Commissioner of Income Tax Vs. P. Mohanakala  Insc 572 (15 May 2007)
S.H. Kapadia & B. Sudershan Reddy
CIVIL APPEAL NO. 2540 OF 2007 (Arising out of SLP(c) No. 17358 of 2006) WITH
CIVIL APPEAL NOs. 2541,2542,2543,2544,2545,2546 and 2547 OF 2007 (Arising out
of SLP(C ) Nos. 17356, 17364,17365,19565,19563,21066 & 19566 of 2006
These appeals have been filed against the judgment of Madras High Court
dated 29.3.2006 in TC (A) Nos. 74 to 76 and 78 to 82 of 2002 whereby the
following questions have been answered by the High Court in favour of the
assessees and against the revenue:
(a) Whether in the facts and circumstances, the Income Tax Appellate
Tribunal was correct in law to accept the principle of preponderance of probabilities
in holding that the claim of the appellant that the sum of Rs. 15,62,500/-
received him by way of gifts through normal Banking Channels was not genuine an
that it was liable to be assessed under Section 68 of the Income Tax Act, 1961?
(b) Whether in the light of the law established and based on the facts and in
the circumstances of the case, the learned Income Tax Appellant Tribunal is
legally justified in concluding that burden of proof cast on the appellant
under Section 6B of the Income Tax Act, 1961 has not been discharged and the
ingredients for invoking section 68 of the Income Tax Act are present? (c)
Whether in the facts and circumstances of the case, the conclusion of the
Tribunal that the claim of gift is not genuine is reasonable and based on
relevant material and not perverse? These appeals relate to the assessment
years 1995-96 and 1996-97. The dispute in all these appeals essentially relates
to the addition made by the Assessing Officer in respect of several foreign
gifts stated to have been received by the assesses from one common donor namely
Sampath Kumar. The gifts received were from one Ariavan Thotan and Suprotoman.
It is during the enquiry by the Revenue it is asserted that they were the
aliases of Sampathkumar. These gifts were made to A.
Srinivasan and his wife, Smt. S. Kalavathy, his son, S.
Balaji Manikandan and to one of his brothers, Rajendran and Smt. Mohanakala.
Each one of them is an assessee within the jurisdiction of the appellant. The
foreign gifts are received by the assesses during the assessment years 1993-94
to 1996-97. The detail of the gifts received by each one of the assessees is as
Assessment years Shri/Smt.
93-94 94-95 95-96 96-97 A. Srinivasan 6,40,758 14,46,933 26,47,647 8,64,500
S. Kalavathy 1,47,797 16,19,679 21,82,847 1550,00 S.Balaji Manikandan 84,423
5,68,015 21,85,604 8,64,500 A. Rajendran 15,62,500 R. Mohanakala 15,62,500
8,72,978 36,34,627 101,41,098 32,79,000 In all the aggregate gifts received by
the assessees is to the extent of Rs. 1,79,27,703/-. The Assessing Officer did
not accept the explanation offered by the respective assessees that the amount
of credit is a gift from NRI and proceeded to add it as the income of the
assessees from undisclosed sources. The credit entries have been made during
the period from 8.7.1992 to 19.10.1995. There is no dispute that the payments
were made by instruments issued by a foreign bank and credited into the
respective assessee's account by negotiation through a bank in India. Most of
the cheques sent from abroad were drawn on Citibank, N.A.
The Assessing Officer dealt with the controversy as regards the cash credit
entries received from the foreign donor. He noticed that the gifts have been
sent in the name of Ariavan Thottan and received by A. Srinivasan and others
who are all his family members. Each one of them is an individual assessee.
That all the assessees were summoned and their statements have been recorded
by the Assessing Officer.
Srinivasan who is the key person in his statement said that he knew
Sampathkumar for the last 20 years and he had been helping Sampathkumar prior
to 1985 by paying Rs. 100/- to 200/- every month as he had no source of income
to get himself educated.
