TaxTMI 
TaxTMI 
1998 (3) TMI 182
X X X X Extracts X X X X
X X X X Extracts X X X X
....g 200 gms surrendered under s. 132(4) 57,760 1,97,369 2.1. We find that during the course of search cash of Rs. 1,64,510 was found. Out of that the assessee surrendered cash amount of Rs. 1,20,000 in the statement recorded under s. 132(4) and as a consequence declared the said amount as income in the return filed. During the assessment proceedings it was explained that the assessee sold a house in April, 1989, for a consideration of Rs. 1,60,000. Rs. 40,000 was in fact the apparent consideration and the remaining amount of Rs. 1,20,000 was taken as "on money". According to the assessee Rs. 40,000 was brought in the evening of16th Sept, 1989, and assessee's cash balance in the books was at Rs. 48,505. 17th September, was Sunday and on account of certain accident in the close relation no business was conducted on18th Sept., 1989. Though the AO did not accept the explanation with regard to Rs. 40,000 but the CIT(A) accepted the explanation given with regard to Rs. 40,000. For the balance amount of Rs. 4,510, during assessment proceedings it was claimed that the amount belonged to Smt. Shanti Devi, the wife of the assessee. As no such claim was made at the time of search, the AO tre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the affidavit. The affidavit filed rather stands uncontroverted. He further submitted that in the asst. yr. 1988-89 the assessee had obtained NOCs of Rs. 4,000 out of the rental income of his wife and the addition made on that account was deleted by the Tribunal in para 5.2 of its order, dt.27th March, 1996, in ITA No. 8424 and 8425/Del/1992 for the asst. yrs. 1988-89 and 1989-90. The learned counsel, therefore, pleaded that there being sufficient evidence about the source of investment in NSCs given and it having covered by the aforecited Tribunal's decision in favour of the assessee, there was no justification for the addition made and sustained on this count. 3.2. The learned Departmental Representative, on the other hand, relied upon the orders of the lower authorities. 4. We have considered the facts and rival submissions. We find that the assessee received Rs. 5,000 during the year from his wife out of the rental income as per affidavit of the lady. The averments made in the affidavit by the lady has neither been questioned nor controverted by the Revenue by bringing on record any material evidence. Moreover, the issue stands covered in favour of the assessee by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....osed. This paper does not contain any date as alleged by the assessee. Be that as it may it is treated as assessee's income from undisclosed sources. 9.2 It contains accounts of manufacturing the gold ornaments weighing 118.145 gms. Its value has been worked out at Rs. 12,996 out of which Rs. 5,000 has been received. The assessee was asked to explain as to where this amount is accounted for in his regular books of account. In reply it has been stated that in this paper no where word gold ornaments is written and no value and date is given. This explanation of the assessee is not convincing as the value is very much written and the amount in part has also been received as discussed supra. Therefore, it is treated as assessee's income from undisclosed sources. 9.3 It contains expenses of Rs. 1,510, 229 on back of p. 98 and Rs. 496.75 on page 100 aggregates to Rs. 2,235. The assessee was required to explain the source of this expenditure. In reply it has been stated that these expenses might have been met out of withdrawals. No evidence has been produced. Therefore, these expenses are taken as assessee's income from undisclosed sources. 9.4 It contains an entry of Rs. 5,000. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by them whether sale voucher/document are correct or not. These papers might have been left by some customers, this explanation of the assessee does not carry weight and in the absence of satisfactory explanation the total amount of Rs. 15,865 is treated as assessee's income from undisclosed sources. 10.2 This paper contains sale/manufacturing of 44.400 gms. and 5.750 gms. The rate is given Rs. 2,925 per 10 gms. on p. 10. P. No. 10 contains total value of Rs. 1,751 while p. 11 contains value of Rs. 15.541. The assessee was required to explain the source of the said ornaments. In reply it has been stated that these are rough calculations as the assessee is not authorised to deal with gold ornaments and do not pertain to his business activity. This explanation of the assessee is not convincing and in the absence of any verification total amount of Rs. 17,272 is treated to be assessee's income from undisclosed sources. 11. The scrutiny of the balance sheet reveals that assessee has made advances of Rs. 26,100 and Rs. 17,000 to his sons S/Sh. Pradeep Kumar and Rajinder Kumar respectively, as interest free loan. The interest on these advances taken @ 18 per cent which comes to Rs.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....old ornaments but that is based on surmises and conjectures. The assessee does not deal in gold ornaments but simply carries on the vocation of gold-smithy. Without prejudice to the above contention it has been submitted that the AO was not right in not accounting for the amount of Rs. 5,000 out of Rs. 12,996 as mentioned in the paper-book. The addition, if any, could be of Rs. 7,996. Paper Nos. 98 to 100, according to the learned counsel, are undated and do not bear the name of any person. These also contain entries of certain house-hold items of petty nature and the expenditure might have been incurred out of the withdrawals from the capital account. Page No. 99 is a dump document and does not contain any narration in respect of the figure of Rs. 5,000 mentioned therein. Similar was the position in respect of page No. 101. Page No. 105 indicates that the assessee might have done job work of manufacturing of two bangles and one ring for which he received labour charges. It does not, in any case involve any investment by the assessee. The addition made of Rs. 7,714 representing the cost of Rs. 29 gms. of gold is unjustified. Page No. 188 indicated some job work for manufacture of r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ithy, thereby dealing in gold ornaments. The documents found and seized contained narration and also names of various persons involved. Receipt and delivery of gold ornaments, receipt of making charges, purchase of clothes and other household articles, though the assessee has denied these documents, but he has not produced any evidence to rebut the presumption available under s. 132(4A) that these documents belonged to certain other person who has claimed it as such and the transactions recorded therein do not relate to him. The entries, however, recorded in the seized documents speak otherwise. Looking to the nature of entries made and the documents having been found and seized from the premises of the assessee, it is established that these belonged to the assessee and none else. He further submitted that the addition made based on these documents in the hands of the assessee is fully justified and the CIT(A) has rightly sustained it. The learned Departmental Representative, therefore, pleaded that the findings given by the CIT(A) requires no interference at the hands of the Tribunal. 5.5. We have carefully considered the facts and rival submissions. The assessee admittedly was....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the Evidence Act that material recovered from a person is presumed to be belonging to him but such presumption is rebuttable. It would be seen from above that most of the documents found relate to the gold ornaments transactions and purchase of household goods. Admittedly the assessee was carrying on business of goldsmithy i.e. manufacturing of ornaments out of gold for customers. Naturally the transactions recorded in the said documents recovered and seized from the premises of the assessee presumed to be belonging to him unless he proves otherwise. The assessee has merely denied the ownership of such documents but he failed to produce any evidence to prove that these documents did not belong to him but belonged to some other person. The onus, therefore, was on the assessee to rebut the presumption available under the law but he failed to do so. Moreover, the assessee himself has admitted that the sarees were purchased from cash balance but necessary entry in that behalf could not be made on account of search conducted the following day. Further, it is not denied that the assessee was purchasing house-hold goods. He has denied having purchased only cigarette and biri claiming ....