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TMI Blog1989 (10) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ac was made to Mr. B.H. Abhyankar. It is contended that the addition made by the ITO and confirmed by the CIT(A) is not correct in the hands of the appellant. 3. The relevant facts concerned with the issue in question are that the appellant's father, Mr. Roop, Agnihotri purchased a flat No. 10, Ashwini, Palimala Road, Bandra, Bombay from Shri B.H.Abhyankar for the sum of Rs. 1,50,150. the appellant was also residing in that house. The said house was searched under an authorisation under s.132 of the IT Act, 1961. Three documents: (i) Cheque bearing No. TNR 0034736 of the Bank of India dt. 14th April, 1981 for a sum of Rs. 1 lac in favour of Shri B.H. Abhyankar, (ii) a receipt dt. 28th March, 1981 signed by Shri B.H. Abhyankar acknowledging the receipt of a sum of Rs. 1 lac from the appellant, and (iii) a receipt dt. 2nd May, 1981, were found out in that premises. The cheque No. TNR 0034736 was dishonoured. The appellant and her father were examined by the ITO. Both of them stated that a sum of Rs. 1 lac was paid by Shri Rohit Agnihotri to the said Shri. B.H. Abhyankar, though a receipt dt. 28th March, 1981 is issued in the name of the appellant by Shri B.H. Abhyankar bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. that is not the case of the appellant and her father. Even the ITO has not established that case that the flat was purchased for the sum of Rs. 2,50,150. In the absence of such proof, it would be difficult to accept the action adopted by the ITO and as confirmed by the CIT(A). 7. Why two receipts of Rs. 1 lac have been issued is explained by the appellant's father. He has stated that his brother paid Rs. 1 lac to Shri B.H. Abhyankar and the appellant never paid any money. Shri B.H. Abhyankar is not examined to support the ITO's version. There is no evidence to prove that the appellant had a redy money with her to pay a cash of Rs. 1 lac to Shri B.H. Abhyankar on behalf of her father. It is tried to be explained by the learned counsel Shri V.H. Patil for the appellant that the receipt has been wrongly issued in the name of the appellant and there is sufficient explanation for the same. In this respect, there is no reason why the explanation of the appellant and her father should not be accepted. 8. We have examined the facts. We have taken into consideration the arguments advanced on behalf of both the parties. We are of the opinion that upholding the addition of Rs. 1 lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3rd March, 1984, by the ITO and her statement recorded. Questions 5 and 6 of the statement read as under: "Q.5: I am showing you a receipt written by ex-owner of the flat Shri B.H. Abhyankar, which is dt. 28th March, 1981, which was seized from your house. What do you say? Ans. : I do not remember, it is possible that a cheque might have been issued from the joint account which I had with my father. Q.6 : I am showing a cheque dt. 14th April, 1981, which has been perhaps signed by your father. This is written much after the date of receipt. Do you remember that some other cheque was issued prior to the date of receipt, i.e., 28th March, 1981? Under the circumstances why should I not conclude that you have paid a sum of Rs. 1,00,000 from undisclosed sources.?" The assessee was examined again on 19th Jan., 1984. the CIT(A) in his order has given a fairly detailed extract of this statement. The CIT(A) observed that whereas on the one hand the assessee claimed ignorance of the reason why the receipt dt. 28th March, 1981, stood in her name, the assessee's father claimed that both the receipts dt. 2nd May, 1981 and 28th March, 1981 related to the same single payment of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my brother in Bombay so that if any good bargain for a residential accommodation, would have been available he could take advantage of it for me a without further delay, During the year 1977 to 1980 I had deposited about a lakh of rupees with Mr. Rohit and further about Rs. 5,000 by March 1981 was accumulated with him. I have been requesting Mr. Rohit to deposit the money in bank by opening his and my joint account which he never did. In 1979 my brother informed me that Mr.Abhyankar who was staying on the third floor of Ashwini was to leave India for good and he wanted to sell his flat. That flat being on 3rd floor of the building and there being no lift in the building that flat was available at reasonable price. However as Mr. Abhyankar was not sure when he would receive immigration permit, the timing of actual purchase could not be ascertained then. However, I made up my mind to buy that flat, and was saving and depositing the money with my brother rohit, when I used to come to Bombay for my employer's work. In the month of March, 1981 my brother Rohit told me that Mr. Abhyankar was to finally leave India and he wanted to complete the sale transaction. So I requested him to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requires consideration is whether the receipt bearing the signature of the assessee for Rs. 1 lac can be explained out of the funds available with the assessee at the relevant time. No explanation has been given by the assessee and the explanation that was given before the CIT(A) has been reiterated before us and I am not convinced by the same. There is nothing at all on record that the as uncle was acting on behalf of assessee's father. Assuming without admitting that he was, in fact, acting on behalf of assessee's father, there is further no explanation why he should secure the receipt for this Rs. 1 lac in the name of the assessee and not in his name if it is really true that the assessee's father, used to confide in his brother and deposit sums of money with him. Secondly, the assessee's father's ability to make so much investment has also not been independently proved before me. Further, it may be reiterated that the cheque was issued on 14th April, 1981, whereas the receipt found on the assessee's premises is dt. 28th March, 1981 and the explanation that initially cash was given by the assessee's father, that subsequently such payment was intended to be converted into a cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al on record to hold that a sum of Rs. 1 lac representing a receipt dt. 28th March, 1981 in the name of assessee Miss Rati Agnihotri, is taxable in her hands as income from undisclosed sources under s. 69B of the Act for the assessment year 1981-82?" 2. The facts of the case briefly stated are that Flat No. 10, Ashwini, Plimala Road, Bandra was purchased by the assessee's father from one shri B.H. Abhyankar for a consideration of Rs. 1,50,150 (according to the assessee). The payments were made to Shri Abhyankar, both in cash as well as by cheques. A search was conducted in the said flat under s. 132 of the Act, where following three documents were found: (i) Cheque bearing No. TNR 0034736 of the Bank of India dt. 14th April, 1981 for a sum of Rs. 1 lac in favour of Shri B.H. Abhyankar, (ii) a receipt dt. 28th March, 1981, signed by Shri Abyankar acknowledging the receipt of a sum of Rs. 1 lac from the assessee and (iii) a receipt dt. 2nd May, 1981." 3. The assessee as well as her father were examined by the ITO and on the appreciation of the material collected by him, the ITO came to the conclusion that the flat in question was purchased for a sum of Rs. 2,50,150 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her was an educated man and was serving with a multi-national, namely, M/s Richardson Hindustan Ltd. As he intended to buy a flat in the same building in which has brother was owning a flat, he used to save money from his salary and handed over to this brother, whenever he visited Bombay. He, therefore, urged that I should agree with the decision of the learned Judicial Member. The learned Representative for the Revenue, on the other hand, strongly relied on the order of the learned Accountant Member and urged that I should adopt has reasoning and hold that Rs. 1 lac was rightly taxed in the hands of the assessee. In this connection, he pointed out that from the material available on record, there are two payments of Rs. 1 lac each and not one as contended on behalf of the assessee. He also pointed out that no attempt was made, either by the assessee or her father to get Shri Rohit Agnihotri examined by the ITO. Further, there is no evidence to show that the assessee's father had given any cash to his brother Rohit, which accumulated to Rs. 1 lac. He, therefore, urged that I should agree with the decision of the learned Accountant Member. 6. I have considered the rival submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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