ORDER
Joginder Pall, A.M.
1. By this order, we shall dispose of this appeal of the Revenue filed against the order of CIT(A), Udaipur, for the asst. yr. 1993-94.
2. The only effective issue raised in this appeal is that the learned CIT(A) was not justified in holding that only 1/3rd of the prize money was assessable in the hands of the assessee. The facts of the case are that in the return of income filed, the assessee had declared 1/3rd share in the prize money received from lottery winning. The assessee had purchased one lottery ticket resulting in prize winning of 800CC Maruti car. The assessee claimed that the said ticket was jointly purchased by three persons and, therefore, the assessee had only 1/3rd share in the prize amount. This plea of the assessee was not accepted by the AO for the reason that the assessee failed to produce any evidence that the ticket was purchased by three persons. The assessee carried the matter in appeal before the CIT(A) who set aside the assessment on the ground that other two persons had also filed affidavits as co-owners having purchased the tickets jointly with the assessee and the AO failed to record any finding about the acceptability of such evidence. He, therefore, set aside the assessment and restored the matter to the AO for conducting proper enquiries.
3. During the course of set aside assessment, the AO conducted inquiries and observed that other co-owners did not remember the incidence correctly and further they had not filed IT returns in respect of their share of prize money. He also observed that the assessee himself filled up the form claiming prize and had affixed his photo and other details in token of receipt of prize money. Nowhere, he stated that the amount had been received jointly with others. Accordingly, the AO treated the entire amount of prize money in the hands of the assessee This matter was again a subject-matter of appeal before the CIT(A) who again set aside the assessment on the ground that the AO had not complied with the directions given by the CIT(A), while completing the set aside assessment.
4. During the course of second round of set aside assessment, the AO examined all the persons including the broker. Both the persons admitted having purchased the lottery ticket along with the assessee. However, the AO found contradictions in the statements of other co-owners. The AO, therefore, again came to conclusion that the entire prize money belonged to the assessee.
5. Being aggrieved, the assessee carried the matter in appeal before the CIT(A). It was submitted before the CIT(A) that other two co-owners had clearly admitted that they had jointly purchased the lottery ticket with the assessee and they had also received 1/3rd of the prize amount realized on sale of car being their shares. They had also furnished details as to how the prize money received by them was utilized. The AO had not placed any material or evidence on record to rebut the evidence filed before him. It was also submitted that in the statement and affidavit of broker through whom the car was sold, he admitted that all the three co-owners approached him for sale of the car and the said car was sold by him for Rs. 1,35,000 to the outside party. On receipt of sale proceeds of Rs. 1,35,000, the amount was distributed amongst three persons in equal shares and he received commission from three persons, Thus, it was submitted that the AO was not justified in including the entire amount in the hands of the assessee. Accepting the contentions of the assessee, the learned CIT(A) has held that the assessee had only 1/3rd share in the prize money. The relevant finding recorded by the CIT(A) in paras 4, 4.1 and 4.2 are as under :
“4. I have considered the submissions of the counsel for the appellant along with the statements and affidavits of the concerned parties/persons. The findings of the AO in the assessment order have also been gone through. In my opinion, the submissions of the counsel for the appellant are more convincing. It has also not been disputed by the AO that the co-owners have not disputed the purchase of the lottery ticket in association with the appellant and they have also not refused of having received 1/3rd of the prize money. The co-owners have clearly stated how they purchased the lottery ticket and they have also confirmed that they went along with the appellant to Chandigarh to take the prize. Both the co-owners have also stated the way in which they have utilized their shares of prize money and it has been supported by bills/vouchers. Admittedly, the AO has not brought any materials/evidence on record to prove otherwise except the form filled in by the appellant for receiving the car which in my opinion is a general nature and it should not only be considered for drawing adverse inference against the appellant, particularly when the contentions of the appellant are supported by evidence.