There are material inconsistencies in the statements made by other assessees
which we are not required to notice in detail. Sampathkumar in his own
statement stated that he was in Indonesia up to the year 1992 and employed as
an Engineer. Thereafter, he shifted to England and started consultancy profession
there. Later in the end of the year 1994-95, he joined New Century Machinery
Ltd. Cheshire, SK 16 4xS and became its director in 1996. It is in his
statement that he is paying taxes in England from his income earned in England.
As far as his Indian income is concerned, he stated that he filed the returns
for the assessment years 1996-97 & 1997-98 before the Income Tax Officer,
Ward 1(4), CBE only on 23rd October, 1997. His investment in Indian companies
according to him will be around for Rs. 5 crores and made out of his income
earned in the foreign countries. He did not reveal the details of his bank
account in India and stated that he would be submitting the details through his
auditor which he did not. Except the self serving statement there is no material
evidence as regards his financial status. He stated from 1972-73 he knew
Srinivasan, Rajendran and their families. His father was a taxi driver, and was
very poor. Srinivasan and his family members were supporting him when he was in
India. To a pointed query as to whether there is any evidence to show that he
was also known by any other name other than Sampathkumar, he stated that
"no evidence. Only Mr. Srinivasan used to call me as Suprotoman."
The Assessing Officer after an elaborate consideration of the material
available on record and the statements of the assessees and as well as that of
Smapathkumar noted that all the gifts were received from Ariavan Thotan and
Suprotoman. It is only after the enquiries by the department, it was informed
by letter dated 25.4.1996 that Ariavan Thotan and Suprotoman are one and the
same person. Even at that time, no mention was made about Sampathkumar. For the
first time Sampathkumar's name figured in the letter dated 30.08.1996 and
thereafter it was stated that the names of Ariavan Thotan and Suprotoman are
the other names of Sampathkumar. The Assessing Officer while appreciating the
contents of the letters brought on record came to the conclusion that
Smpathkumar had obliged in giving 'gifts' to Srinivasan and his family members.
It is further held that in all probabilities Sampathkumar may have received
compensatory payments in lieu of the gifts made by him.
The letters according to the Assessing Officer suggest that Sampathkumar
reserved his right to receive suitable compensation from the
respondents-assessees. The Assessing Officer in the circumstances came to the
conclusion that the gifts though apparent are not real and accordingly treated
all those amounts credited in the books of assessees as the income of the
On appeal the Commissioner of Income Tax concluded that the story set up by
the assessees is unacceptable and hard to believe and the "preponderance
of probabilities, the common course of human livings point to the
contrary". The appeals were accordingly dismissed.
There was difference of opinion between two members of the Tribunal and the
matter has been referred by the President, Income Tax Appellate Tribunal under
Section 255 (4) of the Income Tax Act, 1961 ( for short 'the Act') to the Senior
Vice President to resolve the difference of opinion. In order to resolve the
difference of opinion the Tribunal (through its Sr. Vice President)
re-appreciated the entire material available on record and reheard the matter.
The Senior Vice President concurred with the findings and conclusions arrived
at by the Assessing Officer and the Commissioner of Income Tax. The Tribunal
noticed that the letters exchanged "by the person who had sent foreign
exchange to the assessees only indicate that there is no love and affection
between them and that he is clearly materialistic and his statement of
accepting a reciprocation is also an indication to the fact that he is not
doing anything free but clearly the compensation was a round about manner of
showing of he having been compensated either in India or abroad." The
Tribunal also took note of the various other attending circumstances and found
it difficult to accept the explanation offered by the assesses.
We may at this stage profitably note that the Assessing Officer, the
Commissioner of Appeals and the Tribunal in one voice held that the explanation
offered by the assessees as regards cash credit entries is not acceptable. The
material and the evidence available on record according to each one of the
authorities lead to one and only possible inference that the so-called gifts
received by the assessees in reality are no gifts.
The High Court vide the impugned judgment in exercise of its jurisdiction
conferred upon it under Section 260(A) of the Act reversed the finding of fact
and allowed the appeals.
