TMI Blog1992 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid difference in the actual price of the property added in his hands on protective basis. 3. We will first deal with the appeal of Smt. Ramilaben as the decision in the case of the husband will be of a consequential nature depending on the decision in the case of the wife in whose hands the aforesaid addition was made on substantive basis. 4. Smt. Ramilaben submitted her return of income on 30-6-1984 declaring total income of Rs. 37,510. During the relevant previous year S.Y. 2039 (assessment year 1984-85) she agreed to purchase the aforesaid flat at Surat for Rs. 1,76,121 by executing an agreement on 7-10-1983. As per the balance-sheet furnished by the assessee and as per the wealth-tax return, a sum of Rs. 76,121 was paid towards purchase price of the said flat till the end of the accounting year under consideration. In the next year i.e., S.Y. 2040 relating to assessment year 1985-86, the assessee finally purchased the property by executing a sale-deed on 31-8-1984 and she made balance payment of Rs. 1 lakh in the subsequent year as is verifiable from the copy of property account appearing in the books of account of the assessee. She also incurred expenses for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n gave out clearly that she was not aware about the nature of the property, payment and about Shri Jagdishbhai. Because of her utter lack of knowledge about the purchase of this property, the ITO was of the view that everything has been done by her husband Shri Ratilal H. Shah. No concrete evidence could be collected during the search to prove Ramilaben as benami of her husband regarding this property. As such an addition of Rs. 1,85,900 was made in the case of the husband also on protective basis. 5. On appeal, the CIT (Appeals) confirmed the addition of Rs. 1,85,900 in the case of the appellants. As regards the validity of the proceedings initiated under section 147(a), it has been mentioned by the CIT (Appeals) that the authorised representative of the assessee, vide his letter dated 10-8-1990 has not pressed the point relating to the validity of the impugned reassessment proceedings. Hence this ground was also rejected. 6. Before us, the learned counsel for the assessee vehemently contended that resort to initiation of proceedings under section 147(a) is invalid as the original assessment was made on 21-1-1987 after the raid was conducted on 6-11-1985. The entire material w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was also examined who has also denied having received any extra money in respect of the sale of the said flat to the assessee. He placed reliance on the affidavit of Smt. Ramilaben filed during the course of assessment proceedings in which she has stated that the handwriting in the noting of the said diary does not belong to her or her husband and she has not paid any on money for the purchase of the property in question. Her husband also stated the same thing. The note in the seized telephone diary has no evidential value and it cannot override the value mentioned in the respective agreement and in the books of account maintained by the assessee. It was submitted that there is a difference of a round sum of Rs. 2 lakhs between the figure mentioned in the seized diary and the consideration that was mentioned in the documents of sale and the difference was not Rs. 1,85,900 added by the ITO. The stamp expenses of Rs. 14,100 incurred has not been taken into consideration while arriving at the amount of difference. It was stated that the person who made notings in the diary has written Rs. 3,76,121 instead of Rs. 1,76,121. The learned counsel submitted that referring to the sale con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. The assessment under section 143(1) in the case of the wife as well as in the case of the husband were made by different assessing authorities. He supported the validity of the proceedings initiated under section 147(a) in view of the judgments in Elgin Mills Co. Ltd.v. CIT [1990] 184 ITR 326 (All.), Indo Aden Salt Mfg. Trdding Co. (P.) Ltd. [1986] 159 ITR 624 (SC) and A. Shanmugham Chetty v. CIT [1985] 154 ITR 331 (Mad.). 7. 1 On merits the learned D. R. contended that it has been admitted by the assessee and her husband that the diary belongs to them. It contains handwriting of the assessee's husband except in relation to the relevant note concerning the purchase of the said flat recorded in the said diary. It was for the assessee to explain as to who had written the said note in the seized diary. It is not at all significant and relevant as to who had written the said contents of the seized diary. But what is material is that the said note in the seized diary contains complete description of the flat purchased by the assessee, the date of its purchase, the exact location, area, name of the seller and the date of agreement to sell dated 7-10-1983. The only explanation giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of proceedings initiated under section 147(a), we are of the view that the contention of the assessee has no merit and deserves to be rejected. In the grounds of appeal in Form No. 35 submitted before the CIT(A) no such specific ground appears to have been raised by the assessee. Such a contention was mentioned in the statement of facts annexed with the said appeal. It has been mentioned that the appellant filed return on 30th June, 1984, on this return of income the appellant did not receive any assessment order and the case was reopened under section 147 and the notice under section 148 was issued. This contention of the assessee mentioned in the statement of facts before the CIT(A) was factually incorrect as the assessment under section 143(1) had been completed on 21st January, 1987. This fact was communicated by the assessing authority to the CIT(A) vide his letter dated 8th August, 1990. After this fact was brought to the notice of the representative of the assessee, he submitted letter dated 10th August, 1990 to the CIT(A) clearly stating that : " we do not want to press the grounds regarding validity of the assessment made under section 147(a) ". Such letter, in our view, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the residence of the assessee, such initial onus, which lies on the revenue, stands discharged and thereafter the burden lies on the assessee to prove that the consideration of Rs. 3,76,121 mentioned in the seized diary is not the real consideration. This could have been done by the assessee or by her husband by truthfully disclosing as to who had written these contents in the seized diary which was admittedly found from their own residence. The explanation that the mention of the figure ' 3 ' instead of ' 1 ' is an inadvertent mistake cannot be accepted in a case like this. It would be worthwhile to go through the answers given by the assessee as well as by her husband in the statements recorded during the course of search. The husband has nowhere stated that the figure of Rs. 3,76,121 mentioned in seized diary is a mere inadvertent mistake. He simply stated that : " I am not aware of noting made in the telephone diary ". " We have paid purchase consideration as per the documents ". The assessee Smt. Ramilaben has given absolutely vague replies in relation to the various questions with regard to purchase of the said flat. If it would have been a simple inadvertent mistake, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reluctant to accept that he charged on money for sale of his property to the assessee. Similarly, the assessee would also not accept the fact that any on money was paid for purchase of the said flat. These self-serving statements cannot override the fact recorded in the seized diary which was not meant for producing before the income-tax authorities but was a factual note recorded in the said diary, admittedly found and seized from the assessee's residence. 10.2 The alternative contention of the learned counsel for the assessee that there is no material to justify the addition in the year under consideration as the sale-deed was executed and completed in the subsequent year also cannot be accepted. The facts which are within the special knowledge of the assessee, the burden of proving that fact would always be upon the assessee. This fundamental principle relating to law of evidence is embodied in section 106 of the Evidence Act which clearly says that when a fact to be proved, whether affirmative or negative, is peculiarly within the knowledge of a party it is for him to prove it. The agreement for purchase of this property was admittedly made on 7th October, 1983 which falls i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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