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TMI Blog2002 (7) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ant? (3) Whether, on the facts and in the circumstances of the case, in so far as any investment the source of which is not explained, can be assessed as an undisclosed income only of the financial year in which such investment is made under section 69A or 69B of the Income-tax Act, in the name of the person, who makes such an investment the conclusion of the Tribunal is right in law? (4) Whether the Tribunal is entitled to take a view which is not opposed to the specific statutory provisions contained in sections 69A and 69B? (5) Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the investment standing in the name of the wife represents the undisclosed income of the petitioner in the absence of any material to show that the said investment has been made by the appellant and even in the absence of any averment to that effect? (6) Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal is right in disbelieving the statement given by the appellant's wife with regard to the source for the investment in the said property? (7) Whether, on the facts and in the circumstances of the case, the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amily members. The assessee has given a statement stating that the property was his wife's property and the entire consideration for the purchase of the property at Karur was provided by the brother of his wife in consideration of his wife's relinquishing her share in certain agricultural lands allotted to her by her father at Edaya Kottai, Dindigul District. The assessee also produced the release deed dated January 12, 1998. It was found that the deed of release was an unregistered document executed on a stamp paper valued at Rs. 20 and the value of the property over which the wife of the assessee relinquished her rights was not even indicated in the deed of release. The release deed proceeded on the basis that she relinquished her interest in the agricultural lands which were settled by her father and she relinquished her interest in the lands in favour of her brother one Y. A. M. Shahul Hameed in lieu of payment of Rs. 1,75,000. The Assessing Officer enquired Y. A. M. Shahul Hameed on November 30, 1997, who is the brother-in-law of the assessee. He gave a statement to the effect that he had given a sum of Rs. 1,75,000 to his sister for purchasing the house property at Karur. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the house property at Karur was made out of the undisclosed income of the assessee and accordingly he held the total purchase consideration of Rs. 1,66,175 was the undisclosed income of the assessee. The assessee filed an appeal before the Income-tax Appellate Tribunal, Madras, against the order of the Assistant Commissioner of Income-tax, Investigation-I, Trichy. The Appellate Tribunal noticed the statements made by the assessee's wife and the brother-in-law and further noticed that the assessee's brother-in-law had taken jewel loans for Rs. 50,000 and Rs. 25,000 on August 31, 1996 and on June 9, 1996. The Tribunal found that the sum of Rs. 75,000 were not available with the wife of the assessee at the time of purchase of the said property as the loans were obtained subsequent to the date of purchase of the property. As regards the balance sum of Rs. 1,00,000, the Tribunal went into the details of the availability of cash and found that it was difficult to believe that the brother-in-law of the assessee would have advanced a sum of Rs. 1 lakh from his savings. The Tribunal, after noticing the statement filed by the assessee's brother-in-law and the sworn affidavit of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the assessee has not explained the source for the investment standing in the name of his wife. Learned counsel further relied on section 158BC of the Act and submitted that the document seized showed that the property was standing in the name of the assessee's wife at the time of search and in view of the presumption under section 158BC of the Act, the investment should be treated as the investment of the wife of the assessee and it cannot be treated as an unexplained investment of the assessee. She also referred to the provisions of section 64 of the Act and submitted that the unexplained investment standing in the name of the wife of the assessee cannot be assessed in the hands of the assessee as his income as there is no legal requirement for the assessee to explain the source of the purchase of the property purchased by her. We have considered the submissions made by learned counsel for the appellant/assessee. The Tribunal has found as a fact that the wife of the assessee, Mumtaj Begum, had no separate income of her own. Her case that she had some agricultural land which she got under a settlement from her father executed on October 29, 1969, was not proved. Her furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence. Learned counsel for the assessee relied on the case of H. N. Parswanath v. CIT [2001] 247 ITR 224, wherein the Karnataka High Court was dealing with the case of investments made by the major sons of the assessee which were treated as unexplained investments of the assessee. The court held that the question regarding the onus of proving the independent sources of income of the sons of the assessee is a question of law. That decision is distinguishable as the investment in the present case was made by the assessee in the name of his wife and that it is not a case of investment made by the wife of the assessee. Hence that decision is of no assistance to the assessee. In the case of CIT v. Nitin Kumar [2001] 248 ITR 478, the Punjab and Haryana High Court was dealing a case where the Tribunal had found that there was no evidence to establish that the assessee had made investment over and above the amounts recorded in the sale deed and hence additions under section 69 of the Act were unwarranted. This is not a case where the investment was made over and above the amount recorded in the sale deed and further the decision in the Punjab and Haryana High Court dealt with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's wife had no other source from which she could have deposited the amount except her husband and it was also proved that the assessee had deliberately suppressed part of his income relating to business. The decision of this court in KM. N. N. S. N. Subramanian's case [1965] 55 ITR 610 is an authority for the proposition that the Revenue is empowered to add the unexplained investment made in the name of the wife or relative of the assessee as the undisclosed income of the assessee if the facts warrant the same. In our view, it would depend upon the facts of each case and the evidence and the probable course of events that would determine whether the investment made in the name of the assessee's relative could be treated as the unexplained income of the assessee particularly in the case of search. We also hold that in a case where it is found that the assessee's relative had no source of income and it was also proved that the assessee alone could have utilised his unexplained money for the purchase of the property standing in the name of his close relatives, the finding rendered by the Tribunal to treat the amount of investment as the undisclosed income of the assessee woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in her name. The financial condition of the assessee's brother-in-law was also found to be not sound so that he could have advanced the sum of Rs. 1,50,000 to his sister for the purpose of purchasing the property. The assessee was working as an Inspector of the Wakf Board and later became the District Secretary of a political party. Considering the common course of natural human conduct, we hold that the finding arrived at by the Appellate Tribunal that the investment made by the assessee in the name of his wife, really represents the investment of the assessee is perfectly in order on the facts of the case. The above finding of the Tribunal was arrived at on the basis of appreciation of evidence and the assessee has not discharged his burden by letting in any contra evidence accounting for the sum of Rs. 1,50,000. We therefore hold that the finding of the Tribunal that the amount representing the investment standing in his wife's name really represents the undisclosed income of the assessee is a pure finding of fact arrived at on appreciation of evidence. We accordingly do not find any question of law that arises from the order of the Tribunal in so far as questions Nos. 1 to 8 as ..... 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