Smt. Dalvinder Kaur Ryait, Ludhiana V. DCIT, CC-II, Ludhiana

ITA 1515/CHANDI/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4970 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-05-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 01-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KANITA GUPTA
• Keywords: Unexplained investment; Salary income; Difference of opinion
• Section: 69; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH A, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 1515/CHD/2 017 ASSESSMENT YEAR: 2008-09 SMT. DALVINDER KAUR RYAIT, VS. THE DCIT, 208-H, BHAI RANDHIR SINGH NAGAR, CENTRAL CIRCLE-I I, LUDHIANA. LUDHIANA. PAN NO. : AEGPR1651E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI KUMAR, CA & MS. KANITA GUPTA, CA RESPONDENT BY : SMT. CHANDERKANTA, ADDL. CIT DATE OF HEARING : 02.05.2018 DATE OF PRONOUNCEMENT : 09.05.2018 ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 19.09.2017 OF LD. CIT(APPE ALS) LUDHIANA PERTAINING TO 2008-09 ASSESSMENT YEAR ON THE FOLLOWING GROUND : 1. THAT ORDER PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS)-5, LUDHIANA IS AGAINST LAW AND FACTS ON THE FILE IN AS MUCH HE WAS NOT JUSTIFIED TO ARBITRARILY UPHOLD THE ADDITION OF RS. 8,08,737/- MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEW ELLERY FOUND FROM LOCKER U/S 69 OF THE INCOME TAX ACT, 1961. 2. THAT THE LD. CIT(A) GRAVELY ERRED IN IGNORING THE F ACT THAT CREDIT FOR ISTRI DHAN AND SOME PART OF JEWELLERY BELONGING TO CHILDREN WAS TO BE A LLOWED PARTICULARLY IN VIEW OF INSTRUCTION NO. 1916 DATED 11.05.1994 ISSUED BY CBD T. 2. BOTH THE PARTIES HAVE BEEN HEARD. RELEVANT FACTS O F THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALARY A ND INTEREST. THE ASSESSEE WAS SEARCHED U/S 132 ON 15.12.2014 AND FROM T HE LOCKER OF THE ASSESSEE IN PUNJAB & SIND BANK AND JEWELLERY WEIGHING 667 GMS. WAS SEIZED. THE ASSESSEE'S CASE WAS CONSEQUENTLY OPENED FOR RE-A SSESSMENT WHEREIN ADDITION OF RS. 8,08,737/- WAS MADE BY THE AO BY HIS ORDE R U/S 143(3)/147 DATED 15.03.2016 TO THE RETURNED INCOME OF RS. 4,09,898/- WHICH STOOD PROCESSED ON 31.07.2008. THE ASSESSEE CHALLENGED THE A DDITION BEFORE THE CIT(A) REITERATING THE SUBMISSIONS ADVANCED BEFORE THE AO. IT IS SEEN THAT THE ASSESSEE RE-ITERATED THAT THE ASSESSEE'S FAMILY CONSIS TED OF HER HUSBAND SHRI ITA 1515/CHD/2017 A.Y. 2008-09 2 JASBIR SINGH RYAIT, A SON AND A DAUGHTER AND THE SAID J EWELLERY HAD BEEN ACQUIRED OVER THE YEARS. THE LOCKER STOOD LAST OPERATE D ON 11.01.2008. THUS, ADMITTEDLY THE JEWELLERY THEREIN WAS PRIOR TO THAT. AP ART FROM THIS, JEWELLERY FOUND IN LOCKER NO. 60/3 IN PUNJAB & SIND BANK, FEROZEPUR ROAD, LUDHIANA, IT WAS SUBMITTED THAT JEWELLERY HAD ALSO BEEN FOUND FROM T HE RESIDENCE ON 03.12.2014 AND LOCKER NO. 33 WITH HDFC BANK, B.R.S NAGAR, LUDHIANA WH ICH WAS VALUED AT RS. 1,21,21,980/-. IT WAS SUBMITTED, THAT TH E ASSESSEE'S HUSBAND HAD ALREADY SURRENDERED