TMI Blog1961 (12) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ng October 18, 1952. The assessee is an individual. According to the Income-tax Officer, he had purchased a house for ₹ 30,000 from the Abdul Wahab on August 16, 1952, though in the name of his wife, Sarlabai. He does not admit the truth of this contention. His case is that his wife, Sarlabai, is the purchaser who having sold 200 tolas of her gold ornaments and made the said purchase with the help of the sale proceeds of the ornaments plus ₹ 3,000 which she had already in cash. When called upon to substantiate the sale, the assessee produced patties for sale of bullion, called his eldest brother, Mahadev Prasad, as a witness and filed the affidavit of his wife. The elder brother deposed that, at the time of marriage, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be traced to the sale of the jewellery of the wife and it must be the income from undisclosed sources is correct. On that basis, the Appellate Assistant Commissioner's order was confirmed by the Tribunal. It is contended on behalf of the assessee that the order of the Appellate Tribunal is vitiated by gross misappreciation of evidence and also by an error of law in that, even though the burden lay on the department and no evidence was adduced on their behalf, the story of the department was accepted an against the story of the assessee which was supported by the a affidavit and the oral testimony. It is argued on the strength of the decisions in S.N. Ganguly v. Commissioner of Income-tax [1953] 24 I.T.R. 16 and Omar Salay Mohame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cases which involve only a question of fact, the finding of the Tribunal cannot be assailed unless there is no evidence to support it or the finding is perverse. Further, the finding essentially of fact will not change its character as such only because it is itself an inference from other basic facts. Here in this case if it is held that the Tribunal did not go wrong on the question of onus, what remains thereafter to be considered is purely a question of fact which would entirely rest upon the appreciation of evidence. If therefore the Tribunal had considered all the evidence, as it had done in this case, there can be no occasion for interference by this court. But the position will be different if there is no evidence on record in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er thereof. In this behalf, reliance has been placed on S.N. Ganguly v. Commissioner of Income-tax [1953] 24 I.T.R. 16. As observed in Sree Meenakshi Mills Ltd. v. Commissioner of Income-tax [1957] 31 I.T.R. 28; [1956] S.C.R. 691, the word benami is popularly used to denote two classes of transaction even though each differs from the other in the legal character and incidents. In one sense, it means a transaction which is sham or unreal. In the other sense it is used for the transaction which is genuine but the real purchaser is not one who is shown to be as such. The ostensible purchaser is a mere name-lender and the beneficial interest in fact rests with the real owner. When a dispute arises as to whether a person named in the deed is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was a gift to her or the property otherwise belonged to her. Judged thus, it is obvious that the finding of the Tribunal is not vitiated by any error of law on the question off onus or otherwise. The authority relied on, viz., S.N. Ganguly v. Commissioner of Income-tax [1953] 24 I.T.R. 16, does not advance the petitioner's case. There it was observed that the onus of proof will be not on the assessee but on the income-tax department to show by at least some material that the amount standing in the name of the wife if does not belong to the wife but belongs to the assessee and that there must be some material, apart from the existence of the close relationship of husband and wife, to suggest that the amount did not really belong to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upported by the observation of the Supreme Court in Govindarajulu Mudaliar v. Commissioner of Income-tax [1958] 34 I.T.R. 807 (S.C.), where it was observed that where an assessee fails to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year, the Income-tax Officer is entitled to draw the inference that the receipts are of assessable nature. When it is once clear that the sale consideration was the sale proceeds of the patti which stood in his name, in the absence of proof as to the source from which this bullion came, it is open to the Income- tax Officer to draw an inference that it is from an undisclosed source within the meaning of sub-section (5) of section 6 of the Income-tax Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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