Smt. Pushpaben P. Gandhi, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Circle-1, RAJKOT-GUJARAT

ITA 184/RJT/2014

• Counselvise Citation: 18424914 RSA 2014
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 28-05-2014
• Assessment Year: 1986-1987
• Appeal Filed On: 11-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DR ADHIA
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBULAL, SMC BENCH, RAJKOT BEFORE SHRI T. K. SHARMA, JM ITA NO.184/RJT/2014 ASSESSMENT YEAR : 1986-87 PUSHPABEN P. GANDHI WANKANER PAN : AXUPS 7291 N ( / APPELLANT) THE ACIT, CIRCLE-1 RAJKOT / RESPONDENT / ASSESSEE BY SHRI D.R. ADHIA, AR / REVENUE BY SHRI M.K. SINGH, DR / DATE OF HEARING 28.05.2014 !'# / DATE OF PRONOUNCEMENT 30.05.2014 / ORDER THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DA TED 20.01.2014 OF CIT (A)-I, AHMEDABAD FOR THE ASSESSMENT YEAR 1986-87. 2. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. IN PURSUANCE OF AN ACTION U/S 132, ORNAMENTS WORTH RS.1,64,275/- WERE SEIZED FROM THE BANK LOCKER AT WANKANER WHICH WAS UNDER THE JOINT OWNERSHIP OF THE ASSESSEE. THE ASSESSING OFFICER FRAMED ASSESSMENT U/S 143(3) ON 17.03.1989 WHICH WAS SET ASIDE BY THE LD. CIT(A)-I, RAJKOT VIDE HIS ORDER DATED 24.11.1992. ACCORDINGLY, THE ASSESSING OFFICER MADE A DE-NOVO ASSESSMENT ON 31.03.1995 AND MADE AD DITION OF RS.1,64,275/- IN RESPECT OF VALUE OF GOLD ORNAMENTS SEIZED FROM THE LOCKER JOINTLY HELD BY THE ASSESSEE. ON APPEAL BEFORE THE LD. CIT(A), IT WAS CONTENDED THAT SHRI SUSHIL C. SHAH HAS ACCEPTED THE OWNERSHIP OF THE JEWELLERY IN QUESTION; THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER IN THE HANDS OF THE A SSESSEE ON PROTECTIVE BASIS BE DELETED. HOWEVER, LD. CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER AND CONFIRMED THE ADDITION OF RS.1,64,275/- AS HELD IN PARAGRAPH NO. 12 OF THE IMPUGNED ORDER, WHICH READS AS UNDER:- 12. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND S UBMISSIONS OF THE A.R. OF THE APPELLANT CAREFULLY. IT IS SEEN THAT THE ASS ESSING OFFICER HAS ELABORATELY DISCUSSED THE FACTS IN THE ASSESSMENT ORDER AND HAD HELD THAT THE APPELLANT IS THE OWNER OF THE ASSETS ON PROTECTIVE BASIS. NO EVI DENCE HAS BEEN FIELD TO ESTABLISH THE FACT THAT SHRI SHSHIL C. SHAH HAS ACC EPTED THE OWNERSHIP OF SUCH JEWELLERY. SINCE THE LOCKER ALSO HAD THE NAME OF TH E APPELLANT AS A JOINT OWNER HENCE AS PER SECTION 132(4A) OF THE I.T. ACT, 1961, IT HAS TO BE PRESUMED THAT THE JEWELLERY BELONGED TO THE APPELLANT. THIS PRESU MPTION HAS NOT BEEN REBUTTED WITH EVIDENCE. IN VIEW OF THE ABOVE, THE A SSESSING OFFICER WAS JUSTIFIED IN TREATING THE SUM OF RS.1,64,275/- AS T HE INCOME OF THE APPELLANT. THE SAME IS HENCE CONFIRMED. 2 184-RJT-2014 - PUSHPABEN P. GANDHI 143(3) (SMC) AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE ASSESSE E IS NOW IN APPEAL BEFORE THIS TRIBUNAL, ON THE FOLLOWING GROUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CO NFIRMING ADDITION OF RS.1,64,275/-. THE ADDITION NEEDS DELETION. 2. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.1,64,275/- WITHOUT ACCEPTING EXPLANATION FURNISH ED. THE ADDITION NEEDS DELETION. 3. THE LD. CIT(A) HAS ERRED IN LAW AND FACTS IN CON FIRMING ADDITION OF RS.1,64,275/- WITHOUT CONSIDERING THAT THIS IS A PR OTECTIVE ASSESSMENT WHICH NEEDS DELETION SINCE IN SUBSTANTIVE ASSESSMENT THE SAME HAS BEEN CONFIRMED IN OTHER CASE. THE ADDITION NEEDS DELETION. 3. AT THE TIME OF HEARING, ON BEHALF OF THE ASSESSE E, SHRI D.R. ADHIA, AR, APPEARED AND CONTENDED THAT ADDITION OF AFORESAID J EWELLERY VALUING RS.1,64,275/- WAS ADDED IN THE CASE OF SHRI SUSHIL C. SHAH ON SUB STANTIVE BASIS AND IN THE CASE OF ASSESSEE ON PROTECTIVE BASIS. THE CIT, MUMBAI CITY- VII, MUMBAI HAS RELEASED THE JEWELLERY IN THE CASE OF SHRI SUSHIL C. SHAH AFTER CONSIDERING THE REPORT OF THE ASSESSING OFFICER AND ADDL. CIT, RANGE-7, MUMBAI; T HEREFORE, THERE IS NO JUSTIFICATION FOR CONFIRMING THE ADDITION OF RS.1,64,275/- IN THE HANDS OF ASSESSEE, WHICH WAS MADE ONLY ON PROTECTIVE BASIS WITHOUT EXAMINING THE ORDER OF CIT(A) IN THE CASE OF SHRI SUSHIL C. SHAH. THE LD. COUNSEL OF THE ASSESSE E FURTHER POINTED OUT THAT THE ASSESSEE HAS WRITTEN TO THE ASSESSING OFFICER AS WE LL AS CIT, MUMBAI CITY-VII, MUMBAI TO SUPPLY THE COPY OF THE APPELLATE ORDER IN THE CASE OF SHRI SUSHIL C. SHAH, AS THE SAME WAS NOT AVAILABLE TO HER. REFERRING TO PAGE NO.12 OF THE IMPUGNED ORDER OF LD. CIT(A), THE LD. COUNSEL OF THE ASSESSEE POIN TED OUT THAT WHILE IT IS OPEN TO THE ASSESSING OFFICER TO MAKE A PROTECTIVE ASSESSMENT T O BEAT THE TIME BAR AND PROTECT THE REVENUE, THERE CAN BE NO PROTECTIVE APPELLATE O RDER AS WAS POINTED OUT BY HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. SMT. DURGAWATI SINGH, [1998] 234 ITR 249 (ALL). ON THIS BASIS, LD. COUNSEL FURTHER P OINTED OUT THAT THE IMPUGNED ORDER OF LD. CIT(A) BE SET ASIDE AND THE MATTER BE REMAND ED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT HE SHOULD ASCERTAIN FROM THE ASSESSMENT RECORD OF SHRI SUSHIL C. SHAH IN WHOSE CASE THE JEWELLERY IN QUEST ION WAS ADDED ON SUBSTANTIVE BASIS AND THEREAFTER DELETE THE ADDITION AS IN THIS CASE OF SHRI SUSHIL C. SHAH, THE JEWELLERY IN QUESTION IS RELEASED BY CONCERNED CIT. 3 184-RJT-2014 - PUSHPABEN P. GANDHI 143(3) (SMC) 4. ON THE OTHER HAND, SHRI M.K. SINGH, DR, APPEARED FOR THE REVENUE VEHEMENTLY SUPPORTED THE ORDER OF LD. CIT(A). HE PO INTED OUT THAT IT WAS THE DUTY OF THE ASSESSEE TO FURNISH THE NECESSARY EVIDENCE BEFO RE THE LD. CIT(A) AND SINCE THIS WAS NOT DONE, THE ORDER OF LD. CIT(A) CONFIRMING TH E ADDITION OF RS.1,64,275/- BE UPHELD. 5. HAVING HEARD BOTH THE SIDES, I HAVE CAREFULLY GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AS WELL AS DECISION OF THE HONBL E ALLAHABAD HIGH COURT IN THE CASE OF CIT V. SMT. DURGAWATI SINGH, [1998] 234 ITR 249 (ALL). THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V. SURENDRA GULABCHAND MOD I REPORTED IN [1983] 140 ITR 517 (GUJ) HELD THAT AN APPEAL AGAINST A PROTECTIVE ASSESSMENT SHOULD ORDINARILY AWAIT THE OUTCOME IN THE SUBSTANTIVE ASSESSMENT, SO THAT THE PROTECTIVE ASSESSMENT CAN BE IN CONFORMITY WITH THE SUBSTANTIVE ASSESSMENT. BE THAT IT MAY BE, KEEPING IN VIEW THE ENTIRE CONSPICUOUS FACTS OF THE CASE, I AM OF T HE VIEW THAT IT WAS DUTY OF THE LD. CIT(A) TO CALL FOR A REPORT FROM THE ASSESSING OFFI CER WITH RESPECT TO SHRI SUSHIL C. SHAH IN WHOSE CASE THE ADDITION OF JEWELLERY IN QUE STION AMOUNTING TO RS.1,64,275/- WAS MADE ON SUBSTANTIVE BASIS AND THEREAFTER DECIDE THIS APPEAL ON MERITS. NOW, THE ASSESSEE HAS FILED A RELEASE ORDER DATED 21.12.2000 OF LD. CIT, MUMBAI CITY VII, MUMBAI, FROM WHICH IT APPEARS THAT SEIZED JEWELLERY IS RELEASED TO SHRI SUSHIL C. SHAH. I, THEREFORE, SET ASIDE THE IMPUGNED ORDER O F LD. CIT(A) AND RESTORE THE ADDITION OF RS.1,64,275/- TO THE FILE OF THE ASSESS ING OFFICER WITH THE DIRECTION THAT HE SHOULD VERIFY THE NECESSARY FACTS, OUTCOME OF THE A PPEAL IN THE CASE OF SHRI SUSHIL C. SHAH IN WHOSE CASE THE ADDITION WAS MADE ON SUBSTAN TIVE BASIS AND THEREAFTER RE- ADJUDICATE THE ADDITION OF RS.1,64,275/- AFRESH. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MEN TIONED HEREINABOVE. SD/- ( $.. &' / T. K. SHARMA) ( ) /JUDICIAL MEMBER *)& +) ,/ ORDER DATE: 30.05.2014 !$ /RAJKOT *BT 4 184-RJT-2014 - PUSHPABEN P. GANDHI 143(3) (SMC) / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- PUSHPABEN P. GANDHI, WANKANER 2. / RESPONDENT- THE ACIT, CIRCLE-1, RAJKOT 3. ,0,1 * * 2 / CONCERNED CIT-I, RAJKOT 4. * * 2- / CIT(A)-I, AHMEDABAD 5 . 567 1, * 1#, !$ / DR, ITAT, RAJKOT 6 . 79 :; / GUARD FILE *)& / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT