AJAY DOSHI, MUMBAI V. ACIT CEN CIR 12, MUMBAI

ITA 106/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56169 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 06-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Keywords: Search and seizure
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 106/MUM/2010 ASSESSMENT YEAR : 2007-08. SHRI AJAY DOSHI, ASSTT. COMMISSIONER OF 21, MAKER TOWER, L, VS. CENTRAL CIRCLE-12, G.D. SOMANI MARG, MUMBAI. CUFFE PARADE, MUMBAI 400005. PAN AAAPD 9688D. APPELLANT. RESPONDENT APPELLANT BY : SHRI PARESH GOHIL. RESPONDENT BY: SHRI JI TENDRA YADAV. DATE OF HEARING : 21-12-2011. DATE OF PRONOUNCEMENT : 23-12-2011. O R D E R. PER P.M. JAGTAP, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(APPEALS)-37, MUMBAI DATED 27-10-2009 AND THE SO LITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE ADDITION OF RS.2,87,000/- M ADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(APPEALS) ON ACCOUNT OF JEWELLERY OF 350 GRAMS FOUND DURING THE COURSE OF SEARCH TREATING THE SAME AS UNEXPLAINED. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO IS ENGAGED IN THE BUSINESS OF SHARE TRADING. A SEARCH AND SEIZURE ACT ION U/S 132 WAS CONDUCTED IN HIS CASE AS WELL AS OTHER CASES BELONGING TO DOSHI GROU P ON 18-01-2007. DURING THE 2 ITA NO.106/MUM/2010 ASSESSMENT YEAR:2007-08 COURSE OF SEARCH, GOLD JEWELLERY OF 4120.300 GRAMS WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE AS WELL AS HIS BANK LOCKERS. OUT OF THE SAID JEWELLERY, JEWELLERY TO THE EXTENT OF 1652.078 GRAMS WAS FOUND TO BE ALREAD Y DECLARED BY THE ASSESSEE AND HIS WIFE IN THE RETURNS OF INCOME. THE REMAINING JE WELLERY TO THE EXTENT OF 350 GRAMS WAS EXPLAINED BY THE ASSESSEE AS BELONGING TO HIS MINOR CHILDREN AND THE BALANCE QUANTITY OF JEWELLERY TO THE EXTENT OF 2118 .222 GRAMS VALUED AT RS.17,36,942/- WAS OFFERED BY THE ASSESSEE AS HIS INCOME. IN THE ASSESSMENT COMPLETED U/S 143(3), THE AO DID NOT ACCEPT THE EXP LANATION OF THE ASSESSEE IN RESPECT OF 350 GRAMS OF JEWELLERY AND THE VALUE THE REOF AMOUNTING TO RS.2,87,000/- WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESS EE. ON APPEAL, THE LEARNED CIT(APPEALS) CONFIRMED THE SAID ADDITION MADE BY TH E AO REJECTING THE SUBMISSION MADE ON BEHALF OF THE ASSESSEE RELYING O N THE CBDT INSTRUCTION NO. 1916 DATED 11-05-1994. THE LEARNED CIT(APPEALS) HEL D THAT THE SAID CIRCULAR ISSUED BY THE BOARD WAS MORE IN THE NATURE OF GUIDE LINES FOR SEIZURE OF GOLD JEWELLERY BY THE AUTHORIZED OFFICER DURING THE COUR SE OF SEARCH AND THE RELIANCE OF THE ASSESSEE ON THE SAID CIRCULAR IN SUPPORT OF HIS EXPLANATION REGARDING JEWELLERY BELONGING TO MINOR CHILDREN WAS CLEARLY MIS-PLACED. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(APPEALS), THE ASSESSEE HAS PREFERRED TH IS APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT A SIMILAR I SSUE HAD COME UP FOR CONSIDERATION BEFORE THE JABALPUR BENCH OF ITAT IN THE CASE OF SM T. SULOCHANADEVI JAISWAL VS. DCIT 90 TTJ 974 WHEREIN THE CBDT INSTRUCTION NO. 19 16 DATED 11 TH MAY, 1994 WAS RELIED UPON BY THE ASSESSEE IN SUPPORT OF HIS E XPLANATION OFFERED IN RESPECT OF JEWELLERY FOUND DURING THE COURSE OF SEARCH AND THE TRIBUNAL ACCEPTED THE STAND OF THE ASSESSEE OBSERVING THAT THE QUANTITY OF JEWELLE RY MENTIONED IN THE BOARD INSTRUCTION AS A GUIDELINE FOR SEIZURE OF GOLD JEWE LLERY CAN BE CONSIDERED AS A 3 ITA NO.106/MUM/2010 ASSESSMENT YEAR:2007-08 REASONABLE QUANTITY OF GOLD JEWELLERY WHICH IS POSS ESSED BY AN ORDINARY FAMILY. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE COO RDINATE BENCH OF THIS TRIBUNAL, WE DIRECT THE AO TO GIVE THE BENEFIT OF THE SAID CI RCULAR TO THE ASSESSEE AND ACCEPT HIS EXPLANATION IN RESPECT OF JEWELLERY IN QUESTION FOUND DURING THE COURSE OF SEARCH AS PER THE GUIDELINES GIVEN IN THE SAID CIRC ULAR. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF DEC.,2011. SD/- SD/- (I.P. BANSAL) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 23 RD DEC., 2011. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, A-BENCH. 6. GUARD FILE. (TRUE COPY ) BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI. WAKODE