CHANDER R. GUPTA, MUMBAI V. ITO WD 12(2)(1), NAVI MUMBAI

ITA 2023/MUM/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3673 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-11-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Unexplained cash credit; Gift; Valuation report
• Section: 68; 54

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SM C BENCH, MUMBAI , BEFORE SHRI SANJAY ARORA, AM ./ I.T.A. NO. 2023 /MUM/201 4 ( / ASSESS MENT YEAR: 2008 - 09 ) S MT. CHANDER R. GUPTA 8 AMEYA APARTMENT, NEAR AMAR THEATRE, CHEMBUR , MUMBAI - 400 0 71 / VS. ITO WD - 12 (2 (1) , ROOM NO.419, TOWER NO.56, 4 TH FLOOR, VASHI RLY. STN. COMPLEX, VASHI , NAVI MUMBAI 400 703 ./ ./ PAN /GIR N O. ADMPG 5479 L ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : NONE / RESPONDENT BY : SHRI B.S. BIST / DATE OF HEARING : 18.11.2015 / DATE OF PRO NOUNCEMENT : 15 .01.2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN A PPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 33 , MUMBAI (CIT(A) FOR SHORT) DATED 29.11.2013 , DISMISSING THE ASSESSEES AP PEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09 VIDE ORDER DATED 03.12.2010 . 2 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE WHEN HER APPEAL WAS CALLED OUT FOR HEARING , NOR ANY ADJOURNMENT APPLICATION MOVED . THE NOTICE OF HEARING FOR TODAY INSTANT, SENT PER REGISTERED POST (RPAD) ON 28.10.2015, REMAINS UNRETURNED. SIMILAR NOTICES IN THE PAST , I.E., FOR 16/6/2015, 06/7/2015, 04/8/2015 AND 1 6 /9/2015, WERE OBSERVED TO HAVE MET THE SAME FATE, AND REMAINED UN - RESPONDED. THERE IS ALSO NO POWER OF ATTORNEY ON RECORD. UNDER THE CIRCUMSTANCES, IT WAS ONLY CONSIDERED PROPER THAT THE HEARING OF THE APPEAL BE PROCEEDED WITH, AND THE MATTER DISPOSED OF AFTER HEARING THE PARTY BEFORE US, CONSIDERING THE MATERIAL ON RECORD. 3 . THE ISSUE IN DISPUTE IN THE INSTANT CASE IS THE VALID I T Y OR OTHERWISE IN LAW OF THE ADDITION IN THE SUM OF RS.10,08,702/ - , FOUND CREDITED TO THE ASSESSEES CAPITAL ACCOUNT , A S PER THE BALANCE SHEET AS ON 31. 03.2008, FILED ALONG WITH THE RETURN OF INCOME FOR THE YEAR , FILED ON 30.07.2008 AT AN INCOME OF RS.2,28,802/ - , I.E., IN THE FACTS AND CIRCUMSTANCES OF THE CASE . I SHALL PROCEED BY DELINEATING THE RESPECTIVE CASES OF BOTH THE SIDES , AS BORNE OUT BY THE REC ORD. THE ASSESSEES CASE 4.1 THE A SSESSEES EXPLANATION TOWARDS THE IMPUGNED CREDIT IS OF IT BEING THE SALE PROCEEDS OF G OLD J EWELLERY (10 4 4.300 GRAMS), RECEIVED BY HER ON THE OCCASION OF HER MARRIAGE IN 1982 , AS WELL AS ON T HE BIRTH OF FIRST D AUGHTER A ND FIRST S ON, AS I S COMMON IN H