TMI Blog2000 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was no justification for treating the sale amount as income of the assessee under s. 68. The CIT(A) further directed the AO to compute and assess the capital gain earned on sale of silver as per the law. Aggrieved by the same, the Revenue is in appeal before us. 4. The learned Departmental Representative relied on the order of the AO and submitted that the assessee has not produced any evidence about the purchase and sale of the silver. He also submitted that M/s Hameer Mal Sukhraj Beawar had not maintained a day to day stock of the silver purchased and hence, sale of silver by the assesses to the said party and its further disposal was not verifiable. We also submitted that though the purchase price was paid to the assessee by M/s Hameer Mal Sukhraj by account payee cheques, the said party deposited cash amount in their bank account on the very same day when the cheques were sent for clearance. He therefore, contended that the AO was fully justified in treating this amount as assessee's own undisclosed income. 5. The learned counsel for the assessee submitted that the assessee disclosed this value of silver in the return for asst. yr. 1976-77 and 1977-78 filed under Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the AO and further stated that the said transaction was duly reflected in their books of account. As regards the (deposit of cash by M/s Hameer Mal Sukhraj in their bank account and non-maintenance of daily record of stock, we agree with the contentions of the learned counsel of the assessee that these factors were beyond the control of the assessee. Moreover, the same cannot negate the genuineness of the transaction which the assessee has well established. It is also observed that the CIT(A) has dealt with this issue quite elaborately before deciding the same in favour of the assessee. The decision of the Jaipur Bench in the case of D. Bhagchand vs. Asstt. CIT in ITA No. 1759/Jp/91, dt. 14th Aug., 1997, involving the identical facts also support the assessee's case. We, therefore, do not find any infirmity in the impugned order of the CIT(A) on this issue and accordingly decline to interfere. 7. Ground No. 1 of the assessee's appeal relates to the addition of Rs. 50,433 on account of investment in gold treated as from undisclosed sources under s. 69B. The facts giving rise to this ground are that the marriage of assessee's daughter was performed on 17th Jan., 1987. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly related inasmuch the donee is the great granddaughter of the donor and contended that the assessee has discharged the burden of proving the gift with supporting evidence which is direct and conclusive. He further submitted that the AO has not brought in fresh material on record to rebut the evidence produced by the assessee and the said direct evidence has been rejected on the basis of presumptions and surmises. He, therefore, contended that the CIT(A) was not justified in confirming the AO's action of treating the gold as investment out of income from undisclosed sources in the hands of the assessee. The learned Departmental Representative submitted that the original, document is support regarding the gift was not produced even before the first appellate authority. He further submitted that the document now furnished by the assessee is also not in the proper form. He also stated that the donor had no source of income and it was very difficult for the donor to give such gift to the great granddaughter considering the financial position of the donor. He further submitted that Shri Kanwar Lal, the grandson of the deceased donor who deposed before the AO also admitted that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of assumptions and presumptions ignoring that the assumptions and presumptions have to hi examined in the light of evidence on record and the same cannot override the facts. Therefore, considering the facts of the case and the evidence produced by the assessee, we are of the view that the CIT(A) was not justified in confirming the AO's action treating the gold received as gift as investment out of income from undisclosed sources. Accordingly, the assessee succeeds on this ground. 11. Ground No. 2 of the assessee's appeal as well as Revenue's appeal relate to the additions on account of unexplained expenditure incurred on marriage and household expenses partly confirmed by the CIT(A). The Revenue has disputed that part which has been deleted whereas the assessee has disputed the other part which has been confirmed. In this case the AO estimated the total expenditure on household and marriage of the assessee's daughter at Rs. 1 lakh against Rs. 48,824 shown by the assessee considering the size of the family and the status of the assessee as a director of a reputed company. In the first appeal, the CIT(A) confirmed this addition only to the extent of Rs. 20,000. Aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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