A.C.I.T., Circle-2, Gwalior V. Smt. Sheela Devi Garg, Morena

ITA 1/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0664 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 4 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-05-2013
• Assessment Year: 2010-2011
• Appeal Filed On: 01-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K C AGARWAL SH PIYUSH SING HAL
• Keywords: Additional evidence; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 01/AGRA/2013 ASSTT. YEAR : 2010-11 A.C.I.T., CIRCLE 2, VS. SMT. SHEELA DEVI GAR G, GWALIOR. TILAK ROAD, JIWAJ GANJ, MORENA. (PAN: ACOPG 5417 B) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI K.C. AGARWAL, SH. PIYUSH SING HAL, CA. DATE OF HEARING : 08.05.2013 DATE OF PRONOUNCEMENT OF ORDER : 24.05.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), GWALIOR DATED 26.10.2012 FOR THE ASSESSMENT YEAR 20 10-11 ON THE FOLLOWING GROUND : LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF R S.5,86,400/-, RS.6,10,109/- AND RS.2,24,015/- ON ACCOUNT OF UNEXP LAINED CASH, GOLD AND SILVER JEWELLERY RESPECTIVELY FOUND DURING THE COURSE OF SEARCH RELYING UPON THE ADDITIONAL EVIDENCES WITHOUT PROVI DING OPPORTUNITY TO THE AO AS REQUIRED UNDER RULE 46A OF THE INCOME- TAX RULES, 1962. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MA TERIAL AVAILABLE ON RECORD. ITA NO. 01/AGRA/2013 2 3. THE REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.5,86,400/- IN RESPECT OF CASH FOUND DURING THE COURSE OF SEARCH, TREATING THE SAME AS UNEXPLAINED. THE ASSESSEE CONTENDED THAT THERE WAS SUFFICIENT CASH B ALANCE AVAILABLE IN THE BOOKS OF ACCOUNT ON THE DATE OF SEARCH TO EXPLAIN THE SOURCE OF CASH. IN RESPECT OF HER CLAIM, THE ASSESSEE HAS FILED BALANCE SHEET DATED 31.03.20 09 SHOWING CASH IN HAND OF RS.8,54,904/- WHICH WAS FILED BY THE ASSESSEE BEFOR E THE AO DURING THE ASSESSMENT PROCEEDINGS OF ASSESSMENT YEAR 2009-10. THE ASSESSE E HAS ALSO FILED CASH BOOK FOR F.Y. 2009-10 WHEREIN SAID CASH HAS BEEN SHOWN AS OP ENING BALANCE ON 01.04.2009. ON THE DATE OF SEARCH, CASH IN HAND HAS BEEN SHOWN AT RS.8,35,853/-, WHICH IS MORE THAN THE CASH FOUND DURING THE COURSE OF SEARCH. IT WAS, THEREFORE, SUBMITTED THAT THE CASE IS FULLY EXPLAINED. THE LD. CIT(A) VERIFYI NG THE SAME FACTS FROM THE ABOVE EVIDENCES, FOUND THAT THE ASSESSEE HAS EXPLAINED TH E CASH FOUND DURING THE COURSE OF SEARCH AND DELETED THE ADDITION. 