9911796707
TMI Blog1983 (8) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... 500. The sale deed stands in the name of Smt. Ram Kumari Gupta. This house was reconstructed and the ground floor was completed in May 1978, whereas the first floor was constructed later. The case of the assessee was that the house did not belong to him but to his wife whose sources of investment consisted of the money which she received from father and other relatives on marriage, her personal savings out of the household and moneys received by her children on different festivals and other ceremonial occasions. However, the ITO was influenced by the following considerations on the basis of which he drew the inference that the assessee was the real owner and in possession of the house which was used for the purposes of the residence and bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on his own letter and affidavit and the letter and affidavit of his wife. It was pleaded that it was for the department to establish that the transaction was benami. The learned AAC upheld the assessee's contention that the onus of proof lay on the department. He observed that since the ITO had chosen not to cross-examine the deponents on their affidavits there was a presumption that he was satisfied with their contents. Reliance was placed by him in this connection on the decision of the Supreme Court in Mehta Parikh & Co. v. CIT [1956] 30 ITR 181. The learned AAC also relied upon the fact that in her affidavit the assessee had stated having taken a loan of Rs. 20,000 from one Mahadeo Prasad and having entered into an agreement dated 5-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the ITO were supportable. On the other hand, Shri R.K. Gulati, the learned counsel for the assessee strongly supported the order of the learned AAC. He referred to the decision of the Hon'ble Allahabad High Court in the case of L. Sheo Narain Lal, In re [1954] 26 ITR 249 in which it was held that if a house stands in the name of the wife, the presumption is that she is the owner thereof and that it is for the person alleging that she is a mere benamidar for her husband to prove the allegations by direct or circumstantial evidence. Referring to the decision of Assam High Court in Tolaram Daga v. CIT [1966] 59 ITR 632, he pointed out that the mere fact that the party purchasing the house was the assessee's wife did not ipso facto make th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption was held to be recognisable in the case of a husband and wife as in the present case. The Assam High Court also recognised the same proposition in the case of Tolaram Daga from the standpoint of section 106 of the Indian Evidence Act, 1872 which is to the effect that the burden of proving a fact is on one in whose special knowledge that fact is. The High Court held that the assessee cannot be presumed to have special knowledge of the sources from which his wife got the money. No doubt, when evidence has been led, the question of burden of proof loses its importance and we have only to see the source whence the investment was made. This is what the decision of the Supreme Court in the case of Mokesh Builders & Financiers Ltd. would com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trinsic therein which discredits it or which renders it untrustworthy. 6. The evidence on the record now remains to be appreciated and assessed in the light of the above. Firstly, there is the letter and affidavit of the assessee's wife in which the following sources are given for the purchase of the house: (i) money received from father and relatives on marriage, (ii) savings out of money received for domestic expenses, and (iii) moneys received by children on different festivals and other ceremonial occasions. Thus, the fact that she had no independent source of income loses its significance. Even with the withdrawals by the assessee of Rs. 2,250, Rs. 3,670 and Rs. 3,591 for the assessment years 1976-77 to 1978-79 the contention rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not any investment in the constructions up to 1-4-1978. It is, therefore, not necessary to examine the nature and source of the investment which is not relevant to the assessment year in question or which though relevant to the assessment year in question, does not relate to the purchase of the house property in question. In the light of the evidence on the record and the position as discussed above, we are clearly of the view that the learned AAC was justified in not upholding the action of the ITO in treating the amount of Rs. 22,500 as the assessee's unexplained investment in the purchase of the house property. 7. The only other point involved in this appeal relates to the addition of Rs. 5,409 made by the ITO for low household expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