INDU MARWARI FAMILIES, TO ONE WHICH SHE BELONGS, BEING RATHER A PART OF HER STREEDHAN. I N F ACT, EVEN THE REVENUE , IN VIEW THEREOF, VIDE CBDT I NSTRUCTION NO. 1 916 DATED 11.05.1994 , DIRECTS ITS OFFICERS NOT TO SEIZ E GOLD ORNAME NTS TO THE EXTEN T OF 500 GRAMS IN SEARCH IN THE CASE OF A MARRIED LADY . THE JEWELLERY IS, FURTHER, DULY REFLECTED IN HER WEALTH TAX RETURNS FOR ASSESSMENT YEAR S (A.Y S .) 2006 - 07 AND 2007 - 08, AND BACKED UP BY VALUATION REPORT (DATED 28.12.2007) FROM A N APPRO VED V ALUE R (KUMARPAL UMEDMAD JAIN), BESIDES BY SALES BILLS ISSUED BY THE J EWELLER , M /S. VIMAL S ONS JEWELLERS, ZAVERI BAZAAR, MUMBAI. 3 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O THE REVENUES CASE 4.2 THE REVENUES CASE , ON THE OTHER HAND, IS THAT THE ASSESSEE IS EVEN AS SUCH A S NOT CLEAR ON THE YEA R/S OF ACQUISITION OF J EWELLERY SOLD , FILING DIFFERENT DETAILS AT DIFFERENT TIMES. WHILE THAT A CC OMPANY ING HER RETURN OF INCOME STATES OF JEWEL L ER Y, VALUED AT RS.1.08 LACS AND RS.0.38 LACS , AS ACQUIRED IN THE YEAR S 1981 AND 1982 RESPECTIVELY , THAT FIL ED SUBSEQUENTLY (DURING THE ASSESSMENT PROCEEDINGS), SHOWED JEWELLERY ACQUIRED AT RS.0.38 LACS AND RS.2.11 LACS DURING THE YEAR 1982 & 1987 - 88 RESPECTIVELY (REFER PAGES 2 AND 3 OF THE A SSESSMENT O RDER). FURTHER, THE J EWELLERY HAD NEVER BEEN REFLECTED IN HER C APITAL ACCOUNT OR OTHERWISE IN HE R B ALANCE - SHEET S, FILED ALONG WITH HER RETURN S INCOME FROM YEAR TO YEAR. THE VALUATION REPORT IS, AGAIN , NOT RELIABLE. THIS IS AS WHILE THE SAME VALUES 1550.150 GMS OF JEWELLERY , STATED TO BE RECEIVED BY THE ASSESSEE BY WAY OF GIFTS FROM THE YEAR 1981 TO 2003 - 04, JEWELLERY WORTH RS.4,62,124/ - HAS ADMITTED LY BE E N SOLD PRIOR TO 28.12.2007, THE DATE OF THE VALUATION REPORT , AS UNDER: RS.1,37,954/ - DURING F . Y . 2005 - 06 RS.99,351/ - DURING F . Y . 2006 - 07 RS.2,34,819/ - DURING F . Y . 2007 - 08 (UP TO 27.12.2007) [REFER PAGES 6, 7 AND PARA 2.2 OF THE ASSESSMENT AND IMPUGNED ORDER RESPECTIVELY ] CLEARLY, IF, AS STATED , 1550.150 GMS . IS THE TOTAL JEWELLERY ADMITTEDLY RECEIVED BY THE ASSESSEE , HOW COULD ALL OF ITS BE AVAILABLE AT THE TIME OF V ALUATION ( 28.12.2007), GIVEN I TS ADMITTED SALE PRIOR THERETO. THEN , AGAIN , THE REPORT SHOWS BOTH THE GROSS AND NET WEIGHT OF JEWELLERY AT 1550.150 GMS. HOW COULD THAT BE IN THE CASE OF J EWELLERY ? THE WEALTH - TAX RET URNS ALSO WOULD BE TO NO CONSEQUENCE. THIS IS AS, FIRSTLY, THE SAID RETURNS WERE NOT RE QUIRED TO BE FILED IN - AS - SUCH AS THE ASSESSEES WEALTH IS NOT TAXABLE FOR THE RELEVANT YEARS . SECONDLY, THE SAME , FILED FOR A.Y S . 