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TMI Blog2015 (4) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... hy such explanation was not, in the opinion of the Assessing Officer, satisfactory. The fact that the assessee got some bottles of liquor by way of gift has been accepted by the assessing officer. It is sheer misapprehension on the part of the learned Tribunal when they observed that the price at ₹ 2000/- per bottle was not disputed by the assessee. Reference in this regard may be made to the judgment of the CIT (A) quoted above. It is not also a fact that the assessee had failed to offer an explanation. The fact on the contrary is that the assessee did offer an explanation and the circumstantial evidence did not militate against the same. A question of fact has to be considered on the touchstone of probability. The relevant question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning of its preceding words money, bullion, jewellery' as appeared in Section 132(I)(c ) of the Act ? (ii) Whether, on the facts and circumstances of the case, the Tribunal was right in law by denying the relief of ₹ 2,00,000/- on bottles of liquor granted by the Commissioner of Income Tax (Appeals) and holding that the approach of the Commissioner of Income Tax (Appeals) on this issue was wholly unjustified are based on any material and/or have been arrived at by ignoring the relevant materials and/or by taking into consideration irrelevant and/or extraneous materials and/or are otherwise arbitrary, unreasonable and perverse ? The appeal, however, was admitted only with regard to the first question indicated above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income Tax (Appeals) reversed the order of the Assessing Officer for the following reasons : On page-3 of the relevant assessment order, the AO has noted that 191 bottles of liquor were found during the course of search operation. During the course of assessment proceedings, the appellant stated that they were his collection over a number of years from duty free shops when he, his wife, his daughter and son used to undertake foreign trips. A large number of them were also received as gift from business associates and friends. The AO has only given a finding in the said assessment order that no explanation would be able to explain the possession of such large number of bottles and that the appellant must have purchased the same o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel for the assessee that the foreign liquor purchased or received by the assessee cannot be assessed in this year alone since the department has not produced any evidence to prove that the assessee has acquired these bottles in this year out of his undisclosed income, has no merit and cannot be accepted. In the course of search, if any valuable articles or thing is found and the assessee fails to explain the source of acquisition thereof, the value of such article or thing has to be assessed as undisclosed investment in the hands of the assessee and it is not for the department to prove that when actually the assessee has acquired such article or thing. In this case, the assessee had admittedly no evidence to prove the source of acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant question to ask is has the assessee been able to probabilize the defence taken by him? If his defence is a probable defence and the revenue has failed to adduce any evidence to show that the defence is either untrue or is inconsistent with the admitted facts and circumstances of the case that should ordinarily be the end of the matter. The Assessing Officer misdirected himself in holding the assessee liable for an undisclosed income of a sum of ₹ 2,00,000/- purely on the basis of a guess work that each bottle must have been bought at ₹ 2000/- after having accepted the case of the assessee that occasional social as well as official gifts can not be ruled out. Liquor after all is a consumable item and a person of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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