Smt. Hemanginiben B. Patel, Surat V. DCIT,Central Circle, Surat

ITA 1641/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6352 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 04-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P RASTOGI
• Keywords: Unexplained investment; Gift; Search and seizure

Judgement Text

PAGE 1 OF 4 HEMANGINIBEN B PATEL V. DCIT-CC-3 SURAT I.T.A. NO. 1641/AHD/2017/A.Y.2014-15 , , IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRIH. S. SIDHU, JUDICIAL MEMBER AND SHRI O. P. MEENA, ACCOUNTANT MEMBER . . ./ I.T.A NO.1641/AHD/2017: / ASSESSMENT YEAR: 2014-15 SMT. HEMANGINIBEN B PATEL, 28, SANGAM SOCIETY, PARLEY POINT SURAT 395 007 PAN: AFIPP 2238Q V. DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE -3 SURAT APPELLANT /RESPONDENT ASSESSEE BY SHRI NITIN GHEEWALA, CA REVENUE BY SHRI R. P. RASTOGI, SR. D.R. DATE OF HEARING 15.07.2019 DATE OF PRONOUNCEMENT 17.07.2019 /ORDER PER O. P. MEENA, AM 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-4; SURAT (IN SHORT THE CIT (A)) DATED 15.05.2017 FOR THE ASSESSMENT YEAR 2014-15. 2. THE SOLE GROUNDS OF APPEAL STATES THAT THE LD. CIT (A) HAS ERRED IN CONFIRMING ADDITION OF RS. 3,48,771 OUT OF RS. 7,48,771 ASSUMING UNEXPLAINED INVESTMENT OF SILVER ARTICLE FOUND FROM LOCKER. 3. SUCCINCT FACTS ARE THAT THE ASSESSEE IS RETIRED TEACHER AND HAVING INCOME FROM PENSION AND SHARE IN PARTNERSHIP FIRM. THE PAGE 2 OF 4 HEMANGINIBEN B PATEL V. DCIT-CC-3 SURAT I.T.A. NO. 1641/AHD/2017/A.Y.2014-15 HUSBAND OF THE ASSESSEE IS BANK EMPLOYEE WHO ALSO RETIRED FROM JOB. A SEARCH AND SEIZURE ACTION WAS UNDERTAKEN IN RESPECT OF TWO BANK LOCKER OF THE ASSESSEE WITH BANK OF BARODA WHEREIN SILVER BARS / ARTICLE/ COINS WEIGHING 17.7 KILOGRAMS WORTH RS.7,48,771 WERE FOUND. THE ASSESSEE STATED DURING SEARCH THAT SILVER ARTICLE WERE RECEIVED GIFT FROM HER MOTHER. SOME BARS WERE PURCHASED OUT OF AGRICULTURAL INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS REPEATED SAME CLAIM BEFORE THE AO AND SUBMITTED THAT THESE WERE ACQUIRED FROM AGRICULTURAL INCOME OF HER AND HER HUSBAND AND OUT OF PAST SAVINGS. HOWEVER, THE AO DID NOT BELIEVE THE SAME AND MADE ADDITION OF RS. 7,48,771 ACCORDINGLY. 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE CIT (A). HOWEVER, CIT (A) AFTER CONSIDERING INCOME OF THE ASSESSEE AND HER HUSBAND AND STATUS OF THE FAMILY AND AGRICULTURAL LAND HOLDINGS FELT THAT SUCH FAMILY IS BOUND TO HAVE CERTAIN QUANTITY OF SILVER COINS ETC. FROM CUSTOMARY GIFTS, ANCESTRAL INHERITANCE AND SOME PURCHASES FOR DISCLOSED WITHDRAWALS.THE CIT (A) VIEWED THAT QUANTITY AND AMOUNT, WHICH CAN BE TREATED EXPLAINED IN THE SPIRIT OF CBDT INSTRUCTION 1916, DEPEND ON ABOVE ALL THE FACTORS.IN VIEW OF THESE FACTS AND CIRCUMSTANCES, THE CIT (A) TREATED AN AMOUNT OF RS. 4 LAKHS AS EXPLAINED AND BALANCE OF RS. 3,48,771AS UNEXPLAINED. PAGE 3 OF 4 HEMANGINIBEN B PATEL V. DCIT-CC-3 SURAT I.T.A. NO. 1641/AHD/2017/A.Y.2014-15 5. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT (A) HAS CONSIDERED THE STATUS OF THE ASSESSEE AND ITS LAND HOLDING AND AGRICULTURAL INCOME AND OTHER INCOME AND FAMILY WITHDRAWAL. IT WAS SUBMITTED THAT THE ASSESSEE HAS STATED DURING SEARCH THAT THESE SILVER ARTICLE WERE ACQUIRED OUT OF INHERITANCE AND GIFTS RECEIVED ON VARIOUS OCCASIONS. THE ASSESSEE HAS AND HER HUSBAND ARE ASSESSED TO TAX. THE ASSESSEE HAS SOLD SUGARCANE OF RS. 96 LAKH IN LAST SEVEN YEARS, WHICH WAS DISTRIBUTED AMONG FOUR MEMBERS OF HUF, WHICH INCLUDED HER HUSBAND SHRI BHUPENDRABHAI ALSO. THE SAME WAS DEPOSITEDIN BANK ACCOUNT OF THE ASSESSEE. THEREFORE, LD. CIT (A) WAS NOT JUSTIFIED IN ACCEPTING PART AS EXPLAINED AND PART AS UNEXPLAINED. 6. PER CONTRA, THE LD. SR. D.R. RELIED ON CIT (A). 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE HAS EARNED AGRICULTURAL INCOME FROM SALE OF SUGARCANE AT RS. 96 LAKH IN LAST SEVEN YEARS WHICH WAS DIVIDED BETWEEN FOUR MEMBERS OF HUF IN WHICH HUSBAND OF THE ASSESSEE HAS RECEIVED 20 LAKH AFTER DEDUCTION OF EXPENSES. THE ASSESSEE AND HER HUSBAND ARE BEING ASSESSED FROM LAST SEVERAL ASSESSMENT YEARS AS PER DETAILS SUBMITTED BEFORE LOWER AUTHORITIES. THE CIT (A) HAS ALSO ACCEPTED THAT AS PER CBDT INSTRUCTION, THE ASSESSEE HAS SHOULD BE ALLOWED PAGE 4 OF 4 HEMANGINIBEN B PATEL V. DCIT-CC-3 SURAT I.T.A. NO. 1641/AHD/2017/A.Y.2014-15 THE WEIGHTAGE OF HOLDING OF SILVER COIN AND ARTICLE. CONSIDERING THE SPIRIT OF CBDT INSTRUCTION 1916 AND THE FACTS THAT IT IS CUSTOMARY TO RECEIVE SUCH GIFTS ON VARIOUS OCCASION. FURTHER, INHERITANCE OF SUCH ITEMS IS ALSO CANNOT BE DENIED. AS PER DETAILS FILED WITH APPELLATE AUTHORITIES, THE ASSESSEE HAS CLAIMED OF HAVING CASH IN HAND OF RS. 41 LAKH IN THE LAST SIX YEARS. CONSIDERING, THESE FACTS AND THERE IS NO CONTRADICTION IN THE CLAIM MADE DURING SEARCH PROCEEDING, WE ARE OF THE CONSIDERED OPINION THE CIT (A) WAS NOT JUSTIFIED IN ACCEPTING PART AND TREATING PART AS UNEXPLAINED INVESTMENT. THEREFORE, THE ADDITION OF RS. 3,48,771 SUSTAINED BY THE CIT (A) IS THEREFORE, DIRECTED TO BE DELETED. THUS, SOLE GROUNDS OF APPEAL IS ALLOWED 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 9. THE ORDER PRONOUNCED IN THE OPEN COURT ON 17.07.2019. SD/- SD/- (H. S. SIDHU) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT: DATED: 17 TH JULY, 2019/OPM COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER // TRUE COPY // ASSISTANT REGISTRAR, SURAT