2006 - 07 & 2007 - 08 , HAVE BEEN SO ONLY ON 08.01.2008 & 09.01 .2008 RESPECTIVELY, I.E., BELATEDLY. NEVER IN THE 4 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O PAST HAD WEALTH - TAX RETURN S BEEN FILED , AND THE SAME ARE CLEARLY TO BACK UP HER CLAIM QUA J EWELLERY. FINDINGS 5. WE HAVE HEARD THE PART Y BEFORE US, AND PERUSED THE MATERIAL ON RECORD. 5.1 IT IS OBSERVED THAT THE REVISED CO MPUTATION OF CAPITAL GAIN ON THE SALE OF GOLD JEWELLERY , FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SHOWS THE JEWELLERY SOLD TO HAVE BEEN ACQUIRED IN 1981 AND 1987 - 88, AT RS.38,345/ - AND RS.2,10,674/ - RESPECTIVELY (REFER PAGE 3 O F THE ASSESSMENT OR DER). THIS IS IN CONSISTENT WITH THE YEAR - WISE BREAK - UP OF THE ACQUISITION OF JEWELLERY , STATED TO BE RECEIVED AS GIFTS FROM PARENTS AND OTHER RELATIVES ON DIFFERENT OCCASIONS, WHICH IS AS UNDER: - FROM 1981 TO 09.12.1985 : 1350.850 GRAMS F.Y. 2003 - 04 : 199.300 GRAMS THAT IS , N O JEWELLERY IS ACQUIRED DURING F.Y. 1987 - 88 . FURTHER, THE COST OF THE JEWELLERY INDEXED AT 551/100 , I.E., ON THE BAS E RATE OF 100 , IS RS.38,345/ - , WHILE THE JEWELLERY ADMITTEDLY ACQUIRED IN 1981 IS FOR RS.17,500/ - (95.100 GMS). T HEN , AGAIN, THE DATE OF ENGAGEMENT, I.E., THE OCCASION IN 1981 W H EREAT THE JEWELLERY IS STATE D T O HAVE BEEN RECEIVED FROM PARENTS , IS N OT DISCLOSED, TO BE ABLE TO ASCERTAIN IF IT FALLS BEFORE OR AFTER 01.04.19 8 1, THE DATE WITH REFERENCE TO WHICH THE BASE R ATE OF 100, AS APPLIED, IS APPLICABLE. IT MAY BE ARGUED THAT THESE MISTAKES /DISCREPANCIES, NOT POINTED OUT BY THE REVENUE , COULD IN ANY CASE BE CORRECT ED . TRUE, THAT INFACT WOULD HAVE TO BE ADD RESS ED AND , WHERE REQUIRED, CORRECT ED, EVEN AS THE SAME REFURBI SHES THE REVENUES CHARGE THAT THE DETAILS SUBMITTED BY THE ASSESSEE, WITHOUT ANY CONTEMPORANEOUS EVIDENCE, ARE NOT WITHOUT BLEMISH, AND NOT WHOLLY RELIABLE. FURTHER, THE SAID ARGUMENT WOULD HOLD, TO ANY EXTENT, WHERE THE A SSESSEE S EXPLAN ATION OF THE IMPU GNED CREDIT AS ON ACCOUNT OF SALE OF JEWELLERY IS ACCEPTED BY THE REVENUE , AND WHICH IT HAS NOT . 5 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O 5.2 TOWARD THE EXPLANATION, WE FIND THAT THE ASSESSEE NO WHERE BACK S HER CLAIM OF GIFT OF JEWELLERY WITH CONFIRMATION/S OR AFFIDAVIT / S FROM HER PARENTS OR CLO SE RELATIVE S, THE STATED DON O RS OF THE GOLD JEWELLERY. IT IS ONLY , WHERE SO , THAT THE ASSESSING OFFICER ( AO ) COULD, WHERE DEEM ED FI T, EXAMINE O R QUESTION THEM ON THE SOURCE OF THE GIFTED JEWELLERY IN THE I R HANDS. THE ASSESSEE HAS, HOWEVER, FILED WEALTH - TAX RETURNS FOR A.YS. 2006 - 07 AND 2007 - 08. THE SAME, THOUGH FILED BELATEDLY, ARE LEGALLY VALID DOCUMENTS, BEING FILED WITHIN THE S TATUTORILY PROVIDED TIME FOR FURNISHING BELATED RETURNS. THE SAME CANNOT BE DISMISSED, AS DONE BY THE REVENUE, FOR BEING FURNISHE D BELATEDLY, OR FOR THE REASON THAT NO SIMILAR RETURN/S HAD BEEN FILED BY THE ASSESSEE FOR THE PRECEDING YEARS. TO THIS EXTENT, THE REVENUES STAND CANNOT BE ACCEPTED. THE QUESTION THAT, HOWEVER, ARISES, AND ACCORDINGLY WOULD REQUIRE BEING INQUIRED INTO IS WHETHER THE SAME WERE EXAMINED BY THE REVENUE OR NOT. WHERE NOT, SO THAT THESE WERE ONLY SUBJECT TO PROCESSING U/S. 16(1) OF THE WEALTH - TAX ACT, 1957 (CORRESPONDING TO S. 143(1) OF THE ACT ), ACCEPTING THE RETURNED WEALTH, THERE IS NO FINDING/S BY THE A.O. IF, ON THE OTHER HAND, THE RETURNS WERE SUBJECT TO THE VERIFICATION PROCEDURE BY THE REVENUE AND , CONSEQUENTLY , TO ASSESSMENT U/S. 16(3), IT WOULD BIND THE REVENUE. THAT IS, THE WEALTH AND, THUS, THE GOLD JEWELLERY, AS ASSESSED, WOULD HAVE TO BE REGARDED AS HER WEALTH AS ON 31/3/2006 AND 31/3/2007, THE RELEVANT VALUATION DATES. THAT, HOWEVER, COULD BE THE ONLY IMPORT OF THE SAID RETURNS , WHICH THOUGH BIND THE ASSESSEE . THE WEALTH - TAX RETURNS ARE NOT TOWARD THE SOURCE OF ACQUISITION OF HER WEALTH BY THE ASS ESSEE AND, ACCORDINGLY, CANNOT BE CONSTRUED AS SO. THE SAME HAVE BEEN FILED ONLY IN SUPPORT OF THE ASSESSEES CLAIM OF HAVING ACQUIRED JEWELLERY OVER THE PAST YEARS AND, CONSEQUENTLY, OF BEING ITS OWNER (TO THAT EXTENT). THE SAID RETURNS ARE THUS PROTECTI VE IN NATURE, EVEN AS OBSERVED BY THE LD. CIT(A). THAT APART, SECTION 14(2) OF THE WEALTH TAX ACT, A NON OBSTANTE CLAUSE, OVERRIDING ANY OF THE PROVISION OF THE SAID ACT, PROVIDES THAT A RETURN OF WEALTH SHOWING THE NET WEALTH BELOW THE MAXIMUM AMOUNT NOT CHARGEABLE TO TAX SHALL BE DEEMED NEVER TO HAVE BEEN FILED. THAT IS, IS NON - EST IN THE EYES OF LAW. IN VIEW THEREOF, THE SAID RETURNS CANNOT BE TAKEN COGNIZANCE OF, 6 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O OR CONSIDERED AS LEGAL DOCUMENTS, AND THE ASPECT OF THEIR ASSESSMENT, AFORE - DISCUSSED, IS R ENDERED TO NO CONSEQUENCE . THE MATTER SHALL ACCORDINGLY HAVE TO BE PROCEEDED WITH IGNORING THE SAID RETURNS, EXCEPT THAT THEY SHALL BIND THE ASSESSEE. THE ASSESSEES CLAIM QUA THE SOURCE OF JEWELLERY IS BEING EXAMINED IN THE ASSESSMENT PROCEEDINGS UNDER TH E ACT FOR THE CURRENT YEAR FOR THE FIRST TIME. AS SUCH, IF THE CLAIM FAILS, EX CONSEQUENTI , THE ASSESSEE , NOTWITHSTANDING HER FURNISHING RETURNS OF WEALTH FOR AYS. 2006 - 07 & 2007 - 08, CANNOT BE SAID TO OWN JEWELLERY TO THAT EXTENT AS AT THE END OF THE RELEV ANT YEARS. FURTHER , AN ACCEPT ANCE OF THE ASSESSEE S CLAIM AS TO SOURCE WOULD NOT , HOWEVER, BY ITSELF IMPLY AN ACCEPTANCE OF THE SALE OF JEW E LLERY, AS CLAIMED. THE ASSESSEE SHALL, IN ANY CASE , HAVE TO RECONCILE THE JEWELLERY ACQUIRED AND THAT SOLD FROM TIME TO TIME, WITH THAT ADMITTEDLY AVAILABLE ON 31.3.2006 AND 31.3.2007. 