Appeal details
Counselvise Citation
[2015] 134 COUNSELVISE.COM (IT) 1152 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 1 month(s) 30 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
04-09-2015
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
B
Next Hearing Date
31-08-2015
Assessment Year
2009-2010
Appeal Filed On
05-07-2013
Judgement Text
] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , , ' # BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1417/PN/2013 '% % / ASSESSMENT YEAR : 2009-10 SHRI DIGAMBAR NINU KOLTE, 2 ND FLOOR, CITY POINT, DHOLE PATIL ROAD, PUNE 411 002, PAN NO. ACDPK2004P . / APPELLANT V/S DCIT, CENTRAL CIRCLE-1(1), PUNE . / RESPONDENT / ASSESSEE BY : SHRI NIKHIL PATHAK / DEPARTMENT BY : SHRI B.C. MALAKAR / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28-03-2013 OF THE CIT(A)-II, PUNE RELATING TO ASSESSMENT YEAR 2009-10. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH ACTION U/ S.132 OF THE I.T. ACT WAS CONDUCTED IN THE KOLTE GROUP OF CAS ES ON 22- 08-2008. IN RESPONSE TO NOTICE U/S.153A THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,85,440/-. DUR ING / DATE OF HEARING :03.09.2015 / DATE OF PRONOUNCEMENT: 04.09.2015 2 ITA NO.1417/PN/2013 THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THA T SILVER JEWELLERY WEIGHING 21021 GRAMS VALUED AT RS.420,420/- WAS FOUND DURING THE COURSE OF SEARCH. HE, THEREFORE, ASKED T HE ASSESSEE TO EXPLAIN THE SOURCE OF ACQUISITION OF THE SILVER JEWELLERY FOUND. IT WAS SUBMITTED BY THE ASSESSEE THAT SILVER ARTICLES HAVE BEEN RECEIVED BY HIM OVER A PERIOD OF TIME A S GIFT FROM HIS RELATIVES AND SOME HAVE BEEN PURCHASED BY HIM O VER A PERIOD OF HIS LIFE TIME. 3. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO THE AO, THE ASSESS EE COULD NOT ESTABLISH AND SUBSTANTIATE THE SOURCES FOR THE ACQU ISITION OF THE JEWELLERY IN FORM OF SILVER ARTICLES. HE NOTED THAT THE SILVER ARTICLES WEIGHING 21021 GRAMS VALUED AT RS.4,20,420/- WAS FOUND AT THE RESIDENTIAL PREMISES OF THE ASSESSEE AND THE AMOUNT EXPENDED IN ACQUIRING THESE SILVER ARTICLES WAS NOT RECOR DED IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE FROM A NY SOURCE OF INCOME. THE ASSESSEE, ACCORDING TO THE AO, C OULD NOT EXPLAIN SATISFACTORILY ABOUT THE SOURCES FOR ACQUIRING THE SE SILVER ARTICLES. HE ACCORDINGLY MADE ADDITION OF RS.4,20,420/- TO T HE TOTAL INCOME OF THE ASSESSEE. 4. BEFORE CIT(A) IT WAS SUBMITTED THAT THE ASSESSEE COM ES FROM A WELL TO DO FAMILY AND IS A PRACTICING MEDICAL PROFESSIO NAL FOR THE LAST 40 YEARS AND THE SAID SILVER ARTICLES/JEWELLERY WERE ACCUMULATED OVER A PERIOD OF TIME. IT WAS FURTHER SUBMITT ED THAT THE ASSESSEE IS REGULARLY ASSESSED TO TAX IN THE CAPA CITY OF A MEDICAL PROFESSIONAL AND DERIVES AGRICULTURAL INCOME FROM THE LAND AT VILLAGE NARVE, TALUKA MALKAPUR, DISTRICT BULDANA, 3 ITA NO.1417/PN/2013 MAHARASHTRA. THE DETAILS OF AGRICULTURAL INCOME DECLARED FRO M F.Y. 1994-95 TO 2008-09 WAS FURNISHED. SALE OF AGRICULTURAL LAND IN F.Y. 1994-95 TO F.Y. 1998-99 AMOUNTING TO RS.2,70,000/- W AS ALSO BROUGHT TO THE NOTICE OF THE CIT(A). IT WAS SUBMITTE D THAT SOME SILVER ARTICLES HAVE BEEN INHERITED FROM HIS FATHER AND ALSO SOME ARTICLES HAVE BEEN PURCHASED AND ACCUMULATED FROM MEDICAL PROFESSION, AGRICULTURAL INCOME AND SALE OF AGRICULTURAL LAND. THE ASSESSEE ALSO BROUGHT TO THE NOTICE OF THE CI T(A) THAT ON 25-02-2005 HE HAD SURRENDERED OLD SILVER JEWELLERY WE IGHING 12,204 GRAMS TO P.N. GADGIL & CO. AND OBTAINED NEW JEWELLE RY WEIGHING 10,753 GRAMS IN LIEU OF SAID OLD JEWELLERY. 5. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) NOTED THAT THERE IS NO MATERIAL LINKING THE RECEIPT OF INCOME WITH THE INVESTMENT MADE BY THE ASSESSEE. EVIDEN CES REGARDING ACQUISITION OF SILVER ITEMS AND RELATED ARTICLES ALSO ARE NOT AVAILABLE WITH THE ASSESSEE ESPECIALLY WHEN HE IS NOT A WEALTH TAX ASSESSEE. HOWEVER, HE OBSERVED THAT IN THE SOCIETY SILVER ARTICLES ARE USUALLY RECEIVED AS GIFTS ON DIFFERENT OCCASIONS SUCH AS MARRIAGE, BIRTH OF CHILD, FESTIVALS ETC., AND FURTHER THE S AME IS ALSO INHERITED FROM PARENTS/GRAND PARENTS FOR WHICH THERE MAY NOT BE ANY DIRECT EVIDENCE. HOWEVER, HE HELD THAT THE A SSESSEE BEING FROM A WELL TO DO FAMILY AND A PRACTICING MEDICAL PROFESSIONAL AND TAKING INTO ACCOUNT THE SURROUNDING CIRCUMSTANCES AND REALITY OF SITUATION CREDIT OF 5 KGS SILVER VALUED AT RS.1 LAKH IS REASONABLE. THUS, HE SUSTAINED TH E REMAINING AMOUNT OF RS.3,20,320/- OUT OF RS.4 LAKHS ADDED BY THE AO. 4 ITA NO.1417/PN/2013 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO PAGE 91 OF THE PAPER BOOK DREW THE ATTENTION OF THE BENCH TO THE AGR ICULTURAL INCOME OF RS.1,89,900/- DERIVED BY THE ASSESSEE FROM A.Y. 20 03- 04 TO 2009-10. REFERRING TO PAGE 92 OF THE PAPER BOO K HE DREW THE ATTENTION OF THE BENCH TO THE AGRICULTURAL INCOME OF W IFE OF THE ASSESSEE SMT. PRAMILA KOLTE AT RS.2,78,850/- FROM A.YRS. 2003-04 TO 2009-10. REFERRING TO PAGE 93 OF THE PAPER BOOK THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE B ENCH TO THE RATE OF SILVER FROM F.Y. 1981-82 TO 2009-10 ACCORDING TO WHICH THE RATE OF SILVER IN A.Y. 1981-82 WAS AT RS.2,715/- P ER KG AND THE SAME HAS GONE UP TO RS.22,230/- PER KG DURING A.Y. 2009-10. HE SUBMITTED THAT THE AO HAS VALUED THE SILVER ARTICLES FOUND DURING THE COURSE OF SEARCH BY APPLYING THE RATE OF THE A.Y. 2009-10 WHICH IS NOT CORRECT SINCE THE ARTICLES WERE ACQ UIRED OVER A PERIOD OF YEARS. FURTHER, THE AGRICULTURAL INCOME D ERIVED BY THE ASSESSEE AND HIS WIFE ARE SUFFICIENT TO TAKE CARE OF THE ACQUISITION OF SILVER ARTICLES FOUND DURING THE COURSE OF SEA RCH. HE ACCORDINGLY SUBMITTED THAT NO ADDITION IS CALLED FOR. 8. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED TH AT THE LD.CIT(A) AFTER CONSIDERING THE SURROUNDING CIRCUMSTANCES INCLUDING THE BACKGROUND OF THE ASSESSEE HAS REASONABLY GIVEN CREDIT OF 5 KGS OF SILVER ARTICLES OUT OF 21 KGS OF SILVER AR TICLES FOUND DURING THE COURSE OF SEARCH, THEREFORE, NO FURTHER R ELIEF IS WARRANTED IN THE INSTANT CASE. HE ACCORDINGLY SUBMITTED THAT THE 5 ITA NO.1417/PN/2013 ORDER OF THE CIT(A) BE UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE BE DISMISSED. 9. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOT H THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDER ED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND DURING THE COURS E OF SEARCH SILVER ARTICLES WEIGHING 21,021 GRAMS VALUED AT RS.4,20,420/- WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE . IN ABSENCE OF ANY SATISFACTORY EXPLANATION GIVEN BY THE ASS ESSEE REGARDING THE SOURCE OF SUCH ACQUISITION THE AO MADE ADD ITION OF RS.4,20,420/- TO THE TOTAL INCOME OF THE ASSESSEE. WE FIND IN APPEAL THE LD.CIT(A) CONSIDERING THE FAMILY BACKGROUND OF TH E ASSESSEE AS WELL AS SURROUNDING CIRCUMSTANCES GAVE CRED IT OF 5 KGS OF SILVER ARTICLES VALUED AT RS.1 LAKH AS REASONABLY EX PLAINED AND THUS SUSTAINED THE BALANCE AMOUNT OF RS.3,20,420/-. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT CONSIDERING THE AGRICULTURAL INCOME SHOWN BY THE ASSESSEE AND HIS WIFE NO ADDITION IS CALLED FOR SINCE SUCH AGRICULTURAL INCOME IS UTILIZED FOR ACQUIRING THE SILVER ARTICLES. IT IS ALSO THE SUBM ISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT A PART OF SILVER ARTICLES/JEWELLERY HAS BEEN INHERITED BY THE ASSESSEE FROM HIS PARENTS AND GRAND PARENTS AND IN-LAWS. THEREFORE, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, NO ADDITION IS CALLED FOR. 10. FROM THE DETAILS FURNISHED BY THE ASSESSEE WE FIND TH E ASSESSEE IS NOT A WEALTH TAX ASSESSEE. THERE IS NO DIRE CT EVIDENCE REGARDING DATE-WISE PURCHASE OF SILVER ARTICLES. THERE IS A LSO NO EVIDENCE THAT THE AGRICULTURAL INCOME EARNED BY THE ASSE SSEE AND 6 ITA NO.1417/PN/2013 HIS WIFE IS EXCLUSIVELY UTILIZED FOR PURCHASE OF SILVER ARTICLES/JEWELLERY. THEREFORE, THE PLEA OF THE LD. COUNSEL FO R THE ASSESSEE THAT NO ADDITION IS CALLED FOR IS NOT SUSTAINABLE. HOWEVER, IT IS A FACT TO BE NOTED THAT THE ASSESSEE COM ES FROM A VERY REPUTED FAMILY OF PUNE AND IS ENGAGED IN THE BUSINES S OF MEDICAL PROFESSION. THEREFORE, CUSTOMARY GIFTS MIGHT HAVE BE EN RECEIVED BY THE ASSESSEE ON VARIOUS OCCASIONS IN THE LAS T 35 TO 40 YEARS. FURTHER, THERE IS POSSIBILITY OF INHERITING SOME SILV ER ITEMS BY THE ASSESSEE FROM HIS PARENTS/GRAND PARENTS A ND ALSO BY HIS WIFE FROM HER PARENTS AND IN-LAWS. FURTHER, FROM THE RATE OF SILVER FROM A.Y.1981-82 TO 2009-10 FILED BY THE LD. COUN SEL FOR THE ASSESSEE, WE FIND THE RATE OF SILVER HAS GONE UP F ROM RS.2,715/- PER KG DURING A.Y. 1981-82 TO RS.22,230/- PER K G DURING A.Y. 2009-10. THUS THERE IS WIDE VARIATION IN THE RA TE OF SILVER IN THE LAST 30 YEARS. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE, SILVER JEWELLERY WEIGHING 12 KGS IN OUR OPINION CAN BE CONSIDERED AS REASONABLY EXPLAINED. WE THEREFORE HOLD TH AT ASSESSEE HAS DULY EXPLAINED THE SOURCE OF ACQUISITION OF S ILVER ARTICLES TO THE TUNE OF 12 KGS OUT OF 21,021 GRAMS FOUND DURING THE COURSE OF SEARCH. WE ACCORDINGLY MODIFY THE ORDER OF THE CIT(A) AND DIRECT THE AO TO ACCEPT THE SILVER ARTICLES WEIG HING 12 KGS VALUED AT RS.2,40,000/- AS EXPLAINED AND MAKE ADDITIO N OF THE REMAINING SILVER WEIGHING 9,021 GRAMS VALUED AT RS.1,80,420/- TO THE TOTAL INCOME OF THE ASSESSEE. WE HOL D AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSE E ARE ACCORDINGLY PARTLY ALLOWED. 7 ITA NO.1417/PN/2013 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04-09-2015. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER IQ.KS PUNE ; # DATED : 04 TH SEPTEMBER, 2015. LRH'K ( )'+ , / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ( ) S / THE CIT(A)-II, PUNE 4. ( S / THE CIT- II , PUNE 5. 6. + ., ., IQ.KS / DR, ITAT, B PUNE; / GUARD FILE. / BY ORDER , + + //TRUE COPY// + //TRUE COPY// 2 . / SR. PRIVATE SECRETARY ., IQ.KS / ITAT, PUNE
Mehul