3.1 THE REVENUE FURTHER CHALLENGED THE DELETION OF ADDITION OF RS.6,10,109/- ON ACCOUNT OF UNEXPLAINED GOLD JEWELLERY. IT WAS SEEN THAT DURING THE COURSE OF SEARCH, GOLD JEWELLERY OF 1616.900 GMS WERE FOUND AT THE PR EMISES OF THE ASSESSEE. THE AO ACCEPTED THE GOLD JEWELLERY WEIGHING 1149.240 GM S AS EXPLAINED AND GOLD JEWELLERY WEIGHING 467.66 GMS WAS HELD AS UNEXPLAIN ED AND ADDITION OF RS.6,10,109/- WAS MADE ON THIS ACCOUNT. THE ASSESSE E CONTENDED THAT AS PER ITA NO. 01/AGRA/2013 3 VALUATION REPORT DATED 31.03.2005, THE ASSESSEE HER SELF HAD GOLD JEWELLERY WEIGHING 1149.240 GMS AND ON 14.12.2005 AND 15.12.2 005, SHE HAD PURCHASED GOLD JEWELLERY WEIGHING 368.950 GMS., IN RESPECT OF WHICH BILLS HAVE BEEN FURNISHED. THE JEWELLERY PURCHASED ABOVE HAS BEEN R EFLECTED IN THE BALANCE SHEET ENDING 31.03.2006. IT WAS FURTHER STATED THAT HUSBA ND OF THE ASSESSEE, SHRI R.C. GARG HAS DECLARED GOLD JEWELLERY WEIGHING 153.58 GM S IN HIS WEALTH-TAX RETURN IN THE YEAR 2009-10 AND HER UNMARRIED DAUGHTER MS. RUC HI GARG WAS ALSO IN POSSESSION OF 327.58 GMS GOLD JEWELLERY. THE ASSESS EE ALSO FILED WEALTH TAX RETURN AND COMPUTATION FOR THE ASSESSMENT YEAR 2009-10 OF HER HUSBAND AND OF HER DAUGHTER. IT WAS, THEREFORE, SUBMITTED THAT THE ENT IRE JEWELLERY FOUND AT THE PREMISES IS FULLY EXPLAINED ALONG WITH THE SOURCE. IT WAS SUBMITTED THAT THE TOTAL JEWELLERY EXPLAINED BY THE ASSESSEE IS 1999.350 GMS . THE LD.CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT SOURCE OF TOTAL JEW ELLERY OF 1999-350 GMS BELONGING TO ASSESSEE, HER HUSBAND AND UNMARRIED DAUGHTER IS EXPLAINED. THE LD. CIT(A), HOWEVER, FOUND THAT PURCHASE OF JEWELLERY WEIGHING 368.950 GMS IS EXPLAINED FOR THE FIRST TIME BEFORE THE LD. CIT(A). THEREFORE, EV IDENCE IN THIS REGARD IS NOT ADMITTED UNDER RULE 46A. THE LD. CIT(A) FURTHER FOU ND THAT EVEN IF THE SAME IS EXCLUDED FROM CONSIDERATION, THE BALANCE JEWELLERY DECLARED BY THREE MEMBERS OF THE FAMILY COMES TO 1630.400 GMS, WHICH IS MORE THA N THE JEWELLERY FOUND IN THE COURSE OF SEARCH AND ACCORDINGLY, THE ADDITION OF R S.6,10,109/- WAS DELETED. ITA NO. 01/AGRA/2013 4 3.2 THE REVENUE FURTHER CHALLENGED THE DELETION OF ADDITION OF RS.2,24,015/- ON ACCOUNT OF UNEXPLAINED SILVER JEWELLERY. DURING THE COURSE OF SEARCH, SILVER JEWELLERY WEIGHING 11.123 KG WAS FOUND FROM THE PRE MISES OF THE ASSESSEE, WHICH WAS FOUND AS UNEXPLAINED. THE ASSESSEE EXPLAINED TH AT PANCHNAMA OF THE SILVER FOUND DURING THE COURSE OF SEARCH HAS BEEN PREPARED IN THE NAME OF SHRI R.C. GARG, HUSBAND OF THE ASSESSEE, WHO HAS DECLARED 14.02 KG. SILVER IN THE WEALTH-TAX RETURN FILED FOR THE ASSESSMENT YEAR 2009-10. COPY OF ACKN OWLEDGEMENT OF THE RETURN AND COMPUTATION WAS FILED IN SUPPORT OF THE EXPLANATION . THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND DELETED THE ADDITION BECAUSE THE SILVER MORE THAN FOUND HAS ALREADY BEEN DECLARED IN THE WEALTH-TAX R ETURN BY THE HUSBAND OF THE ASSESSEE. 