshown in his books any such entry of receipt of cash from his fatherG.N. Agrawal. The extract of cash book of Shri G.N. Agrawal laidon record shows opening balance of Rs. 26,50,204/- and thereafter,till the date of search on 19/10/2005, there are two meagerwithdrawals entries of Rs. 16,641/- each on 20/04/2005. Thus, thesubstance with regard to this opening cash balance is not to be foundeven in the books and the father was unable to explain the version ofthe son that the sum of Rs. 25 lakhs was handed over to him duringthe course of the foreign trip. 132 of the Income Tax Act was taken much later on 18/10/2005. Theappellant, who claimed to have maintained books of accounts has notshown in his books any such entry of receipt of cash from his fatherG.N. Agrawal. The extract of cash book of Shri G.N. Agrawal laidon record shows opening balance of Rs. 26,50,204/- and thereafter,till the date of search on 19/10/2005, there are two meagerwithdrawals entries of Rs. 16,641/- each on 20/04/2005. Thus, thesubstance with regard to this opening cash balance is not to be foundeven in the books and the father was unable to explain the version ofthe son that the sum of Rs. 25 lakhs was handed over to him duringthe course of the foreign trip. 5. To our view, it is clear instance of the statement made andrecorded, so also the answer to specific question and the entire recordthat the Tribunal concludes with the presumption that the amountstated in the books of account has not been handed over by the father,but belongs to the assessee, has been withdrawn. Thus, it is clear thatthe assessee was found in possession of cash. Therefore, this is thecase where the presumption stands rebutted on the basis ofdocuments, which were produced by the assessee. The argument thatthe presumption cannot be on the basis of the assessee's records onlyis not correct because the documents that are produced include thebooks of the father. In this circumstances, with totality of theevidence placed on record enabled the Tribunal to draw theconclusion that, what the Assessing Officer has done, is a correctexercise and his conclusions are warranted by law which are alreadyconfirmed in the earlier round of appeal which in our opinion is inextent of law and particularly in special provisions. This is nothingbut an attempt to re-appreciation of evidence on the factual merit andthe conclusion drawn in the paragraphs 5 to 7 of the order of theI.T.A.T., which is not permissible in law. In the result of the abovediscussion and findings that no question arises for determination and consideration of this appeal. This appeal is dismissed with no orderas to costs. S. C. DHARMADHIKARI, J. mv U. V. BAKRE, J.