TMI Blog2020 (11) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the amount of ₹ 5,20,000/-, we find force in the argument of the ld. Counsel that the addition to the tune of ₹ 5,20,000/- stands deleted and, therefore, no adverse view should be taken. Balance ₹ 15,90,000/- is concerned, we do not find any force in the argument advanced by the ld. Counsel for the assessee. A perusal of the explanation given by the assessee before the AO while explaining the source of cash found shows that the assessee has tried to explain the source being amount received from different family members, close relations and amount received at the time of silver wedding anniversary and amount received at the time of engagement and marriage of her son. The assessee neither at the level of the AO nor before the CIT(A) was able to produce the so-called jewelers to whom the mother-in-law and mother of the assessee has sold jewellery - Find force in the argument of the ld. DR that if some cash portions were real gift, at least some document like gift deed or gift letter or some scribbling to that effect would have been found in the house or in possession of the assessee or her husband - nothing of that sort was found. The so-called long list co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of Smt. Vineeta Singh, jointly with her domestic servant, Smt. Kalindi. ₹ 16,33,000/- Total ₹ 21,53,000/- 3. During the course of assessment proceedings, the AO noted from the information received from SP,CBI, New Delhi, vide letter No.2887/3/AC- 2/2003/A-005 dated 6th October, 2004 that Shri Tribhuvan Singh has assets disproportionate to his known source of income to the tune of ₹ 32,75,200/- which are mainly as under:- i) Cash recovered from house of Shri Tribhuvan Singh, 10, Satya Niketan, Chankyapuri, New Delhi. ₹ 2,27,000/- ii) Cash recovered from locker No.9 SBBJ, NOIDA, in the joint name of Shri Tribhuvan Singh Smt. Vineeta Singh ₹ 3,00,000/- iii) Cash recovered from locker No.294, Syndicate Bank, Mayur Vihar, Delhi in the name of Smt. Vineeta Singh her maid servant, Kalindi. ₹ 16,33,000/- iv) Difference in cost of construction of house (approx.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh. He, accordingly, held that addition to that extent can be made in the name of the assessee on substantive basis. So far as the balance cash of ₹ 5,20,000/- found from the residence and locker No.9 with State Bank of Bikaner and Jaipur is concerned, he held that the same can be treated as belonging to Shri Tribhuvan Singh. After allowing a credit of ₹ 60,000/- he held that balance amount of ₹ 4,60,000/- should be added substantively in the hands of Shri Tribhuvan Singh and to delete the same from the hands of the assessee. In the order, he held that on fair estimate basis, the unaccounted cash of Shri Tribhuvan Singh is taken as ₹ 4,60,000/- in place of nil by the AO. He accordingly directed the AO to reallocate the income in the hands of the assessee and her husband. The relevant observations of the CIT(A) from para 5 onwards read as under:- 5. After having carefully considered, submission of the appellant and facts brought out by the AO in assessment order, my conclusions/observations on grounds taken in appeal are as under: (1) Grounds of appeal no. 1 7 are general in nature; ground of appeal no. 6 is consequential in nature. (2) Regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be belonging to both husband and wife. The AO s view of adding all such amounts, substantively in the hand of Smt. Vineeta Singh (through L/H her husband), and protectively in the hands of Sh. Tribhuvan Singh, is not justified. This is. because the AO has himself rejected all the contentions put forward by assesee, in respect of source of cash money. Once that is done; automatically the contention of the wife, Smt. Vineeta Singh (now deceased), owning up all the cash should have been rejected. After all, it is not the claim of assesee that she earned these unaccounted cash through her profession!! The question arises afresh as to although exact source of unaccounted cash income, is not known, either in the hands of assesee or her husband; how much cash can be ascribed to whom? In absence of any first-hand questioning by CBI during search, or any clinching evidence brought on record so far; the possession can be ascribed according to the place where cash was found. Locker no. 294, Syndicate Bank is in the name of Smt Vineeta Singh jointly with her domestic servant. As sh. Tribhuwan Singh is not a party there; this cash of ₹ 16,33,000/- can be treated as belongin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh found from flat No. V-10, (Residence) Satya Sadan, Chanakayapuri, N. Delhi, 220000 Cash found from bank Locker No. 9 with State Bank of Bikaner Jaipur Noida, U.P. 300000 520000 Less:-Cash balanced as per account book (Accepted) 60000 46000 Cash found from Locker No. 294 with Syndicate Bank, Mayur Vihar, Phase-I, New Delhi 1633000 2093000 Break-up (Sources) ₹ 5,50,000/= Cash kept/ given by Mrs Shakuntala Devi, mother-in-law ₹ 2,50,000/= Cash given by Parents Mrs Sushila Sood Dr Bal Krishna ₹ 2,00,000/= Cash given by Mr Anant Singh,( son) ₹ 2,00,000/= Cash kept by Mrs Surabhi Singh her husband Akash Chauhan (Daughter Sons- in-law) ₹ 1,00,000/= Cash given by Mr B.P.S. Chauhan (For Construction) ₹ 50,000/= Cash given by Sister Mrs Chitra Sood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave rejected the explanation furnished by the assessee in respect of a sum found, which all aggregated to ₹ 21,10,000/-. To explain the aforesaid contention, he submitted that the assessee had given the sources of funds out of which ₹ 21,10,000/- had been found which included ₹ 5,20,000/- which stood deleted by the learned CIT(A). In view of the peculiar fact he contended that the explanation given by the assessee could not have been rejected in part, as the necessary implication remained that the explanation given explaining the source of sum could not have been rejected in part. 11. So far as the balance amount is concerned, the ld. Counsel submitted that the perusal of the order of the AO would show that he got swayed mainly by the fact that there had been a search carried out by the CBI and as such the explanation tendered by her was to only accommodate her husband and the sum found and seized had been acquired by unfair means by her and her husband. He submitted that in the absence of any evidence that the assessee had been indulging in any activity by acquiring sums by unfair means, the findings are per-se perverse and arbitrary. Referring to the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned AO, it is evident that the entire conclusion of the learned AO in his order while rejecting the explanation furnished by the assessee is based only on the two factors namely that the sums found is allegedly unaccounted income both of the assessee and her husband is arbitrary, and secondly upon the presumption that there is a general tendency of near and dear ones to sympathise and come forward in times of crises; whereas there is no such presumption. 15. Referring to the decisions of the Hon ble Supreme Court in the case of Dhirajlal Girdharlal vs. CIT, 26 ITR 736 (SC) and Omar Salay Mohamed Sait, 37 ITR 51, he submitted that the Hon ble Supreme Court in the above decisions has held that any order is vitiated in law where such an order is arrived partly on relevant material and partly on irrelevant material. The ld. Counsel submitted that the assessee had explained the source of the sums found in cash the details of which are as under:- Sl. No. From whom cash was received Relationship Amount 1. Smt. Shakuntla Devi Mother-in-law ₹ 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O rejected merely on hypothetical consideration and without any evidence. He submitted that the initial burden was discharged by the assessee and the AO had not proceeded to rebut the said evidence by leading any positive material. 19. So far as the allegation of the AO at page 10 of the assessment order that the assessee had failed to produce Smt. Shakuntla Devi who was aged about 97 years was misconceived inasmuch as Smt. Shakuntla Devi at the relevant time was not well and was aged and could not climb stairs. The request of the assessee to examine her on commission was not accepted by the AO. Similarly, mother of the assessee Smt. Sushila Sood aged 86 years could not have appeared before the AO because of old age complications and here also the AO was requested that she should be examined on commission. However, no steps were taken by the AO to examine any of the persons despite the fact that the assessee had offered them to be examined on commission. 20. The ld. Counsel submitted that the CBI had also examined the mother of the assessee Smt. Sushila Sood on 20.10.2004, Shri Anant Singh, son of the assessee, Smt. Shakuntla Devi, mother-in-law of the assessee and Smt. Kalin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee at ₹ 22,12,070/- as against the returned income at ₹ 1,02,070/- wherein he made an addition of ₹ 21,10,000/- being the cash found from the residence and locker of the assessee during the course of search conducted by the CBI on 10th July, 2003. The explanation of the assessee that the amount so found at the locker and the residence was given to her by her mother, mother-in-law, son, daughter and son-in-law, father-in-law of the daughter, sister and brother-in-law, etc., was not accepted by the AO. Similarly, certain amounts received as cash gift on silver wedding anniversary, amount received at the engagement and marriage of son, etc., was also not accepted by the AO. The item-wise explanation given by the assessee for the source and rejection of the same by the AO can be summarized as under:- s.N0. Amount Amount shown by assessee in the name of Explanation given by assessee AO s finding (1) (2) (3) (4) (5) 1 ₹ 5,50,000 Smt. Shakuntla Devi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement before CBl. It is not possible that a person would give someone money for construction' even before getting transferred the plot of land in his name. 6 ₹ 50,000 Smt. Chitra Bhatia and Sh. N.K Bhatia They gave money to assessee for treatment. AO found discrepancies and contradictions in the version of husband and wife. 7 ₹ 75,000 Silver wedding anniversary Cash gifts were received and after payment of expenses ₹ 75,000/- was kept for furnishing of new house at Noida. A paltry sum of ₹ 5,000/- was spent on party at Noida Golf Club. 8 ₹ 6,25,000 Engagement Shagun The amount was received from guests and relatives at the time of ceremonies and functions related to the son s wedding. Looking to the status of the family, the expenditure claimed by the assessee is much below the level of expenses expected at such an occasion. The amount shown is unrealistic. 9 &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be believed in absence of any iota of evidence found at the time of search and, therefore, we concur with the finding of the CIT(A) on this issue that this is nothing, but, an afterthought. The various decisions relied on by the ld. Counsel for the assessee are distinguishable and not applicable to the facts of the present case. The various affidavits and confirmations filed from various close relatives, in our opinion, are nothing but mere self serving documents just to accommodate the assessee to explain the source. It is also strange that not a single transaction is through banking channel and everyone has given cash only to the assessee either for her treatment or for safe custody which is unbelievable. In this view of the matter and in view of the detailed reasoning given by the CIT(A) on this issue, we do not find any infirmity in the order of the CIT(A) sustaining the addition of ₹ 15,90,000/-. Thus, in sum and substance, the assessee gets relief of ₹ 5,20,000/- and the balance amount of ₹ 15,90,000/- sustained by the CIT(A) is confirmed. The grounds raised by the assessee are accordingly partly allowed. 25. In the result, the appeal filed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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