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	    Gold Ornaments		      Rs. 1,19,320/-
	    Gold Rawa			      Rs. 1,69,020/-
	    Stones			      Rs. 4,000/-
	    Bank balance with the Imperial
	    Bank of India, Delhi	      Rs. 35,053/-
	    Bank balance with Hindustan
	    Commercial Bank, Delhi	      Rs. 221/-
	    Cash			      Rs. 2,800/-.

The assessee thus brought in an aggregate capital of Rs. 3,33,414/in the business on 30th March, 1948. It appears that the assessee prospered in this gold and jewellery business of Roshan-Di-Hatti but it did not file any return of income nor paid any income tax. It came to the notice of the Income Tax Officer some time in the beginning of 1957 that the assessee had made considerable income in its gold and jewellery business but had failed to pay any tax on such income and hence the Income Tax Officer issued a notice to the assessee under section 34(1)(a) of the Indian Income Tax Act, 1922 for bringing the income of the assessee for the assessment year 1948-49 to tax. The assessee filed its return of income and in the course of the assessment pro- ceedings, the Income Tax Officer, called upon the assessee to explain the nature and source of the capital of Rs. 3,33,414/- brought by it into the business on 30th March, 1948. The assessee pointed out that gold rawa, ornaments and cash representing this capital were brought by Roshan Lal when he migrated from Lahore and they were kept in a sealed trunk with the Amrit- sar Branch o[ the Imperial Bank of India and when Roshan Lal came over to Delhi in October 1947, he. deposited the same in a locker in the safe deposit vault of Hindustan Commer- cial Bank at Delhi and when the business of the assessee was commenced, he surrendered the locker and brought the entire gold, jewellery and cash into the business. It was empha- sised by the assessee as a supportive fact that after Roshan Lal migrated from Lahore in June 1947 until the assessee started the business of Roshan Di-Hatti on 30th March, 1948, neither the assessee nor Roshan Lal had any other business or means of income from which the assets of Rs. 3,33,414/- could have been earned. This explanation was given in the course of various statements made by the asses- see from time to time before the Income Tax Officer. The assessee also examined Hira Lal, Father-in-law of Roshan Lal and filed affidavits of Mulk Ram, Bills Mal, Dalai, Wazir Chand, Devidas Mehra and Panna Lal before the Income Tax Officer for the purpose of showing that the assessee was having a large gold and jewellery business in Lahore before migration and that it did not carry on any business in India before starting the business of Roshan-Di-Hatti on 30th March, 1948. The Income Tax Officer also examined Prem Nath and Kishan Chand, brothers of Roshan Lal. The statement of Prem Nath was to the effect that their father was a man of ordinary means who was almost reduced to penury by about 1940 and that he had given a sum of Rs. 2000/- to his son Roshan Lal for starting gold and jewellery business in 1935 and he had also subsequently lent some monies to Roshan Lal at nominal interest. Prem Nath deposed that for the purpose of the business of the assessee, Roshan Lal was occupying a shop belonging to his father but he was not paying rent though demanded on the ground that he did not have sufficient income to pay the rent It was also stated by Prem Nath that before the partition of the country the standard of living of Roshan Lal and his family was no higher than that of Prem Nath who was getting a salary of Rs. 150/- per month. The statement of Prem Nath was clear- ly directed towards showing that the assessee did not have any flourishing business or large income prior to partition. The Income Tax Officer, on the basis of this material before him, rejected the explanation offered by the assessee and came to the conclusion that it was not possible to believe that the assessee had been able to accumulate capital to the extent of Rs. 3,33,414/- out of income from the business carried on by it in Lahore and since the nature and source of the capital of Rs. 3,33,414/- credited in the books of account of the business on 30th March, 1948 was not satis- factorily explained, the Income Tax Officer, gave credit only for a sum of Rs. 20,000/- and treated the balance of Rs. 3,13,414/- as income of the assessee from undisclosed sources.

(2) 72 I.T.R. 194.

in the present case, the assessee introduces in the books of account of its business on 30th March, 1948, capital of Rs. 3,33,414/- which consisted of gold rawa, gold ornaments, stones and cash. The burden of accounting for the receipt of these assets was clearly on the assessee and if the assessee failed to prove satisfactorily the nature and source of these' assets, the Revenue could legitimately hold that these assets represented the undisclosed income of the assessee. The assessee offered the explanation that these assets had been brought by Roshan Lal when he migrated from Lahore in June 1947 and they represented the entire savings of the assessee in Pakistan. This explanation was disbe- lieved. by the Tribunal which took the view that, on the material on record, it was not possible to hold that the assessee must have brought more than Rs. 1,00,000/- from Lahore and hence the Tribunal added the balance of Rs. 2,33,414/- as undisclosed income of the assessee. This conclusion reached by the Tribunal was clearly a finding of fact and hence it could be assailed only if it was shown that the Tribunal had acted without any material or upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicial- ly and properly instructed as to the relevant law would have come to that determination. Vide Mehta Parikh & Co. v. Commissioner of Income-Tax, Bombay(1).

