COMMISSIONER OF INCOME-TAX Vs. MAULIKKUMAR K. SHAH

JUDGEMENT

(1.) THE following question has been proposed for admission of this appeal: Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the Commissioner of Income -tax (Appeals) deleting the addition made on account of 'on -money' receipt ?

(2.) THE short controversy raised in this question is whether there should be addition on the basis of an amount mentioned on loose papers along with rates per sq.ft. of different floors. The Tribunal has considered this aspect as under:

(3.) IN his statement recorded under Section 132(4), Shri Kiritbhai K. Shah, denied to have charged any 'on -money'. We find that the notings on the seized diary found from the premises of Kiritbhai K. Shah is the only material on the basis of which the Assessing Officer has made the impugned additions. The Assessing Officer has not brought any corroborative material on record to prove that such sales were made and 'on -money' was received by the assessee outside the books of account. The Assessing Officer has not examined any purchaser to whom the sales of shops were effected. Onus heavily lay on the Revenue to prove with corroborative evidence that the entries in the seized diary actually represent the sales made by the assessee. Such onus has not been discharged by the Revenue. We are of the considered view that mere entries in the seized material are not sufficient to prove that the assessee has indulged in such a transaction. It is well -settled that if certain documents were found from the possession of the assessee during the course of search operation, burden lies on the assessee to explain the nature of transactions recorded in the said seized material. The assessee is duty bound to explain discrepancy, if found, on the basis of seized materials vis -a -vis books of account. But when the assessee furnishes explanation which sought to be supported by evidence, the burden is shifted to the Revenue to establish that the explanation of the assessee is false.