2007 (9) TMI 273

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....period 1.4.1990 to 29.8.2000 (A-1). It is claimed that the following questions of law would arise for our determination: "(i) Whether the Tribunal conclusions are perverse by interpreting the paper note as a dying declaration under Section 32 of the Indian Evidence Act, 1872 ? (ii) Whether the Tribunal has misconceived on having made the assumption of facts of the cash paid without determining the relatability and the longevity of the same to the block period? (iii) Whether the judgment of the Tribunal is correct by having given two differential treatments of the same cause of action of the addition which have attained finality since not challenged by the respondent?" 2. Brief facts of the case are that on 29.8.2000 a search and....

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....motional stress or anxiety because the assessee has made a detailed note of all his accounts and receivables. The note was written by him at the time when he was about to be taken for surgery. The Tribunal has treated the note as good as a dying declaration because it contains realistic account of the assessee and the assertions made in the note are quite significant as the note contained the details of properties/assets held by the assessee which has been rightly entitled 'just in case'. It is significant that the note mentions a cash entry of Rs. 4,11,000/-, which was given to Tyagi, which in the ultimate result family was to receive back from Tyagi. The Assessing Officer vide his questionnaire dated 17.6.2002 required the assessee to fur....

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....ent of the assessee, who is a living human, has been treated as 'dying declaration'. According to the learned counsel in order to fit in the definition of expression 'dying declaration' it is sine qua non that the statement must have been made by a dead person in relation to cause of his death or in all the circumstances which has led to his death, as contemplated by Section 32(1) of the Evidence Act, 1872 (for brevity, 'the 1872 Act'). Learned counsel has submitted that such a statement cannot constitute a basis for sustaining the findings recorded by the Tribunal that somebody called Tyagi was given cash entry of Rs. 4,11,000/- and that he was to be asked by the family to withdraw the amount from PFL to pay in cash.  Learned counsel ....

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....yagi has a cash entry of Rs. 4,11,000/-, who was to be told to withdraw that money from PFL and the family was to get the cash. The admission was put to the assessee in the form of questionnaire by the Assessing Officer, who has stated that the questionnaire dated 17.6.2002, was prepared by him and the assessee was required to furnish complete address of Mr. Tyagi to explain the entry of Rs. 4,11,000/-. The assessee was also asked to explain why the aforementioned entry be not added as his unexplained income. As no satisfactory explanation was furnished, the Tribunal has rightly reached the conclusion that the assessee had given a sum of Rs. 4,11,000/- to Mr. Tyagi irrespective of the fact whether Mr. Tyagi ultimately gave such an amount or....