TMI Blog1983 (8) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 business : (i) that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontents. 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 5-6-1978 with Gupta Co. He, therefore, took the view that the ITO was not justified in treating the investment of Rs. 22,500 as the unexplained income of the assessee. 4. In the appeal before us, Shri Satya Prakash, the learned departmental representative placed reliance on the order of the ITO. He referred to the decision of Hon'ble Allahabad High Court in Sri Krishna v. CIT [1983] 142 ITR 618 for the proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the assessee come into the knowledge of the sources from which the money was got. He also submitted on the basis of the decision of the Supreme Court in CIT v. Daulat Ram Rawatmull [1973] 87 ITR 349 that even if the explanation of the assessee's wife regarding the sources of the investment was to be rejected a finding could not be reached that the amount belonged to the assessee. Lastly, on the basis of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 come to with reference to the facts of the present case. No doubt, the question whether the transaction was 'benami' requires to be examined in the light of the tests laid down by the Supreme Court in the case of Jaydayal Poddar and wherein the most important test laid down is as to who made the investment. The next point which requires to be noticed, is that even if for the sake of argument the assessee's wife fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic 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 regarding savings cannot be ruled out as the savings were alleged for a long period of time. The assessee filed his own letter and affidavit to the same effect. These affidavits are clear and there is no contradiction pointed out on behalf of the department therein nor is there any intrinsic defect in them which may warrant their being treated as unworthy of belief. In case the ITO had any doubts he could have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expenses. The withdrawals made by the assessee for household expenses for the assessment year in question amounted to Rs. 3,591. The ITO considering the fact that the assessee was living in a rented house and that he was maintaining a good standard, estimated the household expenses at Rs. 9,000 and accordingly made an addition of Rs. 5,409. The assessee pointed out before the learned AAC in appeal that he had o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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