Shri Sureshchand Agrawal, Indore V. The DCIT 1(1), Indore

ITA 227/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4876 (ITAT-INDORE)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BHEEM KUNWAR
• Keywords: Search and seizure

Judgement Text

PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : ACYPA6657P I.T.A.NO. 227 /IND/201 3 A.Y. : 2009-10 SHRI SURESHCHAND AGRAWAL, 631, USHA NAGAR EXTENSION, INDORE VS. DY. CIT, 1(1), INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI PRAKASH JAIN, C. A. RESPONDENT BY : SHRI BHEEM KUNWAR, SR. DR DATE OF HEARING : 29 . 1 0 .201 3 DATE OF PRONOUNCEMENT : 18 . 1 1 .201 3 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CIT(A), DATED 08.02.2013 FOR THE ASSE SSMENT YEAR 2009-10 IN THE MATTER OF ORDER PASSED U/S 143( 3) OF THE INCOME-TAX ACT, 1961. SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 2 PAGE 2 OF 9 2. IN THE APPEAL, THE ASSESSEE IS AGGRIEVED FOR ADDITI ON MADE ON ACCOUNT OF GOLD JEWELLERY FOUND AT ASSESSEE S PREMISES. 3. THE RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. THERE WAS SEARCH OPERATION IN ASSESSEES C ASE ON 2.5.2008. DURING COURSE OF SEARCH, GOLD JEWELLERY W EIGHING 2912.990 GMS. WAS FOUND. THE ASSESSEES FAMILY CONS ISTED OF 15 PERSONS. JEWELLERY AND GOLD ORNAMENTS WERE FOUND BY SEARCH PARTY FROM THE RESPECTIVE ROOMS OF THE FAMIL Y MEMBERS, THE DETAILS OF SAME ARE AS UNDER :- S.NO. NAME OF FAMILY MEMBER ESTIMATED NET WEIGHT 1. SMT .RAJRANI AGRAWAL 2036.430 GMS. GOLD 2. SMT. SEEMA AGRAWAL 330 GMS. GOLD AND 600 GMS. SILVER 3. SMT. RITU AGRAWAL 546.560 GMS. GOLD AND 350 GMS. SILVER TOTAL 2912 GMS. GOLD AND 950 GMS. SILVER 4. AS PER LD. AUTHORIZED REPRESENTATIVE, DURING THE COURSE OF SEARCH NOTHING WAS ASKED REGARDING THE PO SSESSION SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 3 PAGE 3 OF 9 AND OWNERSHIP OF THE GOLD ORNAMENTS AND JEWELLERY H OUSES WHICH IS CLEAR FROM THE STATEMENT OF THE VARIOUS FA MILY MEMBERS RECORDED DURING THE COURSE OF SEARCH. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED THAT DURING SEARCH AND SEIZURE O PERATION IN THE ASSESSEES PREMISES ON 13.11.2002 CERTAIN GO LD JEWELLERY WERE FOUND, WHICH HAS BEEN TAKEN CARE OF DURING THE COURSE OF ASSESSMENT U/S 158BC COMPLETED CONSEQUENT TO THE ABOVE SEARCH. THE TOTAL JEWELLERY AT THAT POINT OF TIME WAS 1205.13 GMS. TAKING THE ABOVE BASE, THE ASSESSEE HA S FURTHER COME OUT WITH A CONTENTION THAT HIS WIFE SMT. RAJRA NI AGRAWAL WAS NOT PRESENT AT THE TIME OF SEARCH CARRIED OUT O N 13.11.2002 AS SHE WAS AWAY TO MATHURA TO ATTEND A M ARRIAGE FUNCTION. IT WAS, THEREFORE, CONTENDED THAT SHE CAR RIED THE GOLD JEWELLERY 571.98 GMS. TO MATHURA, HENCE THE SAID JE WELLERY WAS NOT VALUED AT THE TIME OF SEARCH REFERRED ABOVE . IN SUPPORT OF THE ABOVE CONTENTION, THE ASSESSEE HAS FILED AN AFFIDAVIT OF SMT. RAJRANI AGRAWAL, THE ASSESSEES WIFE, DATED 23 .08.2010, IN WHICH IT HAS BEEN SWORN THAT SHE CARRIED THE ABO VE JEWELLERY SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 4 PAGE 4 OF 9 TO MATHURA AT THE TIME OF SEARCH CARRIED OUT ON 13. 