The judgment of the court was delivered by
Antony Dominic, j. :-
In this appeal filed by the Revenue, it impugns the order of the Tribunal in IT (SS) A. No. 155/Coch/2004 dt. 12th June, 2009.
2. We heard the learned Senior Counsel for the Revenue and the learned counsel appearing for the assessee.
3. It is seen that on 11th June, 2002, a search was carried out in the residential premises of the assessee as well as in the business premises of M/s Universal Institute of Advanced Studies and Research (P) Ltd. The search resulted in the seizure of documents as well as materials, which included gold ornaments. The assessee filed return pursuant to the notice under s. 158BC and accordingly the assessment was completed determining the undisclosed income of the assessee.
4. Among various other items, one of the addition was Rs. 12,29,074 towards the investment in gold. That addition was sustained by the CIT(A). However, the Tribunal deleted the addition and its reasoning contained in paras 35 and 36 of the order reads thus:
35. The next ground raised by the assessee is against the addition of Rs. 12,29,074 sustained by the CIT(A) in respect of investment in gold. It is the case of the assessee that the assessee is settled with family in Dubai since 1997 and has travelled to India frequently and brought gold ornaments and the source for the purchase of the gold ornaments were the earnings in Dubai. It is the case of the assessee that the salary certificate supported the contention of the assessee regarding the availability of funds in Dubai and there was no reason to sustain an addition of Rs. 12,29,074. The lower authorities have rejected the contention of the assessee on the ground that the assessee did not produce evidences.
36. On an examination of the issue, we find that the contention of the assessee cannot be brushed aside. The assessee has worked in Dubai and he has been staying in Dubai with his family. The passports of the assessee and his family have proved that he had visited frequently India from Dubai. The AO does not have a case that the assessee did not have any income earned in Dubai. The AO himself has stated in p. 29 of the assessment order that the earnings of the assessee in Dubai could be worked out at Rs. 52.5 lakhs approximately. It is a different fact that the entire amount of Rs. 52.5 lakhs approximately. It is a different fact that the entire amount of Rs. 52.5 lakhs have been appropriated by the AO towards assessee's family expenses, children education expenses, etc. But the fact that the assessee had earned income in Dubai is supported by the assessment order itself. We find that the assessee had substantial earnings in Dubai and he had been staying with his family in Dubai and had been visiting India frequently. It is quite obvious and natural to come to a conclusion that the assessee would be bringing gold ornaments from time to time to India. The explanation of the assessee satisfies the reasoning of the ordinary humane prudence. The balance of probability is in favour of the assessee. Taking into consideration the inter-national character of the activities carried on by the assessee and his financial status, we do not find that there is anything to be suspected in the explanations offered by the assessee. Therefore, we find that the addition of Rs. 12,29,074 is not justified. It is deleted."
5. In this appeal, the challenge is limited to the aforesaid deletion as ordered by the Tribunal and the questions of law framed are as follows:
1. Whether on the facts and in the circumstances of the case:
(a) the Tribunal is right in law and fact in deleting the addition of Rs. 12,29,074 towards investment in gold holding that the balance of probability is in favour of the assessee ?
(b) should not the conclusion based on balance of probability be one in favour of the Revenue, the onus being on the assessee ?
2. (a) Whether on the facts and in the circumstances of the case should not the Tribunal have put the assessee to proof ?
(b)did the assessee discharge the burden of proof that lay on him ?
(c) is not the order of the Tribunal based on presumptions and conjunctures and hence absolutely perverse and vitiated ?
6. While, according to the learned senior counsel, the Tribunal has misdirected itself by putting the onus on the Revenue, the learned counsel for the assessee, who in his endeavour to sustain the order of the Tribunal, contended that admittedly the assessee was living in Dubai for several years and has having substantial earnings. According to him, it was only natural that the Tribunal has inferred that the gold in question was acquired by the assessee from out of his earnings abroad.
7. Having considered the rival submissions made, we are inclined to agree with the learned counsel for the Revenue. A reading of the order of the Tribunal itself would show that while it was the burden of the assessee to prove the source of his acquisition of the gold ornaments, the Tribunal has proceeded putting the onus on the Revenue. That apart, the Tribunal has also ignored the fact that the assessee did not explain or produce any material substantiating his contention that the gold was acquired outside the country or that the acquisition was from out of his earnings. In the absence of any evidence to that effect, according to us, the Tribunal has misdirected itself in appreciating the case of the Revenue and has arrived at the impugned conclusions, which to say the least, are perverse.
Therefore, the order of the Tribunal to the extent it is impugned is liable to be set aside.
Accordingly, answering the questions of law in favour of the Revenue and against the assessee, this appeal is disposed of.