Smt. Saran Kaur, Hyderabad V. Dy, CIT, Circle -4(1), Hyderabad

ITA 1402/HYD/2012

• Counselvise Citation: 140222514 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 10-09-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Unexplained investment; Gift; Search and seizure
• Section: 133A; 132

Judgement Text

1 ITA.NO.1402/HYD/2012 SMT. SARAN KAUR IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA.NO.1402/HYD/2012 ASSESSMENT YEARS 2008-2009 SMT. SARAN KAUR HYDERABAD PAN AEHPK0516J VS. DCIT, CIRCLE 4 (1) HYDERABAD (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI P. MURALIMOHAN RAO FOR RESPONDENT : SMT K. HARITHA DATE OF HEARING : 05.11.2013 DATE OF PRONOUNCEMENT : 13.11.2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN, J.M. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A)-V, HYDERABAD DATED 10.07.2012 FOR THE ASSESSMENT YEAR 2008-09. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S THE WIFE OF SHRI INDERJEET SINGH MAKHIJA ON WHOM A SURV EY OPERATION UNDER SECTION 133A WAS CONDUCTED ON 29.11.2007 AND SUBSEQUENTLY, THE SURVEY WAS CONVERTED INTO SEARCH OPERATION UNDER SECTION 132 OF THE I.T. ACT. DURING THE SEARC H AND SEIZURE OPERATION UNDER SECTION 132, GOLD JEWELLERY WEIGHIN G 1523.8 GRAMS BELONGING TO THE ASSESSEE WAS SEIZED. ASSESSI NG OFFICER HAD VALUED THE GOLD JEWELLERY AT RS.1100 PER GRAM A S ON THE DATE OF SEARCH ACTION, WHICH AMOUNTED TO RS.16,76,180/-. THE ASSESSING OFFICER TREATED THE AMOUNT OF RS.16,76,18 0/- AS UNACCOUNTED INVESTMENT MADE IN THE FORM OF JEWELLER Y UNDER 2 ITA.NO.1402/HYD/2012 SMT. SARAN KAUR SECTION 69B FOR THE ASSESSMENT YEAR 2008-2009 AND A DDED IT IN THE HANDS OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE WAS IN APPEAL BEFORE TH E CIT(A) AGITATING AGAINST THE ADDITION OF RS.16,76,1 80/- TOWARDS THE VALUE OF JEWELLERY OF THE ASSESSEE FOUND DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS CONDUCTED IN THE RESI DENCE ON 29.11.2007. BEFORE THE CIT(A), THE ASSESSEE STATED THAT AMOUNTS WAS GIVEN TO HER FOR STREE DHAN OR JEWELLERY RE CEIVED BY HER AT THE TIME OF MARRIAGE. THE CIT(A) HELD THAT KEEPING IN VIEW OF THE STATUS OF THE ASSESSEE 500 GRAMS OF THE JEWELLERY I S TO BE CONSIDERED AS GIFTS ON THE OCCASION OF MARRIAGE AS WELL AS ON OTHER OCCASIONS AND THEREFORE, ONLY THE BALANCE JEW ELLERY IS TO BE HELD AS PURCHASES OUT OF UNDISCLOSED SOURCES AND AD DED THE BALANCE ADDITION ACCORDINGLY. 4. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI P. MURALI MO HAN RAO FILED ADDITIONAL GROUNDS OF APPEAL WHICH ARE AS FOLLOWS : 7. