JHAVERI,J. - (1.) All these appeals are against the judgment and order of the Tribunal whereby the Tribunal has decided the matter partly in favour of the department and partly in favour of some of the parties.
(2.) This Court while admitting the appeals and framed the following substantial questions of law : D.B. Income Tax Appeal No. 65 of 2003 : "1. Whether on the facts and circumstances of the case, the learned ITAT was justified in upholding the deletion of Rs.72,16,435/- made by CIT(A) ? 2. Whether on the facts and circumstances of the case, the learned ITAT was right and justified in upholding the deletion of Rs.2,02,925/- made by CIT(A) ?" D.B. Income Tax Appeal No. 97 of 2003 "1. Whether the learned Tribunal had material and was right in law in holding that Shri Raj Kumar Sharma has not rebutted the presumption under section 132 (4A) of the Act in respect of Annexure A-8 ? 2. Whether the learned Tribunal had material and was right in law in holding that Annexure A-8 was of Shri Rajkumar Sharma individual ?" D.B. Income Tax Appeal No. 119 of 2003 "1. Whether in the facts and circumstances of the case, the learned Tribunal is right and justified in holding that there was no search conducted in the case of the assessee under section 132 of the IT Act and there was no requisition of books of accounts, other documents and assets requisition under section 132A of the IT Act. 2. Whether in the facts and circumstances of the case, the learned Tribunal is right and justified in holding that Annexure-A8 has no evidentiary value and no undisclosed income can be computed with the help of it ? 3. Whether in the facts and circumstances of the case, the learned Tribunal is right and justified in setting aside the assessment order and upholding the computation of undisclosed income amounting to Rs.5,36,51,537/- ? 4. Whether in the facts and circumstances of the case, the learned Tribunal is right and justified in annulling the assessment on the ground that assessment should be under section 158BD of the IT Act instead of Section 158BC and in not setting aside the same and directed the A.O. to make the assessment ?" D.B. Income Tax Appeal No. 122 of 2003 , "1. Whether on the facts and circumstances of the case, the learned Tribunal is right and justified in upholding the order of the worthy CIT(A) who had set aside the addition amounting to Rs.4,91,14,412/- as unexplained cash credit ? 2. Whether on the facts and circumstances of the case, the learned Tribunal is right and justified in upholding the order of the worthy CIT(A) who had set aside the assessment and directing the A.O. to work out closing stock for assessment year 1994-95 after taking into account the credits entries ? 3. Whether on the facts and circumstances of the case, the learned Tribunal is right and justified in annulling the assessment on the ground that assessment should be under Section 158B of the IT Act instead of Section 158B and not set aside the same and directed the A.O. to make the assessment." D.B. Income Tax Appeal No. 189 of 2003 "1. Whether the learned ITAT had material and was right in law in not holding the stock found of Rs.13,85,000/- as that of Shri R.K. Sharma Individual ?" D.B. Income Tax Appeal No. 9 of 2005 "1. Whether the appellant, who is a partner of M/s. Ratan Mandir, can be held liable to pay income tax on account of seized goods, which seizure had been made from the residential premises of one of the partners of the firm, so as to infer that the goods seized were not the personal property of the partner, from whose premises the goods had been seized and that it belonged to the firm ? 2. Whether an appeal filed by one of the partners of the firm can be held maintainable on behalf of the other partners as also the firm ?"
(3.) Counsel for the appellant Mr. N.M. Ranka has mainly submitted that search was conducted 12.11.1997 at Vijay Gopalji Ka Mandir, 11, Rudra Mahadev, Johari Bazar, Jaipur, which is business premises of M/s. Ratan Mandir and residence/business of its partner Shri Raj Kumar Sharma. During the search, papers and documents as per Annexure 'A' and 'AA' to the panchnama were found and seized. Notice under section 158BC of the Act was served on its four partners namely Shri Raj Kumar Sharma, Shri Mukul Rana, Shri D.K. Rana and Shri Y.K. Rana. Shri Mukul Rana filed return on 21.10.1999 at NIL. Most of the papers relating to M/s. Ratan Mandir were found and seized as per exhibit A-8 during the course of search proceedings at the business premises of one of the partners Shri Raj Kumar Sharma. Shri Sharma stated he was a working partner and does not knew anything about accounts and that the explanation on the same may be obtained from other partners. Statement of Shri Yognedra Rana was recorded on 30.09.1999. Some entries contained in exhibit A-8 tallies with entries contained in the regular books particularly, bank entries, therefore, the admission by Shri Yogender Rana in this regard confirms the fact and exhibit A-8 contains the entries relating to M/s. Ratan Mandir. There appears to be a deliberate effort on the part of all partners to avoid explanation by resorting to game of shifting the burden. Out of seized, Exhibit 'A-8' related to Ratan Mandir. Shri Mukul Rana filed a letter on 19.11.1999, wherein it confirmed that the papers in A-8 shows the details of purchases, sales and cash credits of business of M/s. Ratan Mandir.;