11.2002, WHEREAS THE SAME HAS BEEN INCLUDED IN THE INVENTORY DRAWN ON 02.05.2008, WHEN THE SUBJECT SEARCH WAS CARRIED OUT. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE A SSESSEES CONTENTION ON THE PLEA THAT AFFIDAVIT FILED BY THE ASSESSEE IS A SELF SERVING DOCUMENT. IT WAS ALSO SUBMITTED THAT S MT. SEEMA AGRAWAL, DAUGHTER-IN-LAW OF ASSESSEE, PURCHASED JEW ELLERY WORTH RS. 2,02,000/- THROUGH ACCOUNT PAYEE CHEQUE N O. 715792 DATED 2.8.2006 VIDE BILL DATED 19.7.2006. IT WAS EXPLAINED THAT THIS JEWELLERY WAS NOT INVENTORIZED IN VALUERS REPORT, AS THE VALUER HAS MIXED THESE ITEMS WITH OT HER ITEMS AND TAKEN THE WEIGHT AND AT SO MANY PLACES, VALUER WEIGHED ITEMS BY STATING THE MISC. ORNAMENTS. HOWEVER, THE ASSESSING OFFICER HAS NOT CONSIDERED THE SUPPORTING DOCUMENTS FILED IN THE FORM OF PURCHASE BILL, BANK STATEMENT INDICATIN G PAYMENTS SO MADE BY ACCOUNT PAYEE CHEQUE, INCOME TAX RETURNS AND BALANCE SHEET OF SMT. SEEMA AGRAWAL. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT W AS SUBMITTED THAT THE JEWELLERY AND ORNAMENTS FOUND DU RING THE SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 5 PAGE 5 OF 9 COURSE OF SEARCHES IS COVERED WITHIN THE GUIDELINES PRESCRIBED BY THE NOTIFICATION NO. 347(E) DATED 20.05.1978 WHI CH WILL BE CLEAR FROM THE FOLLOWING :- S.NO. NAME OF THE FAMILY MEMBER ORNAMENTS ALLOWED AS PER NOTIFICATION IN GMS. 1. SURESH CHAND AGRAWAL ( APPELLANT ) 100 2. SMT. RAJRANI AGRAWAL ( WIFE 500 3. BRAJESH AGRAWAL ( SON) 100 4. SMT. TARUNA W/O BRAJESH (DAUGHTER IN LAW) 500 5. RAJESH AGRAWAL (SON) 100 6. SMT. SEEMA W/O RAJESH (DAUGHTER IN LAW) 500 7. SHAILESH AGRAWAL 100 8. SMT. RITU W/O SHAILESH (DAUGHTER-IN-LAW) 500 9. SPARSH S/O BRAJESH (GRANDSON) 100 10. SAHARSH S/O BRAJESH (GRANDSON) 100 11. RITIK S/O BRAJESH (GRANDSON) 100 12. SANIDHYA S/O RAJESH (GRANDSON) 100 13. ANUBHAV S/O RAJESH (GRANDSON) 100 14. KU.ISHITA D/O SHAILESH (GRAND DAUGHTER) 250 15. DHWANIKA D/O SHAILESH (GRAND DAUGHTER) 250 TOTAL 3400 GMS. 7. AS PER LD. AUTHORIZED REPRESENTATIVE, THE QUANTUM O F JEWELLERY FOUND DURING SEARCH WAS BELOW 3400 GMS. W HICH THE ASSESSEE AND HIS FAMILY CAN POSSESS AS PER NOTIFICA TION NO. 347(E) DATED 20.5.1978 ACCORDINGLY, NO ADDITION WAS WARRANTED. HOWEVER, THE ASSESSING OFFICER HAS NOT A CCEPTED THE CONTENTION OF ASSESSEE AND TREATED 1707.86 GMS. OF JEWELLERY AS UNEXPLAINED AND THE ACTION OF THE ASSE SSING OFFICER WAS CONFIRMED BY THE LD.CIT(A). SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 6 PAGE 6 OF 9 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE HAS FILED NOTARIZED AFFIDAVIT OF HIS WIFE AND OTHER FEMALE ME MBERS, WHICH INDICATED THAT AT THE TIME OF EARLIER SEARCH ON 13.11.2002, SOME OF THE JEWELLERIES WERE CARRIED BY HIS WIFE TO MATHURA ON THE OCCASION OF MARRIAGE CEREMONY OF HIS NEPHEW. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE HAS ALSO FILED MARRIAGE PATRIKA AND AFFIDAVIT OF HIS WIFE. AN AFFI DAVIT DATED 28.8.2010 SWORN BY SHRI BHAGWANDAS AGARWAL OF MATHU RA WAS ALSO FILED BEFORE CIT(A) IN WHICH HE HAS AFFIRM ED THAT ASSESSEES WIFE CARRIED THREE SETS OF GOLD ORNAMENT S. WE FOUND THAT AFFIDAVIT SO FILED BY THE ASSESSEE WAS DULY SU PPORTED BY CORROBORATIVE EVIDENCE IN THE FORM OF MARRIAGE CARD , WHICH PROVED THAT THE MARRIAGE CEREMONY WAS STARTED ON 14 TH NOVEMBER, 2002, AT MATHURA AND THE PREVIOUS SEARCH WAS CARRIED OUT ON 13 TH NOVEMBER, 2002. IN HINDU TRADITION, IT IS A MATTER OF COMMON KNOWLEDGE THAT WHEN A LADY GOES TO ATTEND MARRIAGE CEREMONY IN HER FAMILY, SHE WILL CARRY THE ORNAMENTS SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 7 PAGE 7 OF 9 WITH HER TO WEAR ON VARIOUS MARRIAGE CEREMONIES. VA RIOUS OTHER FAMILY MEMBERS OF ASSESSEE WERE ALSO PLANNING TO GO TO MATHURA ON 13 TH NOVEMBER, 2002, FOR ATTENDING THE SAID MARRIAGE CEREMONY, BUT DUE TO SEARCH, THEY COULD NO T GO TO ATTEND THE MARRIAGE CEREMONY. 9. FROM RECORD WE FOUND THAT THERE WERE TOTAL 15 MEMBERS IN ASSESSEES FAMILY. AS PER BOARD NOTIFICA TION NO. 347(E) DATED 20.5.1978, A MALE MEMBER CAN HAVE JEWE LLERY UP TO 100 GMS. AND FEMALE MEMBER CAN HAVE JEWELLERY UP TO 500 GMS. AND UNMARRIED FEMALE MEMBER CAN POSSESS JEWELL ERY UP TO 250 GMS. AS PER THE DETAILS GIVEN BEFORE THE ASS ESSING OFFICER, THE TOTAL QUANTUM OF JEWELLERY WHICH EACH CAN BE OWNED BY THE 15 MEMBERS, CONSIDERING THE ABOVE NOT IFICATION, WORKS OUT TO 3400 GMS., WHEREAS TOTAL JEWELLERY FOU ND DURING COURSE OF SEARCH WAS 2912.990 GMS. THUS, THE TOTAL QUANTITY OF JEWELLERY AND ORNAMENTS FOUND DURING SEARCH ARE WITHIN THE YARDSTICK FRAMED BY THE CBDT, CONSEQUENTLY NO ADDIT ION IS WARRANTED WITH REFERENCE TO THE JEWELLERY SO FOUND . SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 8 PAGE 8 OF 9 10. IN VIEW OF THE NOTIFICATION NO. 347(E) DATED 20.5. 1978, WHICH IS YARD STICK FOR HOLDING OF JEWELLERY BY AN INDIAN FAMILY WHICH IS APPROVED BY THE VARIOUS HIGH COURTS INCLUD ING JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. M. S. AGRAWAL, (HUF) 2008 11 DTR (MP) 169, WE DO NOT FIND ANY MERI T IN THE ADDITION SO MADE BY THE ASSESSING OFFICER, WHEN THE JEWELLERY SO FOUND WAS LESS THAN THE TOTAL JEWELLERY WHICH C AN BE POSSESSED BY VARIOUS FAMILY MEMBERS AS PER THE ABOV E NOTIFICATION. 11. THE CONTENTION OF LD. AUTHORIZED REPRESENTATIVE TO CONSIDER THE JEWELLERY WEIGHING 620.62 GMS. BORROWE D FOR USE FROM BROTHER OF ASSESSEE SHRI RAMKUMAR AGARWAL, HAS NO MERIT IN SOFAR AS SIMULTANEOUS SEARCH WAS CARRIED O UT AT THE RESIDENCE OF SHRI RAMKUMAR AGARWAL, BUT NOTHING WAS STATED IN THIS REGARD. ACCORDINGLY, THIS GROUND OF ASSESSE E IS DISMISSED, AS HAVING NO MERIT. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D IN PART IN TERMS INDICATED HEREINABOVE. SHRI SURESH CHAND AGARWAL I.T.A.NO. 227/IND/2013 A.Y. 2009-10 9 PAGE 9 OF 9 THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 18 TH NOVEMBER, 2013. SD/- SD/- (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :18 TH NOVEMBER, 2013. CPU* 131411