P.S. Dhillon, Judicial Member - (1.)THE revenue has made this appeal against the order dated 8-5-1980 of the Appellate , Controller B-Range, Bombay, who partly allowed the appeal against the order dated 25-8-1977, of the Fourth Assistant Controller, Bombay.
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6. THE second issue, in this appeal, is regarding the addition of Rs. 32,281 representing the value of Flat No. 85, in Deepak Building, Peddar Road, Bombay 400 026.

7. THE Assistant Controller made the addition of Rs. 32,281 on the ground that the deceased was the actual owner of Flat No. 85 ; while his wife was his benamidar for the Flat.

8. Before us, Shri Viswanathan contends that the assessment records of the deceased show that the deceased had admitted that for the acquisition of the aforesaid flat, it was the deceased who gave the consideration to his wife, but, there is no statement to this effect either of the wife or of the deceased, and the entries in the books of account are merely assertions and if they are proved, then these are admissible in evidence. Hence, these cannot take the place of proof or fact proved.

9. Shri Viswanathan further contended that the income of this flat was added to the income of the deceased, but he has not shown that it was added to the income of the deceased in his assessments as on account of his wife being his benamidar, regarding the aforesaid property. Shri Viswanathan has also not brought on record any evidence to show that in the assessment proceedings of the deceased, the issue of benami transaction or sale of this flat was there, and the authorities below found that it was the deceased who was the actual owner of this flat and his wife was his benamidar.

10. On the other hand, there is evidence on record that after the death of the deceased, his wife was assessed for the income of the flat. Much more, the revenue took the estate duty for the value of this flat from the accountable person of the deceased (wife). Besides, no doubt, the will of the deceased shows that all his properties were his self-acquired properties. However, some of his properties gifted to his wife were in her name in which he had no interest whatsoever. So the will does not support the stand of the revenue and entries in the books of account stated above, though Shri Viswanathan stressed too much on the words "all my properties are my self-acquired properties", but he was not able to say anything regarding the words "some of my properties gifted to my wife are in her name in which I have no interest whatsoever". THE books of account, for the purpose of income-tax assessments show otherwise ; it cannot then be presumed on account of these entries that he was the actual owner of Flat No. 85 and his wife is his benamidar, particularly when in the will, he categorically stated that he had gifted some properties (self-acquired) to his wife with which he had no interest. If the revenue contends otherwise for this property, then it is for it to prove accordingly.

11. THE wife willed it of as owner of house and the revenue has accepted the will. Moreover, the tenants always paid the rent to the wife and not to the deceased, but the income of rent has been shown in the assessments of the deceased. From this fact, it cannot be concluded that the rental income was there on account of the finding that the wife is the benamidar of the deceased for Flat No 85, and it could be there under Section 64. We have repeatedly asked the departmental representative to show that the inclusions of rent income from the property in dispute in the assessments of the deceased are not under Section 64, but it failed to do so.

12. On the other hand, the departmental representative has admitted that there is no finding in the assessment proceedings of the deceased where it was held that the deceased was the real owner of Flat No. 85, and his wife is the benamidar of the deceased, and as such, the income from the flat is added to the income of the deceased.

13. It is settled law that it is for the allegor to prove the benami transaction. Reliance can placed on the decision reported in AIR 1974 SC 171. So, in this ease, the onus is on the revenue to prove that the deceased was the real owner of Flat No. 85 and his wife was his benamidar. THE revenue has failed to do so, and the evidence on the record is otherwise, as we have stated above ; moreover, the accountable person is challenging the revenue in stating that the deceased was the owner of it. Hence, we hold that the deceased was not the real owner of Flat No. 85, nor his wife was his benamidar, and, as such, the value of Flat No. 85 at Rs. 32,281 cannot be added to the estate of the deceased.

14. THE cases relied on by the learned departmental representative, namely, O.S. Chawla v. ACED [1973] 90 ITR 68 (All.) and Muthukaruppi Achi & Clarance Pals v. CED [1980] 124 ITR 143 (Kar.) are of no help to the revenue, as these are distinguishable.

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16. In the result, the appeal is dismissed.

K.S. Vishwanathan, Accountant Member

1. It is my misfortune that I am unable to agree with my learned brother in respect of the inclusion of the value of the flat held in the name of the wife of the deceased and the outstanding rent thereof in the deceased's estate.

THEse facts arc not disputed :

1. THE purchase consideration came from the deceased.

(2.)The asset is shown in the balance sheet of the deceased.
The rent outstanding also is shown in the balance sheet on the asset side. Thus, the books show that the property is the asset of the deceased.

(3.)THE deceased had been assessed on the rental income.
2. THEse facts completely prove the department's case. Nothing further is required for its inclusion.

3. THE points made out against the department are :

THEre is no statement from the wife or the deceased. THE entries in the books are mere assertions. Now, I am really unable to understand this point. If the entries in the books are the assertions, they are assertions of the deceased. We are concerned with the estate of the deceased. So, the assertion of the deceased as shown by his books are very very relevant. Regarding the case that the wife was not examined, it was nobody's case that she should be examined. Actually, in law, the department had discharged their onus by showing the four facts I have listed above. Granting for argument's sake, these may not be conclusive, the presumption at least is in favour of the department. And it is for the respondent then to show that, in spite of these facts, the wife was not a benami for this purpose, they may, if they think necessary, make the wife to make a statement to that effect.

4. Where purchase consideration is admitted to be from the husband and the property stands in the name of the wife, the presumption is that she is a benami: this proposition of law is as old as the hills and settled a century back by a series of decisions of the Privy Council. I may cite only Mst. Bilas Kanwar v. Desraj Panjit Singh AIR 1915 PC 96, where following decisions one century old, the Privy Council reiterated "where a purchase is made in the name of wife, the natural inference is that the purchase is a benami transaction, a dealing common to Hindus and Muslims alike : it has a curious resemblance to the doctrine of English law that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of common law that where a feoffment is made without consideration the use results to the feoffer : the exception in English law by way of advancement in favour of wife or child does not apply to India".