The High Court virtually re-appreciated the evidence available on record and
substituted its own findings for that of the Tribunal and the other
authorities. The High Court came to the conclusion that the reasons assigned by
the Tribunal and other authorities "are in the realm of surmises,
conjectures and suspicions the authorities under the Act have failed to draw
the only conclusion that is possible legally and logically." The judgment
of the High Court is assailed in these appeals.
The learned Solicitor General strenuously contended that the approach
adopted by the High Court is totally erroneous. The High Court in exercise of
its jurisdiction under Section 260(A) of the Act may interfere with the order
of the Tribunal provided substantial question of law arises for its
consideration. Re-appreciation of evidence and substitution of the findings by
the High Court is impermissible. The High Court exceeded its jurisdiction in
disturbing concurrent findings of facts. The learned Solicitor General further
contended that once explanation offered by the assessees is found
unsatisfactory, the sums credited in the books are to be charged to income-tax
as the income of the assessees. Duty is heavily cast upon the assessees to
offer reasonable explanation as regards the nature and source of the amounts
found credited in the books maintained by the assessees.
Shri T.L.V. Iyer, learned Senior Counsel appearing on behalf of the
respondents-assessees submitted that the High Court did not exceed its
jurisdiction in any manner whatsoever nor committed any error in arriving at
proper conclusion based on the evidence available on record. The conclusions
drawn by the authorities below including the Tribunal were based on surmises,
conjectures and suspicion which cannot be equated to that of findings based on
evidence. Improper inference drawn from proven facts definitely gives rise to
substantial question of law. It was also contended that even if the explanation
offered by the assessees is not acceptable the amounts credited automatically
cannot be treated as an income in the hands of the assessees unless such a
question is framed and answered that unexplained cash credit was the income of
In order to appreciate the contentions urged before us it would be
appropriate to notice Section 68 of the Act which is re-produced:
68. Where any sum is found credited in the books of an assessee maintained
for any previous year, and the assessee offers no explanation about the nature
and source thereof or the explanation offered by him is not, in the opinion of
the Assessing Officer, satisfactory, the sum so credited may be charged to
income-tax as the income of the assessee of that previous year.
The question is what is the true nature and scope of Section 68 of the Act?
When and in what circumstances Section 68 of the Act would come into play? That
a bare reading of Section 68 suggests that there has to be credit of amounts in
the books maintained by an assessees; such credit has to be of a sum during the
previous year; and the assessees offer no explanation about the nature and
source of such credit found in the books; or the explanation offered by the
assessees in the opinion of the Assessing Officer is not satisfactory, it is
only then the sum so credited may be charged to income-tax as the income of the
assessees of that previous year. The expression "the assessees offer no
explanation" means where the assessees offer no proper, reasonable and
acceptable explanation as regards the sums found credited in the books
maintained by the assessees. It is true the opinion of the Assessing Officer
for not accepting the explanation offered by the assessees as not satisfactory
is required to be based on proper appreciation of material and other attending
circumstances available on record. The opinion of the Assessing Officer is
required to be formed objectively with reference to the material available on
record. Application of mind is the sine qua non for forming the opinion.
Tax, Bangalore [1995 Supp.(2) SCC 453) this Court held:
"In all cases in which a receipt is sought to be taxed income, the
burden lies on the Department to prove that it is within the taxing provision
and if a receipt is in the nature of income, "the burden of proving that
it is not taxable because it falls within exemption provided by the Act lies
upon the assessee. But, in view of Section 68 of the Act, where any sum is
found credited in the books of the assessee for any previous year the same may be
charged to income tax as the income of the assessee of that previous year if
the explanation offered by the assessee about the nature and source thereof is,
in the opinion of the Assessing Officer, not satisfactory. IN such a case there
is, prima facie, evidence against the assessee, viz., the receipt of money, and
if he fails to rebut, the said evidence being unrebutted, can be used against
him by holding that it was a receipt of an income nature." (emphasis
supplied) In that case the amount was credited in the capital account in the
books and the assessee offered her explanation about the said receipt being her
winnings from horse races. The explanation was not accepted.