Let us consider what were the primary facts established by the material on record. The assessee was admittedly carrying on the business of Roshan-Di-Hatti in Lahore from 1935 until June 1947 when Roshan Lal migrated from Lahore. It is true that the assessee was not paying any Income tax in Lahore but, as pointed out by the Appellate Assistant Commissioner in his order, a number of letters and receipts regarding business transactions in Lahore were filed by the assessee which showed that the business in Lahore was not small and there were documents and papers which referred to. dealings involving Rs. 10,000/- or more at a time and there were also several vouchers produced by the assessee relating to advertising charges paid at Lahore. The busi- ness carried on by the assessee at Lahore was, therefore, a reasonably large business though its extent could not be verified by any reliable material produced by the assessee. The assessee undoubtedly filed affidavits of Mulk Ram, Billa Mal, Dalai, Wazir Chand, Devidas Mehra and Panna Lal, but, as commented upon by the Tribunal, these affidavits were vague and could not be regarded as having much evidentiary value. Still they did go to show that the Lahore business of the assessee was a fairly large business. The Tribunal was no doubt right in commenting that primary evidence with regard to the extent of the Lahore business of the assessee was not forthcoming, but it must be remembered that the assessee was being called upon to prove the extent of its business in a territory from which the members of the Hindu Undivided Family had to flee for their lives and from where it was totally impossible to produce any primary evidence. Be that as it may, it was found as a fact by the Appellate Assistant Commissioner and this finding was not disturbed by the Tribunal that the assessee "was doing fairly well in the business in Lahore". Roshan Lal, in anticipation of the partition of the country which was soon to follow, decided to move out of Lahore in June 1947 at a time when massacre and holocaust had not yet started and he was in a position to remove his belongings. He migrated from Lahore with all his belongings and came over to Amritsar and he brought with him a trunk which he wanted to keep in a locker in Safe Deposit Vault of the Imperial Bank of India. He could not obtain a locker and hence he deposited the sealed trunk with the Amritsar Branch of the State Bank of India instead of carrying it with him to Mussoorie. There is no documentary evidence to show as to what were the contents of the sealed trunk but, as pointed out by the Appellate Assistant Commissioner and not dissented by the Tribunal, "it is reasonable to presume that there must have been something quite valuable in the box as otherwise the assessee would not have kept the custo- dy of a bank like the State Bank of India". There can be no doubt, as observed by the Appellate Assistant Commissioner, and not disputed by the Tribunal that the assessee "must have had with him quite a substantial amount either in the form of jewellery etc. or cash, or otherwise he would not have taken the precaution of either depositing the sealed box with the State Bank of India, Amritsar opening a locker in a New Delhi Bank". The clear finding of the Appellate ASsistant Commissioner, affirmed by the Tribunal, therefore, was that Roshan Lal did bring ornaments, jewellery and cash with him when he migrated from Lahore in June 1947 and kept the same in a sealed trunk with the Amritsar Branch of the State Bank of India. If that be so, then on what material could it be said that the ornaments, jewellery and cash brought by the assessee and kept in the sealed trunk were of the value of only Rs. 1,00,000/- and no more. What were the materials on the basis of which the claim of the assessee that Roshan Lal had brought gold, ornaments and cash of the value of Rs. 3,33,414/- could be rejected ?

The only materials relied upon by the Tribunal was that the assessee had never filed any income-tax return nor ever paid any tax on the income of its business in Lahore and the presumption must, therefore, be that the assessee did not earn any assessable income before migration from Lahore. Now, it is true that where an assessee has not paid income tax, the presumption ordinarily must be that the assessee had no assessable income, but here the fact remains that the assessee transferred no less than an aggregate sum of Rs. 31,094/- from Lahore to New Delhi and also brought sub- stantial amount either in the form of jewellery etc. or cash" and deposited the same in a sealed trunk with the Imperial Bank of India, Amritsar Branch in June 1947. This. obviously the assessee could not have done unless it had a reasonably large business in Lahore and, therefore, the fact that the assessee did not pay income tax in Lahore cannot have much evidentiary value. All that it would show is that, as pointed out by the Tribunal, "the assessee has not been very straightforward in his dealings with the income-tax departments".