TMI Blog2021 (2) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 69A, possession is evidence of ownership, and the presumption of ownership is the strongest in case of cash, because its title can be transferred by mere delivery of possession, and thus onus is on the Assessee to prove that he is not the owner of the currency in his possession. The aforesaid findings are purely findings of fact which have been concurrently accepted by the CIT(A) as well as the ITAT. We cannot reappreciate the evidence, particularly when we see no perversity in the findings of the ITAT. As regards the contention of Mr. Vohra, that the finding recorded by the Assessing Officer that the amount of ₹ 2 crores was for an illegal gratification, contradicts the conclusion drawn by him, we would say that firstly, we perceive no such contradiction. Secondly, on a pointed query raised by the Court, Mr. Vohra refutes that the amount in question was illegal gratification. Thus, the plea of being a conduit is a pretext to evade tax. Thirdly, to our mind, the observations of the tax authorities are on independent examination of the case and not entirely resting on the case which has been set up by the CBI. As far as the Income Tax proceedings are concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. Subsequently, in the assessment proceeding for AY 2011-12, the Appellant submitted that he had received the cash amounting to ₹ 2 crores as advance from one Mr. Rahul Ahuja through the broker- Mr. Sanjeev Kumar Sharma. Independent enquiries were conducted by the Assessing Officer, notice under section 133(6) of the Act was issued to Mr. Ahuja, and documents were obtained from him, which included a copy of a Memorandum of Understanding dated 12th April, 2010 purported to be executed between him and the Appellant for purchase of the said agricultural land [hereinafter referred to as MOU ]. Mr. Ahuja submitted that the payment of ₹ 2.01 crores was made to the appellant in cash, which was withdrawn from the bank account maintained him. Later, the authorised representative of Mr. Ahuja orally stated that the latter had filed a suit for recovery of the advance of ₹ 2.01 crores against the Appellant. In order to carry out further enquiry and verification in relation to the source of the cash found and seized from the premises of the Appellant, the Assessing Officer recorded the statements of Mr. Ahuja and Mr. Sharma, pursuant to summons issued under section 130 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. He puts forth that the appellant had duly and fully explained the nature and source of the amount of ₹ 2 crores found and seized by the CBI in the course of the search conducted by it, however, the Assessing Officer, on the basis of mere conjectures and suspicion, disregarded the explanation offered by the appellant by placing reliance on the enquiry conducted by the CBI. Mr. Vohra further submits that the addition under section 69A can only be made in respect of an assessee who is found to be the owner of the money. The findings of the Assessing Officer do not support the conclusion drawn by him for making the addition. The Assessing Officer has held, the amount recovered pertained to illegal gratification obtained for securing favour for Gyan Sagar Medical College and Hospital, Patiala. Thus, he submits that in view of the above finding, the Appellant can only be held to be acting merely as a conduit for the passage of money and cannot be deemed to be the owner of such cash, warranting additions in his hands under section 69A of the Act. In these circumstances the cash cannot partake the character of income assessable in the hands of the appellant. Mr. Vohra also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Rahul Ahuja, through a broker. Appellant made full efforts to support this contention and testimonies were recorded. The said explanation has not been accepted since there were glaring discrepancies in the statement made by the Appellant vis.- -vis. the statements made by Sh. Sanjeev Sharma and Sh. Rahul Ahuja. Their stand was divergent even on basic facts such as the area of the land and the agreed price. The Assessee has deposed that no agreement was signed, however Mr. Rahul Ahuja submitted a copy of MOU dated 12th April, 2010 and in this view of the matter, the statement of Mr. Rahul Ahuja was held to be unreliable. As rightly pointed out by Mr. Deepak Anand, it is indeed strange that the original MOU was not produced during the assessment proceedings. The Assessing Officer carefully and meticulously examined the statements and arrived at a conclusion that the purported transaction of sale was sham. He then observed that the appellant had presented a story to cover up the cash found and seized by the CBI at his residence . In this regard, he has referred to the findings of CBI and observed that the findings are further corroborated by the investigations carried out by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hul Ahuja while explaining the source has stated in his statement that he has withdrawn the cash from his Bank account in January and February, 2010, but, did not explain why huge cash was kept when he was having banking facility. There is a significant gap between cash withdrawn from the Bank account of Shri Rahul Ahuja in January and February, 2010 and allegedly paid to the assessee in April, 2010. The assessee failed to explain this discrepancy as well. Shri Rahul Ahuja filed suit against the assessee on 23.01.2013 after