Decided on February 01,1994



M.A.A.Khan, - (1.) THIS is an appeal against DC (A)'s order dated 24-2-1992 deleting an addition of Rs. 36,900 made under Section 69Aoi the Income-tax Act, 1961 (the Act).
(2.) The assessee, an Individual, declared his income at Rs. 7,934 from salary and at Rs. 5,000 from property. The Assessing Officer, however, noted that on 29-9 1988 a gold biscuit weighing 10 tolas was seized from the possession of the assessee by the Superintendent, Central Excise & Customs Department, Alwar and on being examined by the officers of the said Department the assessee could not satisfactorily explain the source of acquisition of the same. Consequently the Assessing Officer delivered the copy of his (assessee's) said statement dated 29-9-1988 to the assessee and required him to explain the source of acquisition of the gold biscuit. By his reply dated 26-8-1991 the assessee contended that the statement before the Customs & Excise-Authorities was made by him under duress. He appears to have denied also the ownership and possession of the said biscuit. It further appears that it was also pleaded by him that the said biscuit had delivered to him in 1982 by his grand father. The Assessing Officer did not accept the contention of the assessee and made an addition of Rs. 36,900 being the value of the investment made in acquisition of the gold biscuit by the assessee. The assessee carried the matter to DC(A) in appeal. Before the learned DC(A) it was urged on behalf of the assessee that the biscuit did not belong to the assessee and the conclusions of the ITO were based on presumption only. In the alternative it was also urged that the gold was confiscated as a result of which the assessee suffered an identical loss. Therefore, the assessee was entitled to the allowance of the identical loss. Reliance in this behalf was made on Supreme Court decision in the case of CIT v. Piara Singh (1980] 124 ITR 40. The learned DC (A) accepted the alternate contention of the assessee and deleted the addition. Hence this appeal.
(3.) IT was urged by the learned Departmental Representative that the ratio of the decision in the case of Piara Singh (supra) was not at all applicable to the case in hand inasmuch as that in the instant case the assessee was admittedly earning income from salary and property and not from any smuggling business as was the admitted position in the case of Piara Singh (supra). In reply the learned Counsel for the assessee submitted that in the fact and circumstances of the case the conduct of the assessee may be read as disclosing an adventure in the nature of business or trade and consequently the loss claimed be allowed as incidental to such activity. I find force in the submissions made on behalf of Revenue.;

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