5.3 AS REGARDS THE VALUATION REPORT (DATED 28/12/2007), THE VALUATION ASPECT HAS NOT BEEN QUESTIONED OR COMMENTED UPON BY THE REVENUE. THIS, HOWEVER, HAS TO BE SEEN IN CONTEXT OF IT NO T ACCEPTING THE EXPLANATION QUA THE SOURCE OF JEWELLERY, STATED TO BE IN THE PAST, MAKING AN EXAMINATION OF THAT ASPECT IRRELEVANT. THE SECOND ASPECT OF THE SAID REPORT IS TOWARD EXISTENCE OF THE JEWELLERY AS ON 28/12/2007. BUT DOES THAT PROVE IT TO BE THE ASSESSEES JEWELLERY OR THE SOURCE OF ITS ACQUISITION ? ALL IT WOULD IMPLY IS THAT JEWELLERY TO THAT EXTENT WAS PRODUCED BEFORE THE VALUER FOR HIS EXAMINATION AND VALUATION. COUPLED WITH THE SALE BILLS, TWO OF THREE OF WHICH ARE PRIOR TO THE DATE OF THE RE PORT, ESTABLISHING SALE, I.E., WHERE NOT IMPUGNED, IT WOULD IMPLY THAT THE ASSESSEE SOLD HER JEWELLERY, TO THE EXTENT STATED, AS CAN BE SAID TO BE AVAILABLE WITH HER ON THE DATE OF VALUATION , CONSISTENT WITH THE MATERIAL ON RECORD, I.E., ON THE BASIS OF TH E SAID REPORT, THE STATEMENT OF GIFTS, THE WEALTH - TAX RETURNS AND SALES PRIOR TO THAT DATE. THIS WOULD ALSO RESOLVE THE QUESTION AS TO WHETHER OR NOT THE JEWELLERY DECLARED AND VALUED IS IN RESPECT OF GROSS OR NET WEIGHT THEREOF. 7 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O 5.4 COMING BACK TO THE AS SESSEES EXPLANATION AS TO THE ACQUISITION OF THE JEWELLERY, I.E., BY WAY OF GIFT FROM PARENTS AND RELATIVES. IF FOUND ACCEPTABLE, NO PART OF THE CREDIT ON THE SALE CAN BE BROUGHT TO TAX U/S. 68 OR, AS THE CASE MAY BE, SECTIONS 69/69A, WHICH WOULD EXTEND O NLY TO THE CAPITAL GAIN ARISING ON SUCH SALE. TOWARD THIS, AS AFORE - STATED, THE ASSESSEE HAS NOT SUPPORTED HER CLAIM WITH ANY CONFIRMATION /AFFIDAVIT BY HER PARENTS OR OTHER DONORS. GIFT OF GOLD JEWELLERY TO A MARRIED DAUGHTER ON THE OCCASION OF MARRIAGE A S WELL AS ON THE BIRTH OF GRANDCHILDREN, OR ON IMPORTANT OCCASIONS, AS PURCHASE OF RESIDENTIAL HOUSE, IS CUSTOMARY IN HINDU SOCIETY. THE QUESTION, HOWEVER, IS NOT OF THE GIFT BY THE PARENTS (OR EVEN CLOSE RELATIVES) PER SE , BUT OF THE VOLUME THEREOF. THAT IS, WHAT COULD, IN THE FACTS AND CIRCUMSTANCES, BE CONSIDERED AS A REASONABLE QUANTITY AND, THUS, ACCEPTABLE. WHETHER THE PARENTS ARE ASSESSEES? WHAT IS