appellant has come in appeal before Tribunal against orders of authorities below for making addition of Rs. 4,50,000 to income of assessee-company as income from undisclosed sources. This addition is based on inferences and presumptions, different facts and circumstantial evidence. 2. brief facts as considered by authorities for making addition are as follows. Two companies, i.e., Bajaj Auto Ltd. and Bajaj Tempo Ltd., had common management till 1968. Due to some internal disputes, these two companies got separated from each other in July 1968. Shri N.K. Firodia was chief executive of Bajaj Auto Ltd. and managing director of Bajaj Tempo Ltd. till 1968. Shri N.K. Firodia ceased to be chief executive of Bajaj Auto Ltd. in 1968 and continued as managing director of Bajaj Tempo Ltd. after separation from Bajaj Auto Ltd. Bajaj Auto Ltd. went under control and management of Shri Rahul Bajaj and Bajaj Tempo Ltd. came under control and management of Shri N.K. Firodia and his brother Shri H.K. Firodia. In accordance with separation, some of furniture and cabins were also separated for use of separate management of Bajaj Auto Ltd. and Bajaj Tempo Ltd. appellant has filed map on record. factory premises of both these companies have been located at Akurdi, Pune, but some of offices are situated in Bombay at Worli. cabins 'A' and 'D' cross-lined by red pencil with other two big portions of red cross-lined came to share of Bajaj Tempo Ltd. in separation. Remaining portions went to share of Bajaj Auto Ltd. Bajaj Auto Ltd. is tenant of entire premises at Worli, Bombay. Bajaj Tempo Ltd. is sub-tenant of cabins which have come to its share in separation. After separation Shri N.K. Firodia started sitting occasionally as managing director in air- conditioned cabin 'A' whenever he visited Bombay. 3. staff members of both these companies since separation also started sitting in hall which was previously used jointly by both these companies because of joint management. keys of cabin used by Shri N.K. Firodia used to remain with one of its staff members, Shri Ramesh G. Sambhus. Shri Sambhus used to keep keys of cabin in his unlocked drawer. steel cupboard and steel filing cabinet were put in cabin used by Shri N.K. Firodia long before separation. After separation steel cupboard and steel filing cabinet remained in same cabin as Shri Rahul Bajaj did not want to disturb said arrangement even after separation of Bajaj Tempo Ltd. and Bajaj Auto Ltd. from each other. 4. On 18-5-1976, Income-tax Department raided office premises of Bajaj Auto Ltd. as well as Bajaj Tempo Ltd. at Worli and at other places such as factory premises at Pune and residential premises of managing directors of Bajaj Auto Ltd. and Bajaj Tempo Ltd. keys of steel cupboard situated in cabin, which was being allegedly used by Shri N.K. Firodia, were not available on 18-5-1976 to open it and to take search of same. However, said steel cupboard and filing cabinet were scaled and ultimately they were broken open on 21-5-1976 by authorities of Income-tax Department. paper label bearing name of Bajaj Auto Ltd. was found pasted on backside of filing cabinet, but no such sort of paper label was found on steel cupboard. After opening this steel cupboard and filing cabinet nothing was found by department except cash of Rs. 4,50,000 in locker of steel cupboard. authorities made panchanama, attached money found in locker of steel cupboard and made further enquiries in matter. authorities recorded statements of Shri N.K. Firodia, Shri H.K. Firodia and Shri Sambhus, staff member of Bajaj Tempo Ltd. and also Shri Rahul. Bajaj and staff manager, Shri Rajan, on behalf of Bajaj Auto Ltd. Both parties denied ownership of steel cupboard as well as money found in it. matter was handed over to assessment section and department on basis of evidence before it attributed occupation and possession of cabin 'A' to Bajaj Tempo Ltd. and ownership of steel cupboard as well as money found in it also to Bajaj Tempo Ltd. appellant put forward several contentions, before authorities below in respect of its denial of ownership of steel cupboard as well as money found in it. authorities below rejected appellant's contentions and attributed ownership of steel cupboard as well as money to appellant and, thus, added said amount of Rs. 4,50,000 to income of appellant as income from undisclosed sources which was seized under section 69A of Income-tax Act, 1961 ('the Act'). 5. issues which have arisen for our consideration are: (1) whether, on facts and in circumstances of case, presumption that steel facts and in circumstances of case, presumption that steel cupboard and money belonged to appellant could be legally drawn or not, and (2) whether money found in steel cupboard is rightly added to income of assessee as income from undisclosed sources? 6. To arrive at correct conclusion in view of evidence before us, it is necessary to take into account all circumstances. admitted facts are that, appellant occupied cabin in question after separation from Bajaj Auto Ltd. steel filing cabinet and steel cupboard were already situated in this cabin and same remained in said cabin. They were not disturbed even after separation. search and seizure was conducted and as keys of steel cupboard and filing cabinet were not made available and, therefore, they were broken open. Cash of Rs. 4,50,000 was found in locker. same was attached under panchanama by authorities. Bajaj Auto Ltd. is tenant of entire premises and Bajaj Tempo Ltd. is sub-tenant in respect of cabin in question as well as some other portions with which we are not concerned. Bajaj Auto Ltd. has filed suit for eviction against Bajaj Tempo Ltd. and said suit is pending. Overall control of premises at Worli is with Bajaj Auto Ltd. except control of cabin in question and some other portions. Bajaj Auto Ltd. locks main door of entire premises after 5.30 p.m. and opens it in morning before office hours. watchman of Bajaj Auto Ltd. guards these office premises. watchman of Bajaj Tempo Ltd. also is there. One more admitted fact is that telephone facility for entire office premises including Bajaj Auto Ltd. is in this cabin being occupied by Shri N.K. Firodia. staff members of both companies have access to enter into this cabin for telephone facility as keys of cabin always used to remain with Shri Sambhus, senior staff member of Bajaj Tempo Ltd. 7. disputed facts are that though cabin in question was being used by Bajaj Tempo Ltd. and its managing director and directors but they had to do nothing with filing cabinet and steel cupboard. steel cupboard remained unused since separation for longer period. Shri N.K. Firodia used to keep some collaboration agreements with foreign parties and some other documents in this steel cupboard prior to separation. He used to hand over keys of said steel cupboard to Shri Rajan who worked as private secretary to Shri N.K. Firodia till separation took place in 1968. After separation Shri Rajan opted to go to Bajaj Auto Ltd. and since then relations between Shri N.K. Firodia and Shri Rajan came to end. Thereafter Shri Rajan had no occasion to open steel cupboard and to use it for keeping collaboration agreements, etc., at instance of Shri N.K. Firodia. Shri N.K. Firodia did not use said steel cupboard and it remained as it was. keys of steel cupboard, according to appellant, remained with Shri Rajan and he did not hand over same to Shri N.K. Firodia or any other person on behalf of Bajaj Tempo Ltd. after separation. Bajaj Tempo Ltd. also did not demand keys from him. According to appellant, steel cupboard did not belong to it and it was only lying idle in cabin in question. appellant does not know who used steel cupboard and when and how money was put in it. 8. There is direct evidence of Shri N.K. Firodia, Shri H.K. Firodia Shri Rahul Bajaj and Shri Rajan on point of allotting cabin in question to Bajaj Tempo Ltd. in 1968. There is also direct evidence that Shri N.K. Firodia started sitting in this cabin after separation as managing director of Bajaj Tempo Ltd. alone occasionally whenever he visited office premises in Bombay. There is no direct evidence that Shri N.K. Firodia had at any time opened steel cupboard in question and used it after 1968. inferences