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7. The other addition made on account of silver coins (Rs. 1,58,000) and of silver ornaments and utensils (Rs. 3,73,601) was deleted and it was held by the CIT(A) that these articles were acquired by different members of assessee's family as per the Will of Smt. Magan Devi. The learned D.R. vehemently contested the finding of CIT(A) relating to acceptance of the Will. He drew our attention to the statement under Section 132(4) of the assessee, Poonam Mittal and Shyam Kumari and pointed out that no reference to the alleged Will was made in their statements. Only in proceedings under Section 132(5) of the Income-tax Act, the Will was set up for the first time. The alleged original Will was never produced and only a copy notarised by a Notary Public was produced. The assessee did not demonstrate as to how notarised copy was obtained. Existence of original Will was not shown. Even Notary Public in his certificate did not refer to original Will but only to its copy. He, therefore, submitted that observations of CIT(A) in para 5 of the impugned order where it is stated that original Will was seen by Notary Public are factually wrong. The Assessing Officer was fully justified in insisting on production of the original Will, as signatures of the testator for comparison were available only on the original. The contents of the Will further suggested that the testator was fully aware of registration. Yet the alleged Will was not registered. He further submitted that Will was an important and precious document usually kept in safe custody. But, in the present case, the notarised copy was kept in safe custody (Locker) but original was permitted to be eaten by ants. This was unbelievable. The documents executed at the time of search of premises of assessee's son Rakesh Kumar showed that even torn pieces of Panchnama were collected and retained safely but strangely enough, the Will was permitted to be mutilated and destroyed. This was unacceptable. The testator was neither income-tax assessee nor assessed under the Wealth-tax Act nor any return of her estate was filed under the Estate Duty Act. There is further no evidence to show that the lady had any reasonable source to acquire and possess articles claimed to belong to her and bequeathed by her through the Will. The affidavits produced by different persons were self serving documents having no evidentiary value. In this connection, learned D.R. relied upon decision of jurisdictional High Court in the case of Sri Krishna v. CIT [1983] 142 ITR 618 (All.). The statements recorded at the time of raid showed that none of the legaties under the Will was aware of the Will. This and above circumstances clearly showed that Will set up by the assessee was not a genuine document. The learned departmental representative accordingly impugned the order of CIT(A).

8. Shri Garg, learned Counsel for the assessee supported the impugned order. He explained that Smt. Magan Devi died in 1974 whereas her husband Shri Makhan Lal died on 23-12-1980. The Will was got mutilated in hands of Shri Makhan Lal and, therefore, a necessity to prepare a notarised copy of the Will arose in the year 1981. Accordingly notarised copy was prepared. Certificate of Notary Public who had notarised the Will was filed with the authorities and copy thereof was available at page 117 of the Paper Book. The notarised copy was seized by the Revenue on 24-12-1986 from the locker held by the assessee's son Shri Rakesh Kumar. As original Will could not be produced, secondary evidence relating to execution of Will was filed before CIT(A). The secondary evidence accepted by the CIT(A) is as under:

10. Shri Garg further argued that Revenue authorities wrongly placed onus on the assessee to explain source of acquisition. It was for the Revenue to prove first that assessee was owner of the articles for the purposes of Section 69A. These articles were not seized from the persons of the assessee but from different persons occupying the seized premises. Shri Garg further relied upon orders passed by CIT under Section 132(11) of the Income-tax Act in the case of Smt. Shyam Kumari and Smt. Kamlesh Kumari who were shown as legaties under the same Will. The claim was duly accepted. In this connection, Shri Garg relied upon CIT v. Shamshuddin Manzoor Haque [1988] 172 ITR 696 (All.). He further submitted that order passed under Section 143(1) of the Act has all the force of a valid assessment order. Shri Garg submitted that nature of assets were such that those could not be acquired in the year of the rald. The silver coins with British marking were not a legal tender in the year 1986. In the alternative, Shri Garg contended that having regard to fact that locker from which notarised copy of Will was seized was operated last in 1984 (prior to its operation in 1986 by the Revenue) and that notarised copy of Will in the year 1981 was available, the addition could not be made in the year under consideration. Shri Garg accordingly supported the impugned order.

The CIT(A) further held that the Will was notarised on 3rd June, 1981 and was therefore in existence in financial year 1981-82. The addition for any unexplained silver coins and silver articles could be made in the assessment year 1982-83 and not in 1987-88. We are inclined to subscribe to the aforesaid view taken by learned CIT(A). The seizer of the document from locker is not in dispute. It is further not in dispute that notarised copy available is a tailor made document with complete and full description of silver articles found. The aforesaid document had only single purpose to serve, that is, to explain the existence of articles mentioned in the Will. In support of the notarised document, the assessee produced certificate from Mohd. Illyas, Notary Public, which is available at page 117 of the Paper Book. According to aforesaid certificate, Shri Mohd. Illyas, Advocate, Saharanpur confirmed that he attested the photostat copy of original Will of Smt. Magan Devi which was compared by Shri Rakesh Gupta on 3rd June, 1981. The aforesaid certificate of Notary Public has evidenciary value and cannot be rejected without good ground. In the present case, the Assessing Officer did not examine Shri Mohd. Illyas or made any adverse comment to refute the claim in the certificate. The certificate is further corroborated by affidavit of assessee and other members of the family. Having regard to the material available on record, the aforesaid certificate cannot be rejected. It, therefore, necessarily follows that at least a notarised document was made on 3rd June, 1981 to cover silver coins and silver articles in dispute. Therefore, on the basis of documentary evidence, it can safely be held that the family of the assessee did possess articles in dispute in financial year 1981-82 which could be assessed only in assessment year 1982-83. In view of above circumstances, it is really not material whether Smt. Magan Devi executed a valid Will and possessed all these silver articles at the time of her death around 1974 or not. The deletion of addition made by the CIT(A) on above account has to be upheld.