Smt. Sunitaben R. Bhalodia, RAJKOT-GUJARAT V. The Assistant Commr. Income Tax,Cen.Cir-1, RAJKOT-GUJARAT

ITA 269/RJT/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0097 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 09-06-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 153A; 201; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: SHRI RAJPAL YADAV, JUDICIAL MEMBER AND S H RI AMARJIT SINGH , ACCOUNTANT MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] SMT. SUNITABEN R. BHALODIA, 7 TH FLOOR, SITA APARTMENT, KASHI VISHWANATH PLOT, RAJKOT PAN: ABPPB7856F (APPELLANT) VS THE ACIT, CENTRAL CIRC LE - 1, RAJKOT (RESPONDENT) REVENUE BY : S H RI YOGESH PANDEY , CIT - D . R. ASSESSEE BY: S H RI M.J. RANPURA , A.R. DATE OF HEARING : 18 - 10 - 2 016 DATE OF PRONOUNCEMEN T : 27 - 10 - 2 016 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THI S ASSESSEE S APPEAL FOR A.Y. 2012 - 13 , AR ISES FROM ORDER OF THE CIT(A) - 11, AHMEDABAD DATED 24 - 03 - 2015 IN APPEAL NO. CIT(A) - 11 / RJT/549 - R / CC.1/2014 - 15 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INC OME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 269 / RJT /20 15 A SSESSMENT YEAR 2012 - 13 I.T.A NO. 269 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SMT. SUNITABEN R. BHALODIA VS. ACIT 2 2. IN THIS CASE, A SEARCH ACTION U/S. 132 OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 18 - 09 - 2011 . C ONSEQUENT TO SEARCH ACTION U/S. 132 OF THE I.T. ACT. PROCE EDINGS U/S. 153A WERE INITIATED FOR ASS ESSMENT YEAR 2006 - 07 TO 2011 - 12. IN RESPONSE TO THE NOTICE, THE ASSESSEE HAS FILED A RETURN OF INCOME DECLARING INCOME OF RS. 6 ,21, 840/ - ON 25 TH J ULY, 2012. IN THIS CASE, DURING THE COURSE OF SEARCH AT THE PREMISES OF THE ASSESSEE AND SEARCH AT LOCKER NO . 665 OF GALAXY VAULT , 6311.05 GRAM OF JEWELLARY AND 29.25 CTS DIAMOND WERE FOUND. THE ASSESSEE HAS EXPLAINED THE JEWELRY AND DIAMOND WITH SUPPORTING BILL S AND DOCUMENT S EXCEPT GOLD JEWELRY OF 440 GRAM S REGARDING WHICH THE ASSESSEE HAS STATED IN HIS STATE MENT U/S. 132 THAT T HIS JEWELL E RY BELON G ED TO REENA J. BHALODIA DAUGHTER IN LAW OF THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSE WAS ASKED THAT WHY NOT THIS JEWELRY BE TREATED AS UNEXPLAINED INVESTMENT FOR LACK OF ANY EVIDENCE T HAT THE SAID JE WELRY BELONGED TO M RS . REENA J BHALODIA. IN THIS CASE, THE ASSESSSEE HAS STATED THAT THIS JEWELRY WAS BELONGING TO HER MOTHER IN LAW AS PER HER WEALTH TAX RETURN AND THESE WERE GIVEN TO REENA J. BHALODIA AT THE TIME OF HER ENGAGEMENT. IN T HIS CONNECTION, THE ASSESSEE HA S ALSO FILED COPY OF WEALTH T AX RETURN INCOME OF HER MOTHER IN LAW SMT. HEMKUV ER BEN FOR ASSESSMENT YEAR 1994 - 95 TO SUPPORT HER CONTENTION. THE ASSESSING OFFICER HAS STATED THAT ASSESSEE HAS NOT FILED ANY PROOF THAT JEWELRY H AS BEEN TRANSFERRED FROM ONE PERSON TO OTHER PERSON AND EVEN IN THE STATEMENT RECORDED U/S. 132(4), THE ASSESSEE HAS NOT MENTIONED THAT THIS JEWELRY WAS BELONGING TO HER MOTHER IN LAW , THEREFORE , THE ASSESSING OFFICER HAS NOT ACCEPTED THE I.T.A NO. 269 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SMT. SUNITABEN R. BHALODIA VS. ACIT 3 CONTENTION OF THE ASSESSEE AND TREATED THE ASSESSEE S EXPLANATION AS AFTERTHOUGHT. THEREFORE , THE ASSESSING OFFICER ASSESSED 440 GRAM JEWELRY AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE AND WORKED OUT THE VALUE OF THIS JEWELRY TO RS. 11,33,000/ - WHICH HE ADDE D IN HER TOTAL INCOME. AGGRIEVED AGAINST THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX(A). THE LD. COMMISSIONER OF INCOME TAX(A) STATED IN HIS ORDER THAT THE EXPLANATION WHICH THE ASSESSEE SUBMITT ED BEFORE THE ASSESSING OFFICER WAS ALMOST REPEATED IN THE APPELLATE PROCEEDINGS . THE LD. COMMISSIONER OF INCOME TAX(A) HAS CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. THE DECISION OF THE LD. COMMISSIONER OF INCOME TAX(A) IS REPRODUCED AS UNDER : - 5.1 THE EXPLANATION WHICH THE ASSESSEE SUBMITTED BEFORE THE AO WAS ALMOST REPEATED IN THE APPEAL PROCEEDINGS. SHE FURNISHED COPY OF THE WEALTH TAX RETURN OF SMT. HEMKUVER V. BHALODIA, HER MOTHER - IN LAW, ON 4 TH AND 5 TH PAGE OF THE PAPER - BOOK. AFTER PE RUSAL OF THE COPY OF THE WEALTH TAX RETURN, IT WAS FOUND THAT THERE WAS NO SUCH NARRATION OF THE JEWELLERY. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, THE ACTION OF THE AO IS CONFIRMED. 3. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, LEARNED COUNSEL HAS SUBMITTED A PAPER BOOK CONTAINING SUBMISSION FILED BEFORE T HE LD . COMMISSIONER OF INCOME TAX(A), C OPY OF WEALTH TAX RETURN OF HEMKUNVARBEN VALJIBHAI BHALODIA FOR THE ASSESSMENT YEAR 1995 - 96 AND COPY OF STATEMENT RECORDED U/S. 132(4) O F THE I.T. ACT, 1961 DATED 05.10.2011 AND HE ALSO PLACED RELIANCE ON JUDICIAL PRONOUNCEMENTS AS FOLLOWS: - I.T.A NO. 269 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SMT. SUNITABEN R. BHALODIA VS. ACIT 4 (2013) 33 TAXMANN.COM 147 (GUJARAT) CIT VS. PRAFULBHAI @ ROHITBHAI J. SHAH ITA NO. 268/AHD/2015 SMT. BHARTIBEN NAVINCHANDRA BHALODIA VS. ACIT DECIDED ON 16/02/2016 . THE LD. DEPARTMENTAL R EPRESENTATIVE RELIED ON THE ORDER OF THE COMMISSIONER OF INCOME TAX(A). 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSING OFFICER HAS POINTED OUT IN THE ASSESSMENT ORDER T HAT THE ASSESSEE HAD FURNISHED ALL BILLS AND SUPPORTING DOCUMENTS TO THE EXTENT OF ALL THE JEWELLERY AND DIAMOND EXCEPT GOLD JEWELLERY WEIGHING 440 GRAMS, W HICH IN HER STATEMENT RECORDED UNDER SECTION 132 (4) OF THE ACT WAS CLAIMED TO BE BELONGING TO REE NA J BHALODIA, HE R DAUGHTER - IN - LAW. THE ASSESSEE FURTHER EXPLAINED THAT THESE JEWE L L E RY BELONGED TO HER MOTHER - IN - LAW SMT. HEKUVERBEN VALJIBHAI BHALODIA WHICH WERE GIVEN TO REENA J BHALODIA AT THE TIME OF HER ENGAGEMENT. THE COPY OF WEALTH TAX RETURNS O F A.Y. 94 - 95 WAS ALSO FILED IN SUPPORT OF THIS CONTENTION. THE AO STATED THAT NO PROOF OF JEWE L LRY HAVING CHANGING HANDS HAVE BEEN FURNISHED . HE ALSO STATED THAT NO WEALTH TA X RETURN AFTER A.Y . 