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TMI Blog1981 (6) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted the ownership of the currency seized from her. She was an illiterate woman. The ITO was satisfied and assessed the amount as the income of the assessee. 3. The assessee challenged this order before the Commr. (Appeals). Firstly the jurisdiction of the ITO to make the assessment was questioned. The Commr. Rejected this contention. He said that the question regarding the jurisdiction of the ITO was not appealable. Even on merits the assessee had failed to show that she was detained under Misa or Confeposa and, therefore, this ITO did not have jurisdiction to decide her case. 4. It was then urged that the assessee was not owner of the currency notes seized from her. The Commr. (Appeals) referred to s. 110 of the Evidence Act accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, in the case where an order of detention has been made under the Misa or Confeposa. The jurisdiction was given to Special Circle XVI. This assessment has been made by ITO Distt. II (11). However the ld. Counsel could not point out any evidence to show that any order of detention either under Misa or Confeposa was passed against the assessee. That alone is sufficient to reject the claim of the assessee on merits. However, we are also satisfied that the assessee cannot contest the jurisdiction of the ITO before the appellate Court. The only plea he took before the ITO was by letter9th March, 1978on page 10 which made as follows: "Incidentally I add that the order is also bad for want of jurisdiction with you". Why the ITO had no jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uable articles, the amount has to be added in her income. The authorities below have relied on s. 110 of the Indian Evidence Act for the proposition that where a person is found to be in possession of any thing, the burden of proving that he is not the owner thereof is on him. The Bombay High Court had occasion to consider this question in the case of J.C. Parker vs. V.B. Paleker (1974) 94 ITR 616 (Bom) and the matter is discussed on page 648 of the report in the minority judgement of Justice Mukhi, where His Lordship held that the onus of proving that the assessee is the owner of the valuable articles seized from his possession is on the Revenues. Presumption cannot come to the aid of the Revenues in this. His Lordship also held that the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Kerala High Court in the case of CIT vs. Smt. P.K. Noorjahan, (1980) 15 CTR (Ker) 138: (1980) 123 ITR 3 (Ker) for the proposition that merely because an investment is provided to have been made by an assessee, an addition in her hand need not necessarily be made. The matter lies in the discretion at the Tribunal. That was a stranger case for the Revenue since the investment by the assessee in the property had admittedly been made and still the Tribunal held that the addition of the amount of investment under s. 69A in hands of the assessee was not in the facts of the case justified. The matter in the case before us is worse for the Revenue because the Revenue has totally failed to prove that the assessee was owner of the currency se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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