M.M. Kumar, J. - (1.) THE assessee has approached this Court by filing instant appeal under Section 260A of the IT Act, 1961 (for brevity, 'the Act'), challenging order dt. 11th Aug., 2006, passed by the Income Tax Appellate Tribunal, Delhi Bench 'B', New Delhi (for brevity, 'the Tribunal'), in IT(SS) No. 215/Del/2003, for the block period 1st April, 1990 to 29th Aug., 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 29th Aug., 2000 a search and seizure under Section 132 of the Act was conducted at the residence of the assessee. On 18th May, 2001, a notice under Section 158BC was issued requiring the assessee to file return for the block period 1st April, 1990 to 29th Aug., 2000. The assessee filed his return for the aforementioned block period on 17th July, 2001, declaring total undisclosed income as 'nil'. Thereafter, on 17th June, 2002, notices under Sections 143(2) and 142(1) of the Act were issued to the assessee. The assessment was completed on 29th Aug., 2002. On the basis of a note, which was seized during each with the heading "Just in case", the undisclosed income of the assessee was assessed at Rs. 5,29,750 (Annex. A -3). It has been claimed by the Department that the aforementioned note was written by the assessee at the time when he was about to be taken to the operation theatre for a surgery on 21st Oct., 1995. The relevant portion of the note on which reliance has been placed by the assessing authority reads as under: Just in case Tyagi has a cash entry of Rs. 4,11,000 ask him to withdraw this money from PFL and give you the cash. Penalty proceedings under Section 158BFA(2) of the Act were also initiated. The assessee then filed an appeal before the CIT(A), which was allowed vide order dt. 10th Feb., 2003 and various additions concerning unexplained money were deleted (Annex. A -2).
(3.) THE Tribunal rejected the submission made by the assessee that the statement was made by him under emotional 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 AO vide his questionnaire dt. 17th June, 2002 required the assessee to furnish complete address of Tyagi and explain the entry to which mention has been made in the note. He was also asked to explain why the amount should not be added as unexplained income. The Tribunal also held that no satisfactory explanation has been furnished and the question was not to depend on whether such sum was given to Mr. Tyagi or not. The statement in the note has been regarded as correct and complete revelation of the assessee made in contemplation of death, which leads to the conclusion that the assessee at the first instance has given a sum of Rs. 4,11,000 to Mr. Tyagi and the after effect of the entry given to Mr. Tyagi has since not been explained satisfactorily by the assessee, it has been considered as unexplained income in the hands of the assessee. The Tribunal, therefore, added the amount under Section 69 of the Act. The Tribunal has further held that it was not a case of double addition nor it was a case of addition in two hands. Holding that the CIT(A) committed error, the Tribunal held that the addition was deleted in the case of Pan Foods Ltd. because no such entry was available in their books of accounts, which could be called as fictitious entry. The assessee since has not discharged the onus to prove that he did not give any sum to Mr. Tyagi, the amount has been rightly added to his unexplained income.;