Smt. Gangaben Jivraj desai, Mehsana V. The DCIT, Cen. Circle-2(1), Ahmedabad

ITA 2294/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9392 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-04-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 13-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Assessee Lawyers: S N DIVATIA
• Keywords: Unexplained investment; Search and seizure; Loose papers
• Section: 143(3); 153A; 69B

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO. 2294/AHD/2017 ( ASSESSMENT YEAR : 2013-14) SMT. GANGABEN JIVRAJ DESAI 5, ASHOKNAGAR SOCIETY, RADHANPUR ROAD, MEHSANA / VS. THE DCIT CEN. CIRCLE -2(1), AHMEDABAD ./ ./ PAN/GIR NO. : AAWPD3290K ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S. N. DIVATIA, A.R. / RESPONDENT BY : SHRI O. P. SHARMA, CIT. D.R. DATE OF HEARING 17/08/2020 !'# / DATE OF PRONOUNCEMENT 18/08/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX (APPEALS)-7, AHMEDABAD (CIT(A) IN SHORT), DATED 2 4.08.2017 ARISING IN THE ASSESSMENT ORDER DATED 30.03.2015 PA SSED BY THE ITA NO. 2294/AHD/17 [SMT. GANGABEN JIVRAJ DESAI VS. DCIT] A.Y. 2013-14 - 2 - ASSESSING OFFICER (AO) UNDER S. 143(3) OF THE INCOM E TAX ACT, 1961 (THE ACT) CONCERNING AY 2013-14. 2. IN THE CAPTIONED APPEAL, THE ASSESSEE HAS RAISED SEVERAL GROUND BUT HAS ESSENTIALLY CHALLENGED THE ADDITION OF RS.5 ,70,000/- SUSTAINED BY THE CIT(A) TOWARDS SILVER BARS OF 9.99 5 KG AS UNEXPLAINED INVESTMENT. 3. BRIEFLY STATED, THE ASSESSEE IS AN INDIVIDUAL A ND A PARTNER IN THE FIRM NAMED MASTER DEVELOPERS. A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON 03.01.2013 AT THE BUSINESS AND RESID ENTIAL PREMISES OF THE GROUP INCLUDING ASSESSEE WHEREIN GOLD JEWELLERY , CASH AND LOOSE PAPERS FILED WERE FOUND AND SEIZED. CONSEQUENTLY, A NOTICE UNDER S.153A OF THE ACT WAS ISSUED AND IN RESPONSE THEREO F THE ASSESSEE FILED RETURN OF INCOME FOR AY 2013-14 AT RS.25,68,7 70/-. THE RETURN OF INCOME FILED BY THE ASSESSEE FOR AY 2013- 14 IN QUESTION WAS SUBJECTED TO SCRUTINY AND THE ASSESSMENT WAS CO MPLETED UNDER S.143(3) R.W.S. 153A OF THE ACT AT RS.32,03,482/- A S AGAINST THE TOTAL INCOME RETURNED AT RS.25,68,770/-. AS NOTED BY THE AO IN ASSESSMENT ORDER, IN THE COURSE OF SEARCH, GOLD JEW ELLERY WORTH RS.6,80,760/- AND SILVER BARS AND COINS WEIGHING 19 .995KG WORTH RS.11,39,715/- WERE INTER ALIA FOUND. THE AO DID NOT FIND THE SOURCE OF INVESTMENT TOWARDS SILVER BARS OF 19.995 KG WORTH RS.11,38,715/- TO BE SATISFACTORY. HOWEVER, CONSID ERING THE SIZE OF FAMILY AND OTHER ATTENDANT CIRCUMSTANCES, CREDIT OF 10KG OF SILVER WAS GIVEN AND REMAINING 9.995 KG WAS TREATED AS UNE XPLAINED INVESTMENT. CONSEQUENTLY, ADDITION OF RS.5,70,000/ - WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE UNDER S.69B OF THE ACT AS UNEXPLAINED INVESTMENT. ITA NO. 2294/AHD/17 [SMT. GANGABEN JIVRAJ DESAI VS. DCIT] A.Y. 2013-14 - 3 - 4. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). HAVING TAKING NOTE OF THE DETAILED WRITTEN SUBMISSI ONS MADE BY THE ASSESSEE IN HER DEFENSE, THE CIT(A) DID NOT FIND AN Y MERIT IN THE PLEA RAISED AND CONFIRMED THE ADDITION OF RS.5,70,0 00/- ON ACCOUNT OF SILVER BARS FOUND AT THE RESIDENCE OF THE ASSESS EE. THE RELEVANT OPERATIVE PARA OF THE ORDER OF THE CIT(A) IS REPROD UCED HEREUNDER: 7. GROUND OF APPEAL NO 3 IS AGAINST THE ADDITION OF RS. 5,70,000/- ON ACCOUNT OF SILVER BARS FOUND AT THE A PPELLANT'S RESIDENCE . DURING ASSESSMENT PROCEEDINGS, THE A.O NOTED DURING THE SEARCH AT THE APPELLANT'S PREMISES, GOLD JEWELL ERY AND SILVER BARS AND COINS HAD BEEN FOUND. AFTER CONSIDERING TH E SUBMISSIONS OF THE ASSESSEE AND A DISCUSSION ON THE ISSUE ON PA GES 4 TO 6 OF HIS ORDER, HE HELD THAT OUT OF THE 19,995 KGS OF SILVER , 9.995 KGS WAS UNEXPLAINED AND AT THE RATE OF RS.57,000/-PER KG, A DDED THE AMOUNT OF RS.5,70,000/- TO THE TOTAL INCOME OF THE APPELLANT, U/S 69B OF THE ACT. THE APPELLANT'S SUBMISSIONS HAVE BE EN REPRODUCED IN PARA 4.1 ABOVE, WHEREIN IT HAS BEEN SUBMITTED TH AT THE SAID SILVER WAS PART OF THE APPELLANT'S STRIDHAN AND BEL ONGED TO NOT HER ALONE, BUT TO ALL THE LADIES IN THE JOINT FAMILY. 