It was the duty of the A.O. to bring on record sufficient evidences and material to prove that the documents filed by the assessee were bogus, false or fabricated and the long term capital gain shown by him was actually his income from undisclosed sources.
Where the Assessing Officer has not carried out necessary enquiry which ought to have been carried out for allowing deduction to the assessee under section 40(b), the order passed by the Assessing Officer was erroneous and prejudicial to the interest of the Revenue and CIT has rightly invoked the provisions of section 263.
Order can be revised if and only if the twin conditions, viz., one that the order is erroneous and two – that to that extent it is prejudicial to the interest of the Revenue co-exist.
In the case of Mayawati v. CIT [2009] 222 CTR 117 (Delhi), it is nowhere mentioned that for drawing the presumption u/s 27 of the General Clauses Act, there is necessity of acknowledgment due.
When a part of the surrender can be accepted on proper explanation the rest can also be allowed to be explained. The assessee’s claim that balance was from cash withdrawals from cash book has to be tested on the facts appearing in the case. For that test it would be necessary that cash book be examined. Both members agree to that effect – the Accountant Member stating that if cash is found withdrawn it should be excepted whereas the Judicial Member directs to verify as to how the cash was generated in the cash book. In my opinion the later course appear to be more reasonable as the cash availability is to be examined with reference to entries made therein.
However, in the impugned case there is no material on record to suggest or to hold that any sincere attempt was made by the Revenue to make the service through normal mode. For the reasons discussed above, the decision in the case of Jagannath Prasad & Ors. Vs. CIT (supra) will have square application to the present case and relying on the decision in the case of M/s Ganeshi Lai & Sons (supra), it cannot be held that service of notice by affixture in the present case was a valid service.
No doubt that the possession of three currency notes with the assessee has raised a presumption that the amount stated on those currency notes was paid by the assessee to the said Shri Shankar Lai. However, the same was a rebuttable presumption. The assessee has explained that these payments were made by the assessee subsequent to the date of survey
Parties are heard arid their rival submissions considered. The following facts are not in dispute: a) the identity of the donor is not in doubt; b) gift is by a declaration deed; c) donor has given an affidavit affirming the making of the gift; d) there is a confirmation through post of gift per Demand Draft; e) affirmation of the assessee in examination on oath recorded by A.0 f) affirmation of the donor in examination on oath recorded;
According to section 68 where any sum is found credited in the books of assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to Income-tax as the income of the assessee for that previous year.
6.2 In the present case there has been admittedly a default in terms of s. 271F of the Act; the assessee’s legal ground, i.e., in respect of validity of its return, being of no consequence, in view of me. Clear mandate of the provision (s. 271F), as well as the decision by the Hon’ble Apex Court in the case of Prakash Nath Khanna (supra). Further, the assessee’s plea of there being no presumption in law
