TaxTMI 
TaxTMI 
2010 (8) TMI 767
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....in law as well as on facts in affirming the orders passed both by the CIT(A) as well as by the Assessing Officer, which orders are totally illegal and without jurisdiction, while sustaining the addition in the hands of the assessee-appellant. (ii) Whether the notice issued under section 153C of the Act, in the absence of the satisfaction note of the Assessing Officer of the seller, whose premises have been searched and the incriminating material i.e., Ikrarnama, having not been brought on the record and/or confronted to the assessee-appellant, is illegal and without jurisdiction, in view of the judgment rendered by the Hon'ble Supreme Court in the case of Manish Maheshwari v. Asstt. CIT [2007] 289 ITR 341? (iii) Whether the Tribunal has t....
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.... which was Rs. 11,90,000. The source of information was survey under section 133A of the Act on the premises of the firm of the seller on 7-9-2005 by the ADI Wing along with search in the premises of sons of the seller. After due consideration, the Assessing Officer passed order making addition of Rs. 5,34,333 in the hands of the assessee being difference in actual sale consideration and declared sale consideration. This was affirmed on appeal by the CIT(A) as well as by the Tribunal. The finding recorded by the Tribunal is as under:- "In this connection, no doubt the uniform view of the Courts and also held by the Hon'ble Supreme Court in the case of K.P. Varghese v. ITO [1981] 131 ITR 597 is that the burden of proving actual consideratio....
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....search on the seller on 7-9-2005, there is no material to suggest any inconsistency in the stand of the seller in support of the sale consideration of Rs. 11,90,000. The Assessing Officer has referred to the income declared by the seller in his return for the assessment year 2005-06 based on the sale consideration of Rs. 11,90,000. Even during the examination by the Assessing Officer conducted on the directions of the CIT (Appeals) during remand proceedings, the seller confirmed the total consideration at Rs. 11,90,000. Therefore, we are inclined to uphold the stand of the Revenue in this regard. In any case, on the side of the assessee, there is no material to negate the admission made by the seller except the Sale Deed which showed the st....
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....r consideration is on the revenue but the same can shift to the assessee by presumption of law and facts having regard to facts and circumstances of the case. The Assessing Authority may presume existence of facts which may appear to have happened, having regard to common course of events or human conduct in the facts of a particular case. 7. It may be worthwhile to refer to formulation of legal position by the Hon'ble Supreme Court in Kundan Lal Rallaram v. Custodian, Evacuee Property AIR 1961 SC 1316, para 5:- "5. ....The rules of evidence pertaining to burden of proof are embodied in Chapter VII of the Evidence Act. The phrase "burden of proof" has two meaning-one the burden of proof as a matter of law and pleading and the other the bu....
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.... a case shifts to the defendant. The defendant may adduce direct evidence to prove that the promissory note was not supported by consideration, and if he adduced acceptable evidence, the burden again shifts to the plaintiff, and so on. The defendant may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift again to the plaintiff. He may also rely upon presumptions of fact, for instance those mentioned in section 114 and other sections of the Evidence Act. Under section 114 of the Evidence Act, "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and pr....
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....2 of the Evidence Act excluded oral evidence with regard to contents of a document in relation to a lis between the parties and cannot bind any third person. This principle cannot be applied where it can be inferred in the facts and circumstances that the parties have by mutual self-serving agreement concealed taxable income, which income could be found to be assessable on the basis of material which may be available. In Bai Hira Devi v. Official Assignee of Bombay AIR 1958 SC 448, it was observed:- "5. ....There is no doubt that section 92 does not apply to strangers who are not bound or affected by the terms of the document. Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contr....