There was no dispute that the amount was received by the assessee from
various race Clubs on the basis of winning tickets presented by her. This Court
based on the material available on record found that an inference about such a
purchase has to be drawn on the basis of the circumstances available on record
inasmuch as no direct evidence about such purchase be rarely available.
This Court accordingly upheld the majority opinion of the Settlement
Commission based on surrounding circumstances and applying the test of human
probabilities. This authoritative pronouncement in our considered opinion is
the complete answer to reject the submissions made by the learned senior
counsel on behalf of the respondents.
Noorjahan  237 IT 570, this Court while construing Section 69 of the
Act observed that the intention of Parliament in enacting Section 69 was to
confer a discretion on the Income Tax Officer in the matter of treating the
source of investment which has not been satisfactorily explained by the
assessee as the income of the assessee and the Income Tax Officer is not
obliged to treat such source of investment as income in every case where the
explanation offered by the assessee is found to be not satisfactory. "The
question whether the source of the investment should be treated as income or
not under Section 69 has to be considered in the light of the facts of each
case. The contention of Shri Iyer was that the ratio of the decision would
equally be applicable to interpret Section 68 of the Act. There is no dispute
about the same but the assessees in no manner raised any plea that even if
their explanation is not acceptable the same cannot be treated as an income in
their hands. In cases where the explanation offered by the assessee about the
nature and source of sums found credited in the books is not satisfactory there
is, prima facie, evidence against the assessee, viz; the receipt of money, the
burden is on the assessee to rebut the same, and if he fails to rebut it can be
held against the assessee that it was a receipt of an income nature.
The alternative submission made by Shri Iyer before us would not help the
assessees in this case in hand.
Income Tax, Kerala  72 ITR 757, the High Court came to the conclusion
that the Income Tax Officer and the Appellate Assistant Commissioner have not
considered the acceptability otherwise of the assessee's explanation about the
credit nature, except making an assertion that it was not acceptable. On the
facts it was held that whether it should be inferred that the amounts
constituted income of the previous year, though the explanation offered by the
assessee was not acceptable, did not receive the consideration of the
authorities. On the facts the findings of the Tribunal were held not valid. The
decision does not show that it is the duty of the Assessing Officer to suo motu
make an enquiry even in the absence of any plea and rebuttal by the assessee.
This decision is required to be understood in the light of the ratio of the
judgment in Sumati Dayal (supra).
In Commissioner of Income Tax, U.P Bharat Engineering & Construction Co.
 83 ITR 187, the facts are that the Tribunal itself found that the cash
credit entries could not represent the income or profit of the assessee as they
were all made very soon after the assessee commenced its activities. This Court
observed in the circumstances it would be reasonable to assume that those cash
credit entries were capital receipts. It is held that in the absence of
satisfactory explanation of the assessee the Income Tax Officer may assume that
cash credit entries in its books represent income from undisclosed sources. But
what inference should be drawn from the facts proved is a question of fact and
the Tribunal's finding on that question is final. We are unable to appreciate
as to how the said judgment renders any assistance and supports the contention
urged by the learned counsel for the assessees.
Orissa Corporation P. Ltd.  159 ITR 78, the Income tax Officer did not
accept the assessee's accounts showing cash credits which were shown to have
been received by way of loans from three individual creditors. The Income Tax
Officer treated the entire amount as unproved cash credit and added the same to
the income of the assessee. On appeal the Tribunal took the view that the
assessee could not produce those persons alleged to be creditors, but it did
not follow automatically and an adverse inference should be drawn that the
amount represented undisclosed income of the assessee. The creditors were
themselves income tax assesses and while being assessed, they had made
statements before the respective Income Tax Officer admitting that they were
allowing their names to be lent without giving loans as creditors of different
assessees. In those circumstances, the Tribunal came to the conclusion that the
assessee had discharged the burden that lay on him. This Court held that the
Tribunal's conclusion was not unreasonable or perverse or based on no evidence
and accordingly further held that no question of law as such had arisen for
In Commissioner of Income tax, Bombay City ITR 460, the Bombay High Court
took the view that in every case where the Income Tax Officer rejects the
explanation submitted by an assessee in respect of unexplained cash credits in
his books of accounts, a finding against the assessee must be made that the
cash credit entry represents the assessee's income from undisclosed sources.
