AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX REFERENCE NO.119 OF 1994 Shri D.U. Patel ..Applicant. V/s. The Commissioner of Income-tax, Bombay City - XI, Bombay ..Respondent. Mr.K.B. Bhujale with Mr.G.S. Pikale i/by S.V. Pikale & Co. for the applicant. Mr.Abhay Ahuja with Mr.P.S. Sahadevan for the respondent. CORAM : V.C. DAGA & J.P. DEVADHAR, JJ. DATED : 9TH APRIL, 2009. ORAL ORDER : (Per J.P. Devadhar, J.) 1. Pursuant to the order passed by this Court in Income Tax Application No.464 of 1992 dated 2-4-1993, the Income Tax Appellate Tribunal has forwarded a statement of case, raising following questions for the opinion of this Court. 1. Whether in law and on facts the Appellate Tribunal was right in holding that the facts of the Appellant’s case was distinguishable and ratio decided in the decision in P.N. Saraf v. CIT (183 ITR 388) does not apply to the Appellant’s case ? 2. Whether in law and fact the presumption under section 132 that the books of accounts, documents, money, jewellery and other valuable articles seized from the possession of the appellant shall be presumed to be belonging to the assessee if they are found in possession or control of assessee in course of search, will apply also to the regular assessment ? 3. Whether, on facts and in circumstances of the case and on a correct and true interpretation the Appellate tribunal was justified in law in taking the view that the presumption raised under sec. 132(4A) of the Income-tax Act, 1961 was also applicable to the regular assessment ? 4. Whether, on the facts and in the circumstances and in view of the settled position of law in the case of Mehta Parikh and Co. v. C.I.T., Bombay 30 ITR 181 (SC) by the Supreme Court and the Affidavits of the appellant and his family members having been filed and the said persons not having been cross examined by the assessing officer, it would be open to the Department / Appellate Tribunal to reject the said affidavits ? 2. The assessment years involved herein are assessment years 1986-87 and 1987-88. 3. As regards question No.1 is concerned, counsel for the applicant states that the said question is inconsequential, and therefore, it may be returned unanswered. Accordingly, question No.1 is returned unanswered. 4. As regards questions No.2 and 3 are concerned, counsel on both sides agree that the issue raised herein is covered by the judgment of the Apex Court in the case of P.R. Metrani V/s. C.I.T. reported in 287 ITR 209 (S.C.), wherein it is held that the presumption under Section 132 (4A) of the Income Tax Act, 1961 is a rebuttable presumption and such a presumption would not be available for the purpose of framing a regular assessment. Question Nos.2 and 3 are answered accordingly. 5. As regards question No.4 is concerned, counsel on both sides agree that the said question need not be answered in view of the insertion of Section 292 C to the Income Tax Act, 1961 by the Finance Act, 2007 with retrospective effect from 1-10-1975 and that fresh assessment would be made in the light of Section 292 C of the Act. Accordingly, the 4th question is returned unanswered. 6. However, it is made clear that before making fresh assessment, the Assessing Officer shall give an opportunity to the assessee to adduce material in support of his contention and thereafter pass fresh assessment order in accordance with law. 7. The reference is disposed of accordingly with no order as to costs. (V.C. Daga, J.) (J.P. Devadhar, J.)