Chander-Mohan Mehta vs Assistant Commissioner Of Income Tax ... on 13 January, 1999
In view of the aforesaid decision, it was submitted by him that the contents of loose paper found in the course of survey should be accepted in toto and the fact that the assessee has borrowed money from the persons as mentioned in the loose paper should be accepted. Secondly-it was contended that the provisions of s. 68 cannot be applied to the facts of the present case since the loose papers found in the course of survey cannot be considered as books of account maintained by the assessee in view of the decision of Tribunal Pune Bench in the case of Kantilal & Bros v. Assistant Commissioner(1995) 52 ITD 412 (Pune). According to him, the loose paper was never meant for disclosing to the IT authorities and, therefore, the contents of the loose paper are to be accepted in toto unless the department brings in material on the record to disprove the case of the assessee. Thirdly-it was his. contention that the provisions of Chapter XIV-B provide for assessment of undisclosed income. See. 158BA being charging section to assess the undisclosed income, the burden is on the Revenue to prove the undisclosed income of the assessee by bringing positive material on the record. According to him, not even a single material has been brought on record to prove that borrowings mentioned in the loose paper amounted to undisclosed income of the assessee. The assessment is purely on the basis of surmises and conjunctures. Fourthly-his submission was that if the statement of the assessee is rejected in toto, then the loose paper found from the premises of the assessee would be a dump paper and no inference can be drawn on the basis of such paper, because even the name of the assessee is not written on the loose paper. It is not clear from the loose paper whether it pertains to money-lending business. The amounts shown against the names of persons are very small amounts whidh may not even exceed Rs. 20,000 in aggregate. Fifthly-even assuming that onus was on the assessee to prove the genuineness of the borrowing, no fault can be found with the assessee. It was only in the beginning of February, 1997, that assessee was asked to file the confirmation from the creditors and a very short time of 8 days was given to file the confirmation. The assessee furnished all the confirmations before the assessing officer and thereafter nothing was asked from the assessee. To test check the genuineness of the confirmations, the assessing officer of his own issued summons to 9 persons who appeared before him and their statements were recorded under section 131 These 9 persons confirmed before the assessing officer that they had lent the money to the assessee on interest at the rate of 24 per cent per annum. Since nothing further was asked from the assessee, he was under the bona fide impression that the confirmations filed by him were accepted by the assessing officer. But, to his surprise, he received the assessment order wherein the entire borrowings had been rejected on flimsy grounds. According to Mr. Pathak, the onus which lies on the assessee has been duly discharged and the same were shifted to the assessing officer for disproving the stand of the assessee. According to him, not even a single material has been brought on record to suggest that confirmations filed by the assessee were false or bogus. In support of his contention that no addition can be made if primary burden is discharged, the reliance was placed by him on the following decisions :