4.1. Further, I agree with the counsel for the appellant that the AO has not mentioned anything about the statement recorded of the broker through which the car was claimed to have been sold. In my view, it is an important evidence because, in the statement as well as in the affidavit, it has clearly been mentioned/stated by the broker that all the three owners of the car approached him for the sale of car and the said car was sold by him to the outside party and the purchaser has given the sale amount in cash and after deducting the commission payable to him, they have divided the amount equally before him and the co-owners have received Rs. 42,000 each as their shares. Admittedly,the AO has not rebutted this fact/evidence and in such circumstances there is no reason as to why such evidence is not acceptable.
4.2 In view of the above discussions and also considering the entire facts of the case, it is held that only 1/3rd of the prize money is assessable in the hands of the appellant and the AO is directed accordingly.”
The Revenue is aggrieved by the order of CIT(A). Hence, this appeal before us.
6. The learned Departmental Representative, Shri D.R. Zala, heavily relied on the order of AO. He drew our attention to p. 5 of the assessment order where the AO has pointed out certain inconsistencies in the statements of the three co-owners. He submitted that the ticket was purchased by the assessee himself. In fact, form for the prize was filled in by him along with his photograph. The prize money was received by the assessee himself. Therefore, the CIT(A) was not justified in treating only 1/3rd share in the prize money in the hands of the assessee.
7. The learned counsel for the assessee, on the other hand, heavily relied on the order of CIT(A) and also relied on the two Judgments of the Hon’ble Supreme Court in the case of CIT v. Sitaldas Tirathdas (1961) 41 ITR 367 (SC) and Murlidhar Himatsinghka and Anr. v. CIT (1966) 62 ITR 323 (SC). He further relied on the decision of Tribunal, Ahmedabad Bench, in the case of ITO v. Abdul Majid Valimohmad Dal (1995) 51 TTJ (Ahd) 147- A copy of the same was also placed on our file.
8. We have heard both the parties and given our thoughtful consideration to the rival submissions with reference to facts, evidence and material on record. From the facts discussed above, it is obvious that the AO has mainly relied on the contradictions in the statements of other two co-owners, viz., Shri Keshav Dawra and Shri Daulat Ram. Shri Prem Raheja had stated that while bringing the Maruti car from Chandigarh, the car was driven by three of them turn by turn whereas Shri Keshav Dawra had stated that the car was driven only by Shri Prem Raheja and not by other two persons. However, the basic fact that the lottery ticket was purchased jointly had been admitted by three of them. Shri Prem Raheja had given Rs. 55, Shri Daulat Ram had given Rs. 20 and Shri Keshav Dawra had given Rs. 15. The fact who had driven the car is not very relevant. Besides, there could be contradictions for the reason that the statements of Shri Keshav Dawra and Shri Daulat Ram were recorded on 27th Sept., 1999, whereas the event took place much earlier. One is likely to forget such minute details with the passage of time. But, the most vital part of the issue is the distribution of sale proceeds realized on sale of Maruti car owned by three co-owners. In this regard, we find that the AO had recorded the statement of broker through whom the car was sold. He had clearly admitted before the AO that all the three co-owners approached him for sale of car and he received commission from each of them. He also stated that sale proceeds were distributed among the three co-owners. Besides, all the three co-owners had stated before the AO the utilization of their respective shares received on sale of car. No contrary material has been placed on record to rebut the contentions of the three co-owners that the money was distributed amongst them and their contention that the same was utilized for specific purpose as mentioned by them. The utilization of prize money by three co-owners was also supported by bills and vouchers. The case of the assessee is also supported by the decision of Tribunal, Ahmedabad Bench, in the case of ITO v. Abdul Mazid Valimohmed Dal (supra) where on identical facts, only l/8th of prize money was held to be taxable in the hands of the assessee. Thus, in the light of these facts and circumstances of the case and keeping in view such overwhelming evidence produced by the assessee and co-owners and there being no contrary material placed on record, we are of the considered opinion that the CIT(A) was justified in treating only 1/3rd of prize money belonging to the assessee, We confirm his order and reject the ground of appeal of the Revenue.
9. In the result, the appeal is dismissed.