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TMI Blog2009 (3) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 69A amounting to Rs. 1,04,71,720 is legal and valid? 2. Whether the addition amounting to Rs. 1,04,71,720 could at all be sustained in the absence of condition precedent for invoking section 69A of the Income-tax Act? 3. Whether the Tribunal is justified in sustaining the addition of Rs.1,04,71,720 under section 69A on account of short supply of bitumen in the hands of the appellant who is merely a transporter of the goods?" 3. The facts necessary for the decision of the present appeal are that the assessee which derives income from carriage contract for the assessment year 1996-97, filed return on October 31, 1996, disclosing total income of Rs. 5,76,133. The case was selected for scrutiny and notices as contemplated under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull delivery to the respective divisions. While adjudicating the appeal in I.T. A. No. 358(Patna)2000 decided on December 11, 2002, we had an opportunity to appreciate the facts in this regard. We formed an opinion that the photocopies of the delivery challan were false and fabricated. We further, came to the conclusion that the admission made by various junior engineers, was clarified and the explanation made by them was that bitumen supplied was short and the delivery was not in consonance with the orders, on the strength of which the goods were lifted from the various companies located at Haldia. Here in this case too the assessee nowhere disputes the quantity of the goods lifted by it from various companies at Haldia. It has not been di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of article 19(1)(f) of the Constitution. No one denies that an evacuee from Pakistan has a residual right in the property that he left in Pakistan. But the real question is, can that right be considered as ownership within the meaning of section 9 of the Act. As mentioned earlier that section seeks to bring to tax income of the property in the hands of the owner. Hence, the focus of that section is on the receipt of the income. The word 'owner' has different meanings in different contexts. Under certain circumstances a lessee may be considered as the owner of the property leased to him. In Stroud's Judicial Dictionary, 3rd edition, various meanings of the word 'owner' are given. It is not necessary for our present purpose to examine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lifted and not delivered. 9. Referring to the decision of the Supreme Court in the case of R. B. Jodha Mal Kuthiala [1971] 82 ITR 570, the same is clearly distinguishable. In the said case itself, the Supreme Court has observed that for determining the person liable to pay tax, the test laid down by the court was to find out the person entitled to that income. Here on the facts the Tribunal has found that the bitumen was lifted but not supplied to the Road Construction Department and in that view of the matter, I am of the opinion that the assessee shall be liable to pay tax. The relevant portion of the judgment of the Supreme Court reads as follows (page 577): "For determining the person liable to pay tax, the test laid down by the cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee to the taxi. No other person, however, was prosecuted. The Tribunal accepted the explanation given by the assessee that he was induced on a payment of Rs. 50 to carry a bag containing gold up to a taxi which was standing on Kalbadevi Road. The Tribunal has, therefore, on the basis of these facts, come to the conclusion that the assessee was a small person with insufficient means and that he was not the owner of the gold in question. The Tribunal, has, therefore, come to the conclusion that the addition of Rs. 65,000 made by the Income-tax Officer under section 69A of the Income-tax Act, 1961 was not justified." 11. This judgment in no way supports the contention of the assessee. In the aforesaid case on the facts, the High Court fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee for such financial year." 13. From a plain reading of the aforesaid provision, it is evident that when the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article its value would be deemed income of the assessee. Valuable article is a separate item in section 69A of the Act and it cannot be said that those valuable articles should be in the nature of bullion and jewellery. In my opinion, any article which has value will come under the expression "valuable article" mentioned in section 69A of the Act and the value of such article can be deemed to be the income of the assessee in case the assessee fails to offer explanation or the explanation offered is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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