TMI Blog1989 (2) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... Bishamber Nath Sons, a HUF of which the assessee was the karta and that the other silver bar weighing 28.570 kgs. belonged to the assessee's wife Smt. Indra Mathur. The assessee sought to substantiate this explanation by relying on the disclosure petitions made by the said HUF and the assessee's wife under the Voluntary Disclosure Scheme 1976. This contention has not been accepted by the authorities below as the weight of the silver bars that were declared under the Voluntary Disclosure Scheme was different, from the weight of the bars found during the search. At the hearing before us, the learned counsel for the assessee again stressed upon the same explanation and took us through the diverse material that has been placed on record to substantiate this claim. 3. A copy of the disclosure petition moved on behalf of the HUF has been placed at page 13 of the paper book. In this declaration, two items of property have been declared, one is cash amounting to Rs. 10,144 declared for assessment years 1970-71 to 1974-75, the other property declared is 'silver bar' worth Rs. 14,836 for asst. years 1967-68 to 1969-70. In this disclosure petition, the weight of the silver bar has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 of the paper book. In this statement in answer to question Nos. 12 and 20, he explained the cause of variation in the weight as under : "Q. 12. The silver bar weighing 30.48 kgs. are said by you to be belonging to Visheshwar Nath Son but from the Wealth-tax records, it is seen that the silver bar disclosed by the said party is 32.252 kgs. Why the variation ? Ans. There could be two reasons for the variation : One at the time of disclosure, we might have given an approximate weight of the Bar without physically checking the Bar which was stored somewhere else, and second is there could be another piece of silver bar which could account for the price difference in the declaration and the actual bar, and that price might have been utilised for making some silver utensils for my use, over a period of time. Q. 20. From the declaration of Smt. Indra Mathur, it is seen that she has disclosed silver bars weighing 33.265 and 33.062 kgs. Can you reconcile why there is a difference in that declaration with that of 28.57 kgs. silver bar found in your locker and said to be belonging to Smt. Indra Mathur ? Ans. The explanation for the difference can be only two reasons that either t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the HUF and the wife respectively. This contention has been negatived by the authorities below and in our view, they were right in doing so. As is evident from the above narration, the assessee has been taking different stands in different submissions made before the lower authorities. In the first letter dated27-1-1982, it was stated that in the voluntary disclosure petitions, the weight of the silver bars that was stated was " an approximate weight and not the actual weight of the bars ". It was further stated in the same letter that the bars were not weighed each time when submitting the returns but old weights were carried on. Then in the petition u/s 132(11) dated7-5-1982(copy at pages 17 to 19 of the paper book), it was stated that the weight declared in the voluntary disclosure form was more than the actual weight of the bars seized by the Department. No reason is stated why more weight was declared than the actual weight of the silver bars. Later the assessee changed its stand further and started saying that there were some other silver bars as well of smaller size and lesser weight which were possessed by the HUF and the assessee's wife along with the silver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his family members. A copy of the search and seizure memo prepared at the time of that search has not been filed before us to show that there were any smaller pieces as well as is now contended. That document could also have shown the exact weight of the silver bars found in search at that time and whether the description and weight mentioned therein in respect of any or more of the silver bars tallied with the weight of the silver bars found in search on20-1-1982. That document has been withheld in all probability because the same would not support the assessee's contention. 9. The learned counsel for the assessee then contended that in the search conducted in January, 1982 all the premises belonging to the assessee as well as the three lockers held by the assessee and his family members were searched and no other silver bar was recovered. He also contended that continuously since the voluntary disclosure the HUF as well as Smt. Indra Mathur have been declaring silver in their wealth-tax returns. He also pointed out that for asst. year 1982-83, silver bars of the same weight as that of the bars in question was declared by the HUF and Smt. Indra Mathur respectively and they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the present search that for assessment year 1982-83 the valuation date for which was31-3-1982, the two persons aforesaid filed computations of wealth incorporating therein silver bars of weight equal to the silver bars in question. At pages 33 and 34 of the paper book is a revised computation of wealth as on31-3-1981In the case of Visheshwar Nath Sons in which one silver bar of 32.252 kgs. was included as the wealth of that person. At pages 36 and 37 is the computation of wealth of the HUF for assessment year 1982-83 for which the valuation date was31-3-1982. In this computation, the silver bar that was included was of 30.480 kgs. and not the one having a weight of 32.252 kgs. which was being returned earlier. In the case of Smt. Indra Mathur for assessment year 1981-82 the valuation date for which was31-12-1980, the copy of the computation of wealth at page 27 of the paper book shows that what was returned was one silver bar weighing 33 kgs. It was only in the computation of wealth for assessment year 1982-83 the valuation date for which was31-12-1981and the return for which was admittedly filed after20-1-1982that one silver bar of 28.57 kgs. was returned as the wealth of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson. U/s 132(4A) a presumption has to be raised that the asset which was admittedly found in the control of the present assessee belongs to him. Such a presumption has to be rebutted by cogent and reliable evidence and in our view the assessee has produced no such evidence as may be able to rebut the aforesaid presumption or may otherwise sustain a finding that the two silver bars were the property of the HUF and Smt. Indra Mathur respectively. 11. Lastly the learned counsel for the assessee contended that since the HUF and Smt. Indra Mathur were possessed of silver bars having higher weight than the weight of the respective bars recovered during the search, it should be presumed that the bars in question were acquired in substitution of the bars possessed by the HUF and Smt. Indra Mathur and, therefore, the source of acquisition stood explained. This contention in our view is not tenable. As shown above, the case advanced by the assessee has throughout been that there has been no change in the physical identity of the silver bars and that these were the very silver bars that were possessed by the HUF and Smt. Indra Mathur. For detailed reasons, we have held above that this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected. 15. The last ground raised in this appeal is as under : " 6. Without prejudice to the contention that M/s. DMKS Trust was not a benami of the assessee, the learned CIT (Appeals) has erred in holding that the ITO was justified in not allowing any deduction for the loss shown by the said trust. It is accordingly prayed that the additions/disallowances made as above may kindly be deleted and further in the event it is held that M/s. DMKS Trust was a benami of the assessee, then the loss shown by that Trust be directed to be adjusted against the income of the assessee." It appears that the assessee is the trustee of a Trust named as DMKS Trust. The said Trust has been carrying on business and in earlier years, it has been held that the said business was owned by the assessee and the said Trust was only a benami for the assessee. This year the said DMKS Trust had filed a separate return declaring a loss of Rs. 38,420. The ITO stated that the assessment of the Trust is still pending and, therefore, he adopted the income of the Trust at nil. On appeal, the learned CIT (Appeals) observed that the appellant objected to the inclusion of the income of the Trust, in his hands a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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