lapse of several years when the matter was going on at assessment stage. The inconsistencies in the statements of these persons have not been explained by assessee. Thus, there are serious doubts about the alleged transaction of sale of land. It is highly unbelievable that a person who is having banking facility kept substantial amount of ₹ 2 crores in cash with him for more than two months. The assessee at the time of making statement has clearly agreed that no Agreement to Sell pertaining to the sale of agricultural land was executed between the parties. When there was a substantial difference between the area of the land to be sold and consideration, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or not. All these facts and circumstances clearly prove that assessee has no explanation whatsoever of the cash found from his possession during the course of search by the CBI. The Hon ble Supreme Court in the case of Durga Prasad More 82 ITR 540 (SC) and in the case of Sumati Dayal 214 ITR 80 (SC) has held that the Courts and Tribunals have to judge the evidence before them by applying the test of human probability . If the said test is applied in this matter, it is clearly established that the assessee has failed to prove source of ₹ 2 crores found during the course of search by the CBI at his residence. Thus, appeal of assessee has no merit ( ) 9. The Appellant was found to be in possession of the amount in question. Thus the onus lay on him to explain the nature and source and on this account, the appellant has failed and therefore the amount is unexplained/unaccounted for. The explanation offered by the appellant has not been found to be satisfactory by the tax authorities in light of the discrepancies and anomalies in the statements of the appellant vis- -vis those of Mr. Sharma and Mr. Ahuja. In terms of Section 69A of the Act, in case the assessee offers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HAI ENDLAW, J. 12. I have perused the order aforesaid dictated by Sanjeev Narula, J. and though concur in entirety with the same but would like to address another aspect. 13. The senior counsel for the appellant, being fully aware that from the concurrent findings of fact, of the Assessing Officer, CIT and ITAT, no substantial question of law arises, stressed on substantial question of law qua interpretation on Section 69A of the Act, arising in the facts of the case. It is his contention that for addition to income to be made under Section 69A, the assessee has to be found to be the owner of the money. It is argued that neither the Assessing Officer nor the CIT nor the ITAT have found the appellant in the present case to be the owner of the money found in cash in possession of the appellant and added to the income of the appellant. It is further argued that on the contrary there is a specific finding, of the appellant not being the owner of the said money. 14. Section 69A is as under: 69A. Unexplained money, etc.- Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, there is no reason to disbelieve the case set up by the CBI and the Income Tax Department against the assessee. The Assessing Officer has reproduced certain material based on charge-sheet filed by the CBI against the assessee and others, in which the CBI has clearly mentioned that there was a criminal conspiracy between assessee, Dr. Sukhwinder Singh and others to get a favour from Sh. Ketan Desai for approval of MBBS course..... the entire case set up by the assessee is clearly an afterthought. The MOU and receipt are sham documents and fabricated by the assessee and others later on which fact is further strengthened by the fact that no original MOU and receipt have been produced before the authorities below. 16. The senior counsel for the appellant, on the basis of the aforesaid contended that since the Assessing Officer, CIT and ITAT have held the said sum of ₹ 2 crores to be bribe money, in possession of the assessee, for payment to Dr. Ketan Desai, the assessee cannot be said to have been found to be the owner thereof within the meaning of Section 69A. 17. We are however of the opinion that no substantial question of law arises. A plain reading of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the context of the charge-sheet of the CBI and to observe that the explanation offered by the assessee was an afterthought. The assessee thus cannot argue that there is any finding of the said money being bribe money. The jurisdiction to return a finding in that respect is only of the Criminal Court and not of the authorities under the Income Tax Act. 20. As far back as in Chuharmal Vs. Commissioner of Income Tax (1988) 3 SCC 588 the Supreme Court approved the approach of the High Court; the High Court held the assessee to be the owner of the wrist watches found in his premises during a search and seizure operation and relied on Section 110 of the Evidence Act, 1872 stipulating that when the question is whether any person is owner of anything of which he is shown to be in possession, the onus of proving that he is not the owner, is on the person who affirms that he is not the owner; it follows, that normally unless contrary is established, title always follows possession and since possession of the wrist watches was found to be of the assessee in that case and the assessee did not discharge the onus of proving that the wrist watches did not belong to him, the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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