INIS VARGHESE MALIEKKAL vs. COMMISSIONER OF INCOME TAX, KOCHI

J U D G M E N T Thottathil B.Radhakrishnan, J. 1.We have heard the learned counsel for the appellant and the learned Senior counsel for the Department. 2.The Income Tax Appeal under consideration commenced with a survey proceedings under Section 133A of the Income Tax Act which led to determination of amounts relatable to unexplained money etc. falling under Section 69A of that Act. In the appeal before the Tribunal, there was no dispute that Section 69A became applicable by reason of the unexplained gold which was found from the premises of the assessee. There was also no dispute on facts that the quantity of gold for which the appellant became answerable was 30 kg. The only dispute before the Tribunal was as to whether the unexplained gold ought to have been deemed to be an income of the assessee for the financial year during which the survey was conducted. Therefore, the question that arises for decision in this appeal :-2-: appears to be as to whether the Tribunal was justified in law in holding that those valuable articles are to be deemed to be the income of the assessee for the financial year during which the survey was conducted. This is how the questions for consideration have been formulated in the memorandum of appeal and on which notice has been issued. 3.Section 69A of the Act provides that 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. Therefore, there is the :-3-: statutory jurisdiction for the authority concerned to invoke the deeming provision provided thereby. Obviously, the assessee has the eligibility to demonstrate that the deeming provision should not be applied on any particular valuable article which has been so found. This obviously calls for determination of a question of fact as to whether the article should be deemed to be the income of the financial year during which the survey was conducted or whether it should be permitted to be spread over and backdated to a period which would reduce the value of the article on its valuation process. The assessee had pleaded before the Tribunal and other authorities that the 30 kg. of gold which he has been called upon to account, has actually to be spread back to a period of 15 years, since that would be the spill over of wastage of gold in the process of the assessee who is a jeweler. This issue is purely a question of fact. Apart from a self serving testimony in the form of a communication, which is Annexure C, there is no material worthwhile for the authorities, including the Tribunal, to conclude on facts in favour of the assessee. We, therefore, do :-4-: not find that the decision of the Tribunal is erroneous or that this appeal stands on any substantial question of law in terms of Section 260A of the IT Act. This appeal, therefore, fails. In the result, this appeal is dismissed.

THOTTATHIL B.RADHAKRISHNAN

JUDGE DEVAN RAMACHANDRAN

JUDGE ami/4.11.16 //// P.A.to Judge