TMI Blog2004 (3) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the assessee." 4. The facts, as revealed from record, seem to be that on 15-10-1986 at 19.30 hours the assessee's brother Kishore N. Jain (for short KNJ) who was going on yellow colour Bajaj scooter No. MFG-2581, was intercepted by officials of Directorate of Revenue Intelligence (DRI) at Jasmine Building, Dockyard Road, Bombay and on search of his person (body) the officials found 50 biscuits/bars of contraband gold weighing 500 Tolas valued at Rs. 13,51,400 kept in the handmade cotton belt fastened around his waist, and seized the same. The detailed inventory/panchanama was prepared in the presence of panchas. Proceedings under the provisions of Customs Act were initiated wherein order of the Customs Collector dated 31-5-1988 was passed, wherein the Customs Collector confiscated the gold as being improperly imported into India from abroad under section 111, Customs Act, 1962. He also imposed penalties under section 112 of the Customs Act, 1962 and also under section 74 of the Gold Act, 1968 on KNJ and assessee (Pukhraj Jain) etc. The Statement of KNJ was recorded by the Official of DRI on 15-10-1986. The Statement of Shri Pukhraj Jain/assessee was recorded on 5-12-1986. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contraband gold from Ahmed, so penal action under the Customs Act was initiated against Pukhraj Jain alongwith KNJ and the penalty was imposed and all the aforesaid evidentiary material was available with the Assessing Officer. He has contended that after the above finding being available on record of the Assessing Officer, the burden was on assessee to prove that he was not the owner of that gold or that he has not involved in any act connected therewith. He has contended that in reply to Assessing Officer's query the assessee denied his possession/ownership/involvement in the said gold transaction, and the said reply of the assessee has been reproduced on page 3 of the assessment order. He has contended that in the assessment order the Assessing Officer has relied mainly on the statement of KNJ and drew his finding. He has contended that KNJ being a student, cannot be the owner of gold worth Rs. 13.5 lakhs and these facts indicated that the assessee was the owner of that gold, and since this gold was not recorded in the books of the assessee, the Assessing Officer concluded that there was unexplained investment in this gold by the assessee, and the same was Assessable under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine this aspect or could have called for a remand report from the Assessing Officer. He has contended that if the learned CIT(A) was to reject the finding of Customs Collector, then he should have given his own reasoning and his own finding and that finding should have been based on inquiries. He has contended as to whether the learned CIT(A) could reject the finding of an independent authority, being Customs Collector, without doing the inquiry himself? He has contended that the probability is very high that KNJ might be working under the instructions of the assessee, and that the learned CIT(A) coming to conclusion and ignoring independent inquiry of Customs Collector is a fatal error on the part of the learned CIT(A). He has contended that various submissions made by the assessee have not been discussed by the learned CIT(A) in his impugned order. He has contended that if the learned CIT(A) was not satisfied he should have called Pukhraj and KNJ and should have examined them but the learned CIT(A) having not done so and having drawn his conclusion is patently wrong; and so the Assessing Officer's order be restored. 6. As against the above, the learned Authorized Representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -10-1986 or in the early morning of 16-10-1986 and that on the very next day on 17-10-1986 KNJ retracted film his said statement. He has contended that during search of the residential premises of Nihalchand Jain, where earlier assessee was also residing with his father and brothers, conducted on 5-11-1986, nothing incriminating was found vide panchnama on page 20 of the paper book. He has contended that the scooter No. MFG 2581 seized from KNJ on 15-10-1986 belong to the assessee and that the assessee's scooter is MRZ 982 and in this regard he has referred to page 61 of the paper book being Customs Collector's order mentioning scooter No. MFG 2581 and page 17 of the paper book, being panchnama prepared on 15-10-1986 and page 34 of the paper book being assessee's further statement recorded on 8-12-1986 mentioning assessee's scooter being MRZ 982. He has contended that the assessee had written letter dated 13-11-1989 requesting for allowing the assessee opportunity to cross examine KNJ, Panch witnesses, and seizing officer but despite the fact that the Assessing Officer passed the assessment order on 27-3-1992 and thus there having been ample time available, but the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve of the assessee has contended that it was the duty of the Assessing Officer to ascertain the facts and it was not necessary for the learned CIT(A) to ascertain that it was not assessable in assessee's hands. He has contended that it was for Assessing Officer to ascertain the facts and draw his finding that it was assessable in hands of the assessee. He has contended that the burden has not been discharged by the Assessing Officer. He has contended that it is enough for the learned CIT(A) to hold that the burden has not discharged by the Assessing Officer and accordingly to cancel the assessment. He has contended that it was not CIT(A)'s duty to find out as to whose income it was but his duty was only to find out as to whether it was assessee's income or not for the reason that it was the assessee who was before him. He has contended that the value of gold was not assessable in the hands of the assessee. He has supported the learned CIT(A)'s order. He has cited Ms. Reena H. Mirchandani v. Asstt. CIT [2000] 66 TTJ (Delhi) (TM) 91, (92), Pushpa Vihar v. Asstt. CIT [1994] 48 TTJ (Bom.) 389 in his support during arguments. He has also filed a brief synopsis wherein a number of decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any prohibition for the time being imposed under the Act or any other law for the time being in force with respect to such goods. It should be borne in mind that for punishment under the above sections. It is not necessary for the customs authorities to prove the ownership of the goods. It is enough if there is an attempt by any person, including a carrier, of evasion of any duty chargeable thereon or of any prohibition for the time being imposed under the Customs Act." In this citation it has also been held that the burden of proving ownership is entirely on the department as per the provisions of section 69A of this Act. 14. In Pushpa Vihar v. Asstt. CIT [1994] 48 TTJ (Ban.) 389 during survey the assessee had made an admission regarding unaccounted income of Rs. 9.25 lakhs but later the assessee retracted from the admission on the ground that there was some misunderstanding as what he stated was about sale and not income and so he offered Rs. 3 lakhs. The learned CIT(A) rejected the assessee's subsequent offer on the ground that neither of the two statements was supported by any evidence and so there was no apparent choice between the two, but the former declaration having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Act or Acts, such as the income-tax Act." 18. However, we may note that the Customs Collector has, vide his order dated 31-5-1988, imposed penalties on KNJ and Pukhraj under section 112 of Customs Act, and the said section 112 of Customs Act provided for the liability of penalty on any person who does not omits to do any act which would render such goods liable to confiscation under section 111, or who acquires possession of such goods or is in anyway concerned in the carrying, removing, deposing, keeping concealing, selling or purchasing etc. of such goods. As such, the person, liable for imposition of penalty under section 112 of the Customs Act, may be the person being in anyway concerned with the goods which are improperly in outside. The above provision, in no way, requires the concerned person to be the owner of the goods. It may also be noted that under section 138A there is a provision for presuming in any prosecution for an offence under the Customs Act, 1962 requiring the culpable mental state on the part of the accused, that such accused had the required culpable mental state though the accused could furnish defence to rebut the said presumption. 19. In Chuharmal v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Act, 1961. An Assessing Officer, being a quasi-judicial authority, has, while framing assessment, to discharge his duty/function judicially and in that process the Assessing Officer has to apply his own mind independently to the facts of the case, ascertained by him and then to draw his own conclusion/decision by appreciating the evidence/material brought/available on record before him; the Assessing Officer cannot base his conclusion/decision on the finding of any authority under any other Act/law, and thus adopt the finding/conclusion of that authority. The decision to be drawn by the Assessing Officer has to be his own and independent one. Contextually and advantageously as well, we may refer to the provision of section 143(3) which, inter alia, provides for the framing of assessment as under: "... after hearing such evidence as the assessee may produce and such other evidence as the Assessing Officer may require on specified points and after taking into account all relevant material which he has gathered." Thus, evidently clear as it is from the above quoted statutory provision, the Assessing Officer cannot base his decision on the findings/conclusions of Customs Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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