DR. (SMT) KOKIOLABEN C. DHARIA, MUMBAI V. ACIT CEN CIR-7, MUMBAI

ITA 2670/MUM/2010

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 3754 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 07-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Search and seizure; Valuation report

Judgement Text

1 ITA NO2670/MUM/2010 I II IN THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH MUMBAI BENCH MUMBAI BENCH MUMBAI BENCH SMC SMC SMC SMC MUMBAI MUMBAI MUMBAI MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI R R R R K PANDA, A K PANDA, A K PANDA, A K PANDA, ACCOUNTANT MEMBER CCOUNTANT MEMBER CCOUNTANT MEMBER CCOUNTANT MEMBER IT ITIT ITA NO A NO A NO A NO. . . . 2670/MUM/2010 2670/MUM/2010 2670/MUM/2010 2670/MUM/2010 (ASSESSMENT YEAR 2006-07 ) DR (SMT) KOKILABEN C DHARIA 8 REKHA BLDG NO.1 1 ST FLOOR, 46 RIDGE ROAD WALKESHWAR, MUMBAI 6 VS THE ASST COMMR OF INCOME TAX CEN.CIR 7 MUMBAI (APPELLANT) (RESPONDENT) PAN PAN PAN PAN AABPD3063H AABPD3063H AABPD3063H AABPD3063H ASSESSEE BY: SHRI NARESH JAIN REVENUE BY: SMT REENA JHA TRIPATHI/CIT-DR O OO O R RR R D DD D E EE E R RR R PER PER PER PER R RR R K PANDA K PANDA K PANDA K PANDA: :: : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 17.11.2009 OF THE CIT(A)-36, MUMBAI RELATING TO ASS ESSMENT YEAR 2006-07. 2 THERE IS A DELAY OF 60 DAYS IN FILING THE APPEAL BY THE ASSESSEE. THE LD COUNSEL FOR THE ASSESSEE, REFERRING TO THE CONDONAT ION PETITION FILED BY THE ASSESSEE, SUBMITTED THAT THE APPEAL COULD NOT BE FI LED IN TIME BECAUSE THE ASSESSEE, BEING AN OLD LADY AGING 70 YEARS WAS UNDE R MEDICAL SUPERVISION DUE TO ACUTE ATTACK LEADING TO SWELLING OF BILATERAL KNEE WITH COMPRESSION FRACTURE OF D- 12 VERTEBRAE. 3 AFTER CONSIDERING THE CONTENTS OF CONDONATION PET ITION AND AFTER HEARING BOTH THE SIDES, THE DELAY IN FILING OF THE APPEAL BY THE ASSESSEE IS CONDONED. 4 GROUNDS OF APPEAL NO.1 RAISED BY THE ASSESSEE REA DS AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D CIT(A) ERRED IN CONFIRMING THE ADDITION OF ` 1,49,938/- MADE BY LD ACIT ON ACCOUNT OF $ 3377 FOUND FROM THE LOCKER OF THE APPELLANT AND TRE ATED THEM AS 2 ITA NO2670/MUM/2010 UNEXPLAINED IGNORING THE FACT THAT IT BELONGS TO AP PELLANTS SON, AN NRI WORKING IN USA 4.1 FACTS OF THE CASE, IN BRIEF, ARE THAT A SEARCH AND SEIZURE ACTION WAS CARRIED OUT ON 17.3.206 AT THE RESIDENCE OF DR CHANDAKANT M DHARIA WHICH ALSO COVERED THE ASSESSEE AND HER DAUGHTER MISS MEETA C DHARIA. DURING THE COURSE OF SEARCH AT LOCKER NO. 377 MAINTAINED AT BANK OF INDIA, W ALKESHWAR BRANCH, MUMBAI US $ 3377, CASH OF ` 1,18,500/- AND JEWELLERY OF ` . 