Ownership of assets and the burden of proof in tax assessments regarding benami transactions.

1. This reference has been made by the Income Tax Appellate Tribunal under S.66(2) of the Indian Income Tax Act, 1922 , on the requisition made by this court on April 24, 1962, in Income Tax Applications Nos. 40, 41, 43, 44, 45, 46 and 47 of 1961. Two questions have been referred by the tribunal. They are :
"(1) Is there any material on record to hold that the properties and assets standing in the name of Shrimati Surajbai belonged to the assessee family ?
(2) Was the Tribunal right in including income that accrued to or arose in the name of Surajbai Daga or that was received by Surajbai Daga in the assessee family's total income ?

2. The assessee in all these cases was the Hindu undivided family represented by Ramnath Daga and the assessments are for the assessment years 1947-48, 1948-49 and 1952-53 to 1956-57. Ramnath Daga was at the material time the karta of the assessee Hindu undivided family and Surajbai is his second wife. Previous to these assessment proceedings, there were assessment proceedings for the assessment year 1945-46 and 1946-47 also. The original assessment for the assessment year 1945-46 was made on March 13, 1946. Subsequently proceedings under S.34 of the Income Tax Act, 1922 , were stated against the assessee, Seth Ramnath Daga, and notice under S.34 was served on its karta on March 16, 1954. The notice under S.34 was issued to the assessee as the department considered that the assessee had escaped assessment and it was discovered that the assessee had not in the original assessment disclosed several amounts and particularly those which stood in the name of the karta's wife, Surajbai, either in the shape of shares or deposit in the banks or immovable property, such as house at Ganganagar and a house at Nagpur. The assessee was asked by the department to explain the sources from which the properties were taken in the name of Surajbai and the amounts invested in her name either in the bank or in shares. Several explanations were given by the assessee and it appears that some account books of the assessee as well as of Surajbai were shown to the Income Tax Officer. One of the explanations that was given by the assessee with respect to the house at Ganganagar standing in the name of Surajbai and the investments in the banks and in shares was that during the Samvat years 1987-88 to 1995-96 an amount of Rs. 3,34,589 was withdrawn by the assessee from the firm, R. B. Bansilal Abirchand, Bikaner, most of this amount was made over by the karta to his wife as gifts from him from time to time during that period. An explanation was also given that his wife had also received gifts from her parents and the relations at the time of her marriage and marriages of the relations and on other ceremonies and occasions and the amount was accumulated with the wife. It may be stated at this time that Surajbai is the second wife of Ramnath Daga. He had married on Ratanbai who the daughter of Mathuradas Mohota of Hinganghat. She died in or about November 1937. Surajbai also is the daughter of Mathuradas Mohota and the younger sister of this first wife, Ratanbai. It was also alleged by the assessee that the assessee also withdrew an aggregate amount of Rs. 1,38,142 which were handed over by the karta to his wife for defraying household expenses and out of that sum his wife, according to him must have made some savings. In the year 1939, Surajbai opened her own account books and credited an amount of Rs. 2,00,000 in her account books. It is out of this amount of Rs. 2,00,000 it is alleged that the house at Ganganagar was purchased and the deposits were made in the banks and the shares were purchas