THEIR STATUS, FINANCIAL OR OTHERWISE? HOW MANY CHILDREN THEY HAVE, AS GOLD WOULD HAVE BE EN SIMILARLY GI VEN TO OTHER CHILDREN, AND ON THEIR ATTAINING DIFFERENT MILESTONES, AS WELL? THEN, AGAIN, THE ASSESSEE STATES OF HAVING RECEIVED GIFT /S FROM RELATIVES AS WELL, THOUGH THEIR NAMES AND QUANTITIES ARE NOT SPECIFIED, AND WHICH WOULD AGAIN HAVE TO SATISFY THE T EST OF REASONABLENESS IN THE GIVEN FACTS AND CIRCUMSTANCES. WHAT IS THEIR RELATION WITH THE ASSESSEE AND SOCIO - ECONOMIC STANDING? FURTHER , IF THE GIFTS HAVE BEEN GIVEN BY THEM, IT IS ONLY UNDERSTANDABLE AND REASONABLE TO INFER THAT GIFTS, SIMILARLY, WOULD ALSO HAVE BEEN GIVEN BY THE ASSESSEES PARENTS TO THEIR SONS AND DAUGHTERS AS WELL; THE CUSTOM PREVAILING BOTH WAYS. IT IS NOTABLE THAT NO GOLD JEWELLERY HAS BEEN RECEIVED BY THE ASSESSEE FROM HER HUSBANDS FAMILY IN THE 27 YEARS OF HER MARRIAGE, I.E., FRO M 1982 TO 2008 , DESPITE SEVERAL AUSPICIOUS OCCASIONS . HER IN - LAWS WOULD OSTENSIBLY BE OF THE SAME SOCIO - ECONOMIC STANDING, AND SUBJECT TO THE SAME CUSTOMS. OR , IS IT THAT THE ASSESSEE HAD NOT RETURNED THE TOTAL JEWELLERY, WHICH WE PRESUME TO HAVE BEEN AT A TOTAL OF 1550.150 GRAMS, I.E., AS STATED TO BE RECEIVED IN GIFT FROM HER PARENTS AND RELATIVES. WHAT IS REASONABLE UNDER THE CIRCUMSTANCES IS PRINCIPALLY A MATTER AND, ACCORDINGLY, A QUESTION OF FACT. AT THIS STAGE, WE MAY CLARIFY THAT THE EXCLUSION FROM SEIZURE OF 500 GRAMS OF GOLD JEWELLERY IN CASE OF A MARRIED 8 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O WOMEN IS PURELY AN ADMINISTRATION MEASURE, ADOPTED BY THE REVENUE IN DEFERENCE TO THE CUSTOMS OF THE SOCIETY, AND DOES NOT ABSOLVE THE ASSESSEE, THE SUBJECT, IN ANY MANNER FROM THE OBLIGATION TO E XPLAIN THE NATURE AND SOURCE OF ACQUISITION OF THE ENTIRE JEWELLERY WITH HER. THERE IS, AND CAN BE, NO ESTOPPEL AGAINST LAW. 5.5 CONTINUING FURTHER, I NEXT CONSIDER THE ASSESSEES CLAIM WITH REGARD TO THE SALE ASPECT OF THE TRANSACTION. TRUE, AS CLAIMED B Y THE ASSESSEE, THE REVENUE HAS NOT IMPUGNED THE SALE, MAKING NO ENQUIRY WITH THE JEWELLER, M/S. VIMALSON JEWELLERS, MUMBAI, TO WHOM THE SAME IS STATED TO HAVE BEEN SOLD. HOWEVER, ONCE THE SOURCE OF ACQUISITION OF JEWELLERY IS NOT ACCEPTED, IT BECOMES IRRE LEVANT (FOR THE REVENUE) WHETHER THE CREDIT ARISES, AS CLAIMED, ON THE SALE OF JEWELLERY , THE SOURCE OF WHICH IS NOT SATISFACTORILY EXPLAINED, OR IS A CASE OF UNEXPLAINED CREDIT PER SE . FURTHER, QUA SALE, IT NEEDS TO BE APPRECIATED THAT JUST AS GIFT OF GOL D JEWELLERY BY PARENTS TO THEIR DAUGHTERS IS A FACT OF LIFE IN OUR SOCIETY, SO IS ITS NON - SALE, EXCEPT