6,81,945/- WERE FOUND. THE LOCKER WAS IN THE NAME OF SMT KOKILABEN C DHARIA, T HE ASSESSEE. DURING THE COURSE OF SEARCH, STATEMENT OF THE ASSESSEE WAS REC ORDED U/S 132(4) OF THE I T ACT. 4.2 REGARDING THE US $ 3377, IT WAS STATED BY THE A SSESSEE THAT HER SON MR AMISH C DHARIA AND HIS WIFE MRS SWATI AMIT DHARIA A RE US CITIZENS AND THE ASSESSEE AND HER HUSBAND ARE ALSO GREEN CARD HOLDER S. THEY VISIT US REGULARLY AND THEIR SON AND DAUGHTER-IN-LAW ARE ALSO VISITING INDIA REGULARLY. DURING THE LAST VISIT TO INDIA IN AUGUST 2005 HER SON AND DA UGHTER-IN-LAW HAD LEFT US DOLLARS BEFORE LEAVING FOR US. THE ASSESSEE ALSO FILED A LE TTER FROM AMISH C DHARIA, NRI CERTIFYING THAT HE HAD GIVEN DOLLARS TO HIS PARENTS FOR THEIR REGULAR EXPENSES AT USA AND FOR THEIR OTHER FOREIGN TRIPS AND TRAVELLIN G AND INFORMED THEM TO KEEP THE DOLLARS WITH THEM. 4.3 HOWEVER, THE ASSESSING OFFICER WAS NOT SATISFIE D WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE NOTED THAT THE SAID LETT ER DOES NOT SPECIFY THE PLACE, DATE AND THE AMOUNT OF DOLLARS GIVEN TO HIS PARENTS . THEREFORE, THE CERTIFICATE/LETTER FILED BY THE ASSESSEE HAS NO EVI DENTIARY VALUE OR SO TO SAY IT DOES NOT CLARIFY/CERTIFY THAT THE DOLLARS ARE GIVEN BY HIM TO HIS PARENTS. THE ASSESSING OFFICER ADDED THE VALUE OF US $ 3377, WHI CH ON CONVERSION @ ` 44.40 PER DOLLAR AS ON 17.3.2006 COMES TO ` 1,49.938/-. 3 ITA NO2670/MUM/2010 4.4 BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE DO LLARS WERE GIVEN BY NRI SON TO HIS PARENTS AND LETTER DATED 10.4.2009 FROM THE SON OF THE ASSESSEE WAS FILED, ACCORDING TO WHICH HE RECEIVED BACK US $ 3377 FROM HIS PARENTS ON 15.12.2005 OUT OF THE US $ 3500 GIVEN TO HIS PARENTS DURING TH EIR VISIT TO USA DURING JUNE 2005 FOR THEIR REGULAR EXPENSES AT USA. 4.5 HOWEVER, THE CIT(A) WAS NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY THE ASS ESSING OFFICER BY HOLDING AS UNDER: 6. THE DOLLARS WERE FOUND FROM LOCKER BELONGING TO THE APPELLANT. DURING THE COURSE OF STATEMENT RECORDED U/S 132(4), THE AP PELLANT STATED THAT HER SON AND DAUGHTER IN LAW ARE US CITIZENS AND DURING THEIR LAST VISIT TO INDIA IN AUGUST 2005 THEY LEFT THESE DOLLARS BACK BEFORE LEAVING FOR THE USA. IN THE EXPLANATION BEFORE THE ASSESSING OFFICER, IT WA S CONTENDED THAT THE DOLLARS WERE GIVEN BY THE SON TO HIS PARENTS FOR TH EIR OTHER FOREIGN TRIPS AND TRAVELLING. THIS LETTER, AS PER THE ASSESSING O FFICER, DID NOT CONTAIN ANY DATES, PLACE WHERE THE DOLLARS WERE GIVEN, AMOUNT O F DOLLARS, ETC. HENCE, THE EXPLANATION WAS REJECTED. BEFORE