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2015 (4) TMI 978 - CALCUTTA HIGH COURTUnexplained investment - Treatment to the bottles of liquor - Tribunal treating the bottles of liquor, a consumable article, as a 'valuable article or thing' - whether Tribunal was right in law by denying the relief of ₹ 2,00,000/- on bottles of liquor granted by the Commissioner of Income Tax (Appeals)? - Held that:- The learned Tribunal, according to us, applied wrong standards in the matter of appreciation of facts. The case of the assessee that the bottles of liquor were purchased during the foreign tours undertaken by the assessee and his family members was not even attempted to be countered to demonstrate why such explanation was not, in the opinion of the Assessing Officer, satisfactory. The fact that the assessee got some bottles of liquor by way of gift has been accepted by the assessing officer. It is sheer misapprehension on the part of the learned Tribunal when they observed that the price at ₹ 2000/- per bottle was not disputed by the assessee. Reference in this regard may be made to the judgment of the CIT (A) quoted above. It is not also a fact that the assessee had failed to offer an explanation. The fact on the contrary is that the assessee did offer an explanation and the circumstantial evidence did not militate against the same. A question of fact has to be considered on the touchstone of probability. The relevant question to ask is "has the assessee been able to probabilize the defence taken by him?" If his defence is a probable defence and the revenue has failed to adduce any evidence to show that the defence is either untrue or is inconsistent with the admitted facts and circumstances of the case that should ordinarily be the end of the matter. The Assessing Officer misdirected himself in holding the assessee liable for an undisclosed income of a sum of ₹ 2,00,000/- purely on the basis of a guess work that each bottle must have been bought at ₹ 2000/- after having accepted the case of the assessee that "occasional social as well as official gifts can not be ruled out." Liquor after all is a consumable item and a person of ordinary prudence is not expected to preserve the cash memos in connection therewith. The Commissioner of Income Tax (Appeals) applied the correct standard for appreciation of facts - Decided in favour of assessee.
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