TMI Blog1997 (5) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) was not justified in deleting the addition on this account. The assessee's counsel, on the other hand, has strongly relied on the order of the Commissioner (Appeals) wherein the Commissioner (Appeals) after considering the assessee's submissions in paras 19 to 21 of his order, deleted the addition by observing as under: "So far as the appellant is concerned he had been declaring jewellery in his hands and it is presumed that the balance jewellery belongs to the female members of the family and not to the appellant himself and hence the addition will have to be considered in their hands. This is to be deleted in the hands of the assessee. The ITO is directed to separately start proceedings against the female members to explain the source of acquisition of jewellery to his satisfaction. In any case this addition is deleted." 3. After considering the rival submissions and having gone through the order of the Commissioner (Appeals) carefully we are of the opinion that in case of a joint family i.e., where more than one adult members staying in the same premises, the presumption available with the Revenue under the provisions of section 132(4) cannot be invoked again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him the onus to establish that the expenditure was in fact incurred lies on the Revenue and it is only after discharging that onus that the assessee has to explain as to the source of such expenditure. According to him, the Revenue in the present case has brought no evidence to suggest that the assessee had incurred collosal expenditure as estimated by the Assessing Officer. Concluding his submissions, the assessee's counsel has submitted that the addition has been made on surmises and suspicion which cannot be sustained. The learned Departmental Representative on the other hand, relied on the orders of the lower authorities. 6. We have considered the rival submissions and have gone through the orders of the lower authorities. As far as the assessee's legal objection regarding the onus is concerned we are of the opinion that according to provisions of section 69C of the Income-tax Act the initial onus is on the Revenue to establish (a) that a particular quantum of expenses has been incurred and (b) that such expenses have been incurred by none other than the assessee himself and it is only after discharging of this initial onus that the onus shifts on to the assessee to refute t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh after verifying from the persons stated by the assessee in his explanation including the in-laws of assessee's both sons. 6.1. Ground (b) : In this ground the assessee has agitated the addition of Rs. 53,000 having been made on account of assumed low household expenses. The assessee's counsel has raised the legal issue relating to onus which, according to him, lie on the Revenue for proving incurring of expenses by the assessee and nobody else. The learned Departmental Representative on the other hand, has relied on the orders of lower authorities. 6.2. After considering the rival submissions we are of the opinion that the onus under section 69A, as we have already stated while deciding the issue relating to marriage expenses, lies on the Revenue to prove that certain expenses have been incurred and the person incurred the expenses was none other than the assessee. The Revenue only after discharging the onus can ask the assessee to explain the source of the same. Simply to assume that the household expenses by a person are less is not sufficient to shift the onus on the assessee. Unless and until evidence is brought on record by the Revenue that a particular expenditure h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found at the firm's premises. The authorities have not brought any material or have given any finding as to the total cash available in the books of account of the firm on the date of search and without verifying this fact the assessee's explanation should not have been rejected because if the firm's books of accounts shows cash balance covering the cash of Rs. 42,000 found during the search at the firm's premises and Rs. 31,509 claimed by the assessee as that of the firm, no addition would be warranted. In view of these facts and circumstances we restore this issue back to the Assessing Officer with the directions to consider the assessee's explanation after verifying the availability of cash in the books of account of the firm Jaikishan Bros. 9. As regards the availability of balance cash from past savings with the assessee's wife and daughter-in-law the authorities have gone by the quantum of drawings for household expenses but forgot that the ladies might have savings of these petty amounts of Rs. 10,000 and Rs. 5,000 out of cash gifts/Sagan received at various religious or social functions. We are, therefore, of the opinion that the ladies could have saved these amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's legal plea has got some force because the presumption available under section 132(4) can be invoked only when it is established that certain asset available was found from the control or possession of a particular person against whom the Revenue wants to invoke the presumption. From the orders of the lower authorities we find that there is no finding that any of the loose paper was found from the possession of the assessee or assessee's person and some of them even bear the name of other person. In view of this factual position we are of the opinion that the presumption available to the Revenue under section 132(4) could not be invoked against the assessee. Even otherwise the presumption being rebuttable the Revenue could not reject the assessee's explanation without bringing any material on record to do so. From the orders of the lower authorities we have noticed that they have proceeded on the basis of presumption available under section 132(4) and hypothetical assumption without bringing any cogent material to reject the assessee's explanation. The action of the lower authorities not being in accordance with law and also not based on any evidence cannot be sustained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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