ME, A REVISED LETTER DATED APRIL 10, 209 FROM THE SON WAS FILED WHICH STATED THAT HE HAS RECEIVED BACK US 3377 FROM HIS PARENTS ON DECEMBER 15, 2006 OUT OF T HE US $ 3500 GIVEN TO THEM DURING THEIR VISIT TO USA IN JUNE, 2005. T HESE DOLLARS ARE NOW BEING USED BY HIM DURING HIS VARIOUS VISITS TO INDI A. I CAN BE SEEN FROM THE ABOVE THAT THE APPELLANT HAS BEEN CONSTANTLY CHANGI NG HER STAY. DURING THE SEARCH, IT WAS MENTIONED THAT THE US $ 3377 WER E LEFT BEHIND BY THEIR SON. IN THE LETTER BEFORE THE ASSESSING OFFICER, IT WAS MENTIONED THAT IT WAS GIVEN TO THEM IN USA FOR SPENDING IN US AND THEIR O THER FOREIGN TRIPS BUT WITHOUT GIVING ANY DATES, PLACE OR AMOUNT. NOW, THE STAND IS THAT THEY WERE GIVEN IN JUNE 2005 FOR REGULAR EXPENSE IN USA AND NOW IT HAS BEEN TAKEN BACK. IN THE REMAND REPORT ALSO THE ASSESSING OFFICER HAS AGAIN MENTIONED THAT THE LETTER IS GENERAL IN NATURE AND CONTAINS NO SPECIFIC, DATE, PLACE ETC. THE AUTHORIZED REPRESENTATIVE OF THE ASSESSING OFFICER HAD NO ANSWER ON THE SAME AND HENCE THE DISALLOWANC E MADE ON THIS ACCOUNT BY THE ASSESSING OFFICER IS UPHELD AND THE GROUND OF THE APPELLANT IS DISMISSED. 5 AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSE SSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 4 ITA NO2670/MUM/2010 6 THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E ASSESSEES SON AND DAUGHTER-IN- LAW ARE US CITIZENS AND DURING THEIR V ISIT OF THE ASSESSEE TO USA, HER SON HAD GIVEN THE MONEY FOR HER REGULAR EXPENSES AT USA. REFERRING TO THE PAPER BOOK PAGES 2 & 3, HE SUBMITTED THAT THE ASSESSEE HA D GIVEN DETAILED EXPLANATION TO THE ASSESSING OFFICER AND THE CIT(A) REGARDING THE SOURCE OF US DOLLARS. REFERRING TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS SMT P K NOORJAHAN REPORTED IN 237 ITR 570(S C) HE SUBMITTED THAT SINCE THE ASSESSEE HAD SATISFACTORY EXPLAINED THE SOURCE OF US DOLLARS, THE US DOLLARS COULD NOT BE TREATED AS UNDISCLOSED INCOME OF THE A SSESSEE. 6.1 THE LD DR, ON THE OTHER HAND, STRONGLY SUPPORTE D THE ORDERS OF THE AUTHORITIES BELOW. SHE SUBMITTED THAT THE ASSESSEE HAS TAKEN DIFFERENT STANDS I.E. ONE STAND BEFORE THE ASSESSING OFFICER AND ANO THER STAND BEFORE THE CIT(A). SHE FURTHER SUBMITTED THAT THERE WAS NO NEED TO KEE P THE US DOLLARS IN THE LOCKER WHEN THE MONEY COULD HAVE BEEN KEPT IN RFC ACCOUNT. FURTHER, KEEPING FOREIGN CURRENCY OR INDIAN CURRENCY IN THE LOCKER ITSELF IS ILLEGAL. THE ASSESSEE BEING A DOCTOR IS NOT AN UN-EDUCATED LADY. THE LETTER FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER IS WITHOUT ANY DATE. EVEN BEFORE THE CIT(A)AN ALL TOGETHER DIFFERENT STAND HAS BEEN TAKEN. THE LETTER FILED BE FORE THE ASSESSING OFFICER AND CIT(A) ARE SELF SERVING DOCUMENTS WITHOUT ANY OTHER CORROBORATIVE EVIDENCE. SHE, ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) BE UPHELD. 