GENERAL MOTORS NOW DEFUNCT vs SWARAN SINGH

HEARD learned Counsel for the petitioner.

THE State Commission had to face an appellant, who despite availing number of opportunities to produce the original voucher indicating refund of Rs. 1,66,000 to Nasib Singh in cash, has failed to produce the original voucher despite adjournment and ultimately the State Commission had to close its evidence. In the reply, it was alleged to be signed and not thumb marked by Nasib Singh. But only photocopy of the voucher was produced and not the original one. Original has been withheld for the reasons best known to them. Even before this Commission, original voucher has not been produced. The petitioner had put forward fantastically cooked up story of allegedly giving a loan of Rs. 22,500 to Nasib Singh, who required the money to be deposited as marginal money for obtaining the draft from State Bank of Patiala, Saha, Distt. Ambala as per para 2 of the affidavit filed before the State Commission. Voucher, which is shown, is dated 12. 5. 1995. This is an unusual claim of giving loan to a purchaser. The account book also was not produced.

Learned Counsel, states that before the State Commission the petitioner wanted to file the documents but no explanation is given as to why he had not filed the documents before the State Commission particularly in the light of the observation that number of opportunities were given and ultimately evidence was closed. It is submitted that documents could not be produced and file was misplaced before the District Forum. It is expected that those documents should be filed along with appeal before the State Commission. Why they have not been filed at this stage and why its copies were filed and why the original was not filed. It was demanded by the State Commission. There is no explanation how the amount of Rs. 1,66,000 could be given in cash against the provisions of Income Tax Act.

IN terms of Section 40a (1) of the Income Tax Act, 1961, the provisions of this section shall have effect notwithstanding anything to the contrary contained in any other provision of this Act relating to the computation of income under the head "profits and gains of business or profession and Sub-section 40a (3) provides for consideration of any payment not made through cheque in excess of Rs. 20,000 in following words: "40a (3 ). Where the assessee incurs any expenditure in respect of which payment is made, after, such date (not being later than the 31st day of March, 1969) as may be specified in this behalf by the Central Government by notification in the Official Gazette, in a sum exceeding [twenty thousand] rupees otherwise than by a crossed cheque drawn on a bank or by a crossed bank draft, [twenty per cent of such expenditure shall not be allowed as a deduction]: provided that where an allowance has been made in the assessment for any year not being an assessment year commencing prior to the 1st day of April, 1969, in respect of any liability incurred by the assessee for any expenditure and subsequently during any previous year the assessee makes any payment in respect thereof in a sum exceeding [twenty thousand] rupees otherwise then by a crossed cheque drawn on a bank or by a crossed bank draft, the allowance originally made shall be deemed to have been wrongly made and the Assessing Officer may recomputed the total income of the assessee for the previous year in which such liability was incurred and made the necessary amendment, and the provisions of Section 154 shall, so far as may be, apply thereto, the period of four years specified in Sub-section (7) of that section being reckoned from the end of the assessment year next following the previous year in which the payment was so made: provided further that no disallowance under this sub-section shall be made where any payment in a sum exceeding [twenty thousand] rupees is made otherwise than by a crossed cheque drawn on a bank or by a crossed bank draft, in such cases and under such circumstances as may be prescribed, having regard to the nature and extent of banking facilities available, consideration of business expediency and other relevant factors. "

(Emphasis supplied) Since such payment should have been made through cheque and it has not been so made and the self contradiction about signature and thumb impression in the written plea and photocopy of voucher produced and non-production of original voucher, we do not think that we can accept the payment, which is said to have been made by the petitioner to the respondent.

FOR the aforesaid discussion, we do not find any force in this revision petition. It is dismissed accordingly. R. P. dismissed.