7.1 THE SUBMISSIONS OF THE APPELLANT HAVE BEEN CONS IDERED AS HAS THE ASSESSMENT ORDER. IT IS SEEN THAT THE A.O H AS ALREADY GIVEN CREDIT TO THE APPELLANT IN RESPECT OF THE GOLD AND SILVER JEWELLERY FOUND AT HER PREMISES DURING SEARCH, IN THE LIGHT O F THE DECISION OF THE HON. GUJARAT HIGH COURT IN THE CASE OF CIT VS R ATANLAL VYAPARILAL JAIN 235 CTR 568. THE IMPUGNED ADDITION HAS BEEN MADE ON THE BASIS OF MATERIAL FOUND DURING THE SEAR CH. THE APPELLANT IN HER SUBMISSIONS HAS MERELY STATED THAT SHE WAS A PART OF A LARGE JOINT FAMILY AND THAT THE JEWELRY WAS NO T HERS ALONE. HOWEVER, SINCE THE APPELLANT'S EXPLANATION IS NOT C ORROBORATED WITH ANY DOCUMENTARY EVIDENCES, THE ADDITION OF RS. 5,70,000/- MADE BY THE A.O IS CONFIRMED. GROUND OF APPEAL NO 3 IS DISMISSED. 5. THE LEARNED AR FOR THE ASSESSEE RELIED UPON THE SUBMISSIONS MADE BEFORE THE CIT(A) AND SUBMITTED THAT ENTIRE AD DITION IS IN THE REALM OF ESTIMATIONS AFTER GRANTING AD HOC EXCLUSION OF 10KG OF SILVER BARS AS EXPLAINED. IT WAS CONTENDED THAT HA VING REGARD TO THE SIZE OF THE FAMILY AND WITHDRAWALS MADE BY THE FAMI LY MEMBERS TO ITA NO. 2294/AHD/17 [SMT. GANGABEN JIVRAJ DESAI VS. DCIT] A.Y. 2013-14 - 4 - THE TUNE OF RS.10,08,000/- IN AGGREGATE BY THE FAMI LY, THE SOURCE OF INVESTMENT IN SILVER BARS OUGHT TO HAVE BEEN TREATE D AS EXPLAINED. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE ONUS W AS ON THE ASSESSEE TO EXPLAIN THE SOURCE OF SILVER BARS OF HU GE QUANTITY FOUND AT THE RESIDENCE OF THE ASSESSEE. THE EXPLANATION OFFERED ON BEHALF OF THE ASSESSEE CONTINUES TO BE GENERIC WITHOUT ANY FACTUAL DETAILS ON THE SOURCE OF PURCHASE, SUCH AS, BILLS, DATE OF PURCHASE AND AVAILABILITY OF FUNDS AT THE RELEVANT TIME. THE LE ARNED DR ACCORDINGLY PLEADED THAT IN THE ABSENCE OF ANY SATI SFACTORY EXPLANATION OFFERED IN THIS REGARD, THE REVENUE AUT HORITIES WERE COMPLETELY JUSTIFIED IN MAKING ADDITIONS UNDER CHAL LENGE. IT WAS FURTHER POINTED OUT THAT THE ACTION OF AO WAS QUITE BENIGN WHILE APPROACHING THE ISSUE. THE AO HAS SUO MOTU GRANTED THE RELIEF TOWARDS 10KG OF SILVER BARS DESPITE ABSENCE OF ANY FACTUAL PARTICULARS THEREON. THE LEARNED DR THUS SUBMITTED THAT NO INTERFERENCE WITH THE ORDER OF THE CIT(A) IS WARRAN TED FOR THE IMPUGNED ADDITIONS. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. AS NOTED IN THE EARLIER PARAS, THE ADDITION OF RS.5,70,000/- ON ACCOUNT OF 9.9995 SILVER BARS IS IN QUESTION. WE FIND THAT NO COGENT EXPLANATION COULD BE FURNISHED BY THE ASSESSEE AT A NY STAGE TOWARDS SOURCE OF ACQUISITION OF SILVER BARS OF 19.995 KG. FOUND IN POSSESSION OF ASSESSEE. THE AO IS SEEN TO HAVE WEI GHED THE TOTALITY OF CIRCUMSTANCES LIBERALLY AND HAS PRESUMED 10 KG S ILVER BARS AS EXPLAINED HAVING REGARD TO THE STATUS OF FAMILY AND ITS SIZE ETC. WE OBSERVE THAT THE ONUS WHICH LAY UPON THE ASSESSEE T O EXPLAIN THE SOURCE OF SILVER BARS FOUND IN HER POSSESSION WAS N OT DISCHARGED AT ALL. THE PLEA MADE IS QUITE GENERIC AND ABSTRACT W ITHOUT ANY ITA NO. 2294/AHD/17 [SMT. GANGABEN JIVRAJ DESAI VS. DCIT] A.Y. 2013-14 - 5 - CORROBORATION WITH FACTUAL DETAILS. WE THUS SEE NO PERCEPTIBLE REASON TO INTERFERE WITH THE ORDER OF THE AO AS SUS TAINED BY THE CIT(A) ON THIS SCORE. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. SD/- SD/- (RAJPAL YADAV) (PRADIP KUMA R KEDIA) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD: DATED 18/08/2020 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED ON 18/08/2020