After the Tax Authorities reject the explanation submitted by the assessee the
further question that must always arise for decision would be, "whether it
could justly, in the facts and circumstances of the case, be held that the
unexplained cash credit was the income of the assessee." The Tribunal in
that case on the basis of evidence and surrounding circumstances even after
disbelieving the explanation of the assessee still held that it cannot be held
to be the income of the assessee. The said finding was held to be a finding of
fact not to be interfered with by the High Court.
It is true that even after rejecting the explanation given by the assessees
if found unacceptable, the crucial aspect whether on the facts and
circumstances of the case it should be inferred the sums credited in the books
of the assessees constituted income of the previous year must receive the
consideration of the authorities provided the assessees rebut the evidence and
the inference drawn to reject the explanation offered as unsatisfactory. We are
required to notice that Section 68 of the Act itself provides, where any sum is
found credited in the books of the assessees for any previous year the same may
be charged to income tax as the income of the assessees of the previous year if
the explanation offered by the assessees about the nature and source of such
sums found credited in the books of the assessees is in the opinion of the
Assessing Officer not satisfactory. Such opinion found itself constitutes a
prima facie evidence against the assessees, viz., the receipt of money, and if
the assessees fail to rebut the said evidence the same can be used against the
assessees by holding that it was a receipt of an income nature. In the case in
hand the authorities concurrently found the explanation offered by the
assessees unacceptable. The authorities upheld the opinion formed by the
Assessing Officer that the explanation offered was not satisfactory. The
assessees did not take the plea that even if the explanation is not acceptable
the material and attending circumstances available on record do not justify the
sum found credited in the books to be treated as a receipt of an income nature.
The burden in this regard was on the assessees.
No such attempt has been made before any authority.
All the decisions cited and referred to hereinabove are required to be
appreciated and understood in the light of the law declared by this Court in
Sumati Dayal (supra).
Whether the High Court was justified in interfering with the concurrent
finding of fact arrived at by all the authorities including the Tribunal? The
Assessing Officer found that all the so-called gifts came from Ariavan Thotan
and Suprotoman. The assessees did not declare that they are the alias of
Sampathkumar. It is only an afterthought they have come forward with the said
The Assessing Officer also found that the gifts were not real in nature.
Various surroundings circumstances have been relied upon by the Assessing
Officer to reject the explanation offered by the assessees. The Commissioner of
Appeals confirmed the findings and conclusion drawn by the Assessing Officer.
The Tribunal speaking though its Senior Vice President concurred with the
findings of fact. The findings in our considered opinion are based on the
material available on record and not on any conjectures and surmises. They are
not imaginary as sought to be contended.
Relying on the decisions of this Court in Bejoy Gopal AIR 1979 SC 867], Shri
Iyer, learned senior counsel contended that issue relating to the propriety of
legal conclusion that could be drawn on basis of proved facts gives rise to a
question of law and, therefore, the High Court is justified in interfering in
the matter since the authorities below failed to draw a proper and logical
inference from the proved facts. We are unable to persuade ourselves to accept
the submission. The findings of fact arrived at by the authorities below are
based on proper appreciation of the facts and the material available on record
and surrounding circumstances. The doubtful nature of the transaction and the
manner in which the sums were found credited in the books of accounts
maintained by the assessee have been duly taken into consideration by the authorities
below. The transactions though apparent were held to be not real one. May be
the money came by way of bank cheques and paid through the process of banking
transaction but that itself is of no consequence.
No question of law much less any substantial question of law had arisen for
consideration of the High Court. The High Court misdirected itself and
committed error in disturbing the concurrent findings of facts.
No other point is urged.
The appeals preferred by the Revenue Department deserve to be allowed and
they are accordingly allowed.