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TMI Blog1981 (11) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... 750 from the residence of Sri Onkarmal Mintri; (b) Cash of Rs. 5,800 and jewellery to the value of Rs. 44,410 from the office of Mintri Transport (P) Ltd. at Kamlabagan near Bagdogra, District Darjeeling; and (c) Cash of Rs. 8,063 from the office of Mintri Transport (P) Ltd. At Siliguri." According to the ITO cash of Rs. 61,081 and jewellery of the value of Rs. 90,160 had to be explained by the assessee. The assessee gave the detailed explanation in respect of each of the items and contended that nothing is to be added as his income from undisclosed sources. The ITO however, for the reasons given by him did not accept the assessee's explanation and added a sum of Rs. 1,48,974 u/s 69A, as already stated above. The CIT (Appeals) deleted the addition by not agreeing with the ITO. Hence the appeal by the Revenue. 3. Mr. Kalidas Chakraborty, the ld. Deptl. Rep. raised the following contentions : (1) The CIT (Appeal) did not apply his mind to all the facts on record and did not advert to various findings recorded by the ITO, who did not accept the assessee's explanation; (2) the explanation given by the assessee as well as his wife and son when scrutinised carefully is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at has to be taken into account while judging the assessee's explanation, is that the books of Mintri Transport (P) Ltd. show a cash balance of Rs. 29,350 on 7th October, 1974. Admittedly, this amount was not found in the office premises of the company during the search. A sum of Rs. 5,800 was found, about which we will state a little later, What happened to this money? The assessee being a Director of Mintri Transport (P) Ltd. stated that he brought the cash from the office to his residence. There is lot of truth in that. Otherwise the cash must be found somewhere else. Mr. Mintri's statement that it is the practice to bring cash home whenever there is substantial cash at the end of the day cannot be brushed aside lightly. The assessee has been able to show that the cash belonging to Mintri Transport (P) Ltd. was lying with him. Mintri Transport (P) Ltd. also accepted this position. The comment that the assessee did not give this explanation at the earliest point of time has no meaning. He was never asked that the cash of Rs. 28,000 was found in this house during the search. What was asked of him was whether there was any excess cash, to which he said that there could not be. In f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, clear that the amounts belonged to the two minor sons of the assessee and the assessee and Mintri Transport (P) Ltd. have nothing to do with these amounts. Therefore, the explanation in respect of Rs. 3,000 is accepted. Coming to the balance of Rs. 2,800, it has been stated that this amount belongs to the assessee's son, Sri Krishna Kumar Mintri, Sri K.K. Mintri stated that he received a sum of Rs. 10,300 from his Sikkim debtor on 6th October 1974. Out of this, he kept Rs. 7,500 in the house and the balance of Rs. 28,000 in the office premises of Mintri Transport (P) Ltd. at Kalimpong. The version of Sri. K.K. Mintri is fully supportable from the evidence brought on record. The only thing to be seen is whether his plea that he kept Rs. 2,800 is believable. He has stated on oath testifying to the facts. The ITO has not given any cogent reasons to reject the pleas. He stated that instead of sending money to the bank he kept it at home. The reasons may be many for keeping the money at home. The sum of Rs. 2,800 is not a big sum to be left in the office premises as it might be required for use by him for various purposes. We don't see any thing inherently improbable in the ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been definitely commanding cash balance of Rs. 5,000 to Rs. 6,000. In fact, that is the amount that was lying with the Mintri Transport (P) Ltd., Siliguri, according to the assessee. The entire explanation appears to us to be convincing and we don't find any infirmity to reject the same. 7. The last item of cash that required explanation is the sum of Rs. 7,500 found in the Brief case of the assessee at the Bungalow in the Tea Estate. The explanation in regard to this was that this amount represented gifts made to his children which he wanted to deposit in a Bank at Siliguri or at Calcutta. This was not believed by the ITO on the ground that there was no evidence of any alleged gift. The ITO also pointed out that the drawing of the assessee was very low and that there was heavy expenditure incurred by the assessee. The assessee's plea before the CIT (Appeals) was that he was getting substantial remuneration as a Director and he had sufficient cash in hand. So far as the expenditure is concerned, except fooding, everything was being met by the private limited company, in which he was the Director. The CIT (A) accepted the contention by observing as follows : "I find the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason for holding that view is : (1) according to the local report, Smt. Indrawati Devi came from a poor family; (2) some of the jewellery found in the course of the search appears to confirm "modern designs"; (3) she filed the IT returns at Kanpur, though she was all the time residing at Kalimpong. It has been stated by the ITO that some incriminating materials were found involving Sri Onkarmal Mintri, the assessee, in the course of a search in the premises of a lawyer of Delhi; (4) Smt. Indrawati Devi did not file any WT returns at Kanpur disclosing jewellery; (5) The version that she had sold her jewellery in 1953-54 soon after her marriage was not believable; (6) There was investment of 23,421, Grammes of gold in gold Bonds in the name of Smt. Indrawati Devi in the year 1965. The ITO also made some minor points. The CIT (Appeals) did not accept any of the above points and held that the Revenue has not been able to establish that the jewellery belonged to the assessee, Sri Onkarmal Mintri. 9. Mr. Chakraborty for the Revenue tried his best to convince us on the basis of the points made out by the ITO as well as by reading the deposition of the persons whose statements were rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion about the whole matter, but there is no positive evidence brought on record to show that the jewellery really belonged to the assessee. So far as the designs are concerned, the CIT (A) opined that the designs are not modern. The ITO did not care to verify with reference to the actual ornaments having an expert in the matter. Another important factor to be noted in this connection is that Smt. Indrawati Devi herself claimed that she has 16 more items of ornaments in her possession. This version would show that she was having substantial ornaments. There is also element of probability that people belonging to the community to which the assessee belongs to posses gold ornaments normally. In a case, where the Revenue wants to establish that the ornaments belong to the assessee, there must be very cogent and reliable evidence in support of that. The ornaments have been recovered from the premises of a Transport Co. Some ornaments were no-doubt recovered from the residence of the assessee. The ornaments were all in the almirahs in which the wife of the assessee was having her clothes. Prima facie the ornaments belong to the ladies. The assessee's wife has been able to show that she i ..... 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