SMT. MAYADEVI K. AGRAWAL vs. THE ASST. COMMISSIONER OF INCOME TAX

It is not possible to accept these contentions of the learned counsel. On careful perusal of the order of I.T.A.T. impugned in this appeal, it would be clear that search was conducted and cash was found in possession of Smt. Mayadevi Agrawal and Shri Krishna Kumar Agrawal, the assessees. Shri Krishna Kumar Agrawal's statement was recorded on 19th October,2005. Upon inventory of cash seized, the sum ascertained was Rs.34 lakhs. It was stated by Krishna Kumar Agrawal that cash found includes the amount that has been kept with him in safe custody by his father G.N. Agrawal when he left for foreign trip. Thereafter, the second statement of the assessee was recorded. The assessee further explained that sum of Rs.10 lakhs was kept by Mr. Shrivardhan Mohta, President of Bhasker Education Society, Kolkatta.

Before us the learned counsel appearing for the appellant, does not dispute the findings of I.T.A.T. in so far as the sum of Rs.10 lakhs is concerned. However, the argument is raised in relation to the sum stated to have been kept by the father of the assessee with his daughter-in-law. The statements, which are referred to by the Tribunal, include the answer to the specific question. The finding of the fact that is recorded by the tribunal on scrutiny of the entire factual material is that the sum of Rs. 25 lakhs were given for being kept in safe custody. However, Krishna Kumar Agrawal in answer to question no. 3 stated that money is given to the son for the purpose of any usage that he may find necessary. In other words, the money was given for son's requirements. The appellant or the father never stated the exact date of giving this amount, but from the records it is clear that the father of the assessee left for U.K. on 07/08/2005 and returned on 15/08/2005, whereas action against them under Section 132 of the Income Tax Act was taken much later on 18/10/2005. The appellant, who claimed to have maintained books of accounts has not shown in his books any such entry of receipt of cash from his father G.N. Agrawal. The extract of cash book of Shri G.N. Agrawal laid on record shows opening balance of Rs. 26,50,204/- and thereafter, till the date of search on 19/10/2005, there are two meager withdrawals entries of Rs. 16,641/- each on 20/04/2005. Thus, the substance with regard to this opening cash balance is not to be found even in the books and the father was unable to explain the version of the son that the sum of Rs. 25 lakhs was handed over to him during the course of the foreign trip.

To our view, it is clear instance of the statement made and recorded, so also the answer to specific question and the entire record that the Tribunal concludes with the presumption that the amount stated 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 that the assessee was found in possession of cash. Therefore, this is the case where the presumption stands rebutted on the basis of documents, which were produced by the assessee. The argument that the presumption cannot be on the basis of the assessee's records only is not correct because the documents that are produced include the books of the father. In this circumstances, with totality of the evidence placed on record enabled the Tribunal to draw the conclusion that, what the Assessing Officer has done, is a correct exercise and his conclusions are warranted by law which are already confirmed in the earlier round of appeal which in our opinion is in extent of law and particularly in special provisions. This is nothing but an attempt to re-appreciation of evidence on the factual merit and the conclusion drawn in the paragraphs 5 to 7 of the order of the I.T.A.T., which is not permissible in law. In the result of the above