TaxTMI 
TaxTMI 
2001 (3) TMI 242
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessee's wife Smt. Sureshta Rani on 15th December, 1987 at the instance of the Assessing Officer deposing as follows :--- "1. That I own about 24 kilas of agricultural land in Village Itti, Post Office Sujanpur, Tehsil Pathankot. 2. That part of the above-mentioned land was bequeathed by my late mother Smt. Bhag Dai which was transferred in my name after her death and part of the land was given to me as my share after the death of my father along with other heirs. 3. That the above mentioned land is under cultivation and Maize, Paddy, Wheat etc., are grown there. 4. That three FDRs of Rs. 50,000 each were acquired by me in following names which are owned by and belong to me vide details as under :- ------------------------------------------------------------------------------------ Amount No. Date of Acquisition Name ------------------------------------------------------------------------------------ 50000 &nb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e affidavit of Smt. Sureshta Rani, the WTO had not controverted the contents in the deposition as no cross-examination had been done nor any opportunity accorded before rejecting the contents of the affidavit. For his decision, the learned Dy. CIT(A) referred to the judgment of the Hon'ble Supreme Court in the case of Mehta Parikh & Co. v. CIT [1956] 30 ITR 181 and also the decision of the Hon'ble Allahabad High Court in the case of Sri Krishna v. CIT [1983] 142 ITR 618. 3. Before us, Shri C.L. Wali, D.R., very vehemently contended that the Dy. CIT(A) was not justified in giving relief. For the respondent Shri L.R. Vasudeva, Advocate, with equal vehemence pleaded that any other approach than the one taken by the learned first appellate authority would have been wrong. 4. We have closely perused the facts on record and like to bring in close focus the assessment order on the issue :--- "During the discussion it was contended that these 3 FDRs have been purchased by Sureshta Rani along with her daughter from her own sources. In this connection the learned counsel for the assessee was requested to file copies of FDRs or account which were held by Smt. Sureshta Rani before 27-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bsp; -------- Since all of these FDRs including 3 FDRs of 50000 each were purchased on 22-6-1983 and are from the share of additional compensation and interest received by the assessee as above, the amount of Rs. 1,50,000 is, therefore, to be assessed in the hands of Shri Harbans Lal though FDRs have been purchased in the names of his wife and minor daughters and the source of purchase is from the compensation received by the assessee." 5. In the context of the above, para 5 and para 8 of the Affidavit, the contents of which we have reproduced in the order, assume importance. On a cursory glance of the affidavit and reading of para 4, one may get the impression that FDRs were acquired in 1986 but the later part of the deposition make the position clear. In the face of categorical assertion of the assessee's wife by deposition, the onus shifted on the revenue to prove that the FDRs were the property of the respondent assessed as Individual, which was not done. 6. Even assuming the Assessing Officer's version to be correct that the FDRs were purchased by the asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t proceedings, it was claimed that the 3 FDRs of Rs. 50,000 each in the name of Smt. Sureshta Rani W/o the assessee and his 2 minor daughters Miss Kiran Bala and Miss Paramjit, were their, separate properties and as such were not liable to be included in the total wealth of the assessee and in support of that an affidavit of Smt. Sureshta Rani was filed, which has been reproduced by my learned Brother in para 2 of his proposed order. However, the Assessing Officer, after perusal of the affidavit, asked the assessee to file copies of the FDRs or the accounts which were operated by Smt. Sureshta Rani and 2 minor daughters prior to 27-4-1983 because the averment in the Affidavit were only with respect to the FDRs held by Smt. Sureshta Rani and her two minor daughters amounting to Rs. 50,000 each as on 28-4-1986, which will be relevant only to assessment year 1987-88 and not to assessment year 1984-85. To this querry the assessee's counsel Sh. L.R. Vasudeva, Advocate, could not give any satisfactory explanation and simply stated that copies of the FDRs held by Smt. Sureshta Rani prior to 28-4-1986 are not available and from this the Assessing Officer concluded that the FDRs of Rs. 1,50....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ence that the statement made in the affidavit, cannot be held to be true." 15. In the present case, as has been discussed earlier, the FDRs of Rs. 50,000 each in the financial year relevant to the Asstt. year 1984-85 were purchased by the assessee in the name of Smt. Sureshta Rani W/o the assessee and 2 minor daughters, out of the compensation money amounting to Rs. 4,74,724, which came to the assessee's share as a result of arbitration award and as such the FDRs in fact belonged to the assessee and as such were rightly includible in the wealth of the assessee in view of the provisions of section 4(1)(a) of the Wealth-tax Act, 1957. Reliance of in), learned Senior Colleague, the J.M. on the decision of Mithilesh Kumari's case is misplaced because of the specific provisions of section 4(1) of the Wealth-tax Act, 1957, which specifically brings to charge the wealth held by the individual in the name of spouse and minor children. 16. Accordingly, I will hold that the learned Dy. CWT(A) was not justified in deleting the addition of Rs. 1,50,000 from the wealth of the assessee and his order is reversed and that of the Assessing Officer is restored. 17. In the result, the appeal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssessee purchased three FDRs in the names of his wife and two minor daughters on 27-4-1983. Over and above, he also purchased another FDR for Rs. 1,25,000 on 30-4-1983 and for Rs. 1 lakh on 13-5-1983 making a total of Rs. 3,75,000. The Assessing Officer accordingly included Rs. 1,50,000 as forming part of the net wealth of the assessee. 3. On appeal, the learned Dy. CIT (Appeals) deleted the addition observing that having called for the affidavit of Smt. Sureshta Rani, the WTO had not controverted the contents in the deposition as no cross-examination had been done nor any opportunity has been accorded before rejecting the contents of the affidavit. Relying on the decision in the case of Mehta Parikh & Co. , and also the decision in the case of Sri Krishna , he deleted the addition on this technical ground. 4. Aggrieved by the said order, the revenue took up the matter in appeal before the Tribunal. The learned Judicial Member upheld the order of the Dy. CIT(Appeals) and also further held that even if it is treated as purchase by the assessee, then in view of the Benami Transaction (Prohibition) Act, 1988 and related Supreme Court judgment in the case of Mithilesh Kumari and ....