1994 - 95 WAS FURNISHED. T HEREAFTER , THE ASSESSING OFFICER WOR KED OUT THE VALUE OF GOLD JEWELLRY OF 440 GRAM AT RS.11,33,000/ - AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENT. WE HAVE NOTICED THAT THE LEARNED CIT (A) HAS SUSTAINED THE ADDITION MADE BY THE AO ON THE GROUND THAT THERE WAS NO NAR R ATION OF THE JEWELLRY IN THE COPY I.T.A NO. 269 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SMT. SUNITABEN R. BHALODIA VS. ACIT 5 OF THE WEALTH TAX RETURN FILED IN THE PAPER BOOK. THE LEARNED COUNSEL OF THE ASSESS EE HAS PL ACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENT: - 1.R.UMAMAHESWAR V DCIT(2015)60 TAXMANN.COM400 2.SMT.BHARTIBEN V ACIT ITA 268/RJT/2015 CORDINATE BENCH OF ITAT AHMEDABAD THE LEARNED COUNSEL FOR THE ASSESSEE ALSO RELIED ON THE INSTRUCTIONS OF THE C ENTRAL B OARD OF D IRECT TAXES N O. 1916 OF MAY11, 1994 LAYING DOWN THE GUIDELINES THAT IN CASE A PERSON NOT ASSESSED TO WEALTH TAX, GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500GRAMS FOR A MARRIED LADY NEED NOT BE SEIZED WHICH ARE KIND OF SUGGESTIVE NORMAL QUANTITY OF GOLD ORNAMENTS HELD BY ANY INDIAN FAMILY. ONE SUCH DECISIONS RENDERED IN THE CASE WAS OF ASST.CIT V RAMESHCHANDRA R . PATEL (2004)89 ITD 203(AHD.) IN WHICH IT WAS HELD THAT THE CENTRAL BOARD OF D IRECT T AXES INSTRUCTION NUMBER 1916 DATED MAY 11 , 1994 IMPLIEDLY SUGGESTS THE QUANTITY OF J EWELLERY THAT A FAMILY IS SUPPOSED TO HOLD AS RECEIVED AT THE TIME OF MARRIAGE FROM PARENTS AND IN LAWS . IT WAS ALSO HELD THAT THOUGH THE SAID INSTRUCTION GIVES A GUIDELINES IN THE MATTER OF SEIZURE BUT K EEPING IN VIEW THE DECISION S OF THE TRIBUNAL S AS WELL AS THE INSTRUCTION NUMBER 1916 OF THE CENTRAL BOARD OF DIRECT TAXES, THE G OLD JE W ELLERY OF 4 40 G RA MS FOUND DURING THE COURSE OF SEARCH CAN REASONABLY BE TREATED AS EXPLAINED, BEING THE STREEDHAN OF THE ASSESSEE'S DAUGHTER IN LAW HAVING BEEN RECEIVED BY HER ON THE OCCASION OF MARRIAGE AS WELL AS SUBSEQUENT OCCASION OVER THE PERIOD. WE HAVE ALSO NOTICED THAT THE ASSESSEE DURING THE COURSE OF SEARCH ACTION HAS STATED IN HER I.T.A NO. 269 /RJT /20 15 A.Y. 2012 - 13 PAGE NO SMT. SUNITABEN R. BHALODIA VS. ACIT 6 STATEMENT RECORDED UNDER SECTION 132(4) THAT THE JEWELRY FOUND DURING THE SEARCH ALSO PERTAIN ED TO HER DAUGHTER - IN - LAW . IT IS ALSO EVIDENT FROM THE ABOVE MENTION ED FACTS THAT THE ASSESSEE'S MOTHER IN LAW WAS ALSO IN POSSESSION OF GOLD ORNAMENTS AND AS CUSTOM AND OUT OF LOVE AND AFFECTION SHE G IFTED THE GOLD ORNAMENTS TO HER DAUGHTER IN LAW. IN VIEW OF THE STATED FACTS AND FINDINGS WE HOLD THAT THE GOLD JEWE L LRY OF 440 GRAMS FOUND DURING THE COURSE OF SUCH CAN REASONABLY BE TREATED AS EXPLAINED , THEREFORE, THE DECISION OF THE LD.CIT(A) IS NOT JUSTIFIED AND APPEAL OF THE ASSESSEE IS ALLOWED. 5. IN THE END , THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDE R PR ONOUNCED IN THE OPEN C OUR T ON 27 - 10 - 201 6 SD/ - SD/ - (RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 27 /10 /2016 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT