Assistant Commissioner of Income TAx Central Circle-1(1), Bangalore V. Smt Gunashekari , Bangarpet

ITA 1682/BANG/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4757 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 16-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C H SUNDAR RAO
• Assessee Lawyers: PRATIBHA
• Keywords: Search and seizure
• Section: 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH A BEFORE S HRI N.V. VASUDEVAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER I.T . A. NO. 1682 /BANG/20 17 (ASSESSMENT YEAR : 20 12 - 13 ) ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL C IRCLE 1(1), BANGALORE. . APPELLANT. VS. SMT. GUNASHEKARI, NO.2776, SUMITRAMMAL N I LAYAM, OPPOSITE CANARA BANK, KOLAR ROAD, BANGARPET. .. RESPONDENT. APPELLANT BY : SHRI C.H. SUNDAR RAO, CIT (D.R.) R E SPONDENT BY : SMT. PRATIBHA, ADVOCATE. DATE OF H EARING : 21.05.2018. DATE OF P RONOUNCEMENT : 25 .05 .201 8 . O R D E R PER SHRI INTURI RAMA RAO , A .M . : THIS APPEAL BY THE REVENU E IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 11 , BANGALORE DT.26.5.2017 FOR THE ASSESSMENT YEAR 20 12 - 13. 2. THE REVENUE RAISED THE FOLLOWING GROUND S : 2 IT A NO. 1682 /BANG/201 7 3. BRIEFLY STATED THE FACTS OF THE CASE ARE AS UNDER : 3.1 THE RESPONDENT - ASSESSEE IS AN INDIVIDUAL. THERE WAS A SEARCH AND SEIZURE ACTION UNDER THE PROVISIONS OF SECTION 132 OF THE INCOME TAX ACT, 3 IT A NO. 1682 /BANG/201 7 1961 (IN SHORT 'THE ACT') IN THE CAS E OF M/S. R N SHANMUGAM, BANGARPET ON 20.12.2011, HUSBAND OF THE RESPONDENT - ASSESSEE. DURING THE COURSE OF SEARCH AND SEIZURE ACTION, AS PER INVENTORY DRAWN, AN ESTIMATED JEWELLERY OF 3,979 GRAMS OF GOLD AND 20 KGS OF SILVER WAS FOUND. OUT OF WHICH 2 KG S OF GOLD SEIZED BY THE AUTHORITIES. ACCORDINGLY, THE ASSESSING OFFICER HAD BROUGHT TO TAX THE VALUE OF SUCH GOLD JEWELLERY. ON APPEAL, THE LEARNED CIT (APPEALS) , HE DELETED THE ADDITION ON ACCOUNT OF GOLD /SILVER BY ACCEPT ING THE EXPLANATION OF THE ASSES SEE THAT GOLD OF 776.07 GRAMS OF AND SILVER OF 10 KGS BELONGS TO DAUGHTER - IN - LAW NAMELY SMT. GAYATHRI AND SMT. GAYATHRI ALSO FILED AN AFFIDAVIT. FURTHER THE ADDITION ON ACCOUNT OF BALANCE OF GOLD WAS DELETED PLACING RELIANCE ON THE INSTRUCTION NO.1916 DT. 11.5.1994 OF CBDT WHEREIN IT WAS STATED THAT CREDIT OF 500 GMS OF GOLD FOR EACH MEMBER OF THE FAMILY SHOULD BE GIVEN. BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US. 4. GROUND NO S .1 & 6 ARE GENERAL IN NATURE AND NO ADJUDICATION IS REQUIRED. 5. GROUND NO.2 CHALLENGES THE RELIEF GIVEN BY THE LEARNED CIT (APPEALS) IN RESPECT OF JEWELLERY OF 878 GRAMS OF GOLD. THE LEARNED CIT 4 IT A NO. 1682 /BANG/201 7 (APPEALS) GIVEN RELIEF BASED ON THE INSTRUCTION OF CBDT INSTRUCTION NO.1916 (SUPRA) WHEREIN THE BOARD DIRECTED THAT THE FIELD OFFICER NOT TO SEIZE GOLD AND JEWELLERY OF 500 GMS OF GOLD FOR A MARRIED LADY, 25 0 GRAMS FOR UNMARRIED LADY AND 1 00 GRAMS OF MALE MEMBER OF FAMILY. THE CO - ORDINATE BENCH OF THE TRIBUNAL, HAS BEEN CONSISTENTLY HOLDING THAT THE ADDITION CANNOT BE MADE IN RESPECT OF JEWELLERY IN TERMS OF INSTRUCTION NO.1916 OF CBDT (SUPRA). RELIANCE WAS PLACED ON THE DECISION OF SHRI M. DINESH KUMAR VS. DCIT IN ITA NO.645/BANG/2015 DT.23.10.2017. SINCE THE DECISION OF THE LEARNED CIT (APPEALS) IS BASED ON THE D ECISION OF THE ITAT, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF LEARNED CIT (APPEALS). ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. 6. GROUND NOS.3, 4 & 5 ARE CHALLENGING THE RELIEF GRANTED BY THE LEARNED CIT (APPEALS) MERELY BASED ON AFFIDAVIT FILED BY SMT. GAYATHRI, THE ASSESSEE'S DAUGHTER - IN - LAW IGNORING THE FACT THAT NO EVIDENTIARY PROOFS HAVE BEEN SUBMITTED THAT THE GOLD JEWELLERY WEIGHING 776.70 GRAMS AND SILVER WEIGHING 10 KGS DOES NOT BELONGS TO THE ASSESSEE, BUT BELON GS TO SMT. GAYATHRI. WE FIND FROM THE RECORD THAT THE ASSESSEE HAS BEEN MAINTAINING THE STAND RIGHT FROM THE STAGE OF PROCEEDINGS BEFORE 5 IT A NO. 1682 /BANG/201 7 THE ASSESSING OFFICER THAT THIS MUCH OF JEWELLERY BELONGS TO DAUGHTER - IN - LAW OF THE ASSESSEE AND THEREFORE SHOULD NO T BE ASS ESS ED IN THE HANDS OF THE ASSESSEE. THE ASSESSEE ALSO FILED AN AFFIDAVIT FROM MS. GAYATHRI BEFORE THE LEARNED CIT (APPEALS) HOLDING THAT THIS JEWELLERY BELONGS TO DAUGHTER - IN - LAW OF THE ASSESSEE. CONSIDERING THE CONTENTIONS OF AFFIDAVIT, THE LEA RNED CIT (APPEALS) GRANTED RELIEF. THE VERACITY OF THE AFFIDAVIT IS NOT IN DOUBT AND EVEN BEFORE THE ASSESSING OFFICER, THE ASSESSING OFFICER TOOK SAME STAND. THEREFORE , IN THE ABSENCE OF ANY MATERIAL ON RECORD THE AFFIDAVIT AND THE ORDER OF LEARNED CIT (APPEALS) CANNOT BE FAULTED WITH. ACCORDINGLY, THE GROUND NOS. 3 TO 5 ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 25TH DAY OF MAY, 2 01 8 . SD/ - (N.V. VASUDEVAN) JUDICIAL MEMBER SD/ - ( INTURI RAMA RAO ) ACCOUNTANT MEMBER BANGALORE, DT. 25 .05.2018. *REDDY GP 6 IT A NO. 1682 /BANG/201 7 COPY TO : 1 APPELLANT 4 CIT(A) 2 RESPONDENT 5 DR. ITAT, BANGALORE 3 CIT 6 GUARD FILE SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL BANGALORE.