are drawn by authorities below that steel cupboard might have been used by appellant, i.e., Bajaj Tempo Ltd., after separation on basis of circumstantial evidence. inferences and presumptions have been drawn to support conclusions arrived at by authorities below. There is also no direct evidence that either appellant or its managing director or directors kept money in locker of steel cupboard and anybody has noticed same. Shri Rahul Bajaj in his statement on oath has deposed that no bifurcation of furniture was made and it was possible that some of pieces of furniture belonging to Bajaj Auto Ltd. might have remained in possession of Bajaj Tempo Ltd. 9. It has come in evidence of Shri N.K. Firodia, Shri H.K. Firodia, Shri Rahul Bajaj and Shri Rajan that relations between Bajaj Auto Ltd. and Bajaj Tempo Ltd. were strained. straining of relations between parties is immaterial so far as finding of fact of cash of Rs. 4,50,000 is concerned. We need not attribute ownership of steel cupboard and money to need not attribute ownership of steel cupboard and money to particular party or person, but what we have to do is to find out whether steel cupboard and money found in it actually belongs to appellant and whether there is sufficient evidence on record beyond doubt to attribute ownership of steel cupboard and money found in it to appellant? 10. It is appellant's case that presumptions and inferences drawn by authorities below would not have been drawn in view of deposition of Shri N.K. Firodia and Shri H.K. Firodia and circumstantial evidence on record does not support to draw such presumptions to attribute ownership of steel cupboard and money found in it to appellant. Shri H.K. Firodia informed on telephone to ITO, Shri Phatarphoda, that he would find out whether keys of cupboard are available but later on intimated in writing that keys of cupboard were not available with Bajaj Tempo Ltd. but same were in possession of Shri Rajan, staff manager of Bajaj Auto Ltd. It is pointed out that there are several inconsistencies and improbabilities in statements of Shri Rajan and Shri Rahul Bajaj. Shri N.K. Firodia and Shri H.K. Firodia have made definite efforts to attribute ownership of steel cupboard to Bajaj Auto Ltd. but their evidence must be judged in light of being interested witnesses. It is urged before us that presumptions are based on negative reasons and there is no positive material to connect definite link between ownership of steel cupboard and money with appellant. It is further urged that onus lies on department to prove beyond doubt that cash belongs to appellant and department has not discharged that onus. It is further urged that mere possession of steel cupboard is no proof of its ownership. 11. Some part of evidence of Shri Rajan has been already discussed above. Remaining part is that he deposed on oath that he did not have keys of steel cupboard in question and he did not use steel cupboard after separation of these two companies in 1968. He has stated that he handed over keys to Shri N.K. Firodia. Shri N.K. Firodia and Shri H.K. Firodia have denied it and deposed that keys remained with Shri Rajan himself. However, there is no direct evidence on record that keys of steel cupboard were handed over to Shri N.K. Firodia at time of separation. Shri Rajan's evidence is not shattered, but at same time he has not deposed anything about using of steel cupboard by Shri N.K. Firodia after he left him as private secretary and at any time Shri N.K. Firodia or Shri H.K. Firodia used to keep money in steel cupboard. Shri Rajan does not say that money in question belongs to appellant. Hence, whether his evidence is shattered or not, no positive fact can be found out in this respect from his evidence. 12. There is no evidence at all to come to conclusion that either appellant or its managing director or directors used steel cupboard in question after separation till 1974. However, it can be inferred that cupboard might have been used from August 1974 on basis of evidence of slips found on bundles of notes of withdrawing cash. As notes were withdrawn from banks between August 1974 and October 1975 and, therefore, it can be said that cupboard might have been used by somebody during that period till search and seizure was conducted. attribution of ownership and money found in it is made on basis that as cabin was used by appellant, steel cupboard was found in it and it was allotted to appellant during separation in 1968 and same might have been used by managing director of appellant. Similarly, nobody else could have kept money in locker of this steel cupboard because it was in possession of managing director of appellant and, therefore, he himself might have kept cash in it. To draw presumption that keys were with managing director of appellant, Shri Rajan's evidence is relied, upon and to draw inference that steel cupboard might have been used by managing director of appellant, allotment of furniture during separation and non-removal of steel cupboard and filing cabinet from cabin in question have been relied upon. Shri Rahul Bajaj's evidence that because Shri N.K. Firodia was senior in age and as he held position of chief executive of Bajaj Auto Ltd. and managing director of Bajaj Tempo Ltd. till 1968 and to respect him, it was thought fit and proper not to remove pieces of furniture from cabin allotted to him has been relied upon. Three more important circumstances have not at all been considered by authorities below and they have been completely ignored. 13. first is weak circumstance, but it is relevant circumstance to consider that when residential premises of managing director and director of Bajaj Tempo Ltd. were searched at Pune, nothing incriminating was director of Bajaj Tempo Ltd. were searched at Pune, nothing incriminating was found. factory premises of Bajaj Tempo Ltd. were also searched and further nothing incriminating was found. To find out keys of steel cupboard in question also remained mystery. Here, it is tried to attribute that keys might have been with appellant itself, but same were not handed over to searching and seizing authority. No discrepancy has been found out from books of account of appellant. However, it is urged on behalf of appellant that searching party would have demanded keys from Shri Rajan immediately on same day, i.e., 18-5-1976, but they did not demand same. authorities were not supposed to know that keys were with Shri R j n and, therefore, they could demand from him. But, however, that circumstance does not throw much light on correct aspect of having keys of steel cupboard with particular person. It is appellant's case that as nothing was found in search and seizure taken at all those places, therefore, it was not possible for it to keep cash of Rs.4,50,000 in locker of steel cupboard lying in its cabin unused for several years. 14. second circumstance which is not taken into account by authorities below is that admitted fact of filing eviction suit against appellant by Bajaj Auto Ltd. to evict it from premises occupied by appellant in tenanted premises of Bajaj Auto Ltd. suit for eviction from premises in question is pending. It is true that appellant has pleaded in its reply as defendant to eviction suit that it is in exclusive possession of cabin and other premises in its occupation. Unless exclusive possession is pleaded defendant in eviction suit cannot get any protection though exclusive possession is not only ingredient to get protection from eviction under Bombay Rents and Lodging House Control Act, 1947. There is fear of eviction from cabin in question and other portions occupied by appellant because of pendency of suit. Hence, question arises, could it have been possible for Bajaj Tempo Ltd. or its managing director to keep cash in question in such premises in respect of which eviction suit is pending for disposal. It can be argued that if party wanted to keep unaccounted money hidden, then it could have been kept in steel cupboard under such circumstances. But to draw such inference, would it be possible for party to take such risk to lose cash. If second inference is correct, it can be said that it was not possible to keep money under such circumstance. Moreover, managing director and director of appellant, as argued before us always stay at Pune and only occasionally go to Bombay and whenever they visit their office they sit in cabin for some time. When appellant and its managing director or director are unable to keep continuous watch on its alleged hidden unaccounted money because of their permanent staying at Pune then same question again arises, whether it could have been possible for appellant or its managing director or director to keep cash in locker of steel cupboard without it being used regularly. 