Smt. Nirmala Jain, W/o Hem Kumar Jain, Gwalior V. ACIT, C-1, Gwalior

ITA 126/AGR/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6756 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 02-04-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: V BAPNA
• Keywords: Gift

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, SMC, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.126/AGR/2009 ASST. YEARS: 2005-06 SMT. NIRMALA JAIN, VS. A.C.I.T., C-1, GWALIOR. W/O. SHRI HEM KUMAR JAIN, SARAFA BAZAR, LASHKAR, GWALIOR. (PAN : AEDPJ 5825 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V. BAPNA, C.A. RESPONDENT BY : SHRI VINOD KUMAR, JR. D.R. ORDER THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 11.11.2008. 2. GROUND NO.1 SINCE NOT PRESSED, THE SAME STANDS D ISMISSED AS NOT PRESSED. 3. THE OTHER GROUNDS WHICH SURVIVE AFTER NOT PRESSI NG GROUND NO.1, READS AS UNDER :- (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.20000/- ESTIMATED TOW ARDS LOW HOUSE HOLD EXPENSES WHICH IS ILLEGAL UNJUSTIFIED AND BAD IN LAW. (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF 3 KGS OF SILVER TREATING AS UNEXPLAINED VALUE AT RS.32,025/- OUT OF 2 6.850 KGS. FOUND DURING THE COURSE OF SEARCH IS ILL EGAL UNJUSTIFIED AND BAD IN LAW. 4. THE A.O. MADE ADDITION OF RS.20,000/- ON ACCOUNT OF LOW HOUSE HOLD WITHDRAWAL WHICH WAS CONFIRMED BY THE CIT(A). 5. THE LD. A.R. BEFORE US CONTENDED THAT THE TOTAL DRAWING DECLARED BY THE FAMILY WERE RS.43,000/-. THE ASSESSEE HAS SHOWN RS.7,000/- AS DRAWING WHILE HER HUSBAND HAS DRAWN AN AMOUNT OF RS.36,000/-. THE CIT(A) HAS ESTIMATED TH E EXPENSES ON ADHOC BASIS ON TOTAL FAMILY AT RS.1 LAKH AGAINST WHICH HE REDUCED RS.43,000/- AND ADDED RS.20,000/- IN THE CASE OF THE ASSESSEE, OF RS.37,000/- IN THE CASE OF HER HUSBAND . NO EVIDENCE WHATSOEVER WAS FOUND OR BROUGHT ON RECORD BY THE A.O. WHICH MAY PROVE THAT THE EXPENDITURE OF THE ASSESSEES FAMILY WAS MUCH MORE THAN WHAT HAS BEEN SHOWN BY THE ASSESSEE. THE LD. D.R., ON THE OTHER HAND, RELIED ON THE ORDER OF THE CIT(A). 6. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSION S AND PERUSED THE MATERIAL ON RECORD. I NOTED THAT THE ADDITION HAS MERELY BEEN MADE ON THE BASIS OF ESTIMATED HOUSE HOLD EXPENDITURE OF THE ASSESSEE. NO IOTA OF EVIDENCE WAS BROUGHT ON R ECORD WHICH MAY PROVE THAT THE ASSESSEE HAS ACTUALLY INCURRED THE EXPENDITURE ON THE HOUSEHOLD MUCH MORE THAN WHAT HAS BEEN SHOWN BY THE ASSESSEE. FOR MAKING AN ADDITION UNDER SECTION 69, I AM OF THE VIEW, THE ONUS IS ON THE REVENUE TO PROVE THAT THE ASSESSEE HAS ACTUALLY INCURRED TH E EXPENDITURE. SINCE THE ADDITION IS MADE MERELY ON ESTIMATE BASIS AND ESPECIALLY ON THE FACT THAT THE HUSBAND HAS MADE A DRAWING OF 3 RS.36,000/- AND A SUM OF RS.37,000/- HAS ALREADY BE EN ADDED IN HIS HAND, I DELETE THE ADDITION. THUS, THIS GROUND OF APPEAL STANDS ALLOWED. 