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TMI Blog2008 (11) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue as well as the assessees fairly stated that the questions should be recast as follows "(a) Whether the finding recorded by the Tribunal that the will dated June 2, 1992, was genuine in view of the certificate of probate obtained from the court of learned Additional District Judge, Katni, vide order dated March 15, 1996, and, therefore, the properties bequeathed under the will belong to the late L. P. Khanna? (b) Whether the Tribunal is justified in dislodging the finding of the Assessing Officer and that of the Commissioner of Income-tax (Appeals) that the additions made by the Assessing Officer that late L. P. Khanna, father of C. K. Khanna, the assessee, the income that was bequeathed under the will actually belongs to C. K. Khanna and thereby the late L. P. Khanna was the 'benamidar'?" 2. At the very outset, certain factual details are necessary to be stated. A search was conducted in the residential premises of the assessee, C. K. Khanna by Lokayukt on June 21, 1992, and on the same day another search was conducted by the authorities of the Income-tax Department. Certain assets in the form of cash, golden ornaments, fixed deposits receipts and keys of bank loc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L. P. Khanna. The Tribunal, after hearing the learned counsel for the parties, allowed the said documents as they were necessary for the just adjudication of the lis and accordingly allowed the application. After allowing the application the Tribunal, as is demonstrable, dealt with the individual appeals and allowed some appeals in toto and some in part. While dealing with the appeals, the Tribunal recorded the following findings (i) The late L. P. Khanna was dealing with property business and was definitely having some source of income from his property business as well as advance taken against his existing properties. (ii) A double storeyed house at Katni was gifted to the assessee's father, the late L. P. Khanna by his father the late Trilokinath Khanna in the year 1946. (iii) The daughters of the father of the assessee had already been educated and married by the year 1970 and, therefore, he could have certain savings. (iv) As far as the opinion of handwriting experts, Shri C. T. Servate and M. M. Nema is concerned, we agree with the observations of the Commissioner of Income-tax (Appeals) for the assessment year 1993-94 at pages 22 and 23 of his order where he has obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xiv) The deposits made in the names of Sunita Khanna and Vimla Khanna were from the income of the late L P. Khanna. (xv) As the deposits made in the names of Suchandra and Neeta Khanna are from the income of the late L. P. Khanna, the same cannot be put in the compartment of the income of the assessee. (xvi) The deletion of certain amount by the Commissioner of Income-tax (Appeals) was based on apposite and cogent reasons. (xvii) As the assessee comes from a well-to-do family and details have been given, regard being had to the details and facts in entirety details of each and every item have been explained by the wife, Smt. Sunita Khanna. There was no material to come to hold that all the items were purchased only in the year of search of the assessee and nothing before the search. The finding in this regard by the Commissioner of Income-tax (Appeals) cannot be found fault with. The finding recorded by the Commissioner of Income-tax (Appeals) with regard to jewellery was based on seemly material brought on record and, therefore, the additions made on account of gold jewellery and silver coins/utensils found in the residence of the assessee at the time of search was unjustifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been bequeathed under the will should have been disbelieved. 4. Mr. G. N. Purohit, learned counsel appearing for the assessees, has invited our attention to a Division Bench judgment rendered in Gopichand Gupta v. CWT [1981] 132 ITR 308 (Cal), wherein a question was posed by the High Court whether, on the facts and in the circumstances of the case, in view of the probate of the will having been granted by the High Court, it was competent for the Tribunal to go into the question as to the genuineness of the will of the deceased. Their Lordships narrated the facts and held as under (page 319): "Under section 2(f) of the Succession Act, 'probate' means the copy of the will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. So in the eye of law, the grant of letters of administration with a copy of the will annexed and the grant of probate stand on the same footing. The matter relating to grant of probate or letters of administration, in our opinion, is concluded by the decision of the Supreme Court in the case of Surinder Kumar v. Gian Chand , AIR 1957 SC 875. There, the facts are more or less id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 105, Teen Cowree Dossee v. Hureehur Mookerjee [1867] 8 WR 308 and C. Vasantlal and Co. v. CIT [1962] 45 ITR 206 (SC) and eventually came to hold as follows (page 324): "This being the position, in our opinion, in view of section 263, read with section 273 of the Succession Act, the genuineness of the will could not be gone into, when doubted by the income-tax authorities either about the acceptance or otherwise of the will in question. The fact that the assessee had invited, as it was contended by the Revenue, to determine the genuineness of the will does not establish that the income- tax authorities were in any way entitled to go behind the grant of probate as to the question of the genuineness of the will. In that view of the matter, we would answer questions Nos. 1 and 2 in the negative and in favour of the assessee. Before we conclude this part of the answers we must, however, observe that we are inclined to accept the position that the facts of this case, as presented by the assessee, inspire little confidence and credence. But so long as the finality of the probate stands, as a matter of law, such an incongruity has to be accepted. Whether, by making an appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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