BURDEN TO PROVE ASSESSEE WRONG ON DEPARTMENT

The Assessing Officer made an addition on account of en-The Assessing Officer made tries recorded in two diaries seized from the assessee's premises during a search conducted at the assessee's premises as well as the office of the company in which the assessee was a director. The assessee was asked to explain all the entries in the diaries including appointments, reminders, notings and jottings, etc. The explanation offered by the assessee was not accepted by the Assessing Officer in respect of all the entries. A presumption was raised against the assessee in view of the provisions of section 132(4A) of the Income Tax Act, 1961. The Commissioner (Appeals) deleted the additions made on account of the entries in the two diaries. The Tribunal, on appeal by the Department, upheld the order of the Commissioner (Appeals). The Tribunal was of the view that merely because there were notings of offers that did not mean that the transactions had actually taken place and that section 132(4A) of the Act did not authorize the Assessing Officer to raise a presumption especially when the offered the explanation along with documents and evidence and also had furnished an affidavit. The Tribunal noted that the burden had shifted on the Department to prove that the replies filed by the assessee were incorrect and that the entries had resulted in income which had not been disclosed in the regular books of account. On appeal by the Department, it was held, that the Tribunal had recorded a find-
ing of fact that there was no corroborative or direct evidence to presume that the notings or jottings had materialized into transactions giving rise to income not disclosed in the regular books of account. The Tribunal, the final fact-finding authority, had returned a certain set of facts. There was no perver-
sity in the findings and no question of law arose for consideration.