Abdul Hadi J.
1. These tax case revisions under section 54 of the Tamil Nadu Agricultural Income-tax Act, 1955 (hereinafter referred to as 'the act'), are concerned and they were heard together and a common order is passed.
2. The petitioner in Tax Cases Nos. 63 and 64 of 1993 is the wife of the petitioner in Tax Cases Nos. 65 and 66 of 1993. Tax Cases Nos. 64 and 66 of 1993 relate to the assessment year 1988-89 and Tax Cases Nos. 63 and 65 of 1993 relate to the assessment year 1989-90.
3. All these four cases arise out of the common order of the Commissioner of Agricultural Income-tax, date July 16, 1992. Originally, the husband, Ponniah Nadar, and the wife, Ganga Bai, were assessed to agricultural income-tax in respect of the abovesaid two years, separately, one assessment in relation to the husband under section 17(3) of the Act, in respect of the total agricultural income realised by him from an extent of 69.94 acres held by him and another assessment on the wife, Ganga Bai, in respect of the total agricultural income in relation to the another 16.25 acres of agricultural land, standing in her name under section 65 of the Act. In other words, while, in respect of the husband, since the abovesaid holding exceeded 50 acres, regular assessment under section 17(3) of the Act was made, in respect of the wife, compounding assessment was made under section 65 of the Act. But, the Commissioner initiated suo motu action under section 34 of the Act to revise the abovereferred to separate assessments and clubbing them both, in the hands of the husband on the footing that the abovesaid lands of 16.25 acres standing in the name of the wife is actually the property of the husband.
3. No doubt, he initially made an attempt to make such a revised assessment even with reference to the earlier assessment year 1987-88, but ultimately by the impugned order, he himself held that he could not initiate such an action as it was out of time. So, we are concerned only with the revised assessment made, in relation to the assessment years 1988-89 and 1989-90.
4. The reasoning of the Commissioner, which led to the abovesaid revised assessment can be seen from the following passages in the impugned order :
'Tmt. Ganga Bai owns 6.47 acres of rubber and 0.76 acres of cloves under plantation and 9.02 acres under non-plantation. The advocate has produced copies of purchase deed in respect of properties purchased by Tmt. Ganga Bai. He has also argued that the properties were purchased from the income obtained from the properties given by her parents through settlement deed (stridhana deed) Document No. 5215/18-10-1951 measuring 0.50 acres in S. No. 28/12 of Vilavancode Village. In respect of the properties purchased by Tmt. Ganga Bai there is no evidence how she had acquired the properties.... A perusal of the document (s) shows that except for the settlement of 50 cents in her favour in 1951, all other acquisition of property is after her marriage. Despite a number of notices issued and opportunities given to her, no proof of the independent nature of source of funds for the acquisition of he property by Tmt. Ganga Bai was furnished. No evidence was produced, (viz.) separate bank account in the name of Tmt. Ganga Bai or any other documents showing the details of the transactions based on which she acquired the lands either by way of sale or by mortgaging her stridhana property.... As such, the property has to be presumed to have been acquired out of her husband's income and has to be clubbed with his income.'
It must be noted even at the very outset that as against the abovesaid factual finding of the Commissioner stating, 'Despite a number of notices issued and opportunities given to her no proof of the independent nature of source of funds for the acquisition of the property by Tmt. Ganga Bai was furnished', no ground ever has been taken in these provisions. In effect, the Commissioner has drawn an adverse inference in view of the fact that the abovesaid proof has not been furnished and held that the abovesaid lands standing in the name of Ganga Bai were only purchased out of her husband's income and that hence, the agricultural income.
It may be stated here that the abovesaid sale deeds standing in the name of Ganga Bai are on the following dates and for the undermentioned sale considerations noted against the said dates :
Date Sale consideration(Rs.)27-4-1964 3,00029-5-1965 1,0007-3-1966 2,0003-4-1967 1,00011-9-1967 8,0008-10-1969 80031-8-1970 3,00030-10-1970 4,0002-6-1971 1,35012-4-1983 9,000
As already stated, even though no ground as such has been taken in the revision on the above aspect, learned counsel for the petitioners submits that the reply dated November 13, 1991, given by Ganga Bai to the Commissioner of Agricultural Income-tax, in response to his earlier notice, would disclose her independent sources of income for purchasing the abovesaid lands in her name, by the abovereferred to settlement deed dated October 18, 1951, from her parent in relation to the abovereferred to 50 cents of land.
But, after going through the said reply, we only find that apart from referring to the abovesaid sale deeds, it only refers to certain mortgages of one or other of the abovesaid lands covered under the sale deeds executed in favour of Ganga Bai prior to the relevant sale deeds. These mortgages by themselves would not prove her independent resources. In those mortgages also, she would have been only a name-lender and the mortgages were really only in favour of her husband, he alone having lent the sums under those mortgages. If she really wanted to prove her independent sources of funds for either the abovesaid purchases or mortgages in her name, she should have produced other independent records, like her account books, bank pass books, etc., showing her independent resources. It is that, which was sough for, by the Commissioner in the number of notices sent by him to the abovesaid Ganga Bai, and which are referred to in the impugned order.
5. No doubt, learned counsel for the petitioners submits that he burden of proving that those lands standing in the name of Ganga Bai and income thereof are only hers is only on the Department and not on the assessee, Ganga Bai. We are unable to accept this argument of the said learned counsel. Regarding Ganga Bai's independent resources, she alone will have the knowledge and so, based on the principle underlying section 106 of the Evidence Act, the burden is only on herself the assessee.
In fact, under the Income-tax Act, 1961 (Central Act No. XLIII of 1961), there are specific provisions beginning from section 68 onwards, which say that in such similar circumstances, the burden of proof is only on the assessee. But, corresponding provision were not there under the old Income-tax Act, 1922 (Central Act XI of 1922). However, courts have held that under the said old Act, the burden in such a similar circumstance would be only on the assessee. For coming to such a conclusion, reliance had been placed on the principles contained in section 106 of the Evidence Act. (vide Ganga Ram Balmokand v. CIT . Further, In Madappa (G. M.) v. CIT : [1948]16ITR385(Mad) , a case under the said old Income-tax Act, 1922, it has been held that when both the source and the nature of the cash receipts shown in the accounting year have not been proved, the Income-tax Officer cannot draw any other reference except that those two amounts are income receipts. In Har Prasad Shiva Dutt Rai v. CIT, : AIR1957All746 , it has been held that if an assessee receives certain sums of money in the relevant accounting period, it is for him to explain from where he got the money, and that if the assessee did not explain what he alone could know, an inference is possible that the nature of the receipts are such as render him liable to tax. Further, in Munnalal Biharilal v. CIT also it has been held that the burden of establishing in such case that a disputed item is not the assessee's income lies on the assessee and not on the Department. Similar is the decision in CIT v. Krishna Mining Co. : [1972]83ITR860(AP) .
6. No doubt, learned counsel for the petitioners sought to argue that in the present case, there was no suppression of any income and even the wife's income was disclosed and that hence the abovereferred to decisions could not apply to the present facts. This contention has no merit. It must be noted that the husband, Ponniah Nadar, has not disclosed the income from the abovesaid lands standing in the name of his wife, in his accounts or return. While so, if it is found that the abovesaid income from the abovesaid agricultural lands standing in the name of his wife is really that of the husband, that is includible in computing the income of the husband, unless the wife discharges her burden of proof by showing her independent resources for purchasing those lands in her name and thereby establishes that the income from those lands is that of herself only.
7. The decision cited by learned counsel for the petitioners, viz., Nand Kishore Mehra v. Sushila Mehra : [1995]215ITR218(SC) has no application to the present case, since the principle underlying section 106 of the Evidence Act will not be applicable to the facts therein, as the said case related to the dispute between husband and wife and not a dispute between the husband or wife on the one hand and the tax Department on the other hand.
8. However, it must be stated that the income from the abovesaid 50 cents of land, which the abovesaid Ganga Bai got by way settlement from her father on October 18, 1951, prior to her marriage, cannot be clubbed with the husband's income since it is clear that that said land was got from her father. No doubt, if at least the said Ganga Bai stated the quantum of income got by her from the said land, it could have been considered whether he quantum of income realised every year from the said land could have been the source for acquiring any of the subsequent purchases in her name. But, there is no statement even by the said Ganga Bai in this proceeding in relation to the said quantum of income. So, it has to be taken that the said income has not been a substantial one and could not have led to any of the later acquisitions in her name. We, therefore, hold that only the income from the said 50 cents of land should not be clubbed with the husband's income.
9. The net result is, the revisions are allowed in part, that is, only with reference to the abovesaid income from the abovesaid 50 cents of land, got by Ganga Bai from her parent and to that extent the order of the Commissioner is set aside. In other respects, the order of the Commissioner is confirmed. No costs.