Deepak Misra, J.
1. This batch of appeals preferred by the Revenue under Section 260A of the Income-tax Act, 1961 (for brevity 'the Act'), was admitted on different substantial questions of law and at the time of hearing, learned Counsel appearing for the Revenue as well as the assessees fairly stated that the questions should be recast as follows:
(a) Whether the finding recorded by the Tribunal that the will dated June 2, 1992, was genuine in view of the certificate of probate obtained from the court of learned Additional District Judge, Katni, vide order dated March 15, 1996, and, therefore, the properties bequeathed under the will belong to the late L.P. Khanna?
(b) Whether the Tribunal is justified in dislodging the finding of the Assessing Officer and that of the Commissioner of Income-tax (Appeals) that the additions made by the Assessing Officer that late L.P. Khanna, father of C.K. Khanna, the assessee, the income that was bequeathed under the will actually belongs to C.K. Khanna and thereby the late L.P. Khanna was the 'benamidar'?
2. At the very outset, certain factual details are necessary to be stated. A search was conducted in the residential premises of the assessee, C.K. Khanna by Lokayukt on June 21, 1992, and on the same day another search was conducted by the authorities of the Income-tax Department. Certain assets in the form of cash, golden ornaments, fixed deposits receipts and keys of bank lockers were found and seized. It was found that certain savings bank accounts, fixed deposits as well as bank lockers were being operated in the name of Suchandra and Neeta. On opening of the bank lockers, some more cash, jewellery and fixed deposit receipts were found which were also seized. Some bank accounts were also found in the names of the family members of the assessee. The assessee endeavoured to justify the various deposits in the names of the family members from their sources of income. An attempt was made to justify the household goods and some other assets in his own name from his own sources of income. As far as cash and deposits which were in the names of Suchandra and Neeta were concerned, it was contended that they did not belong to him and belonged to his father, the late L.P. Khanna who had opened the accounts in the names of Suchandra and Neeta. During the appeal proceedings for the assessment year 1993-94, the assessee filed the order of probate passed by the learned Additional District Judge, Katni, by which the authenticity of the will of the late L.P. Khanna in which the assets standing in the name of Suchandra and Neeta were also included and found to be correct. A notice under Section 147 of the Act was issued to the assessee for the assessment year 1983-84 to 1990-1991 which was duly complied with and the returns were filed. In the meantime, as is evident, returns wee also filed on behalf of the late L.P. Khanna by Smt. Vimla Khanna, mother of the assessee, as the legal heir of the late L.P. Khanna. Some items of income in these returns were assessed on protective basis only as the Revenue was of the view that these items of income only belonged to C.K. Khanna. The Commissioner of Income-tax (Appeals) directed the Assessing Officer to assess the said income in the hands of the late L.P. Khanna on substantive basis. During the pendency of the appeal before the Tribunal, the assessee filed an application for admitting certain documents as additional evidence. The documents which were sought to be produced as additional evidence related to orders passed by the income-tax authorities, orders relating to immovable properties which were claimed to be that of the late L.P. Khanna and certain documents were sought to be brought on record, sale of immovable properties and repayment of advances claimed to be earlier taken by the late L.P. Khanna. The Tribunal, after hearing the learned Counsel for the parties, allowed the said documents as they were necessary for the just adjudication of the lis and accordingly allowed the application. After allowing the application the Tribunal, as is demonstrable, dealt with the individual appeals and allowed some appeals in toto and some in part. While dealing with the appeals, the Tribunal recorded the following findings:
(i) The late L.P. Khanna was dealing with property business and was definitely having some source of income from his property business as well as advance taken against his existing properties.
(ii) A double storeyed house at Katni was gifted to the assessee's father, the late L.P. Khanna by his father the late Trilokinath Khanna in the year 1946.
(iii) The daughters of the father of the assessee had already been educated and married by the year 1970 and, therefore, he could have certain savings.
(iv) As far as the opinion of handwriting experts, Shri C.T. Servate and M.M. Nema is concerned, we agree with the observations of the Commissioner of Income-tax (Appeals) for the assessment year 1993-94 at pages 22 and 23 of his order where he has observed that Shri C.T. Servate himself has issued a contradictory report. He has further observed that in his report dated February 6, 1994, he had confirmed that the signature as 'Kumar' on the locker access register in respect of locker No. 3 and some pay-in-slips in the names of Suchandra and Neeta were written by Shri C.K. Khanna, though the standard handwriting with which the signature 'Kumar' was compared also included signature of Shri L. Mishra in the locker access register. Keeping the various defects in these reports he has given no credence to these reports and we agree with him.