15. third circumstance which is overlooked and ignored by authorities below is very important. question and its answer put to Shri Sambhus, senior assistant in Bajaj Tempo Ltd., Worli, is as follows: Question: If you can say that said cupboard is not operated or opened since 1968, then how currency notes of Rs. 100 each was bundled up by Union Bank of India on 19-8-1974 and 9-9-1974 in bundle No. 3 and by Central Bank of India, Nariman Point Branch, dated 14-8-1975 and Union Bank of India, Cotton Green Branch dated 30-10-1975 in Bundle No. 4? So what have you to say about this? Shri Sambhus answered that: "I have no connection with cupboard and I do not know about cash since I have not handled cupboard and I have no knowledge of handling of cash." From this question on record on page No. 7 of paper books, it would be clear that withdrawals of notes was made from two banks, i.e., Union Bank of India, Cotton Green Branch, and Central Bank of India, Nariman Point Branch. It would further clarify that some cash was drawn from Union Bank of India in months of August and September 1974 and further cash was drawn from same bank in month of October 1975. Some more cash was drawn from Central Bank of India, Nariman Point Branch, in August 1975. As this cash withdrawn from these banks was found in locker, it would indicate that steel cupboard was being operated from August 1974 to October 1975. It is appellant's case that appellant does not have any bank accounts in these banks. appellant did not withdraw any notes of bundles as found in locker in steel cupboard. Hence, it was not possible for appellant to keep these bundles of notes in steel cupboard. appellant may lie in owning bundle of notes but facts do not lie. 16. When appellant said that it did not have any bank accounts in these banks then what was necessary on part of department was to find out from banks themselves, whether the, appellant had bank accounts or not. Secondly, what was necessary for department was to find out from whose accounts this cash was drawn. When this cash was withdrawn, it can be said certainly that it was withdrawn from somebody's accounts. Who was that account-holder has not been brought to light. Who withdrew these notes also has not been brought to light. banks are not supposed to issue bundles of notes immediately without giving any intimation in advance. It would have been possible for department to find out who has given intimation to withdraw such amounts from those banks. department has ignored all possibilities of making enquiry from banks in respect of above particulars. If definite enquiry is not followed to find out truth, then question arises how ownership of notes can be immediately attributed to appellant without finding out definite fact from available sources. banks would have certainly furnished particulars of withdrawing cash on 19-8-1974, 9-9- 1974, 14-8-1975 and 30-10-1975. bank would not have shirked its responsibility to supply information when such serious question was involved on account of search and seizure by department. It is not known why department did not make any effort to find out account numbers and withdrawal of monies from these banks. If this fact would have come to light, same would have enabled definitely to attribute ownership of money to definite account-holder and if appellant would have been, account-holder, then question would have been solved easily. 17. It is appellant's case and it is not challenged that it does not have any accounts in those banks. Then question arises, who brought these bundles of notes and kept in locker of steel cupboard in question. If available account-holder is not found, then it becomes difficult to attribute available account-holder is not found, then it becomes difficult to attribute ownership of money to appellant because of keeping same in locker of steel cupboard which has been not operated for several years by appellant or its managing director. It can be now said that how these inferences can be drawn and that appellant or its managing director did not utilise steel cupboard for longer time. These inferences can be drawn on basis that this steel cupboard was only allotted during separation from Bajaj Auto Ltd. because of seniority of Shri N.K. Firodia. There is no evidence that Bajaj Tempo Ltd. purchased this cupboard at any time. Allotment o f steel cupboard does not mean that it was being operated regularly. It is appellant's case that it never used steel cupboard and it might not have thought fit and proper to operate same because of not removing certain pieces of furniture due to seniority of Shri N.K. Firodia. Shri Rajan was put question: "How long Shri N.K. Firodia used cabin, after 1968, i.e., after separation of Bajaj Auto Ltd. and Bajaj Tempo Ltd.?" He answered: "I cannot give correct answer. But he was occasionally coming and going from 1968 onwards and occupying cabin." Can it be said that this answer gives any indication about use of steel cupboard by Shri N.K. Firodia after separation? It would be too much to say that such inference must be drawn. conduct of parties must be judged from all acts and activities undertaken by them and not from lonely act. Because of occasional visiting cabin and sitting there does not mean that appellant withdrew this amount from its account and kept in locker of steel cupboard in question. correct finding of fact on basis of oral and circumstantial evidence depends on probabilities of getting correct answers to following questions beyond any doubt. finding further depends on minute scrutinization of evidence and on analogy of separation of chaff from grain to enable to find out truth. Several questions may arise, such as, who is owner of cupboard, who had keys of cupboard, whether Bajaj Tempo Ltd., being in exclusive possession of cabin, can be said to be owner of cupboard, whether it was in exclusive control of cupboard and, finally, whether it can be said that Bajaj Tempo Ltd. is owner of cash found in cupboard? staff members of both companies had access to cabin to use telephone. department's case is that (1) cabin was in exclusive possession of appellant, (2) keys of steel cupboard were in custody of directors and not with Shri Rajan and, therefore, ownership can be attributed to appellant of cupboard and money found in it. correct findings on issues involved can be found out if correct answers to questions referred to above can be given. Shri Rahul Bajaj and Shri Rajan have tried to attribute ownership of steel cupboard to appellant-company on one hand. Shri N.K. Firodia and Shri H.K. Firodia have denied both ownership of steel cupboard as well as money found in it. learned Commissioner (Appeals) also raised certain questions and tried to answer them. He has held it as unexplained money to include in income of appellant. 18. learned advocate, Shri S.E. Dastur, took us through major part of evidence of all witnesses. He has contended that nothing was found in filing cabinet and filing cabinet bore paper label of Bajaj Auto Ltd. He has pointed out provisions of section 69A and submitted that addition can be made to income of appellant only when appellant 'is found to be owner of any amount'. He has argued that, department has failed to find out that assessee is owner of money found in locker of steel cupboard and it did not discharge onus cast upon it. So far as presumption under section 132(4A) of Act is concerned, Shri S.E. Dastur has submitted that this presumption is available only in summary assessment and not in regular assessment. He has contended that section 69A itself is presumptive section and no presumption can be drawn from presumption itself under section 132(4A). Shri S.E. Dastur has argued from facts and circumstances on record and contended that it cannot be said definitely that money in question belongs to appellant and appellant is only owner of money. He has contended that there is sufficient doubt to give such finding and, therefore, appellant must get benefit of doubt. He has urged to apply principle of preponderance of probabilities correctly. According to him, if two inferences can be drawn on basis of probabilities before Tribunal, then inference from probability favourable to appellant can be drawn. if two views are possible and if they are equally possible, then, according to Shri S.E. Dastur, view beneficial to appellant must be accepted. He has relied upon ruling of Bombay High Court in case of J.S. Parkar v. V.B. Palekar [1974] 94 ITR 616, relevant portion on page 630, in support of his contention that inference of ownership cannot be derived from mere possession. Shri S.E. Dastur contends that because of appellant being in possession of cabin it cannot be inferred that appellant itself was owner of steel cupboard and money found in it. He has contended that there is no suppression of income, no black money and no possibility of suspicion on part of appellant. These points are not so material to decide issues in question. 19. As against this, learned departmental representative, Shri K.A. Sathe, has urged that cabin was in exclusive possession of appellant. Keys of steel cupboard were in custody of directors of appellant and conduct of parties between 18-5-1976 to 21-5-1976 should be taken into account. In respect of conduct of parties, he has pointed out that Shri H.K. Firodia informed raiding ITO that he would make enquiry to find out keys of cupboard and later on he intimated in writing that keys were not with appellant or with its directors but keys were in possession of Shri Rajan. According to him, inference of ownership is sufficient from possession of cabin itself. He has submitted that Shri Rajan's evidence is credit-worthy and there is nothing to be disbelieved in it. appellant has failed to prove that Shri Rajan has deposed any lie. No sinister motive can be attributed to Shri Rajan to infer that he has deposed any lie. He has contended that enquiry was made from banks but no particulars were furnished to department. When Shri. Rajan left services of Shri N.K. Firodia of Bajaj Tempo Ltd., then there was no reason for him to keep keys of steel cupboard with him. Shri N.K. Firodia would have personal knowledge about keys. Control and possession is enough. So far as control of cabin is concerned, there was access to all staff members of both companies. So far as possession of cabin is concerned, it is with appellant-company. Shri N.K. Firodia had special knowledge about keys and his denial is not fitting to circumstances. Keys were not found in search at any place. 20. We have gone through orders of authorities below and have beard arguments on behalf of both parties. We have taken into account t h e arguments of assessee's learned counsel, Shri S.E. Dastur, and learned departmental representative, Shri K.A. Sathe decision of learned departmental representative, Shri K.A. Sathe decision of Bombay High Court in case, of CIT v. Deviprasad Khandelwal & Co. Ltd. [1971] 81 ITR 460 is relied upon, wherein Bombay High Court held that question referred to it was question of fact and did not answer same. Tribunal in that case had held by disbelieving explanation of assessee on facts and surrounding circumstances that it cannot be held to be income of assessee. facts of instant case are similar to those facts. 21. From facts on record and circumstances it cannot be said that presumption of attributing ownership of steel cupboard found in appellant's cabin and money found in locker belongs to appellant could be legally drawn. If that presumption cannot be legally drawn, then money found in steel cupboard cannot be rightly added to income of appellant. On point of not making proper enquiry from banks, it can be said that order may be set aside and directions may be issued to make proper enquiry. department which could not make proper enquiry immediately after search and seizure when it was possible, cannot make any enquiry now after lapse of seven years. inferences and presumptions drawn by authorities below are not correct. There is no doubt that cabin 'A' in question can be said to be in exclusive possession of appellant but overall control of entire premises is with Bajaj Auto Ltd. This is not to be considered for attributing anything to Bajaj Auto Ltd. but to know fact regarding overall arrangement only. 22. In result, appellant succeeds and appeal is allowed. Per Shri Kanwal Krishan, Accountant Member - I have carefully gone through order of learned Judicial Member but regret that I am unable to agree with his decision. 2. To my mind, it is essential to clearly pose question which we are called upon to decide in this appeal. departmental authorities have applied provisions of section 69A to hold that sum of money amounting to Rs. 4,50,000 was income of appellant-company. question that we have to decide is whether requirements of section 69A have been fulfilled so as to sustain conclusion drawn by departmental authorities in terms of provisions of that section. Now what are requirements of section 69A? We have for our guidance principles to be applied, for determining whether requirements of those provisions have been fulfilled, as laid down by Bombay High Court in case of J.S. Parkar (supra). It has been held in that case that contention that section 110 of Indian Evidence Act, 1872 could not be invoked because provisions of Indian Evidence Act was not applicable to taxation proceedings and reasons are stated thus: "... Firstly, what is meant by saying that Evidence Act is not applicable to proceedings under the, Income-tax Act is that rigour of rules of evidence contained in Evidence Act is not applicable, but that does not mean that. if taxing authorities are desirous of invoking provisions of that, Act in proceedings before them, they, are prevented from doing so. Secondly, all that section 110 of Evidence Act does is that it embodies salutary principle of common law jurisprudence which could be attracted, to set of circumstances that satisfy its condition . . ."(p. 619) It has been further held in that case that proceedings before taxing authorities were not criminal proceedings, but proceedings of civil nature where question about ownership in question, money in this case, was required to be decided not beyond shadow of doubt, but by adopting test of preponderance of probabilities. question to be asked in this context is whether view taken by income-tax authorities is such as could not have been taken, or is not supported by material or is arbitrary or capricious? 3. What, therefore, we are called upon to decide in this appeal is whether conclusion drawn by authorities below that sum of Rs. 4,50,000 was assessable as income of appellant-company under section 69A is sustainable on preponderant probabilities as revealed by evidence brought on record. And we must begin by disabusing our minds forth - with of any presumption that such conclusion would not be viable unless supported by direct evidence alone and not by circumstantial evidence, or that evidence required must, in law, be of such conclusive nature as to establish that conclusion beyond shadow of doubt, 4. appellant is public limited company. On 18-5-1976 Income- tax Department carried out search under section 132, in business premises o f appellant-company situated at 134, Dr. Annie Beasant Road, Worli, Bombay. Now facts found by ITO on basis of which he drew his inference are these. sum of Rs. 4,50,000 was found by authorised officer, Shri Phatarphode, in course of search and seizure proceedings on 21-5-1976. amount was found in locker of steel cupboard which stood in cabin located in aforesaid business premises. tenant of premises was another limited company, Bajaj Auto Ltd. premises consisted of cabins, of which cabin where steel cupboard was found was one, hall and some space used for godowns. appellant-company had sub- tenancy of that cabin, apart from some portion of rest of premises. 