TMI Blog2006 (7) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... dabad when he was intercepted by the police and recovered Rs. 12 lakhs from him. During the course of enquiry Shri Sureshbhai B. Jani explained that he was working as a carrier for the delivery of silver owned by Shri Rasikbhai Patel and had delivered 10 kg. of silver to Shri Jugalbhai Soni and 10 kg. of silver to Shri Sureshbhai Soni for which he received Rs. 6 lakhs each by way of sale proceeds. On enquiry the Dy. CIT (Inv.) found that the statement made by Shri Sureshbhai B. Jani is not correct. Thereafter in pursuance of section 132A of the Act the cash of Rs. 12 lakhs was seized. Subsequently, the assessee filed a petition before the Judicial Magistrate for returning the cash on the ground that the money belonged to him and Shri Sureshbhai B. Jani was his employee. On the basis of these facts the Assessing Officer issued notice under section 158BG read with section 158BD upon the assessee. It is found by the Assessing Officer that although return for the block period 1-4-1988 to 11-12-1998 was filed by the assessee on 26-4-1999 but the amount of Rs. 12 lakhs was not disclosed in the same. Regarding the source of Rs. 12 lakhs it was explained by the assessee before the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the explanation that the amount given to Shri Suresh Jani is not believed by the Assessing Officer then how it could be taxed in the hands of the assessee. It is also stated that the statement given by Shri Suresh Jani before the police authorities is not binding upon the assessee as the same is not a conclusive evidence for proceeding under Income-tax Act. Ld. AR contended that though the assessee has explained that the money belonged to him and is for business purposes and it is the presumption of the CIT(A) that this money is an unaccounted cash which is transferred in this fashion. When the deal did not struck it was torn off as unnecessary to retain it. Ld. AR further stated that unless a person is found to be an owner of cash requisitioned, it cannot be taxed under section 69 as unexplained. Since the Assessing Officer has not accepted the explanation of assessee regarding entries in the cash book, how the same has been taxed in the hands of the assessee. To support his proposition he relied on the decision of this Tribunal reported in Anand Autoride Ltd. v. Jt. CIT [2006] 99 ITD 227 (Ahd.). He further relied on the decision of Hon ble Supreme Court in the case of Chuhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, and he is a domestic servant of the assessee and was receiving a salary of Rs. 1,000 per month. The assessee owned the money and stated that the money was sent by him for the purchase of the land of Shri Rameshbhai Soni as he had talked over telephone with Shri Rameshbhai Soni. Accordingly, the assessee sent the money to Pali on 23-3-1998 but the cash was seized from the servant of the assessee on 24-3-1998 as Shri Rameshbhai Soni of Pali decided over the night not to sale the land to the assessee and, therefore, Shri Rameshbhai Soni did not accept the said cash. The statement of Shri Rameshbhai Soni was recorded on 3-4-1998. Shri Kameshbhai Soni in reply to question whether he had any transaction with Shri Anilbhai or whether his father has any contact with Shri Anilbhai, Shri Rameshbhai Soni denied all having any transaction with Shri Anilbhai and stated that so far he remember his father also did not have any contact with Shri Anilbhai. Even from page 6 of the paper book it is apparent that when Shri Rameshbhai Soni was asked which land he has shown to Shri Anilbhai in Pali for the purpose of sale Shri Rameshbhai Soni stated that he had not shown any land and when eating fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changed his mind to sell the land. The Assessing Officer has duly recorded the statement of Shri Rameshbhai Soni which could be the best evidence in this case but Shri Rameshbhai Soni did not accept that he agreed for the sale of the land and asked for the advance. In the first statement Shri Sureshbhai Jani when he was intercepted and the cash was seized, stated that the money represents the sale proceeds of 20 kg. of silver which he had received. The sale proceeds of 20 kg. of silver has not been shown by the assessee in his books of account and, therefore, this money in our opinion cannot be regarded to represent the disclosed money of the assessee. Keeping in view the totality of the facts under circumstances the only conclusion could be that the money which was seized from the servant of the assessee when he was coming to Ahmedabad represents the sale proceeds of the silver in which the assessee deals in and, therefore, the Assessing Officer was right in treating the same income of the assessee. This money cannot be regarded to be the income of Shri Sureshbhai Jani as he was the domestic servant of the assessee and the assessee himself has owned the money belonging to him. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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