(v) The assets in the names of Suchandra and Neeta were not held in the 'benamidar' account of the assessee.
(vi) The assets in the names of Suchandra and Neeta belonged to the late L.P. Khanna and not to the assessee and late L.P. Khanna had independent income from contracts and property.
(vii) The late L.P. Khanna had certain deposit in the joint account with his children that have been properly explained.
(viii) The materials brought on record clearly evince that the assessee as well as his wife belonged to a family of good status and, hence, the receipt of gifts on various counts cannot be denied. More so, the names of persons who had given gifts had been supplied in detail.
(ix) The assessee is an engineer and his brother is also living in an adjacent house. It is quite clear that the construction work of the porch might have been assigned by his brother who is a qualified engineer and, therefore, the expenses attributable to the assessee for the construction of the porch has to be apportioned.
(x) The late L.P. Khanna father of the assessee, had his own source of income and he could have withdrawn the amount as regards household expenses and, therefore, it is erroneous to say that the assessee had not withdrawn sufficient amount for household expenses.
(xi) The gifts made by the late L.P. Khanna had been duly reflected in respect of the years concerned and there is no reason to disbelieve such gifts as the late L.P. Khanna had the source of income to make such gifts.
(xii) The gifts received by the children were not in consonance with the status of the family and, hence, the addition was unjustified.
(xiii) The late L.P. Khanna was contributing to the household expenses and, therefore, the additions made on that score deserves to be deleted.
(xiv) The deposits made in the names of Sunita Khanna and Vimla Khanna were from the income of the late L.P. Khanna.
(xv) As the deposits made in the names of Suchandra and Neeta Khanna are from the income of the late L.P. Khanna, the same cannot be put in the compartment of the income of the assessee.
(xvi) The deletion of certain amount by the Commissioner of Income-tax (Appeals) was based on apposite and cogent reasons.
(xvii) As the assessee comes from a well-to-do family and details have been given, regard being had to the details and facts in entirety details of each and every item have been explained by the wife, Smt. Sunita Khanna. There was no material to come to hold that all the items were purchased only in the year of search of the assessee and nothing before the search. The finding in this regard by the Commissioner of Income-tax (Appeals) cannot be found fault with. The finding recorded by the Commissioner of Income-tax (Appeals) with regard to jewellery was based on seemly material brought on record and, therefore, the additions made on account of gold jewellery and silver coins/utensils found in the residence of the assessee at the time of search was unjustified and the said finding was absolutely sound in the facts and circumstances of the case.
(xviii) The confirmation of addition by the Commissioner of Income-tax (Appeals) as regards the loan from the late Radha Khanna should have been accepted as there is a mention of deposit in the letter of Shri Vinay Khanna, son of the late Radha Khanna, which has been accepted by the Assessing Officer.
(xix) As the assessee was carrying on business, cheques were received. The addition made by the Assessing Officer and affirmation thereof by the Commissioner of Income-tax (Appeals) in this regard is unsustainable.
(xx) The addition which relates to increase in cash balance that has been confirmed by the Commissioner of Income-tax (Appeals) was not justified inasmuch as after the death of the late L.P. Khanna, his wife, Smt. Vimla Khanna, legal heir prepared the cash flow statement on the basis of records available and filed revised return of income for whatever entries could not be explained. As L.P. Khanna had already died, he could not furnish the details and in his absence the legal heir was left with no alternative to open fund flow statement for each year. In that background, cash accretion is due to various withdrawals or increase/decrease in other assets and, hence, the addition made by the Commissioner of Income-tax (Appeals) was not correct.
(xxi) The additions made by the Commissioner of Income-tax (Appeals) in respect of certain purchases were not correct as the purchases had been properly explained by the assessee.
(xxii) The returns filed by the assessee declaring the income at Rs. 10,62,539 were reflected in the fund flow statement and the advance availed of from Prem Narayan Patidar and Vidya Prasad Patidar has been explained.
(xxiii) Certain amounts which have been shown to be taken from others were to be further enquired as declared by the assessee on the basis of the fund flow statement. The Commissioner of Income-tax (Appeals) has not erred in issuing directions to assess the income of Rs. 1,73,822 in the individual status of Smt. Vimla Khanna and not in the status of the legal heir of the late L.P. Khanna.
3. Criticising the aforesaid finding, it is submitted by Mr. Rohit Arya, learned senior counsel appearing for the appellants, that the order of the probate should not have been accepted by the Tribunal as genuine and the assets that have been bequeathed under the will should have been disbelieved.
