Ichara Bai, Ooty V. AO, Ooty

ITA 190/CHNY/1998

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6496 (ITAT-CHENNAI)
• Duration Of Justice: 13 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 30-06-2011
• Assessment Year: 1994-1995
• Appeal Filed On: 03-02-1998
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: S SRIDHAR
• Keywords: Unexplained investment; Retraction
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. I.T.A. NO. 190/MDS/1998 ASSESSMENT YEAR : 1994-95 SHRI L. MOOLCHAND, L/H OF LATE SMT. ICHARA BAI, C/O VARIETY HALL, MAIN BAZAAR, OOTACAMUND. V. THE ASSESSING OFFICER, WARD-I(1), OOTY. (PAN/GIR NO.1266-I) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. SRIDHAR RESPONDENT BY : SHRI ANIRUDH RAI O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED CIT(APPEALS), COIMBATORE IN I.T. APPEAL NO. 95/97-9 8/OOTY DATED 28-04-1997 FOR THE ASSESSMENT YEAR 1994-95. I.T.A. NO. 190/MDS/1998 2 2. SHRI S. SRIDHAR, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI ANIRUDH RAI, LEARNED CIT-DR REPRESENTED ON BEHALF O F THE REVENUE. 3. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE EXPIRED ON 24-04-2000. THE LEGAL HEIRS HAVE BEEN BROUGHT O N RECORD NAMELY, NAME OF THE LEGAL HEIRS RELATIONSHIP AGE 1. SHRI L. MOOLCHAND HUSBAND 67 MARRIED 2. SHRI M. GOUTHAMCHAND SON 46 MARRI ED 3. SHRI M. JAYANTILAL SON 44 MARRIED 4. MRS. TARABAI DAUGHTER 42 MARRIED 5. MRS. LALITHABAI DAUGHTER 40 MARRIED 6. MRS. GEETHABAI DAUGHTER 38 MARRIED 4. IT WAS THE SUBMISSION BY THE LEARNED AUTHORIZED REPRESENTATIVE THAT THE ONLY ISSUE IN THIS APPEAL WAS REGARDING THE ADDITION REP RESENTING THE TREATMENT OF 15 KG. OF SILVER FOUND IN THE COURSE OF SEARCH AS THE UNEXPLAINED INVESTMENT. IT WAS THE SUBMISSION THAT THERE WAS A SEARCH ON THE PREMI SES OF THE ASSESSEE IN NOVEMBER, 1993. IT WAS THE SUBMISSION THAT IN THE COURSE OF THE SEARCH 800 GMS. OF GOLD ORNAMENTS AND 15 KG. OF SILVER WERE FO UND AND TREATED AS UNEXPLAINED AND SEIZED. IT WAS THE SUBMISSION THAT IN THE STATEMENT GIVEN UNDER SECTION 132(4) BY THE HUSBAND OF THE ASSESSEE HE HA D OFFERED THE ASSETS AS UNEXPLAINED INCOME OF THE ASSESSEE FOR THE ASSESSME NT YEAR 1994-95. IT WAS THE I.T.A. NO. 190/MDS/1998 3 SUBMISSION THAT 15 KG. SILVER REPRESENTED PART OF T HE ASSESSEES DOWRY AND PARTLY ACCRETION DURING THE VARIOUS YEARS. IT WAS THE SUB MISSION THAT THE TOTAL AMOUNT COULD NOT BE TREATED AS THE UNEXPLAINED INVESTMENT DURING THE YEAR. IT WAS THE SUBMISSION THAT THOUGH THE ASSESSEES HUSBAND HAD G IVEN A STATEMENT AGREEING THAT THE INVESTMENT WAS THAT OF THE ASSESSEE DURING THE RELEVANT ASSESSMENT YEAR, THE SAME COULD NOT BE TREATED AS SUCH ESPECIA LLY IN VIEW OF THE FACT THAT EVEN THOUGH IN THE COURSE OF SEARCH 800 GM. GOLD OR NAMENTS HAD BEEN AGREED TO BY THE ASSESSEES HUSBAND AS THE UNEXPLAINED INVEST MENT OF THE ASSESSEE, THE SAME HAD BEEN EXPLAINED IN THE COURSE OF ASSESSMENT AND THIS HAD ALSO BEEN ACCEPTED IN THE ASSESSMENT ORDER. IT WAS THE SUBMI SSION THAT THE STATEMENT GIVEN BY THE ASSESSEES HUSBAND WAS UNDER MISTAKEN IMPRESSION AND DUE TO PRESSURE ON ACCOUNT OF THE SEARCH. IT WAS THE FURT HER SUBMISSION THAT THE STATEMENT OF THE ASSESSEES HUSBAND SHOULD NOT BE U SED AGAINST THE ASSESSEE. HE VEHEMENTLY SUBMITTED THAT NO ADDITION IS LIABLE TO BE MADE IN THE HANDS OF THE ASSESSEE. 5. IN REPLY, THE LEARNED DR SUBMITTED THAT THE ASSE SSEES HUSBAND HAD GIVEN A STATEMENT ACCEPTING THE INVESTMENT IN THE HANDS OF THE ASSESSEE AND THERE WAS NO RETRACTION BY THE ASSESSEE. IT WAS THE SUBMISSI ON THAT NO EVIDENCE HAD BEEN PRODUCED TO SHOW THAT THE SILVER FOUND WAS ACQUIRED IN ANY OF THE EARLIER YEARS. HE VEHEMENTLY SUPPORTED THE ORDERS OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). I.T.A. NO. 190/MDS/1998 4 6. IN REPLY, THE LEARNED AUTHORISED REPRESENTATIVE FAIRLY AGREED THAT DUE TO THE PASSAGE OF TIME NO EVIDENCES WERE AVAILABLE. IT WA S THE SUBMISSION THAT CONSIDERING THE STATUS OF THE FAMILY AND LOOKING IN TO THE GOLD JEWELLERY ITSELF WHICH WAS FOUND DISCLOSED AND ACCEPTED, A REASONABLE PRES UMPTION IN REGARD TO THE ACQUISITION OF SILVER JEWELLERY COULD BE MADE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOTICED THAT WHEN THE SEARCH TOOK PLACE IN 1993 ITSELF THE ASSESSEE WAS F OUND HAVING NEARLY 4.15 KG. OF GOLD AND THIS GOLD WAS FOUND TO HAVE BEEN EXPLAINED AND NO ADDITION ON THIS COUNT HAS BEEN MADE IN THE ASSESSMENT ORDERS ALSO. THIS ITSELF SHOWS THAT THE ASSESSEE WAS NOT A PERSON OF SMALL MEANS. OBVIOUSL Y, NO PERSON WOULD ACQUIRE ALL HIS JEWELLERY AND SILVER ARTICLES IN ONE YEAR. A REASONABLE PRESUMPTION WOULD IN SUCH A CASE BE CALLED FOR. IN THE CIRCUMSTANCES , CONSIDERING THE STATUS OF THE FAMILY, A PRESUMPTION IS DRAWN THAT THE POSSIBLE AC QUISITION OF THE SILVER ARTICLES FOUND IN THE COURSE OF SEARCH OF 15 KG. COULD NOT H AVE BEEN PURCHASED DURING THE RELEVANT ASSESSMENT YEAR ITSELF. HOWEVER, KEEPING IN VIEW THE FACT THAT THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE ANY EVIDENCE TO SHOW THE YEAR OF ACQUISITION OF SILVER ARTICLES, WE FEEL THAT AN ADD ITION REPRESENTING 10 KG. OF SILVER ARTICLES FOUND IN THE COURSE OF SEARCH AS UNEXPLAIN ED INVESTMENT DURING THE RELEVANT ASSESSMENT YEAR WOULD MEET THE INTEREST OF JUSTICE. IN THE CIRCUMSTANCES, THE ASSESSING OFFICER IS DIRECTED TO TREAT 10 KG. OF SILVER ARTICLES OUT OF THE 15 KG. SILVER ARTICLES FOUND AS THE UNEX PLAINED INVESTMENT DURING THE I.T.A. NO. 190/MDS/1998 5 RELEVANT ASSESSMENT YEAR IN THE HANDS OF THE ASSESS EE. IN THE CIRCUMSTANCES, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 8. THE ORDER WAS PRONOUNCED IN THE COURT ON 30/06/2 011. SD/- SD/ - (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 30 TH JUNE, 2011. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE