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TMI Blog2006 (6) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof on the Revenue - It is trite law that a person who is in possession of an article has to prove its source - - - - - Dated:- 27-6-2006 - Judge(s) : K. S. RADHAKRISHNAN., V. RAMKUMAR. JUDGMENT The judgment of the court was delivered by K.S. Radhakrishnan J.- This appeal has been preferred by the Commissioner of Income-tax, Trivandrum, aggrieved by the order of the Income-tax Appellate Tribunal in I.T.A. No. 79/Coch./96 dated April 28, 2000. Though four questions have been framed in the appeal, the Revenue is primarily aggrieved by the order of the Tribunal in wrongly placing the burden of proof on the Revenue. The assessee is an individual and carries on business as the proprietrix of M/s. Padmaja Jewellers. A search was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, however, at the time of hearing filed a written statement before the Assistant Director of Investigation stating that the gold ornaments seized belonged to five customers who had given gold ornaments for remaking them into new bangles. A letter to that effect was also sent to the investigating officer. Following are the names and quantity of gold ornaments alleged to have been given by five customers. 1. Smt. Krishnammal 116.400 gms. 2. Shri B. Rajendran 98.870 gms. 3. Shri P. Pushpadas 96.300 gms 4. Shri P.M. Prasanna Babu 112.40 gms. 5. Shri Chandrasekharan Pillai 150.200 gms. The assessing authority noticed that the statement filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Veterinary Department of the Kerala Government. Considering the status of the claimants and the quantum of jewellery claimed to have been entrusted by them for converting into new ones and the fact that the machinery is capable of making more than 77 bangles, the preponderance of probability is that they belong to the claimants and not to the assessee. The addition on this account is therefore deleted." The Revenue aggrieved by the said order took up the matter in appeal before the Tribunal. The Tribunal concurred with the view of the appellate authority and held as follows: "Considering the facts brought on record, we are of the view that there is no reason to disturb the order of the first appellate authority. The reason is, as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellate authority as well as the Tribunal to accept the statement of five customers is unsustainable and made on an afterthought. Counsel took us through the sworn statement given by Govindrajan which was recorded during the course of search operation and which would indicate that the entire gold ornaments were brought by one V.S. Raju, partner of M/s. Karthika Jewellery on the morning of the previous day of the search and that the gold ornaments were received by his brother Devarajan, who had handed it over to Govindrajan for preparing new ornaments. Counsel submitted that there is no reason to disbelieve those statements made by a person in charge of the jewellery, and it is only to wriggle out of the sworn statement made during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors, their creditworthiness and the genuineness of the transactions. Counsel appearing for the respondent, Sri K. Anand, on the other hand, contended that there is no reason to disbelieve the letter of the assessee dated May 13, 1992, and the letters and affidavits submitted by the five customers who had entrusted the gold for remaking the same to gold bangles. Counsel submitted that they are men of means and status in society and their statements ought to have been accepted. Counsel further submitted that the Commissioner of Appeals as well as the Tribunal on the facts concurrently found that the gold ornaments were entrusted by the five customers and consequently there is no reason to discard their evidence. In any view of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent? Answer: There is approximately more than 500 gms of gold here at present. Question: Who has given the abovementioned gold? Answer: It was received yesterday at 9.00 a.m. for Mr. Raju, Karthika Jewellery, Alleppey. Question: When gold was received for working from Karthika Jewellery, whether the legal voucher was given along with it? Answer: I do not know. It is my elder brother who is writing all these things. Question: All the gold given by Mr. Raju yesterday from his shop are kept here working, is not it so? Answer: Yes." The original statement in Malayalam with regard to the last of the above questions and answers reads as follows: The sworn statement given by Govindarajan would show that the gold ornaments were b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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