7 I HAVE CONSIDERED THE RIVAL ARGUMENTS ADVANCED BY BOTH THE PARTIES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT DURING THE COURSE OF SEARCH OF THE LOCKER NO.377 MAINTAINED WITH BANK OF INDIA, US DOLLARS 3377 EQUIVALENT TO INDIAN CURRENCY ` 1,49,938/- WAS FOUND. THERE IS ALSO NO DISPUTE TO THE FACT THAT DURING THE COURSE OF STATEMENT RECORDED U/S 132(4), THE ASSESSEE HAD STATED THAT 5 ITA NO2670/MUM/2010 HER SON AND DAUGHTER-IN-LAW ARE US CITIZENS AND DUR ING THEIR LAST VISIT TO INDIA DURING AUGUST 2005 THEY LEFT WITH HER THE US DOLLAR S BEFORE LEAVING FOR USA. THE ABOVE FACT RECORDED BY THE CIT(A) HAS NOT BEEN CONT ROVERTED BY THE ASSESSEE. FROM THE COPY OF THE LETTER DATED 10.4.2009, MR AMI T C DHARIA SON OF THE ASSESSEE HAD STATED THAT HE HAD GIVEN US $ 3500 TO HIS PARENTS DURING THEIR VISIT TO USA DURING JUNE 2005 FOR THEIR REGULAR EXPENSES AT USA AND FOR THEIR OTHER FOREIGN TRAVELS. AGAIN THERE IS ONE MORE CONFIRMAT ION LETTER DATED 10.4.2009 BY MR AMIT C DHARIA ACCORDING TO WHICH HE HAD RECEIVED BACK THE US $ 3377 FROM HIS PARENTS ON 15.12.2006 OUT OF US $ 3500 GIVEN TO HIS PARENTS DURING THEIR VISIT TO USA DURING JUNE 2005 FOR THEIR REGULAR EXPENSES AT USA. THE US $ 3377 HAS BEEN RECEIVED BY MR AMIT C DHARIA IN INDIA FROM HIS PARENTS AND USED BY HIM DURING HIS VARIOUS VISITS TO INDIA ON REGULAR BASIS . THUS, THERE IS CONTRADICTION BETWEEN THE STATEMENT RECORDED U/S 132(4) AND THE T WO CONFIRMATIONS OF MR AMIT C DHARIA. THERE IS NO OTHER CORROBORATIVE EVIDENCE TO SUBSTANTIATE THE VERACITY. THEREFORE, LETTERS BY MR AMIT C DHARIA, IN MY OPINI ON ARE NOTHING BUT SELF SERVING DOCUMENTS TO SUIT THE REQUIREMENT OF THE ASSESSEE. FURTHER, IT IS ALSO NOT UNDERSTOOD AS TO WHY AND HOW THE ASSESSEE HAS KEPT THE FOREIGN CURRENCY IN THE LOCKER WHICH IS NOT PERMITTED BY LAW. THE DECISION RELIED UPON BY THE LD COUNSEL FOR THE ASSESSEE IN THE CASE OF SMT P K NOORJAHAN ( SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE AND IN FACT GOES AGAINST THE ASSESSEE. IN THIS VIEW OF THE MATTER AND IN ABSENCE OF ANY SATISFACTORY EVIDE NCE TO SUBSTANTIATE THAT THE DOLLARS WERE ACTUALLY GIVEN BY THE SON OF THE ASSES SEE, I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT(A) AND ACCORDINGLY, UPHOLD THE SAME. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY DISMISSED. 