5. Now certain facts have been incontrovertibly brought out on evidence in regard to this cabin and steel cupboard which stood inside it. cabin was in occupation and use of Shri N.K. Firodia up to 1968. Thereafter also, it was used by him and by Shri H.K. Firodia, his brother. Up to 1968 both Bajaj Tempo Ltd. and Bajaj Auto Ltd. were under common management, Shri N.K. Firodia being managing director of former company and chief executive of latter company. It was in this dual capacity that he functioned from this cabin. In 1968 there was separation of two companies, whereby Shri N.K. Firodia ceased to be chief executive of Bajaj Auto Ltd. but continued to be managing director of Bajaj Tempo Ltd. head office of latter company was shifted to Pune. However, even after separation Shri N.K. Firodia used to visit Worli office as occasion demanded for business of his company and continued to function from same cabin as before. It had been agreed at time of separation that use of this cabin would continue with Bajaj Tempo Ltd. of which appellant-company, as already noted, was sub-tenant. 6. It is in evidence that Shri Rahul Bajaj, new managing director of Bajaj Auto Ltd., had specifically given orders that whatever furniture was lying in cabin before separation would remain undisturbed and continue to be used by Shri N.K. Firodia. This was done out of regard, for seniority of Shri N.K. Firodia. Now this means, and it stands to reason, that occupation and use N.K. Firodia. Now this means, and it stands to reason, that occupation and use of cabin and furniture lying inside it was determined, as between two companies not on strength of their respective legal rights of ownership of furniture or tenancy of cabin, but by mutual understanding that their occupation and use would continue with Bajaj Tempo Ltd. despite separation. It is in evidence that occupation and use of cabin did in fact and in accordance with mutual understanding continue with Shri N.K. Firodia and also Shri. H.K. Firodia, when he succeeded as managing director of Bajaj Tempo Ltd. and other senior officers of appellant-company on their tours to Bombay. This was position when income-tax raid took place on 18-5-1976. 7. Now in this state of affairs, it appears to me to be singularly irrelevant and fruitless to embark upon enquiry regarding legal rights of two companies over cabin and steel cupboard or other furniture inside it. It is true that suit for eviction from premises had been filed in 1974 by Bajaj Auto Ltd. against appellant-company, but quite apart from fact that suit was stoutly resisted by appellant- company claiming exclusive possession, it is nobody's case that occupation and use of cabin and furniture by Shri N.K. Firodia, Shri H.K. Firodia or other officers of appellant- company was in any way hampered by this litigation. 8. I would examine now facts concerning steel cupboard inside cabin, in which money was found. Here again we must keep aside as quite irrelevant entire controversy as to which of two companies was legal owner of steel cupboard. What is of importance is that unquestionably cupboard was in use of Shri N.K. Firodia up to 1068. papers and documents kept in it were those which Shri N.K. Firodia desired to be kept therein. We have categorical assertion of Shri Rajan who was his personal assistant up till separation, that such indeed was case. What happened after 1968? This, in my view is crucial question because whoever had access to cupboard after separation he alone could answer for, if not account for, money which was found in it in income-tax raid. That is because money was stacked in bundles with slips which bore stamp and date of banks from which, it was withdrawn and these dates cover period from August 1974 to October 1975. Now person having access to cupboard obviously means person who had custody and possession of key to cupboard. 9. Who had this key? authorised officer of Income-tax Department Shri Phatarphode, who conducted income-tax raid made this enquiry on very day when raid commenced on 18-5-1976 from persons present on premises. He came to know from these enquiries about cabin being used by managing director of appellant-company. Shri Sambhus, who was senior assistant of Bajaj Tempo Ltd., working at Worli office informed him that key was not available with staff in those premises. It was, thus, that authorised officer rang up Shri H.K. Firodia at Pune asking for key. Shri H.K. Firodia replied saying that key was not available with him but that he would make enquiries and he promised to send key, with messenger on next day. There was, however, no response either on next day or day after and authorised officer had to put his seal on cupboard. Then on 21- 5-1976, i.e., on fourth day, after authorised officer had asked for key from Shri H.K. Firodia, letter was sent to him by Shri H.K. Firodia, which is dated 20-5-1976 in which for first time allegation was made that key was kept all along by Shri Rajan. 10. Now, is that allegation established on evidence? And we must not forget that burden lay squarely on appellant company to establish it. In order to answer this question, we need to have very close look at allegation. In his letter dated 20-5-1976 Shri H.K. Firodia stated that it was Shri Rajan who was using cupboard as also filing cabinet lying in cabin to keep his papers and files with which he dealt, that keys of both cupboard and cabinet were with Shri Rajan and that when Shri Rajan resigned from Bajaj Tempo Ltd. and joined service with Bajaj Auto Ltd., he retained keys saying that cupboard and filing cabinet belonged to Bajaj Auto Ltd. Now, here is open attempt to make out total indifference to cupboard on part of Shri N.K. Firodia and H.K. Firodia with reference to its use and its contents, for reason that cupboard was used by Shri Rajan to keep his papers, who, therefore, took away cupboard key when he left service of appellant-company and joined Bajaj Auto Ltd. But this allegation is contradicted in testimony of Shri N.K. Firodia himself. What did cupboard contradicted in testimony of Shri N.K. Firodia himself. What did cupboard contain? This is what he stated, when he was questioned, in his statement recorded by assessing IAC on 29-11-1979: "Question 7. What types of files and papers used to be there in cupboard? Answer: In cupboard and in filing cabinet files of correspondence with foreign collaborators, namely, Piaggio & Co. and Vidal & Sohn Tempo Works, Hamburg, Z.P. from Germany and correspondence with Government and generally such files as were dealt either by myself or my brother H.K. Firodia, who was general manager both of Bajaj Auto Ltd. and Bajaj Tempo Ltd. Question 8. Were files very important? Answer: They were normal business files, nothing important and confidential about files. Question 9. If they were not important why they were kept in cupboard in cabin of managing director? Answer: Because I was directly dealing with those files and up to 1964 we were overcrowded in Worli office and as cabin was big enough, cupboard and filing cabinet were accommodated there." 11. Shri N.K. Firodia, therefore, himself admits that files and papers were those relating to two companies and such as were dealt with by him and by his brother in course of their responsibilities for management of companies. It is significant to note that attempts made on behalf of appellant-company to denigrate importance of documents, files and papers kept in cupboard fly in face of above statement made by Shri N.K. Firodia as well as statement of Shri H.K. Firodia recorded on 29-11- 1979. In answer to question No. 10 put by assessing officer regarding use of cupboard, this is what Shri H.K. Firodia stated: "Before separation cupboard was used by Shri Rajan to keep important files dealing with our collaborators, Italian and German, industrial licence applications and Government files. I used to be in workshop at Goregaon from morning to 3 p.m. and then I used to come to Worli to do work up to 8-9 p.m. During my stay even when Shri N.K. Firodia was away Shri Rajan used to bring various files for my references and dictation. After separation question of using cupboard did not arise because I had moved to Pune and Shri Rajan left company and joined Bajaj Auto Ltd. without handing over keys, saying it belonged to Bajaj Auto Ltd. Therefore, cupboard did not belong to Bajaj Tempo Ltd." 12. conclusion to my mind from this evidence is inescapable that documents, etc., kept inside cupboard certainly included those of appellant-company, that these documents and papers were being dealt with by top management of appellant-company, that they were important enough to have been kept in cupboard standing in cabin of managing director of appellant-company. 13. Now who would in normal circumstance keep key of cupboard? Would managing director deprive himself, as is sought, to to be made out, of custody and possession of key and abjectly accept that personal assistant, Shri Rajan, should walk off with key on leaving service of appellant-company to join, in same premises another company, with which its relations were far from amicable? This is precisely what we are asked to believe. All that sub- ordinate like Shri Rajan had to tell Shri N.K. Firodia, holding top executive positions in two companies, whom he had been serving as personal assistant, was that he would take away key of cupboard. No matter that cupboard stood in cabin of this top executive, no matter that cupboard contained documents and files, etc., which were admittedly dealt with by top executive, yet he would take away key because he had decided that cupboard belonged to Bajaj Auto Ltd., whose service he preferred to that of Bajaj Tempo Ltd. If such assertion is striking for its shear unrealism, much more so is implication that Shri N.K. Firodia should without murmur of protest against such rude behaviour from lowly official, have so meekly accepted it. And yet we are asked to believe that for all long years after separation in 1968 this cupboard kept on standing in same cabin admittedly used by top officers of Bajaj Tempo Ltd., inviolable and inaccessible admittedly used by top officers of Bajaj Tempo Ltd., inviolable and inaccessible to them, because personal assistant had pronounced that it belonged to Bajaj Auto Ltd. To my mind, it would be stretching credulity to breaking point to believe these assertions made on behalf of appellant-company. 14. But it is not only incredibility of explanations offered on behalf of appellant-company which preclude possibility of Shri Rajan keeping custody and possession of key. There are straightforward statements made by Shri Rajan himself whenever he was questioned on this point, confidently and categorically denying allegation. He was questioned by authorised officer as early as on 21-5-1976 when he was faced with Shri H.K. Firodia's letter alleging that it was Shri Rajan who had kept key. He denied allegation totally and without hesitation. It was pursued by assessing officer on 27-5-1979 whereupon Shri Rajan gave clear account of contents of cupboard while he was working as personal assistant to Shri N.K. Firodia, his handling of those files and papers under directions of Shri N.K. Firodia and again reiterated his denial that he had ever kept custody of key. In answer to direct question put to him as to whether key of cupboard in cabin was kept by him, his answer was forthright: 'No. It was kept with Shri N.K. Firodia'. No amount of attempt made in his cross- examination on behalf of appellant-company could shake or rattle him. It was insinuated in course of cross-examination that he had surreptitiously handed over files connected with Bajaj Auto Ltd. in 1968 to Shri Rahul Bajaj and that he was scolded by Shri N.K. Firodia for this conduct and for which he gave letter of apology. He stoutly denied all these insinuations and cross-examiner of appellant-company had nothing at all to dislodge these stout denials. In my view, Shri Rajan's testimony stands unimpeached. 15. In contrast is conduct of Shri H.K. Firodia with regard to production of key. When contacted at Pune on 18-5-1976 by authorised officer who asked him for key of cupboard, he denied knowledge as to t h e whereabouts of key. Can this denial be accepted as true? If, as he subsequently alleged, key was always in custody and possession of Shri Rajan, did he not know this on 18-5-1976? He has himself stated in his deposition made before assessing officer on 29-11-1979 in answer to question No. 10 that Shri Rajan used to keep important files in cupboard before separation took place in 1968 and up to that period Shri Rajan used to bring out from cupboard various files for Shri H.K. Firodia's reference and dictation. Earlier, in his deposition on 21-5-1976, in answer to question No. 23 he had stated that key of locker used to be kept by Shri Rajan. This, is what he knew when authorised officer asked him for key on 18-5-1976. What he did not know was that Shri Rajan when he left service of Bajaj Tempo Ltd. did not hand over key, but had kept it. Why did Shri H.K. Firodia not part with all this information to authorised officer? Why did he not, as any person in his position would be normally expected to do, straightforwardly reply to authorised officer's query frankly saying that as far as he knew key was with Shri Rajan? Why did he keep this knowledge secret? 16. He did so, inference which, to my mind, is inescapable, because he had something to hide and was not prepared at that stage that authorised officer, had he been supplied with allegation of Shri Rajan holding key, should proceed to question Shri Rajan. Shri H.K. Firodia's subsequent conduct is not less questionable. He promised authorised officer to make enquiries regarding key and to inform him as to its whereabouts on very next day. Now, who, in all reason, would be most likely person that Shri H.K. Firodia should have sought to obtain this information but one person who, to his knowledge, had closest connection with cupboard and its handling? That person was none other than his brother Shri N.K. Firodia living in Pune and very much available for supplying information yet Shri N.K. Firodia is one person to whom no such enquiry was addressed. Rather than making this enquiry Shri H.K. Firodia let 18th May pass, he let 19th May pass despite his promise to authorised officer, when Shri N.K. Firodia was available in Pune, but thought it fit to ask him about whereabouts of key only when Shri N.K. Firodia, returned to Pune on evening of 20th May. To my mind entire conduct of Shri H.K. Firodia, as of Shri N.K. Firodia, smacks of nothing but overt attempt to deny custody and possession of key with themselves and t o foist that custody and possession up to Shri Rajan. To sustain this attempt, Shri N.K. Firodia indeed had to go far out. When questioned on 27-11-1979, on his assertion that key was always kept by Shri Rajan even when he was working as his personal assistant, as to what would happen about files kept in cupboard if Shri Rajan remained absent without prior notice, his reply was that for period of almost 10 years that Shri Rajan worked with him, he did not remember that Shri Rajan had remained absent at any time during that entire period ! 17. Shri S.E. Dastur, learned counsel for appellant, apart from making his submissions on facts to contend that no convincing or conclusive evidence has been led by authorities below to sustain conclusion that it is appellant-company which has been found to be owner of money, has sought to support his case on ruling of Bombay High Court in case of Deviprasad Khandelwal & Co. Ltd. (supra) and of Madras High Court in CIT v. S. Pitchaimanickam Chettiar [1983] 15 TAXMAN 68. He has further submitted that affidavit of one Shri M.S. Mankar dated 2-7-1976 had been filed before t h e assessing officer which had not been duly considered by authorities below and that therefore, inference drawn against appellant-company is vitiated. Now I fully agree with Shri S.E. Dastur that principles laid down in these rulings must guide us in drawing proper inferences. However, on facts appellant's case as discussed in foregoing paragraphs is clearly distinguishable. 18. As for affidavit of Shri M.S. Mankar, he was license officer of appellant-company and claims that he had overall charge of office of appellant-company at Worli premises. Now apart from making statements about control and possession of premises by Bajaj Auto Ltd., use of part of premises by Shri N.K. Firodia subsequent to separation, Shri M.S. Mankar deposes that steel cupboard and filing cabinet in cabin were used by Shri Rajan when he was personal assistant of Shri N.K. Firodia for keeping files that he dealt with and that no director, officer or other employees of appellant-company opened or handled cupboard of filing cabinet either in his presence or according to his information. To my mind, Shri M.S. Mankar's affidavit is self-serving and in light of discussion in foregoing paragraphs, I am unable to see how this affidavit advances case of appellant. 19. inferences to be drawn from evidence which has been brought o n record, testimony of deponents and their conduct are to my mind clearly these: that cabin in which steel cupboard was kept, in which amount of Rs. 4,50,000 was found on 21-5-1976, was at all relevant times in possession of appellant-company and was used by its top management and o t h e r senior officers; that cupboard was kept locked and contained documents, files and papers belonging to appellant-company; that allegation made on behalf of appellant- company that key of cupboard was in custody and possession of Shri Rajan is wholly unsustainable on evidence; that, on other hand, preponderance of evidence points to facts regarding custody and possession of key being in special knowledge of Shri N.K. Firodia. and Shri H.K. Firodia; that both these gentlemen made overt attempt to hide this knowledge upon being questioned and to foist custody and possession of key upon Shri Rajan that at all material times it was top management of appellant-company who had access to cupboard. On strength of these inferences, conclusion drawn by authorities below that requirements of section 69A are fully satisfied has to be sustained and addition of sum of Rs. 4,50,000 as income of appellant in terms of provisions of that section clearly to be upheld. I would, therefore, confirm order of Commissioner (Appeals) and dismiss this appeal. BY BENCH Since we have difference of opinion on point arising in this appeal, we hereby state point of difference as under and refer case to President, Tribunal, Bombay, in terms of section 255(4) of Act: "Whether sum of Rs. 4,50,000 in question was deemed income of appellant in terms of section 69A for assessment year 1977-78 and was rightly assessed as such for that year?" THIRD MEMBER ORDER Per Shri T.D. Sugla, President - There has been difference of opinion between Members who heard this appeal originally. following point of difference was stated: "Whether sum of Rs. 4,50,000 in question was deemed income of appellant in terms of section 69A for assessment year 1977-78 and was rightly assessed as such for that year?" point of difference has been referred by President to himself for decision under section 255(4). 2. facts have been stated both by learned Judicial Member and learned Accountant Member in their own way in their respective orders. For sake of ready reference, I would like to state herein only those facts about which there is no dispute. 3. appellant is company with head office at Pune and office and godown at Worli. On 18-5-1976 Income-tax Department raided office premises of appellant-company both at Pune and at Bombay as well as residential premises of its directors, Shri N.K. Firodia and Shri H.K. Firodia. raid was simultaneously conducted in office and factory premises of Bajaj Auto Ltd. and residential premises of managing director of said company. At time of raid, appellant was occupying part of Worli premises jointly with Bajaj Auto Ltd. It is common ground that area under occupation of appellant-company was portion of common hall, godown and two cabins. In one of cabins there were, inter alia, one steel cupboard and one filing cabinet. keys of these cabins were found in open drawer of table in common hall which table was used by staff member of appellant-company by name of Shri Sambhus. keys of steel cupboard and filing cabinet were not available. There was label on filing cabinet bearing name of Bajaj Auto Ltd. There was no label of name of Bajaj Auto Ltd., or of appellant- company on steel cupboard. As stated above, keys of cabinet and steel cupboard were not made available to raiding party by staff members of appellant- company on ground that they did not have same. It was stated that cabin was used by Shri H.R. Firodia, managing director of appellant- company, who was at Pune. ITO, Shri Phatarphode, contacted Shri H.R. Firodia on phone and inquired about keys of steel cupboard and filing cabinet in particular cabin. Some conversation exchanged between them and cabin was sealed on that date. Since, however, there are no details as to exact contents of conversation, it is only proper to refer them as mentioned in his letter dated 20-5-1976 by Shri H.R. Firodia himself to ITO, Shri Phatarphode: "On Tuesday. 18th inst., you telephoned me from Bombay and inquired about keys of steel cupboard and filing cabinet lying in cabin there. I told you that cupboard and filing cabinet are lying there unused for long time and we do not have keys. I however agreed to make further inquiries and let you know. I have now made inquiries and have to state as under: Bajaj Auto Ltd. and Bajaj Tempo Ltd. were under same management till early 1968. Shri Rajan was using said cupboard and filing cabinet to keep his papers and files with which he dealt. keys were with Shri Rajan who resigned from Bajaj Tempo Ltd. and joined service with Bajaj Auto Ltd. He retained keys saying said cupboard and filing cabinet belonged to Bajaj Auto Ltd. Shri Rajan is still in service of Bajaj Auto Ltd. and works in Worli office." This letter was received by ITO on 21-5-1976 at 10.30 a.m. There is no evidence on record as to circumstances under which cupboard and filing cabinet were broken open. According to Shri S.E. Dastur, learned counsel for appellant, it was done mala fide by Income-tax Department. Shri K.A. Sathe, departmental representative, stated that there could be no mala fide in it. ITO must have asked Shri Rajan who was supposed to have t h e keys according to Shri Firodia and would have broken open steel cupboard and filing cabinet only after Shri Rajan had denied possession of keys. It is pertinent to mention that Shri Rajan's statement has been recorded at 2.30 p.m. on that date, presumably after steel cupboard and filing cabinet were broken open and cash sum of Rs. 4,50,000 was recovered from steel cupboard. It is Shri S.E. Dastur's case that proper course for ITO would have been to record Shri Rajan's statement before breaking open steel cupboard and filing cabinet. On other hand, Shri K.A. Sathe finds nothing wrong in conduct of ITO who after Shri Rajan's denial of possession of keys, asked Shri Rajan to wait for his statement to be recorded and proceeded to break open cupboard and filing cabinet. 4. In order to properly appreciate rival contentions it is desirable to refer to provisions of section 69A, which read as under: "Where in any financial year assessee is found to be owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in books of account, if any, maintained by him for any source of income, and assessee offers no explanation about nature and source of acquisition. of money, bullion, jewellery or other valuable article, or explanation offered by him is not in opinion of Income-tax Officer, satisfactory, money and value of bullion, jewellery or other valuable article may be deemed to be income of assessee for such financial year." It is evident that section 69A provides that value of bullion, jewellery or other valuable article may be deemed to be income of assessee for particular financial year only if following two conditions are satisfied, namely, (i) assessee is found to be owner of any money, bullion, jewellery, etc., and as such money, etc., is not recorded in books of account, if any maintained by him; and (ii) assessee offers no explanation about nature and source of acquisition of money, etc., or explanation offered is not satisfactory. Thus, question of assessee's offering any explanation, etc., would arise only if assessee has been found to be owner of money, etc. condition precedent for application of section 69A, thus, is that assessee is found to be owner of any money, bullion, etc. In this context, it may be desirable to refer to provisions contained in section 132(4A) where it is specifically provided that where any books of account, other documents, money, bullion etc., is found in possession or control of any person in course of search, it may be presumed that such items belong to assessee. Accordingly, I am inclined to accept Shri S.E. Dastur's contention that mere fact that money is found in possession or control of assessee is not by itself conclusive proof of fact that assessee is owner of money. This is apart from other contention of Shri S.E. Dastur that in case before us even money has not been seized from possession or control of appellant. In circumstances I have to appreciate evidence with view to ascertain (a) whether money, i.e., sum of Rs. 4,50,000, was found in possession or control of appellant and (b) whether said fact by itself or along with some other facts on record justifies conclusion that appellant is owner of money. appellant has not offered any explanation as it has denied having anything to do with money. In case I accept department's case that appellant is owner of money, inclusion of said amount in income of appellant for year under appeal will be fully justified. 