TMI Blog2001 (4) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities of Pune. An inquiry was started by the Assessing Officer on 22-11-1996 and subsequently, the notice under section 148 was issued on 18-12-1996 which was served on Smt. Rajabai Bhimrao Kadam, mother of the assessee as legal heir, since in the meantime the assessee had died on 16-4-1995. In pursuance to that notice his mother filed return declaring nil income. His mother could not explain the money which was recovered from her son. The explanation as given by his mother has been dealt with by the Assessing Officer at page 3 of the assessment order which is being reproduced as under: "It is contended that Shri Shivaji B. Kadam was studying in Pimpri-Khurd till 1993-94. Then he left his village, taluka, district and even state to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. Since this onus was not discharged, the addition made by the Assessing Officer was held to be justified. Aggrieved by the same, the assessee has preferred this appeal. 4. Written submissions have been furnished on behalf of the assessee wherein the submissions raised before the lower authorities have been reiterated. However, legal submission has been made with reference to the provisions of section 69A as under: "The section contemplates that it is for the assessee himself to explain the possession of money/valuable. No other person can be expected to explain the valuables found with the assessee as the information about the possession is personal. Hence provisions of section 69A cannot be invoked where the assessee is not availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of such article was income of assessee from undisclosed source during the concerned year. 6. Rival submissions of the parties have been considered carefully. There is no dispute that the sum of Rs. 1,18,500 was found from the possession of the assessee. According to the general rules of evidence, i.e., section 110 of the Evidence Act, a person from whose possession a valuable article is found, is presumed to be the owner thereof and the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Though rigours of the rules of evidence contained in Evidence Act cannot be applied to tax proceedings but the salutary principle embedded in section 110 of the Evidence Act can be applied to income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deceased only who could explain and discharge his burden by referring to certain material or evidences. Unfortunately, he died in mysterious circumstances even before the assessment proceedings were initiated. Therefore, it cannot be said that after his death, the burden shifted to the legal heirs of the deceased. In our opinion, all these circumstances were known to and within exclusive knowledge of the deceased only and the legal heirs could not be forced to explain such circumstances which were not known to them. Further, the deceased was a minor at the time when the money was found from his possession as well as at the time when he died. The material produced before us shows that he was born on 2-6-1977 and left the School on 31-5-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 968 against consideration of Rs. 25,902. The explanation of the assessee regarding the source of money was that the same was financed from out of saving from the income of the properties which were left by her mother's first husband. This explanation was not accepted by the Assessing Officer and the first appellate authority. However, the Appellate Tribunal held that even though the explanation was not satisfactory but in the facts and circumstances of the case it was not possible for the assessee to earn the amount invested in the properties and by no stretch of imagination, could the assessee be credited with having that income in the course of assessment year. The Tribunal also took the view that section 69 of the Act conferred only a di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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