9911796707
TMI Blog2001 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... 72-73 are as follows : "1. Whether, on the facts and circumstances of the case and the materials on record, the Appellate Tribunal was justified in sustaining the additions of Rs. 88,000 and Rs. 19,52,190 as the assessee's income from other sources ? 2. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in sustaining the addition of Rs. 15,000 for each of the assessment years 1974-75, 1975-76 and 1980-81 as income from property ?" The questions of law referred for the years 1974-75, 1975-76 and 1980-81 are as follows : "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in sustaining the addition of Rs. 15,000 for each of the assessment years 1974 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter requires fresh consideration by the Tribunil. So far as the allegation of benami is concerned, this court observed as follows : "the question whether an ostensible owner is the real owner of the property or as to whether it is held as benami for another person has to be considered on a conspectus of all the facts and circumstances of the case. No doubt the onus of establishing that the transaction is benami is on the person asserting the benami nature of the transaction. The source whence the consideration came is a crucial test in deciding this question. But that is not conclusive of the issue." Then the court observed as follows : "The Tribunal has not, however, chosen to advert or to apply its mind or to consider any of the numerou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... muggled goods belonged to the assessee. So far as the purchase of property is concerned, the Tribunal looked into the various circumstances and came to the conclusion that the property was purchased with the funds of the assessee. It has taken into account the fact that the municipal taxes were paid by the assessee, (3) even though the assessee set up a case that it was on the basis of the irrevocable power of attorney that the documents were executed, no evidence has been produced to show whether the power of attorney was executed or whether it was cancelled. It also took into account the fact that the construction of the compound wall was made by the assessee. It was also brought to the notice of the Tribunal that the persons who purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat so far as this aspect is concerned, the customs authorities imposed a penalty of Rs. 10 lakhs on the assessee in the customs proceedings. Learned counsel for the assessee submitted that the assessee has paid only Rs. 10,000 for filing the appeal. According to him, the balance amount has not been paid. It is also seen from the proceedings under the Customs Act that a penalty was imposed on the assessee. Even though he submitted that the matter was pending before the Tribunal, no records have been produced. We agree with the reasoning given by the Tribunal that without producing the necessary evidence, the assessee cannot say that those smuggled goods were not received by the assessee in the circumstances of the case. The order of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the question of benami is concerned, it is true that the initial burden is on the person, who alleges benami nature. But it is not a case of benami as defined in the Trust Act or hit by the present provisions of the statute regarding benami. It is very difficult to prove that a person had advanced money for purchasing properties in the names of three persons. The fact that the assessee himself constructed the compound wall was not denied. Taxes were paid by the assessee. Even though the assessee asserted that he had a power of attorney and it is on the basis of the power of attorney that the transactions were entered into, nothing has been produced to show that there was a power of attorney. Hence, we are of the view that there is pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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