8 GROUNDS OF APPEAL NO.2 RAISED BY THE ASSESSEE REA DS AS UNDER: 6 ITA NO2670/MUM/2010 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN CONFIRMING THE ADDITION OF ` 1,12,722/- MADE BY LD ACIT ON ACCOUNT OF 187.870 GRAMS OF GOLD JEWELLERY, TREATING THEM AS I NVESTMENT OUT OF UNEXPLAINED INCOME. 7.1 FACTS OF THE CASE, IN BRIEF, ARE THAT DURING TH E SEARCH, GOLD JEWELLERY OF 1326.67 GMS HAVE BEEN FOUND. FROM THE COPY OF THE W EALTH TAX RETURN FOR ASSESSMENT YEAR 1992-93, THE ASSESSING OFFICER NOTE D THAT THE ASSESSEE HAD SHOWN GOLD ORNAMENTS AT 728 GMS. AFTER THE DEATH OF ASSESSEES MOTHER SMT CHAMPABEN V SHAH ON 6.8.2005 SHE HAS RECEIVED THE E NTIRE WEALTH OF HER MOTHER VALUING ` 40,56,263/- AS PER BALANCE SHEET OF MRS CHAMPABEN VICHAND SHAH WHICH INCLUDES THE GOLD ORNAMENTS. THE ASSESSE E FILED THE STATEMENT OF WEALTH FILED BY SMT CHAMPABEN V SHAH FOR ASSESSMENT YEAR 1989-90 WHICH SHOWS THE GOLD ORNAMENTS OF 410 GMS. IT WAS SUBMIT TED BY THE ASSESSEE THAT THE BALANCE GOLD JEWELLERY OF 187.870 GMS HAVE BEEN PURCHASED ON VARIOUS OCCASIONS WHICH IS REFLECTED IN BOOKS OF ACCOUNT AN D SHOWN IN JEWELLERY AND AMOUNT DEBITED IN JEWELLERY AND WITHDRAWALS. HOWEV ER, IN ABSENCE OF PROOF OF PURCHASE OF GOLD JEWELLERY, THE ASSESSING OFFICER R EJECTED THE EXPLANATION GIVEN BY THE ASSESSEE AND HELD THAT THE BALANCE GOLD JEW ELLERY OF 187.87 GMS HAS NOT BEEN EXPLAINED. ACCORDINGLY, HE TREATED THE VALUE OF 187.87 GMS @ ` 600/- PER GRM VALUED AT ` 1,12,722 AS UNEXPLAINED. 7.2 BEFORE THE CIT(A), IT WAS SUBMITTED THAT OUT OF THE 459.170 GMS OF JEWELLERY FOUND AT THE RESIDENCE, 280.09 GMS BELON GED TO DAUGHTER MEETA DHARIA, WHICH WAS NOT CONSIDERED. FURTHER, SOME IT EMS BELONGED TO HER DAUGHTER-IN-LAW SWATI DHARIA WHICH WAS ALSO NOT CON SIDERED BY THE ASSESSING OFFICER. COPIES OF THE ANNEXURES TO THE PANCHAMA AN D VALUATION REPORT WERE SUBMITTED BEFORE THE CIT(A). HOWEVER, THE CIT(A) W AS NOT CONVINCED WITH THE 7 ITA NO2670/MUM/2010 EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE AC TION OF THE ASSESSING OFFICER BY HOLDING AS UNDER: 7.2. IN THE INSTANT CASE, BEFORE THE ASSESSING OFFI CER, THE APPELLANT MENTIONED THAT THE DIFFERENCE IN THE GOLD JEWELLERY WAS BECAUSE OF THE PURCHASE OF GOLD JEWELLERY BUT NO PROOF OF THE SAME COULD BE ADDUCED AND HENCE THE AMOUNT WAS ADDED. IN A CLEAR SHIFT OF STA ND, BEFORE ME, IT WAS CONTENDED THAT THE DIFFERENCE IN THE GOLD JEWELLERY WAS BECAUSE THE GOLD BELONGING TO THE DAUGHTER AND DAUGHTER-IN-LAW WAS N OT CONSIDERED. A PERUSAL OF THE ANNEXURES TO THE PANCHNAMA DATED 17. 3.06 SHOWS THAT THE PAGE INDICATING THAT THE GOLD JEWELLERY IS BELONGIN G TO MEETA DHARIA SHOWS THE NET WEIGHT OF GOLD OF 319.850 GMS AND ON THE NE XT PAGE AS 21.820 GMS. HOWEVER, WHILE RECORDING THE NET GOLD OF MEETA DHARIA IT IS SHOWING 280.030 GMS. HENCE, IN THE ABSENCE OF PROPER RECONC ILIATION OF THE TOTAL GOLD FOUND, IT IS DIFFICULT TO ACCEPT THE CONTENTIO N OF THE APPELLANT. IT IS ALSO PERTINENT TO NOTE THAT THE APPELLANT HAD NOT TAKEN THIS STAND BEFORE THE ASSESSING OFFICER WHEN HE HAD ASKED FOR CLARIFICATI ON ON THE SUBJECT. IT IS EQUALLY IMPORTANT TO NOTE THAT IF THIS ARGUMENT OF THE APPELLANT IS ACCEPTED EVEN THEN THERE WOULD BE DIFFERENCE IN THE QUANTITY OF GOLD AS VIDE HIS LETTER DATED 19.12.2008, HE HAD MENTIONED THAT THER E IS SOME GOLD PURCHASED AND RECORDED IN THE BOOKS OF ACCOUNTS. TH IS QUANTITY OF GOLD SHOULD ALSO BE TAKEN INTO CONSIDERATION TO RECONCIL E TO ARRIVE AT THE CORRECT QUANTITY OF GOLD. IN THESE CIRCUMSTANCES, THE ARGUM ENTS MADE BY THE APPELLANT ARE NOT SUPPORTED WITH FACTS AND IN THE A BSENCE OF PROPER RECONCILIATION; THE ADDITION MADE BY THE ASSESSING OFFICER IS UPHELD AND THE GROUND OF THE APPELLANT REJECTED. 8 AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSE SSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 9 THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT TH E JEWELLERY BELONGING TO THE DAUGHTER AND DAUGHTER-IN-LAW OF THE ASSESSEE AR E NOT CONSIDERED BY THE LOWER AUTHORITIES FOR WHICH THE ADDITION HAS BEEN M ADE. REFERRING TO THE CBDT CIRCULAR NO.916 DATED 11.5.1994, HE SUBMITTED THAT AS PER THE SAID INSTRUCTIONS, ACCORDING TO WHICH 5 GRM OF JEWELLERY PER MARRIED L ADY AND 200 GMS OF JEWELLERY PER UNMARRIED LADY NEED NOT BE SEIZED. THEREFORE, A LIBERAL APPROACH SHOULD BE TAKEN IN THE LIGHT OF THE ABOVE CBDT INSTRUCTION. 8 ITA NO2670/MUM/2010 9.1 THE LD DR, ON THE OTHER HAND, WHILE SUPPORTING THE ORDERS OF THE AUTHORITIES BELOW SUBMITTED THAT THE BOARD INSTRUCT ION IS ONLY FOR NON-SEIZURE OF JEWELLERY AND IT CANNOT BE APPLIED FOR EXPLAINING THE JEWELLERY FOUND DURING THE SEARCH AT THE RESIDENCE/LOCKER OF THE ASSESSEE. 10 I HAVE CONSIDERED THE RIVAL ARGUMENTS OF BOTH TH E SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT GOL D JEWELLERY WEIGHING 1326.67 GMS WAS FOUND FROM THE RESIDENCE AND THE LOCKER OF THE ASSESSEE. THERE IS ALSO NO DISPUTE TO THE FACT THAT WEALTH TAX RETURN FILED BY THE ASSESSEE UPTO ASSESSMENT YEARS 1992-93, SHOWS THE GOLD JEWELLERY OF 728 GMS. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS INHERI TED THE GOLD ORNAMENTS OF 410 GMS OF HER MOTHER. THUS, THE TOTAL INHERITED GOLD A S PER WEALTH TAX RETURN OF THE ASSESSEE AS WELL AS THE STATEMENT OF NET WEALTH OF THE MOTHER OF THE ASSESSEE COMES TO 1138 GMS. THEREFORE, THERE IS A DIFFERENCE OF 187.33 GRMS AS AGAINST 188.67 GMS MENTIONED BY THE ASSESSING OFFICER. FRO M THE DETAILS FURNISHED BY THE ASSESSEE IN THE PAPER BOOK, I FIND SUFFICIENT F ORCE IN THE CONTENTION OF THE ASSESSEE THAT THE JEWELLERY BELONG TO THE DAUGHTER OF THE ASSESSEE MS MEETA C DHARIA HAS NOT BEEN CONSIDERED PROPERLY FOR WHICH T HIS CONFUSION AROSE. I FIND THE ASSESSING OFFICER WHILE ACCEPTING THE DIAMOND J EWELLERY BELONGING TO MISS MEETA C DHARIA HAS IGNORED THE GOLD JEWELLERY BELON GING TO MISS MEETA C DHARAIA. MERELY BECAUSE THE ASSESSEE HAS NOT TAKEN THIS STAND BEFORE THE ASSESSING OFFICER, THE CIT(A) IN MY OPINION, IS NOT JUSTIFIED IN REJECTING THE EXPLANATION F THE ASSESSEE. IN THIS VIEW OF THE MA TTER, I SET ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION. THIS GROUND OF THE ASSESSEE IS ACCORDINGLY ALLOWED. 11 GROUNDS OF APPEAL NO.3 RAISED BY THE ASSESSEE RE ADS AS UNDER: 9 ITA NO2670/MUM/2010 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D CIT(A) ERRED IN CONFIRMING THE ADDITION OF ` 61,368/- MADE BY LD ACIT ON ACCOUNT OF 2.16 CARATS OF DIAMOND, TREATING THEM AS UNEXPLAINED. 11.1 FACTS OF THE CASE, IN BRIEF, ARE THAT DURING T HE COURSE OF SEARCH, DIAMOND JEWELLERY OF 14.87 CTS WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE. OUT OF THE ABOVE, THE ASSESSING OFFICER CONSIDERED 10.21 CTS A S BELONGS TO MISS MEETA C DHARIA AND CONSIDERED THE BALANCE DIAMOND JEWELLERY OF 4.66 CTS AS BELONGING TO THE ASSESSEE. IT WAS EXPLAINED BY THE ASSESSEE BEFO RE THE ASSESSING OFFICER THAT THE ASSESSEE HAS DECLARED JEWELLERY OF ` 9387/- IN THE WEALTH TAX RETURN FOR ASSESSMENT YEAR 1992-93 WHICH IS APPROXIMATELY 2.5 TO 3 CTS AND THE BALANCE DIAMOND JEWELLERY WAS RECEIVED FROM HER MOTHER SMT CHAMPABEN V SHAH ON HER DEATH. FOR THIS PURPOSE, THE ASSESSEE FILED VA LUATION REPORT DATED 11.11.1975 OF SHRI K D ZAVERI, ACCORDING TO WHICH S MT CHAMPABEN V SHAH WAS HOLDING DIAMOND JEWELLERY OF 4.50 CTS IN FOUR ITEM S I.E. ONE GOLD KADJODI, ONE NOSE-RING AND 2 RINGS. IT WAS EXPLAINED BY THE ASSE SSEE THAT IN THE SPAN OF MORE THAN 30 YEARS, THE DESIGN HAS CHANGED HOWEVER; TH E ASSESSING OFFICER WAS NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSE E. HE OBSERVED THAT THE ASSESSEE HAS SHOWN DIAMOND JEWELLERY OF 2.5 CTS AND AS PER VALUATION REPORT DATED 11.11.75, THE DIAMOND IS OF 4.50 CTS . THE TO TAL IS THUS 7 CTS WHICH CANNOT BE EXPLAINABLE. HE, ACCORDINGLY, ACCEPTED ONLY 2.5 CTS AS BELONGING TO THE ASSESSEE AND TREATED THE BALANCE DIAMOND OF 2.16 CT S AS UNEXPLAINED AND MADE THE ADDITION OF ` 61,368/-. 