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1961 (12) TMI 91 - ANDHRA PRADESH HIGH COURT

1961 (12) TMI 91 - ANDHRA PRADESH HIGH COURT - [1963] 47 ITR 516 - Case Referred No. 26 of 1959 - Dated:- 4-12-1961 - Satyanarayana Raju And Kumarayya, JJ. For the Assessee : K. Ranganathachari For the Commissioner : C. Kondiah JUDGMENT Kumarayya, J. The Income-tax Appellate Tribunal, Hyderabad Bench, has under section 66(2) of the Indian Income-tax Act referred the following question for determination: "Whether the finding that the consideration of ₹ 30,000 was found by the assessee .....

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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 assessee's wife got jewels of about 200 tolas in weight as dowry some 25 years ago, though he him .....

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discrepancy with regard to the total extent of jewels that the wife possessed, in the circumstances of the case, seems to have weighed with the income-tax authorities. If what she possessed was only 279 tolas and all of them were sold away, it was not possible for her to be still in possession of 50 tolas. One other circumstance which was noticed by the Tribunal was that what appeared from the patties produced was the sale of certain bullion and that no jewels were sold and further the patties w .....

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osed 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 .....

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ding unless the finding is open to attack on the ground that there is no evidence to support it or that it is perverse. This position has been lucidly dealt with and authoritatively laid down by their Lordships of the Supreme Court in Omar Salay Mohamed Sait v. Commissioner of Income-tax [1959] 37 I.T.R. 151, 163 (S.C.). The position was summed up thus: "(1) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the .....

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ct, the fact that it is itself an inference from other basic fact will not alter its character as one of fact." It follows therefore, in 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 .....

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f the material on record. It is contended that the present case bears close analogy to the facts in the supreme Court case in the above decision and therefore. in the like manner the finding must be subjected to interference. But it would appear that those facts have in fact no parallel in the present case. In that case, the Tribunal had misread the affidavits, improperly rejected the evidence, failed to take into consideration some of the evidence already on record, pointed out certain things a .....

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ish that she had the jewels which in fact were sold in the shape of bullion and he sale proceeds thereof constituted the consideration of the purchase of the property. Then it is argued that when the property had admittedly stood in the name of the wife, the onus lay on the department to prove that the apparent state of things is not the real state and that the wife was not the owner thereof. In this behalf, reliance has been placed on S.N. Ganguly v. Commissioner of Income-tax [1953] 24 I.T.R. .....

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e 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 the real transferee, one has to enquire into the question as to who paid the consideration for the transfer. This practice of putting property into a false name, that is, in the name of a person other than the real owner as stated by Mulla in his Principles of Hindu Law (12th edition at page 748), is not uncommon. This practice has arisen partly from supe .....

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n the name of a wife belongs to the husband, but when once the source of consideration is traced to the husband, the burden would shift to the other side. It is obvious from the record that the patties evidencing the sale of bullion the sale proceeds of which formed the consideration for the purchase of the property in question, stood in the name of the assessee. Thus, when the source of consideration is traced to the assessee, there is every reason to presume that the transaction is for the ben .....

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d 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 wife. In the present case, in fact, there was such material as the patties stood in the name of the husban .....

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