ORDER SHEET ITA No. 96 of 2005 IN HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (INCOME TAX) ORIGINAL SIDE KAFEEL AHMED Versus COMMISSIONER OF INCOME TAX, KOLKATA- XX, & ANR. BEFORE: Hon'ble JUSTICE GIRISH CHANDRA GUPTA Hon'ble JUSTICE ARINDAM SINHA Date : 21st April, 2015. Appearance: Mr. Ananda Sen, Adv. Mr. Biswajit Mal, Adv. For Appellant. Mr. S. B. Saraf, Adv. For Respondents. Court :- subject matter of challenge in appeal is judgment and order dated 7th October, 2004 pertaining to block assessment for period between 1st April, 1989 and 20th January, 2000. facts and circumstances briefly stated are as follows: During search and seizure conducted on 20th January, 2000 and subsequent thereto it was discovered that assessee had from time to time paid sum of Rs.9 lacs to various persons. Particulars of persons to whom such payment was made was called for from assessee, but he did not disclose. assessee was asked to produce his books of accounts which he did not disclose on ground that due to unavoidable reasons he was unable to produce same. assessee came up with explanation that he had in his 2 possession old silver utensils and gold jewelleries. He wanted to sell aforesaid jewelleries and utensils. He contacted middlemen to whom possession of utensils and jewelleries was made over in lieu of deposits made by them in cash with assessee. middlemen thereafter sold utensils and jewelleries to merchants located in Surat, Jaipur and Kolkata. After sale proceeds were paid to assessee by cheque, deposits earlier made together with payment of some amount on account of commission were refunded to middlemen. aforesaid explanation offered by assessee was not proved either by any oral or documentary evidence. Books of accounts he had not disclosed as already indicated above. Assessing Officer in these circumstances treated payment of sum of Rs.9 lacs as undisclosed income of assessee during block period. aforesaid finding has been upheld by C.I.T. and learned Tribunal. assessee is before us. appeal was admitted on 13th June, 2005 and following question of law was formulated. Whether on true and proper interpretation of Section 68 learned Tribunal was correct in law in confirming addition and/or treating said sum of Rs.9 lacs as undisclosed income of petitioner when considering facts and circumstances of case and failure of CIT (Appeals) in not exercising powers given to same as co-equal to that of Assessing Authority, confirmation of order of CIT (Appeals) by Tribunal by merely observing that case had been considered in its totality 3 without indicating background for its consideration is correct and/or perverse? From facts and circumstances narrated above undisputed fact which emerges is that assessee paid sum of Rs. 9 lacs or little more than that in cash and received identical amount in cheque. These two facts are not in dispute and they have been admitted. Rest of it is attempt on part of assessee to offer explanation which, however, did not exceed boundary of fiction. Mr. Sen, learned Advocate appearing for Appellant, submitted that Assessing Officer is both adjudicator and investigator. He, therefore, was under obligation to make necessary investigation. Without investigation Assessing Officer could not have held that sum of Rs.9 lacs or little more than that paid in cash by assessee was his undisclosed income and not amount of security as was version of assessee. We are unable to accept such specious plea. True it is that Assessing Officer occupies position of adjudicator and investigator but role of investigator is to be discharged for purpose of ensuring that income made by assessee does not go unassessed. It is no part of duty of Assessing Officer to make investigation for purpose of collecting evidence in support of case made out by assessee. It is bounden duty of assessee to prove his case. If he has adduced prima facie evidence in support of his case, it will be for Assessing Officer to adduce evidence to disprove facts proved prima facie by assessee. If Assessing Officer fails to discharge his onus prima facie evidence adduced by assessee may in some cases become 4 conclusive. But, if assessee does not adduce any evidence it is no part of duty of Assessing Officer to start investigation and/or to collect evidence in support of case of assessee. It is to be pointed out that assessee in this case did not disclose identity of persons to whom payment was made. assessee could have asked Assessing Officer to issue summons to so called middlemen under Section 131 and/or 133(6) of Income Tax Act. assessee could have done it because he knew person to whom payment was made. It was not, therefore, possible for Assessing Officer even if he wanted to, to undertake any such enquiry. For aforesaid reasons submissions advanced by Mr. Sen are rejected. judgment rendered by learned Tribunal considering admitted facts and circumstances of case cannot but be said to have expressed possible view and therefore question has to be answered in negative. addition of sum of Rs.9 lacs as undisclosed income is correct in law. judgment rendered by learned Tribunal is not perverse. question is accordingly answered against assessee. appeal is dismissed. parties shall bear their own costs. (GIRISH CHANDRA GUPTA, J.) (ARINDAM SINHA, J.) cs. Kafeel Ahmed v. Commissioner of Income-tax, Kolkata- XX & Anr