5. appellant-company and Bajaj Auto Ltd. were functioning like sister concerns up to 1968. Shri N.K. Firodia, elder brother of Shri H.K. Firodia, was managing director of appellant-company and general manager of Bajaj Auto Ltd. Shri H.K. Firodia was chief executive of both companies, i.e., appellant-company and Bajaj Auto Ltd. Offices of both company's were at Worli. Differences arose between two companies and they decided to separate as result of which godown at Worli was, admittedly, under exclusive possession of appellant-company. common ball was used by members of staff of both appellant-company and Bajaj Auto Ltd. and out of number of cabins two cabins were earmarked for appellant- company. appellant, it may be mentioned, has urged that particular cabin was not in its exclusive use. Its keys were kept in open drawer of table used by its staff member, Shri Sambhus, and that while cabin was used occasionally by Shri N.K. Firodia and Shri H.K. Firodia when they visited Bombay for few hours once in while, it was mostly and quite often used by staff members and senior officers of Bajaj Auto Ltd. also. In support of his contention, Shri S.E. Dastur stated that there was only one telephone in entire premises and that was in that cabin. staff members of not only appellant but also those of Bajaj Auto Ltd. used to avail of telephone facility. This would not have been possible but for fact that cabin was open to all concerned. This has been denied by Shri Rahul Bajaj managing director of Bajaj Auto Ltd., as well as Shri Rajan who was until 1968 in employment of appellant-company and went over to Bajaj Auto Ltd. thereafter. 5.1 As regards steel cupboard and filing cabinet also, there are different versions. According to appellant, their keys were with Shri Rajan who refused to hand them over on ground that steel cupboard and filing cabinet belonged to Bajaj Auto Ltd. It was stated that after 1968 appellant had no control or even access to steel cupboard and filing cabinet. On other hand, Shri Rajan and Shri Rahul Bajaj have categorically stated that these two items of furniture and cabin itself were under exclusive use of appellant-company. In this context, it is desirable to refer to two letters being Exhibits 'D' and 'E' to which attention has been invited by both parties. Shri Rahul Bajaj is director of Bajaj Auto Ltd. Enquiry was made in year 1968 by one Shri Kailash from Shri Rahul Bajaj, director of Bajaj Auto Ltd., as to what should be done with regard to furniture in common premises which do not bear any name. In reply, Shri Rahul Bajaj, by his letter dated 14-9-1968 stated that furniture should be separated as belonging to 'Auto's' and 'Tempo's' and in case any excess furniture of 'Auto' is left over, his instructions should be sought. He specifically directed his people that so far as furniture in two cabins earmarked to appellant-company is concerned, same should be allowed to remain. Shri S.E. Dastur reads letter as meaning that steel cupboard and filing cabinet belonged to Bajaj Auto Ltd., but they were allowed to remain in cabin without giving appellant-company right of user. On other hand, Shri K.A. Sathe reads two letters as saying that irrespective of ownership of furniture in two cabins, they were thereafter to remain in cabins under control and use of appellant-company, otherwise, according to him, it would mean that furniture was kept in those two cabins treating them as godown for them. 5.2 That apart, there is no dispute about fact that relations between appellant-company and Bajaj Auto Ltd. are not cordial and that Bajaj Auto appellant-company and Bajaj Auto Ltd. are not cordial and that Bajaj Auto Ltd. has filed suit against appellant for ejectment in year 1974, which is pending. 6. I may agree with learned Accountant Member that question of ownership and control over cupboard from which money was seized has t o be decided by adopting test of preponderance of probabilities. pertinent question, however remains, which conclusion is more reasonable on facts and in circumstances as available on record. key of cabin in which particular cupboard was there is kept in open drawer of table in t h e common hall which is used by one of assistants of appellant- company, Shri Sambhus. litigation is going on between appellant-company and Bajaj Auto Ltd. for ejectment of premises. Both Shri N.K. Firodia and H.K. Firodia, directors of appellant-company, whe are supposed to have t h e keys of cupboard came to Bombay from Pune, their regular headquarters, occasionally and for few hours. Even if it is assumed that keys were in possession of Firodias, is it reasonable to assume that appellant- company would keep cash sum of Rs. 4,50,000 in cupboard placed in cabin whose keys are available to almost everybody. No doubt, one could pose almost same question in another form, viz., then whom should this money belong to and question is difficult to be answered. burden of proof under section 69A being on revenue, I do not think that fact that it will be difficult to establish ownership of money if it is held that appellant is not owner of money, is of no consequence and has, therefore, to be ignored. 7. In case like one before me, one has also to appreciate issue from different point of view. Assuming finding that money seized from cupboard belongs to appellant is justified, penal provisions for concealment or prosecution, on facts and in circumstances of case, will certainly not be attracted. amount will, of course, be liable to tax. tax computed on amount of Rs. 4,50,000 in order under section 132(5) has been Rs. 2,59,875. balance amount of Rs. 1,90,125 may have to be refunded. On other hand, if appellant's contention that money seized does not belong to it is accepted, revenue will get entire amount. Keeping in view all these aspects of matter, for reasons given by me earlier and reasons given by learned Judicial Member in his dissenting order, with which I agree, I hold that facts and material on record do not justify conclusion that amount of Rs. 4,50,000 was seized from possession or control of appellant or that appellant is owner of said money. I, therefore, agree with learned Judicial Member that addition of Rs. 4,50,000 to income of appellant requires to be deleted. 8. order will now go to Bench for deciding appeal according to majority view. Per Shri T.A. Bukte, Judicial Member - Due to difference of opinion between Judicial Member and Accountant Member, they had passed dissenting orders dated 6-4-1984 and 5-6- 1984, respectively. Thereafter, matter was referred to President of Tribunal, Bombay, to appoint Third Member to hear appeal and, accordingly, President himself has heard appeal as Third Member. Third Member has agreed with view taken by Judicial Member that addition of Rs. 4,50,000 made by revenue to assessee's income is liable to be deleted. Now, in view of decision of Third Member, final order requires to be passed and, accordingly, we pass order. 2. In result, appeal is allowed and addition of Rs. 4,50,000 is deleted. *** BAJAJ TEMPO LTD. v. INSPECTING ASSISTANT COMMISSIONER