11.2 BEFORE THE CIT(A), THE ASSESSEE REITERATED THE SAME SUBMISSIONS AS MADE BEFORE THE ASSESSING OFFICER. HOWEVER, THE CIT(A) W AS ALSO NOT CONVINCED WITH THE EXPLANATIONS GIVEN BY THE ASSESSEE. IN THE ABSE NCE OF ANY EVIDENCE ABOUT THE WILL OF THE MOTHER BY WHICH THE JEWELLERY CAME INTO POSSESSION OF THE 10 ITA NO2670/MUM/2010 ASSESSEE AND IN THE ABSENCE OF COGENT EVIDENCE, HE UPHELD THE ACTION OF THE ASSESSING OFFICER. 12 AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 13 I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER B OOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT OUT OF 14.87 CTS OF DIAMOND JEWELLERY FOUND AT THE RESIDENCE AS ON DATE OF SEAR CH, THE ASSESSING OFFICER HAS ACCEPTED 10.21 CTS OF DIAMOND JEWELLERY IS BELONGIN G TO THE DAUGHTER OF THE ASSESSEE. THUS, OUT OF THE BALANCE 4.66 CTS OF DIA MOND JEWELLERY, THE ASSESSING OFFICER HAS ACCEPTED 2.5 CTS AS BELONGING TO THE A SSESSEE AND TREATED THE BALANCE OF 2.16 CTS AS UNEXPLAINED. THE CIT(A) REJE CTED THE CONTENTION OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE DID NOT GI VE ANY EVIDENCE ABOUT THE WILL OF THE MOTHER BY WHICH THE DIAMOND JEWELLERY C AME INTO POSSESSION OF THE ASSESSEE. IT IS THE SUBMISSION OF THE LD COUNSEL F OR THE ASSESSEE THAT THE DIAMOND JEWELLERY BELONGING TO THE MOTHER OF THE AS SESSEE SHOULD HAVE BEEN CONSIDERED AS BELONGING TO THE ASSESSEE. I FIND S UFFICIENT FORCE IN THE CONTENTION OF THE LD COUNSEL FOR THE ASSESSEE. WHEN THE ASSES SING OFFICER HAS ACCEPTED THE GOLD JEWELLERY BELONG TO THE MOTHER OF THE ASSESSEE , I DO NOT FIND ANY REASON WHY THE DIAMOND JEWELLERY BELONGING TO THE MOTHER OF TH E ASSESSEE SHOULD NOT HAVE BEEN ACCEPTED. 13.1 CONSIDERING THE TOTALITY OF THE FACTS OF THE C ASE, I FIND SUFFICIENT FORCE IN THE SUBMISSIONS OF THE LD COUNSEL FOR THE ASSESSEE THAT THE BALANCE DIAMOND JEWELLERY OF 2.16CTS HAS BEEN INHERITED BY THE ASSE SSEE FROM HER MOTHER AND SHOULD BE CONSIDERED AS EXPLAINED AND NO ADDITION I S CALLED FOR. IN THIS VIEW OF 11 ITA NO2670/MUM/2010 THE MATTER, I SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 14 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THE 10 TH , DAY OF NOV 2010. SD/- ( R K PANDA ) ( R K PANDA ) ( R K PANDA ) ( R K PANDA ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 10 TH , NOV 2010 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI