S.C : Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was the owner of the watches and thus including the value thereof in the assessment of the assessee ?

Counsel Appeared

N.M. Ghatate and S.V. Deshpande, for the Petitioner : Kuldeep Singh with B.B. Ahuja and A. Subhashini, for the Respondent

SABYASACHI MUKHARJI, J.:

This petition for leave to appeal is directed against the judgment and order dt. 10th Dec., 1985, of the High Court of Madhya Pradesh, Jabalpur Bench. The High Court upheld the imposition of penalty as well as the addition of alleged concealed income in the IT assessment of the petitioner. The relevant assessment year with which we are concerned in this application is 1974-75.

2. It appears that the petitioner had submitted his return of income for the asst. yr. 1974-75 showing a total income of Rs. 3,113 in response to a notice issued under s. 143(2) of the IT Act, 1961 (hereinafter called “the Act”). According to the petitioner, he had derived his income from 2 stores, i.e., M/s Mohanani Fancy General Stores and M/s Roopkala General Stores, Durg. It, however, appears that on 19th Jan., 1974, on the basis of the order passed by the Superintendent, Central Excise, Jagpur, dt. 25th Dec., 1975, there was confiscation of foreign watches from the house of the petitioner and levy of penalty of Rs. 2 lakhs under the Customs Act, 1962. Accordingly, the ITO issued a notice calling upon the assessee to show cause why the value of the watches seized from his residence should not be treated as his income from undisclosed sources. In this connection, it may be relevant to note that on 12th May, 1973, a search was made of the petitioner’s bedroom from where a total of 565 wrist-watches of foreign make valued at Rs. 87,455 were seized from a suitcase and in a secret cavity of a locked steel almirah and also behind the almirah there were watches folded in a bundle of waste papers. A panchnama was prepared at the same time mentioning these facts. According to the Customs Authorities, the petitioner found himself unable to make any statement at that time on account of which, recording of statement was deferred. However, it is stated, the petitioner went out of station on 14th May, (sic) 1973. The petitioner’s statement was recorded on 13th May, 1973, as soon as he was available. In his statement (annexure R-III) duly signed by him, he has admitted these facts but merely denied knowledge of the manner in which those watches came to be in his house.

It appears from the records of the customs case, with which we will have to deal later in S.L.P. No. 1008 of 1986, the petitioner was given a show-cause notice as to why the period of six months fixed under s. 110(2) of the Customs Act, 1962, should not be extended but no reply was given by the petitioner till 10th Nov., 1973, or even thereafter. Hence, by an order dt. 10th Nov., 1973, before the expiry of six months, time was extended by the Collector of Customs for a further period of 6 months for giving a notice as required under s. 124(a) of the Customs Act, 1962. Under the proviso to sub-s. (2) of s. 110 of the Customs Act, 1962, a show-cause notice, specifying the requisite particulars, was given to the petitioner on 4th May, 1974. In the reply, the petitioner made a general denial. The enquiry was fixed on 30th Oct., 1975, for giving a personal hearing to the petitioner, when the petitioner’s counsel appeared and sought for an adjournment to 20th Nov., 1975, which was granted. However, on 20th Nov., 1975, counsel for the petitioner stated that the petitioner did not want to avail of the opportunity of personal hearing or even to cross-examine the witnesses in whose presence the panchnama was made at the time of the seizure of the watches.

It is necessary to bear the facts in mind because it has repercussions on the notice dt. 19th Jan., 1974, as mentioned hereinbefore, issued by the ITO to show cause why the aforesaid sum of Rs. 87,455 should not be treated as the petitinor’s concealed income. The ITO further directed inssuance of notice under s. 271(1)(c) of the Act.

Being aggrieved by the said order, the petitioner preferred an appeal before the AAC against the order dt. 20th Feb., 1976. The AAC dismissed the appeal and held that in view of the order passed by the Collector of Customs, the ITO was justified in including the cost of the watches in the income of the assessee for the asst. yr. 1974-75. Thereafter, on 29th March, 1978, the IAC issued notice of penalty under s. 271(1)(c) of the Act imposing a penalty of Rs. 90,000, the minimum imposable being Rs. 87,455 and the maximum imposable being Rs. 1,74,910. Being aggrieved thereby, the petitioner filed two appeals before the Tribunal. The Tribunal, by its order dt. 19th Aug., 1980, dismissed these appeals. The petitioner has further stated that in the meanwhile, the State of Madhya Pradesh initiated criminal proceedings under s. 125 r/w s. 111 of the Customs Act, 1962, and the learned Chief Judicial Magistrate, Durg, by his order convicted the petitioner and awarded one year’s rigorous imprisonment. Thereafter, on 2nd Nov., 1982, the petitioner filed an appeal in the Court of the Additional Judge in the Court of Sessions, who, by his judgment, allowed the appeal and acquitted the petitioner of the said criminal charge. Thereafter, there was a reference to the High Court on two questions against the order of the Tribunal under s. 256(1) of the Act. The questions are as follows : “(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the assessee was the owner of the watches and thus including the value thereof in the assessment of the assessee ? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the Department had discharged its burden of establishing concealment of income by the assessee for the year under consideration and thus confirming the penalty of Rs. 90,000 levied by the IAC ?”

The High Court in its order noted that the raiding party by virtue of the search entered into the bedroom of the assessee on 12th May, 1973, and seized the watches. A panchnama was prepared. The Department found that the assessee was the owner. Sec. 110 of the Evidence Act is material in this respect and the High Court relied on the same which stipulates that when the question is whether any person is owner of any-thing of which he is shown to be in possession, the onus of proving that he is not the owner is on the person who affirms that he is not the owner. In other words, it follows from the well-settled principle of law that normally, unless the contrary is established, title always follows possession. In the facts of this case, indubitably, possession of the wrist-watches was found with the petitioner. The petitioner did not adduce any evidence, far less discharge the onus of proving that the wrist-watches in question did not belong to the petitioner. Hence, the High Court held, and in our opinion rightly, that the value of the wrist-watches is the income of the assessee. In this connection, reference may be made to the views expressed by Justice Tulzapurkar, as his Lordship then was, of the Bombay High Court in the case of J.S. Parkar vs. V.B. Palekar (1974) 94 ITR 616 (Bom) : TC42R.1775, where, on a difference of opinion between Justice Deshpande and Justice Mukhi, Justice Tulzapurkar agreed with Justice Deshpande and held on the question whether the evidence established that the petitioner was the owner of the gold seized, though there was no direct evidence placed before the taxing authorities to prove that the petitioner had actually invested moneys for purchasing the gold in question, the inference of the ownership of the gold in the petitioner in that case rested upon circumstantial evidence. There also gold was seized from a motor launch belonging to the petitioner in that case. There, a contention was raised that the provision in s. 110 of the Evidence Act where a person was found in possession of anything, the onus of proving that he was not the owner was on the person who affirmed that he was not the owner, was incorrect and inapplicable to taxation proceedings. This contention was rejected. The High Court of Bombay held that what was meant by saying that the Evidence Act did not apply to the proceedings under the Act was that the rigour of the rules of evidence contained in the Evidence Act was not applicable but that did not mean that when the taxing authorities were desirous of invoking the principles of the Act in proceedings before them, they were prevented from doing so. Secondly, all that s. 110 of the Evidence Act does is that it embodies a salutary principle of common law jurisprudence which could be attracted to a set of circumstances that satisfy its conditions.

3. We are of the opinion that this is the correct approach and following this principle, the High Court in the instant case was right in holding that the value of the wrist-watches represented the concealed income of the assessee.

Sec. 69A of the Act was inserted in the Finance Act, 1964, and it came into force w.e.f. 1st April, 1964. The High Court has rightly held that the expression “income” as used in s. 69A of the Act has wide meaning which meant anything which came in or resulted in gain. Hence, in the facts of this case, a legitimate inference could be drawn that the assessee had income which he had invested in purchasing the wrist-watches and, as such, that income was subject to tax. In this view, the High Court was justified in justifying the Tribunal’s holding that the assessee was the owner of the wristwatches and thus including the value in the assessment of the income of the assessee as his wealth and so deemed to be the income of the assessee by virtue of s. 69A of the Act coupled with the surrounding circumstances. Therefore, inclusion of the money in purchasing the wrist-watches, that is to say, Rs. 87,455, was correct and proper for the assessment year under reference. In this connection, s. 69A of the Act may usefully be set out which is as follows : “Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.” So far as the first question is concerned, the High Court answered accordingly and, in our opinion, rightly.

4. As regards the second question the Explanation to s. 271(1)(c) of the Act was inserted by the Finance Act, 1964, which reads as follows : “Explanation.—Where the total income returned by any person is less than eighty per cent. of the total income (hereinafter in this Explanation referred to as the correct income) as assessed under s. 143 or s. 144 or s. 147 (reduced by the expenditure incurred bona fide by him for the purpose of making or earning any income included in the total income but which has been disallowed as a deduction), such person shall, unless he proves that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of cl. (c) of this sub-section.”

From the facts found by the Revenue, the assessee had shown only a total income of Rs. 3,113 and subsequently the raiding party seized wrist-watches worth Rs. 87,455. Thus the value of that income (watches) was included in the assessable income of the assessee. Therefore, the total assessable income of the assessee came to Rs. 90,568 whereas the returned income was only Rs. 3,113 which was certainly less than 80 per cent of the assessed income and, as such, the Explanation applied. Accordingly, the Revenue has discharged the onus of proving concealment of income. This view was expressed by a Full Bench of the Punjab & Haryana High Court in Vishwakarma Industries vs. CIT (1982) 135 ITR 652 (P&H), where all the relevant authorities have been discussed.

In that view of the matter and in view of the principle behind the purpose of the Explanation, the assessee, in the instant case, has failed to discharge his onus of proof. The aforesaid Explanation was amended by the Taxation Laws (Amendment) Act, 1975, w.e.f. 1st April, 1976. The amendment was prospective in effect and in the year under reference, the amendment was not in force. Though the penalty proceedings are penal in nature, but in the facts of this case, the onus on the Revenue has been duly discharged. This was also the view of the Bench decision of the Madhya Pradesh High Court in CIT vs. Bherulal Shrikrishan (1983) 36 CTR (MP) 115 : (1984) 145 ITR 805 (MP). The second question referred to hereinbefore was, therefore, answered in favour of the Revenue by the High Court and, in our opinion, the High Court was justified in so doing.

5. In the aforesaid view of the matter, there is no merit in this application for leave to appeal and it is accordingly dismissed.

[Citation : 172 ITR 250]