AN AMOUNT OF RS. 1,15,46 ,580/- AND HAD DECLARED IT IN HIS RETURN FOR 2015-16 ASSESSMENT YEAR. T HE ADDITION IN THE CIRCUMSTANCES, BY THE AO WHEN CONSIDERED IN THE LIGHT OF THE CBDT CIRCULAR NO. 1916 DATED 11.05.2004, IT WAS SUBMITTED, DID NOT WARRAN T ANY ADDITION AS JEWELLERY WEIGHING 900 GMS. ITSELF IS ALLOWABLE, 667 GMS. WAS MUC H BELOW THE SAID LIMIT. RELIANCE WAS PLACED UPON CIT V SATYA NARAIN PAT NI (2014) 366 ITR 325 (RAJ). THE FOLLOWING PROPOSITION OF LAW LAID DOWN THEREIN A S RECORDED IN THE IMPUGNED ORDER AND REITERATED IN THE PRESENT PROCE EDINGS BY THE LD. AR WAS RELIED UPON : 'ADMITTEDLY, LOOKING TO THE STATUS OF THE FAMILY AN D THE JEWELLERY FOUND IN POSSESSION OF FOUR LADIES, WAS HELD TO BE REASONABLE AND THEREFOR E, THE AUTHORIZED OFFICERS, IN THE FIRST INSTANCE, DID NOT SEIZE THE SAID JEWELLERY AS THE SAME BEING WITHIN THE TOLERABLE LIMIT OR THE LIMITS PRESCRIBED BY THE BOARD AND, TH US, SUBSEQUENT ADDITION IS ALSO NOT JUSTIFIABLE ON THE PART OF THE ASSESSING OFFICER AN D RIGHTLY DELETED BY BOTH THE TWO APPELLATE AUTHORITIES NAMELY COMMISSIONER (APPEALS) AS WELL AS THE TRIBUNAL.' 2.1 THUS, IT WAS ARGUED THAT NO PART OF THE JEWELLERY REM AINED UNEXPLAINED. HOWEVER, THE SAID SUBMISSION OF THE ASSESSEE WAS NOT ACC EPTED BY THE CIT(A) ON THE FOLLOWING REASONING : 3.2 GROUND OF APPEAL NO. 2 PERTAINS TO ADDITION OF RS. 8,08,737/- MADE BY THE AO U/S 69 OF THE INCOME TAX ACT, 1961 ON ACCOUN T OF UNEXPLAINED JEWELLERY FOUND FROM LOCKER. THE FACTS OF THE CASE AS MENTION ED IN THE ASSESSMENT ORDER ARE THAT JEWELLERY WORTH RS. 18,00,900/- WAS SEIZED FROM THE LOCKER OF THE ASSESSEE WITH PUNJAB & SIND BANK ON 15.12.2014. IT WAS HOWEVER NOTICED THAT THE LOCKER WAS LAST OPERATED ON 11.01.2008, THEREFO RE THE JEWELLERY WAS TO BE ASSESSED IN THE ASSESSMENT YEAR 2008-09. IT IS FURT HER MENTIONED THAT SH.'JASBIR SINGH RYAIT, HUSBAND OF THE ASSESSEE OFFERED EXCESS AMOUNT OF JEWELLERY FOUND DURING SEARCH FOR TAXATION AND MADE A SURRENDERED OF RS. 1,15,46, 580/-(INCLUDING THE VALUE OF JEWELLERY SEIZED FROM THE LOCKER VALUED AT RS. 18,0 0,900/-) IN HIS STATEMENT RECORDED U/S 132 ON 02.01.2015 AS UNEXPLAINED INVESTMENT IN GOLD ITEM AND JEWELLERY FOR FINANCIAL YEAR 2014-15. AS PER AO, SINCE THE JEWELLERY IN LOC KER WAS TO BE ASSESSED IN THE ASSESSMENT YEAR 2008-09, THE CASE WAS RE-OPENED U/S 147. AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE AO MADE ADDITION OF RS. 8,08,737/- BY APPLYING THE GOLD RATE RELEVANT TO ASSESSMENT YEAR 2008-09 IN RESPECT OF J EWELLERY FOUND FROM THE LOCKER. THE FACTS OF THE CASE, THE BASIS OF ADDITION BY THE AO AND THE ARGUMENTS OF THE AR DURING THE APPELLATE PROCEEDINGS HAVE BEEN CONSIDERED. THE RE IS NO DIFFERENCE OF OPINION THAT THE JEWELLERY FOUND FROM THE LOCKER, WHICH WAS LAST OPE RATED ON 11.01.2008, WAS TO BE ASSESSED IN THE ASSESSMENT YEAR 2008-09. IT IS ALSO NOT CONT ESTED BY THE AR THAT THE JEWELLERY WAS NOT DECLARED IN THE RETURNS