TMI Blog2020 (10) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... into insignificance. We, therefore, uphold the impugned order on this score and confirm and addition of ₹ 10.00 lakh. Unexplained jewellery belonging to family members - two types of jewelleries found during the course of search. Jewellery worth ₹ 20,53,987/- was found at the residential premises of the assessee and jewellery worth ₹ 13,27,778/- was found from the two bank lockers - HELD THAT:- Authorities below mixed up the jewellery found from two separate lockers and that at the residential premises of the assessee and proceeded to decide the issue without clarifying themselves about the true factual scenario of the issue. As against that, the ld. AR argued that jewellery found from Locker No.125 of Bank of Maharashtra pertains to Goddess Laxmimata. As regards the jewellery found from Locker No.209 of Bank of Maharashtra and that found physically at the residence of the assessee, she submitted that the same pertained to family members of the assessee, for which no benefit of Instruction No.1916 dated 11-05- 1994 was allowed. Since the issue has not been examined by the authorities below in correct perspective and further the status of assessment of jewelle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee through concise ground No.2 is against the confirmation of addition of ₹ 10.00 lakh in respect of cash found during the course of search. 5. Succinctly, the facts of the case are that a search and seizure action u/s.132 of the Income-tax Act, 1961 (hereinafter also called the Act ) was conducted on 24-11-2004 against the assessee and his family members. During the course of the search, cash of ₹ 11,60,400/- was found at the assessee s residence. The assessee s explanation submitted about ₹ 1,60,400/- was accepted. Regarding the remaining cash of ₹ 10.00 lakh, which is subject matter of the instant ground, the assessee stated that such cash belonged to one of the trusts, namely, Pune Navratri Mahotsav Shivshakti Pratisthan (PNM trust) of which he was President. The assessee submitted that he was arranging Kashi Yatra for the poor senior citizens of the locality. For that purpose, the trust collected certain amounts which totalled upto ₹ 10.00 lakh. It was such amount that was kept at his residence. During the course of search action, some persons were examined by the Authorised Officer to ascertain the claim of the assessee. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrol of any person in the course of a search, it may be presumed- (i) that such money belongs to such person; . This provision lays down that finding of cash etc. during the course of search proceeds with the premise that it belongs to the person searched. In that view of the matter, it is for the person searched to submit explanation about the source of the cash to the satisfaction of the AO so as to avoid its inclusion in the total income. The rebuttable presumption against the person searched needs to be cleared by such person. Thus the onus probandi to explain the source of the availability of cash is on the person searched and not the other way around. As such a presumption is against the person searched, he cannot cast a reverse obligation on the Revenue authorities to prove that the money found belongs to him before making any addition. If the person searched fails to discharge such burden, addition has to follow. 8. Adverting to the facts of the instant case, it is found that cash of ₹ 10.00 lakh was found from the residential premises of the assessee. Apart from making submission that such cash belonged to trust and was kept with him for safe custody, the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worth ₹ 13,27,778/- pertaining to Goddess Laxmimata and jewellery worth ₹ 20,53,987/- found at the residence claimed to be belonging to family members of the assessee. He observed that if the jewellery of Goddess Laxmimata was mixed up with assessee s family members jewellery, there should have been some identification marks as to its ownership, which was not the case. He came to hold that, at best, addition on account of unexplained investment in jewellery could be made if some investment was made during the year under consideration. That is how, he remitted the matter to the AO for verifying if the bank lockers were operated during the year and then decide the issue accordingly. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 11. We have heard the rival submissions and cogitated over the relevant material on record. It is seen that the ld. CIT(A) has restored the matter to the AO giving certain directions. Section 251(1), after amendment by the Finance Act, 2001, does not empower CIT(A) to restore the matter to the AO for verification and a fresh decision. He can call for a remand report from the AO, but the decision has to be taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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