4. Mr. G.N. Purohit, learned Counsel appearing for the assessees, has invited our attention to a Division Bench judgment rendered in Gopichand Gupta v. CWT : [1981]132ITR308(Cal) , wherein a question was posed by the High Court whether, on the facts and in the circumstances of the case, in view of the probate of the will having been granted by the High Court, it was competent for the Tribunal to go into the question as to the genuineness of the will of the deceased. Their Lordships narrated the facts and held as under (page 319):
Under Section 2(f) of the Succession Act, 'probate' means the copy of the will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. So in the eye of law, the grant of letters of administration with a copy of the will annexed and the grant of probate stand on the same footing. The matter relating to grant of probate or letters of administration, in our opinion, is concluded by the decision of the Supreme Court in the case of Surinder Kumar v. Gian Chand : [1958]1SCR548 . There, the facts are more or less identical and a claim was made out against a third party. In the High Court the will was produced but as it was not probated the will was not taken note of. Before the Supreme Court, an application was made for the admission of additional evidence indicating that there had been a grant of probate. There was an adjudication as to the admission of additional evidence and the Supreme Court held and observed, inter alia, as follows (p. 876):
An objection to the admission of additional evidence at this stage is taken by the respondents on the ground that as the probate was obtained without their knowledge and the application was made at a late stage, it deprived the respondents of the valuable right which vests in them because the claim has become statute barred and that there is no provision in the Rules of this Court for the admission of additional evidence.
It is clear that the probate was applied for and obtained after the judgment of the High Court and, therefore, could not have been produced in that court. The judgment of the probate court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it, is thus unsustainable because of the nature of the judgment itself.
The aforesaid observations are apposite to the facts of the case in view of the fact that in the instant case also the Revenue's contention was that the probate was sought for from this Court after the asses-see's contention about the will was rejected by the taxing authorities.
5. Thereafter, their Lordships referred to the decisions rendered in Hiralal Chatterjee v. Sarat Chandra Chaterjee [1939] 43 CWN 824; Saroda Kanta Dass v. Gobind Mohan Das [1910] 12 CLJ 91 (Cal), Chandra Kishore Roy v. Prasanna Kumari Dasi ILR [1911] Cal 327, Cham Chandra Pramanik v. Nahush Chandra Kundu AIR 1923 Cal 1, Kailash Chandra v. Nanda Kumar : AIR1944Cal385 , Satya Charan Das v. Hrishikesh Karar : AIR1959Cal795 , Anil Behari Ghosh v. Latika Bala Dassi : [1955]2SCR270 , R.H.E. Oates v. King Emperor : AIR1924Cal104 , Raj Kishore Prasad Narain Singh v. Promoda Behari Singh : AIR1944Pat182 , R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid : [1963]3SCR22 , Smt. Satya v. Teja Singh : 1975CriLJ52 , Teen Cowree Dossee v. Hureehur Mookerjee [1867] 8 WR 308 and C. Vasantlal and Co. v. CIT : [1962]45ITR206(SC) and eventually came to hold as follows (page 324):
This being the position, in our opinion, in view of Section 263, read with Section 273 of the Succession Act, the genuineness of the will could not be gone into, when doubted by the income-tax authorities either about the acceptance or otherwise of the will in question. The fact that the assessee had invited, as it was contended by the Revenue, to determine the genuineness of the will does not establish that the income-tax authorities were in any way entitled to go behind the grant of probate as to the question of the genuineness of the will. In that view of the matter, we would answer questions Nos. 1 and 2 in the negative and in favour of the assessee. Before we conclude thispart of the answers we must, however, observe that we are inclined to accept the position that the facts of this case, as presented by the assessee, inspire little confidence and credence. But so long as the finality of the probate stands, as a matter of law, such an incongruity has to be accepted. Whether, by making an appropriate amendment in the Succession Act, after the grant of the probate in appropriate cases, an application might be made by the Revenue authority, if required, to the court in such a situation, is a matter in which the Legislature alone can intervene.
6. In the case at hand, we really do not have to dwell upon and delve into whether the assets could have been bequeathed by the late L.P. Khanna. The Tribunal, as has been indicated hereinabove has scrutinised in detail and come to hold that the assessee had the resources to bequeath. While noting the decision of the Calcutta High Court, we conclude and hold that as the present case hinges on facts, unless the findings recorded by the Tribunal as regards the facts are perverse, in actuality, there is no substantial question of law involved in this appeal.
Consequently, we do not perceive any merit in this batch of appeals and accordingly, it is dismissed without any order as to costs.