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TMI Blog2000 (8) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... th of the assessee. 3. The assessee challenged the above additions in appeal before the Deputy Commissioner (Appeals) and contended that the value of jewellery should be excluded from the wealth assessed as the same was gifted to the assessee's daughter earlier to 1972. The learned Deputy Commissioner (Appeals) rejected the above contention and justified inclusion of jewellery with the following pertinent remarks: "It has been urged by the Ld. Advocate that the jewellery in the name of daughter who became major in 1972 should be excluded from the assessment. It has been pleaded by the Ld. Advocate that the jewelleries purchased in the name of daughter was the property of the elder daughter since she became major and hence the same was not includible in the hands of the appellant. It has been admitted that the entire jewelleries were purchased by the appellant. In his view the jewelleries purchased for the purpose of use by the daughter must be excluded. It cannot be denied that the investment in jewellery was made by the appellant out of his own fund and constitute his wealth. In case of any gift being made, the donor became liable to gift-tax. Ld. Advocate for the appellant coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant valuation dates. There is no acid test or rule of universal application, but for determining the question whether 'A' or 'B' is owner of the disputed property, Courts normally take the following circumstances into account : (a) Source and contribution of purchase money or investment; (b) Nature of property, possession and control over it; (c) Intention of parties and their relation inter se, and (d) Custody of title deeds. As to what is the relative importance of a particular circumstance would depend upon the facts of each case. Where it is claimed that the property was purchased in the name of a particular person with intention to vest ownership in that person, the question of intention is of primary importance and has to be examined with reference to other material available on record. The intention may be apparent and clear or shrouded in a thick veil not easy to pierce through. The contribution of purchase money cannot be treated as conclusive proof of ownership in every case. Even under section 82 of the Indian Trusts Act, the matter has to be decided with reference to the intention of the person contributing the funds Ammaponnammal v. Shanmugam Pillai AIR 1971 Mad. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the search. In these circumstances and without material to the contrary, she can be presumed and held to be the owner of the jewellery on all the valuation dates. 9. For the aforesaid reasons we are of view that the lower authorities were not right in including jewellery in the hands of the assessee which was found in the locker in the name of Miss Amrita Ghosh. We direct the WTO to exclude the value of the aforesaid jewellery in all the assessment years under appeal. 10. In the result, the assessee's appeals are allowed. Per Shri P. Pradhan, A.M.---I have gone through the order of my learned Brother and I disagree with his findings. In this connection I may mention that it is an admitted fact that investments in jewelleries were made by the assessee out of his own funds and constituted his wealth and will continue to be so unless and until he can show some evidence that he gifted those jewelleries to his daughter, who has attained majority in 1972. In the instant case he has not produced any evidence at all. In the case of gifts the donor is liable for gift-tax. The A.R. of the assessee could not give any date as to when the jewelleries were gifted to his daughter. The mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with section 24(11) of the Wealth-tax Act, 1957: "Whether, on the facts and in the circumstances of the case, the Deputy Commissioner (Appeals) is right in treating jewellery found in Locke No. 84 with Allahabad Bank as wealth belonging to the assessee for all the assessment years under consideration?" THIRD MEMBER ORDER Per Shri S. Bandyopadhyay, Accountant Member as Third Member---On the basis of the difference of opinion between the two Members constituting the Division Bench, the following common question of law in respect of all the eight years under consideration, has been referred to me by the Hon'ble President of ITAT, for my decision, in accordance with the provisions of section 255(4) of the Income-tax Act read with section 24(11) of the Wealth-tax Act. "Whether, on the facts and in the circumstances of the case, the Deputy Commissioner (Appeals) is right in treating jewellery found in Locker No. 84 with Allahabad Bank as wealth belonging to the assessee for all the assessment years under consideration?" However, it is required to be mentioned at the outset that the appeal in W.T.A. No. 322/Cal/1990 is not a quantum appeal and relates to levy of penalty under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DCWT (Appeals) confirmed the additions in the hands of the assessee, but allowed certain reliefs in respect of values of the jewelleries for some of the years. 3. When the matter came up before the Tribunal in further appeals filed by the assessee, the two Members constituting the Bench took diametrically opposite views. Whereas the Judicial Member was of the opinion that the contention of the assessee about the jewelleries having been gifted to his daughter is required to be accepted and in that view, the value of the jewelleries need not be included within the wealth of the assessee, the Accountant Member, however, opined that there being no positive evidence about the gift, the assessee should be considered to remain owner of the jewelleries in all the years under consideration. 4. I have heard the representatives of both the sides and have also perused the papers filed on my record. 5. There is no doubt about the fact that the jewelleries were found in a Bank Locker standing in the name of Miss Amrita Ghosh, who was a major at the time of the search. Normally, therefore, she should have been considered as the owner of the jewelleries and the value of the jewelleries as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of his daughter, when she was a minor and hence, the assessee had the right to operate the locker during her minority period, under the Banking regulation the position would get completely changed as soon as the daughter of the assessee attains majority. From the date of her attainment of majority, she alone would be able to operate the locker, inasmuch as, the locker stands in her name and there is no other joint holder mentioned anywhere on records. It has thus got to be held that the ornaments and jewelleries under consideration were actually in the possession and under the control of Miss Amrita Ghosh and not of the assessee at the time of the search. The question may thereafter arise as to whether the assessee had actually gifted the ornaments to his daughter or simply allowed the same to be kept in her custody for the purpose of her use. I am of the opinion that the possession and control over the ornaments would indicate that the ornaments had actually been gifted by the assessee to his daughter. It may be a fact that in ordinary middle class society, ornaments and jewelleries are procured for the purpose of marriage of the daughter over a long period and the said orname ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e be a salaried person, maintains books of account relating to his income and expenditure or also takes care to retain receipts and vouchers in respect of acquisition of assets in a methodical manner. On the other hand, had the assessee been belonging to a traditional business community, not only proper books of account depicting the acquisition of all the pieces of ornaments and jewelleries and most probably along with the receipts/ vouchers in respect thereof but also duly executed declarations of gift in respect of each item of ornaments would have either been found out during the search or produced before the Assessing Officer in due course. It is required to be noted in this particular case that the ornaments and jewelleries were evidently found in the locker in the name of the major daughter of the assessee and had the voluntary disclosure been made by the said daughter, most probably lesser amount of tax would have been payable by her relating to the cost of acquisition of the ornaments and jewelleries and the onus would have squarely lied on the Department to show that those ornaments actually belonged to the assessee. In that way, it may be said that the assessee would hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 1971-72 to 1986-87. It is thus quite clear that if the contention of the assessee about gifting the ornaments and jewelleries to his daughter in a spreadover manner be accepted, the total value of jewellery gifted by him in each of the years, will fall below the exemption limit of even Rs. 5,000. Furthermore, the other contention raised in this regard that simply because the Gift-tax is not paid, the genuineness of the gift cannot be challenged, also requires consideration. 9. Taking into consideration all these aspects, I am of the view that the contention of the assessee that the ornaments and jewelleries under consideration were gifted by him in piecemeal manner over the period from 1958 to 1972 to his daughter has got to be accepted. I order accordingly. The value of the said jewelleries and ornaments cannot, therefore, be assessed in the hands of the assessee in his Wealth-tax assessments in any of the years under consideration. The question thus put forward to me is, therefore, being answered in the negative and in favour of the assessee. 10. The matter would, therefore, now go back to the Division Bench for disposing of the appeal in consonance with the decision taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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