1988 (10) TMI 86 - AT - Income Tax

Summary

Issues Involved:
1. Ownership of foreign exchange seized from the assessee's briefcase.
2. Inclusion of Rs. 7,000 belonging to the assessee's wife in the assessee's income.
3. Charge of interest under sections 139(8), 215, and 217.

Detailed Analysis:

1. Ownership of Foreign Exchange Seized:
The assessee, a director of M/s Saraf Textiles Mills Pvt. Ltd., was found with a briefcase containing foreign currency during a search operation. The assessee claimed the foreign exchange belonged to an acquaintance, Mr. Islam Bhai, and was left with him for safekeeping. The CIT(A) included the amount of Rs. 60,318 as unexplained income, which the assessee contested.

The counsel for the assessee argued that under section 69A, the Department must prove ownership, not just possession, of the money. The counsel cited various case laws to support the argument that mere possession does not equate to ownership and that the onus was on the Department to establish ownership conclusively.

The Department argued that section 69A allows for the presumption of ownership if the assessee fails to satisfactorily explain the source of the money found in his possession.

The Tribunal noted that section 69A requires the assessee to be found as the owner of the money and that the money must not be recorded in the books of accounts. The Tribunal acknowledged the distinction between ownership and possession and considered the assessee's explanation about the foreign currency. The Tribunal observed that while the explanation seemed implausible, mere rejection of the explanation was insufficient to treat the assessee as the owner without corroborative evidence.

The Tribunal concluded that the matter should be remanded to the ITO to examine the case along with the Limited company from whose premises the foreign currency was found. The ITO should consider all evidence and provide the assessee with an opportunity to present his case.

2. Inclusion of Rs. 7,000 Belonging to the Assessee's Wife:
The assessee contested the inclusion of Rs. 7,000, which belonged to his wife, Smt. Suman Saraf, in his income. The Tribunal noted that the AAC had already added this amount to the wife's income, and the Revenue had accepted this decision. The Tribunal remanded this issue back to the ITO to verify if the decision of the AAC had been accepted and if no second appeal was preferred, then the amount should not be added to the assessee's income.

3. Charge of Interest under Sections 139(8), 215, and 217:
The assessee raised the plea of bona fide belief regarding the charge of interest under sections 139(8), 215, and 217. The Tribunal suggested that the ITO consider this plea if a waiver petition is filed by the assessee.

Conclusion:
The appeal was allowed for statistical purposes, with directions to the ITO to re-examine the ownership of the foreign exchange and the inclusion of Rs. 7,000, and to consider the plea of bona fide belief regarding the interest charges.