FILED WITH THE DEPARTME NT. HENCE, THIS JEWELLERY WAS TO BE ASSESSED AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE DURING ASSESSMENT YEAR 2008-09. THE ARGUMENT OF THE AR IS WITH RESPECT TO THE AMOUNT OF ADDITION TO BE MADE IN THE HANDS OF THE ASSESSEE FOR THE JEWELLERY FOUND F ROM THE LOCKER. THE AR HAS ARGUED THAT ITA 1515/CHD/2017 A.Y. 2008-09 3 ASSESSEE IS ENTITLED FOR BENEFIT AS PER CBDT CIRCUL AR NO. 1916 DATED 10.05.1994. HERE IT IS RELEVANT TO NOTE THAT THE AR HAS ALSO ADMITTED IN T HE SUBMISSION THAT THE SURRENDER OF RS. 1,15,46,580/- ON ACCOUNT OF JEWELLERY WAS MADE BY SH. JASBIR SINGH RYAIT AFTER AVAILING THE BENEFIT OF 900 GMS OF JEWELLERY VALUING RS. 23, 73,300/- OUT OF TOTAL JEWELLERY FOUND AT THE RESIDENCE AND THE LOCKER OF THE ASSESSEE. FROM THE FACTS MENTIONED IN THE SUBMISSIONS FILED BY THE AR IT IS CLEAR THAT THE ASSESSEE HAS A LREADY AVAILED THIS BENEFIT WHILE MAKING THE SURRENDERED ON ACCOUNT OF JEWELLERY. THUS THE ADDIT IONAL INCOME HAS BEEN DECLARED IN THE ASSESSMENT YEAR 2015-16 AFTER AVAILING THE BENE FIT. UNDER THE FACTS THE ASSESSEE CANNOT CLAIM BENEFIT OF ANOTHER 900 GMS OF JEWELLER Y FOR ASSESSMENT YEAR 2008-09 ALSO. THE BENEFIT CAN BE CLAIMED ONLY ONCE AND NOT YEAR A FTER YEAR. THEREFORE, THE ARGUMENTS OF THE AR ARE NOT FOUND ACCEPTABLE AND THE ADDITION MA DE BY THE AO IS CONFIRMED. ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. 3. ON GOING THROUGH THE MATERIAL AVAILABLE ON RECORD, WE FIND IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, ADD ITION ON FACTS WAS NOT JUSTIFIABLE IN THE HANDS OF THE ASSESSEE. IT IS SEEN THAT THE ASSESSEE BEING A MARRIED LADY WITH TWO CHILDREN (A DAUGHTER AND A SON) IN TERMS OF THE CBDT CIRCULAR RELIED UPON, IN THE LIGHT OF THE DECISION CITED AND SP ECIFICALLY WHEN CONSIDERED IN THE PECULIAR BACKGROUND WHERE HER HUSBAND HAS SURRENDERED AN AMOUNT OF RS. 1,15,46,580/- SPECIFICALLY FOR JEWELLERY, THE DEPARTMENTAL STAND TO MAKE THE ADDITION IN THE PECULIAR FACTS OF THE PR ESENT CASE IN THE HANDS OF THE ASSESSEE CANNOT BE UPHELD. THE ASSESSE E IN THE COURSE OF HER ARGUMENTS BEFORE THE AO AND CIT(A) HAS LED ARGUMENTS WH ICH STAND UN- REBUTTED ON RECORD THAT LOCKER WAS LAST OPERATED ON 1 1.01.2008. WE FIND THAT NOTHING HAS BEEN PLACED ON RECORD TO ASSUME THAT JEWE LLERY WOULD HAVE NECESSARILY BEEN PURCHASED IN THE YEAR UNDER CONSIDERA TION. THE UNREBUTTED SUBMISSION ON RECORD REMAINS THAT THE SPECIFIC JEWELLERY HA S BEEN ACCUMULATED OVER THE YEARS ON VARIOUS OCCASIONS I.E. AT THE TIME OF MARRIAGE, BIRTH OF CHILDREN ETC. ETC. AND WE FIND NO GOOD REASON WHY IN THE CASE OF THE ASSESSEE, THE SAID ADDITION HAS BEEN MADE OR SUSTAINED. ACCEPTING THE ARGUMENTS OF THE ASSESSEE, THE ADDITION IS DIRECTED TO BE DELETED. ORDERED ACCORDINGLY. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.05. 2018. SD/- SD/- (ANNAPURNA GUPTA) (DIVA SI NGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT CHANDIGARH