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE JEWELLERY FOUND IN THE COURSE OF SEARCH BELONGS TO ALL THE FAMILY MEMBERS OF THE ASSESSEE A ND NOT ASSESSEE INDIVIDUALLY. THE MATTER MAY BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER TO VERIF Y THE SAME. 8. THE LEARNED CIT(A) OUGHT TO HAVE APPLIED THE PRI NCIPLE OF TELESCOPING OF UNEXPLAINED INVESTMENT AGAINST TH E INCOME OF THE APPELLANT GROUP. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI P.MUR ALI MOHAN RAO SUBMITTED BEFORE US THAT THE ENTIRE FAMIL Y CONSISTS OF 5 MEMBERS AND ADDUCED EVIDENCE BY FILING STATEMENT UNDER SECTION 132(4) OF THE I.T. ACT WHEREIN THE FAMILY M EMBERS HAVE BEEN LISTED AS INDERIJEET SINGH MAKHIJA, SATPREET S INGH, SANJEET SINGH, SARAN KAUR, POOJA. THE LEARNED COUNSEL FOR T HE ASSESSEE 3 ITA.NO.1402/HYD/2012 SMT. SARAN KAUR SUBMITTED THAT AS PER CBDT INSTRUCTION NO. 1916, 50 0 GRAMS OF GOLD IS TO BE ALLOWED AS NORMAL JEWELLERY RECEIVED ON MARRIAGE AND OTHER OCCASIONS IN THE CASE OF A MARRIED LADY A ND 100 GRAMS IN THE CASE OF MEN. HE SUBMITTED THAT TAKING THE 5 MEMBERS INTO CONSIDERATION 1300 GRAMS HAS TO BE ALLOWED OUT OF T HE JEWELLERY OF 1523.8 GRAMS SEIZED AND THE BALANCE OF ONLY 223. 8 GRAMS REMAINS. 6. THE LEARNED D.R. STRONGLY SUPPORTED THE ORDER O F THE CIT(A) AND STATED THAT IT IS ONLY NOW THAT THE ASSE SSEE HAS COME UP WITH THE PLEA THAT THE JEWELLERY BELONGS TO THE FAMILY AND NOT TO INDIVIDUAL MEMBER NAMELY SARAN KAUR AND IT WAS A LL ALONG STATED BEFORE THE LOWER AUTHORITIES THAT THE JEWELL ERY HAS BEEN GIVEN BY THE PARENTS TO SMT. SARAN KAUR AT THE TIME OF MARRIAGE. 7. THE LEARNED COUNSEL FOR THE ASSESSEE, SHRI P. M URALI MOHAN RAO RELIED ON THE DECISION OF THE ACIT VS. YA SH DEVENDRA VAYLA ITA.NO.652/AHD/2010 ASSESSMENT YEAR 2007-2008 DATED 19.04.2013. 8. WE HAVE HEARD BOTH THE PARTIES. SINCE WE CANNOT SAY WITH CERTAINTY THAT THE JEWELLERY CANNOT BE SHARED BY THE FAMILY MEMBERS AND HENCE, THERE CANNOT BE JEWELLERY WHICH IS COMMON FOR THE FAMILY. GIVING THE BENEFIT OF DOUBT TO THE ASSESSEE AND ALSO RELYING ON THE CIRCULAR OF THE CBDT 1916, WE A LLOW 1300 GRAMS OF GOLD TAKING INTO ACCOUNT THAT THERE ARE 5 FAMILY MEMBERS AND WITH RESPECT TO THE BALANCE 223.8 GRAMS , WE DIRECT THE ASSESSING OFFICER TO APPLY THE PRINCIPLE OF TEL ESCOPING OF UNEXPLAINED INVESTMENT AGAINST THE INCOME OF THE AS SESSEE GROUP AND DETERMINE THE TAXABLE INCOME ACCORDINGLY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 4 ITA.NO.1402/HYD/2012 SMT. SARAN KAUR ORDER PRONOUNCED IN THE OPEN COURT ON 13.11.2013. SD/- SD/- (B. RAMAKOTAIAH) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD DATE 13 TH NOVEMBER, 2013. VBP/- COPY TO 1. SMT. SARAN KAUR, HYDERABAD C/O. P. MURALI & CO. C.AS. 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD. 2. THE DCIT, CIRCLE 4(1), HYDERABAD. 3. CIT(A)-V, HYDERABAD 4. CIT-IV, HYDERABAD 5. D.R. A BENCH, ITAT HYDERABAD