IN TIMES OF DISTRESS/DIRE NEED. NO SUCH CIRCUMSTANCE HAS BEEN POINTED OUT BY THE ASSESSEE. THE SAID JEWELLERY HAS SENTIMENTAL VALUE, AND IS CARRIED OVER FROM GENERATION TO GENERATION. THE REASON FOR THE SALE, WHICH, AS IT TRANSPIRES, IS THE THIRD YEAR IN SUCCESSION, HAS NOWHERE BEEN EXPLAINED BY THE ASSESSEE; SHE ALSO WITHDRAWING THE DEDUCTION U/S. 54 ON THE CAPITAL GAIN, INITIALLY CLAIMED. THIS ASPECT OF THE MATTER, EQUALLY PERTINENT, CANNOT BUT BE TAKEN NOTE OF OR DISREGARDED. ALSO, THE JEWELLERY SOLD WOULD, NEEDLESS TO ADD, MATCH THAT RETURNED AND STATED AS GIFTED. CONCLUSION 6 . IN SUM, THERE HAS BEEN NO SUBSTANTIATION OF HER CASE WITH REGARD TO THE RE ASONABLENESS OF THE GIFT/S, I.E., AS TO ITS QUANTUM, BY THE ASSESSE E , NOR , CONSEQUENTIAL LY, VERIFICATION OF HER CLAIMS BY THE A.O. THE QUANTUM OF JEWELLERY (IN TERMS OF GROSS AND NET WEIGHT) AVAILABLE FOR SALE SHALL HAVE TO BE ARRIVED AT TAKING INTO ACCOUN T THE MATERIAL ON RECORD, VIZ. THE VALUATION REPORT , THE SALE DURING THE EARLIER 9 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O YEARS , AND THE ASSESSEES DECLARATION OF GIFTS (FROM TIME TO TIME). THE SALE OF JEWELLERY ALSO CANNOT BE TAKEN AT FACE VALUE, GIVEN THE FACT OF LIFE IN OUR SOCIETY. THAT IS, T HE SALE ASPECT OF THE TRANSACTION HAS BEEN FOUND DEFICIENT IN - AS - MUCH AS THE JEWELLERY FORMS PART OF THE FAMILY HEIRLOOM, AND IS NOT EASILY DISPOSED OF, EVEN AS NO ACCENTUATING CIRCUMSTANCE HAS BEEN STATED. T HIS ASPECT WOULD THEREFORE ALSO REQUIRE BEING DE TERMINED, ALSO TAKING INTO ACCOUNT THE VALUATION REPORT DATED 28.12.2007. THE ONUS TO SUBSTANTIATE HER RETURN, AND THE CLAIMS PREFERRED THEREBY, IS ONLY ON THE ASSESSEE, AND WHICH THE A.O. IS RATHER DUTY BOUND TO VERIFY AND DETERMINE. UNDER THE CIRCUMSTAN CES, I ONLY CONSIDER IT FIT AND PROPER TO RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR ADJUDICATION AFRESH, ADDRESSING THE VARIOUS ASPECTS OF THE MATTER BROUGHT TO THE FORE, ISSUING DEFINITE FINDINGS OF FACT. BEFORE PARTING, WE MAY ADD THAT THE COMP UTATION OF CAPITAL GAIN, IF ANY, WOULD HAVE TO BE CONSISTENT WITH THE FINDINGS BY THE A.O. IN THE SET ASIDE PROCEEDINGS, OF COURSE ALLOWING THE ASSESSEE AN OPPORTUNITY TO RAISE OBJECTION/S, IF ANY. WE DECIDE ACCORDINGLY. 7 . IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 15 , 201 6 S D/ - (SANJAY ARORA) / ACCOUNT ANT MEMBER MUMBAI ; DATED : 15 /1/2016 PS: NEELAM 10 ITA NO. 2 0 2 3 /MUM/ 201 4 (A.Y. 2008 - 09) S MT. CHANDER R. GUPTA VS. IT O / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CO NCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI