TMI Blog1991 (2) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to suspect that the packages contained articles other than those described in the shipping bill. On June 8, 1973, the packages were opened in the presence of the assessee and they were found to contain a bronze idol of Nataraja and its pedestal whereas the description of the packages was as " unaccompanied personal effects of His Majesty the Chogyal B. T. Namgyal of Sikkim. " The statement of the assessee was recorded. The assessee testified under his signature that it was done by him as a representative of the State Trading Corporation of Sikkim. On examination of various documents and the papers, the Customs authorities were of the opinion that the assessee was the person who had booked the aforesaid packages for shipment to New York ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar [1974] 94 ITR 616 (Bom), deleted the addition of Rs. 80,000. The Department preferred an appeal before the Tribunal against the said decision of the Commissioner deleting Rs. 80,000 from the total income of the assessee. The Tribunal held, inter alia, that the idol and its pedestal were found in the possession of the assessee, and as such, their ownership can be presumed safely as that of the assessee unless the same presumption is rebutted. It was also; inter alia, held by the Tribunal that the assessee did not produce any evidence to show as to how the idol and its pedestal were found in his possession from Sikkim to Calcutta. The other aspect which was considered by the Tribunal was that the assessee knew that the idol and its pedest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the burden shifted to the Revenue to prove otherwise ? (4) Whether, on the facts and in the circumstances of the case, the inference drawn by the Tribunal that the assessee could not explain properly that the idol and its pedestal did not belong to him but belonged to His Majesty the Chogyal of Sikkim was drawn in a state of confusion and was perverse? (5) Whether, on the facts and in the circumstances of the case, the Tribunal was right in throwing the burden upon the assessee to prove that he was not the owner of the idol and its pedestal when admittedly the consignee of the antiques was His Majesty the Chogyal of Sikkim and the consignor was His Majesty's State Trading Corporation at Calcutta and the assessee was an employee of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only carrying the baggage which was found in the possession of the assessee and that the same belonged to the Chogyal of Sikkim. The said fact cannot be disputed in view of the letter dated May 30, 1973, addressed to the Assistant Collector of Customs which is included in the paper book. There was nothing on record to show that the assessee was the owner of the idol and its pedestal. In our opinion, there cannot be any basis for the finding that the assessee is the owner only because the said article was found in his possession. The liability of the assessee for the articles will arise under section 69A of the Income-tax Act only if it is found that the assessee is the owner of the said article. The said section 69A of the Income-tax Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d letter verified by obtaining the original from the customs authorities. Merely because the packages were presented before the customs authority, it does not ipso facto prove the ownership of the assessee of the goods. In our view, it has not been established or found that the assessee is the owner of the said idol and pedestal. On the contrary, the said letter dated May 30, 1973, addressed to the Assistant Collector of Customs shows that the Chogyal is the owner of the said articles. Under such circumstances, there is no reason to hold the assessee liable and to add Rs. 80,000 being the value of the said articles to his income. The case of Chuharmal v. CIT [1988] 172 ITR 250 (SC), relied upon on behalf of the Revenue, has no applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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