4. THE LD. DR RELIED UPON THE ORDER OF THE AO AND C ONTENDED THAT THE ASSESSEE DID NOT EXPLAIN SOURCE OF ABOVE ADDITIONS BEFORE TH E AO. THEREFORE, THE LD. CIT(A) SHOULD NOT HAVE DELETED THE ADDITIONS AND THAT RULE 46A IS VIOLATED IN THE MATTER. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT ALL THESE FACTS WERE EXPLAINED BEFORE THE AO ALONG WITH REPLY AND THE AO WAS CONDU CTING INVESTIGATION OF THE GROUP CASES, THEREFORE, HE HAS IGNORED THE SAME WHI LE FINALIZING THE ASSESSMENT IN THE CASE OF THE ASSESSEE. PB-21 & 22 ARE THE CAPITA L ACCOUNT OF THE ASSESSEE ENDING 31.03.2009 AND 31.03.2010 TO EXPLAIN SUFFICIENT CAS H IN HAND. PB-28 IS PANCHNAMA ITA NO. 01/AGRA/2013 5 OF UNEXPLAINED SILVER OF 11.123 KG IN THE NAME OF H USBAND OF THE ASSESSEE AND PB- 44 IS WEALTH TAX RETURN OF HER HUSBAND IN WHICH HER HUSBAND HAS DECLARED SILVER OF 14.02 KG. IN THE ASSESSMENT YEAR 2009-10, THEREFORE , THE SAME IS EXPLAINED. PB-36 AND 37 ARE THE PANCHNAMA OF GOLD JEWELLERY ALONG WI TH PB-27 AND PB-9 ARE THE DETAILS OF TOTAL JEWELLERY DECLARED IN THE WEALTH T AX RETURN BY THE ASSESSEE AND HER FAMILY MEMBERS, WHICH WAS MORE THAN THE JEWELLERY F OUND DURING THE COURSE OF SEARCH. THEREFORE, THE ASSESSEE EXPLAINED ENTIRE JE WELLERY AND THERE WAS NO VIOLATION OF RULE 46A IN THE MATTER. THEREFORE, ALL THE ADDITIONS HAVE BEEN RIGHTLY DELETED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DE LETING ALL THE THREE ADDITIONS. THE ASSESSEE EXPLAINED CASH THROUGH THE BALANCE SHEET F ILED WITH THE REVENUE DEPARTMENT PRIOR TO THE SEARCH FOR TWO ASSESSMENT Y EARS, IN WHICH SUFFICIENT CASH IN HAND WITH THE ASSESSEE IS AVAILABLE. THEREFORE, LESSER CASH FOUND DURING THE COURSE OF SEARCH IS FULLY EXPLAINED THROUGH BALANCE SHEET FILED WITH THE RETURN OF INCOME WITH THE REVENUE DEPARTMENT. SILVER IS DECLA RED IN WEALTH-TAX RETURN OF HUSBAND OF THE ASSESSEE PRIOR TO THE SEARCH, WHICH WAS MORE THAN THE SILVER FOUND DURING THE COURSE OF SEARCH. SIMILAR IS THE POSITIO N WITH REGARD TO THE GOLD JEWELLERY, WHICH THE ASSESSEE HAS EXPLAINED THROUGH EVIDENCES AND MATERIAL ON RECORD. SINCE MOST OF THE ABOVE DOCUMENTS ARE PART OF THE REVENUE RECORD, ITA NO. 01/AGRA/2013 6 THEREFORE, THERE IS NO VIOLATION OF RULE 46A IN THE MATTER. MORE SO, ACCORDING TO THE SUBMISSION OF THE ASSESSEE, THE ASSESSEE FILED DETA ILED REPLY BEFORE THE AO AT THE ASSESSMENT STAGE, COPY OF WHICH IS FILED AT PAGE 3 OF THE PAPER BOOK, WHICH IS THE REPLY FILED BEFORE THE AO DATED 24.10.2011. SAME IS HAVING SEAL OF THE AO AND AS SUCH, THERE WAS NO VIOLATION OF RULE 46A FOR ADMISS ION OF ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A). CONSIDERING THE ABOVE DISCUS SION IN THE LIGHT OF FINDINGS OF THE LD. CIT(A), WE DO NOT FIND ANY MERIT IN THE DEP ARTMENTAL APPEAL. SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY