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2004 DIGILAW 848 (PNJ)

Commissioner Of Income Tax v. Vinod Viyogi

2004-08-06

ADARSH KUMAR GOEL, N.K.SUD

body2004
Judgment N.K.Sud, J. 1. This appeal is directed against the order of the Income-tax Appellate Tribunal, Chandigarh, Bench B, Chandigarh (for short "the Tribunal"), dt. 26th Aug., 2003 whereby the addition made by the AO amounting to Rs. 14.20 lakhs on account of unexplained cash, has been deleted. 2. The premises of the assessee were searched under Section 132 of the IT Act, 1961 (for short "the Act"), on 7th Sept., 1995. During the course of search, besides other things, a sum of Rs. 14.20 lakhs in cash was seized from the residence of the assessee. The assessee claimed that the source of cash was out of cash in hand available with him. It was explained that as per the seized record itself, he had a cash in hand of Rs. 49,05,541 as on 4th Sept. 1995 as per pp. 117 to 118 of the seized document A-35, seized during the search. This document also shows that he had paid a sum of Rs. 4 lakhs to Mr. B. Syal on 4th Sept., 1995. Thus, according to the assessee, the cash in hand available with him on the date of search was much more than Rs 14.20 lakhs. The AO did not accept this contention and made the addition of Rs. 14.20 lakhs as unexplained cash. 3. The Tribunal, after appraising the seized material, has found that the assessee had correctly pointed out that he had sufficient cash in hand on the date of search to cover the amount of Rs. 14.20 lakhs seized during the search. The relevant findings are recorded as under : "........ After hearing the rival submissions, we find that seized document A-35 reads as under : 4-9-1995 19,05,541 4-9-1995 To Gurgaon for HO by cash 30,00,000 Reg Hari Ram ____________ 49,05,541 30-14 @6.75 To B. Syal 4,00,000 From the statement recorded and the document seized at the time of search, we find that the assessee was having cash in hand more than Rs. 14.20 lakhs. Therefore, source of Rs. 14.20 lakhs was out of the cash in hand available with the assessee as given in the document seized at the time of search. The AO cannot be permitted to adopt the pick-and-choose policy and make the addition, ignoring the document which was seized from the possession of the assessee and which clearly reflected the cash in hand. 14.20 lakhs was out of the cash in hand available with the assessee as given in the document seized at the time of search. The AO cannot be permitted to adopt the pick-and-choose policy and make the addition, ignoring the document which was seized from the possession of the assessee and which clearly reflected the cash in hand. Even the AO has not brought on record any iota of evidence which may prove that this amount had already been spent by the assessee by the time the search was conducted at the premises of the assessee. Even no document/books were found at the time of search which may prove the outflow of the said amount available with the assessee. In our opinion, the assessee is not required to furnish any other further document or evidence to prove the source of the said cash seized. The onus was on the Revenue to prove that the cash was not available with the assessee. The Revenue has not discharged its burden of proof in this case. Thus, we hold that the AO was not justified in making the impugned addition. Accordingly, we set aside the order of the AO and direct him to delete the impugned addition of Rs. 14.20 lakhs." A perusal of the above clearly shows that the findings recorded by the Tribunal are based on an appraisal of the evidence on record, in which no infirmity has been pointed out. 4 In view of the above, we are satisfied that no substantial question of law arises out of the order of the Tribunal for interference by this Court. Dismissed.