7. THE NEXT GROUND RELATES TO THE SUSTENANCE OF THE ADDITION BY THE CIT(A) IN RESPECT OF 3 KGS. OF SILVER AMOUNTING TO RS.32,025/-. 8. DURING THE SEARCH 11408 KGS. OF SILVER ARTICLES WERE FOUND AGAINST WHICH THE ASSESSEE HAS DECLARED 5.250 SILVER IN HIS WEALTH TAX RETURN. TH E CIT(A) HAS ALLOWED CREDIT FOR THE FAMILY MEMBERS, HUSBAND AND THREE CHILDREN OF 3.85 KGS. AN D SUSTAINED THE ADDITION IN RESPECT OF 3 KGS. OF SILVER VALUING RS.32,025/-. 9. I HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDERE D THE SAME. I FIND FORCE IN THE STATEMENT OF THE LD. A.R. THAT THE ASSESSEE HAS SHOWN IN HER WEALTH TAX FOR THE A.Y. 1988-89 604 GRAM OF GOLD ORNAMENTS AND 15.25 KGS. OF SILVER. THE ASSES SEE HAS ALSO DECLARED UNDER VDIS 375 KGS. OF GOLD USED IN JEWELLERY. THE TOTAL SILVER ORNAMENTS WERE TO THE EXTENT OF 975.52 GRAMS AS DECLARED BY THE ASSESSEE OUT OF WHICH THE ASSESSEE HAS GIVEN GOLD OF 200 GRAMS TO HER SISTER-IN-LAW SMT. KALPANA. THUS, THERE REMAINS GOLD JEWELLERY OF 775 .52 GOLD OUT OF WHICH THE GOLD WAS FOUND ONLY 285 GRAMS. THE GOLD LESS FOUND ACCORDING TO T HE LD. A.R. WAS CONVERTED BY THE PASSAGE OF TIME INTO SILVER BY THE ASSESSEE. EVEN OTHERWISE I T WAS STATED THAT ALL THE MEMBERS WERE INCOME TAX ASSESSEES AND AS SUCH THE SILVER UTENSILS TO TH E EXTENT OF 6.85 KGS BELONGED TO OTHER MEMBERS OF THE FAMILY. IN MY OPINION, THERE IS A CUSTOM IN HINDU SOCIETY TO WHICH THE ASSESSEE BELONGS 4 THAT THE SILVER UTENSILS ARE GIVEN AT THE TIME OF B IRTH OF THE CHILD BY THEIR GRAND PARENTS AND MATERNAL UNCLES. THE CIT(A) HAS GIVEN CREDIT FOR 3 .85 KGS. OF SILVER IN RESPECT OF HUSBAND OF THE ASSESSEE EVEN 1 KG. SILVER HAS BEEN GIFTED TO EACH OF THE CHILD ON SUCH OCCASION IS QUITE REASONABLE. EVEN OTHERWISE ALSO IT IS QUIT POSSIBL E THAT THE ASSESSEE MIGHT HAVE CONVERTED GOLD JEWELLERY INTO SILVER ARTICLES. SUBSEQUENT TO AY 1 988-89 NO WEALTH TAX RETURN WAS FILED AS THE WEALTH WAS BELOW THE TAXABLE LIMIT. IN MY OPINION THE EXPLANATION GIVEN BY THE ASSESSEE IS PLAUSIBLE ONE DEPENDING UPON THE STANDARD OF THE FA MILY AND THE CUSTOM PREVAILING IN HINDU SOCIETY. I, ACCORDINGLY, DELETE THE ADDITION OF RS .32,025/-. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 06.07.2010). SD/- (P.K. BANSAL) ACCOUNTANT MEMBER PLACE: AGRA DATE: 6 TH JULY, 2010. PBN/* 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TR IBUNAL, AGRA TRUE COPY