The ACIT, Circle-3, Surat V. Dr.Diptiben D.Patel, Surat

ITA 2721/AHD/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 6554 (ITAT-AHMEDABAD)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2009
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 21-05-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 01-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Keywords: Unexplained investment; Corroborative evidences; Valuation report
• Section: 143(3); 68

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH , , , , , , , , !' !' !' !', , , , #$ # #$ # #$ # #$ # % % % % BEFORE S/SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AN D ANIL CHATURVEDI, ACCOUNTANT MEMBER) ITA NO.2721/AHD/2009 [ASSTT.YEAR : 2006-2007] ACIT, CIR.3 SURAT. /VS. DR DIPTIBEN D. PATEL PROPRIETOR OF LOVE & CARE MATERNITY HOME, 9, SHIVSHAKTI SOCIETY TADWADI, RANDER ROAD, SURAT. PAN: ABNPP 1076 D ( (( ('( '( '( '( / APPELLANT) ( (( ()*'( )*'( )*'( )*'( / RESPONDENT) + , - #/ REVENUE BY : SHRI D.K. SINGH, SR.DR / , - #/ ASSESSEE BY : SHRI MEHUL SHAH 0 , '$/ DATE OF HEARING : 21 ST MAY, 2013 123 , '$/ DATE OF PRONOUNCEMENT : 24-05-2013 #4 / O R D E R PER MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS APPEAL BY THE REVENUE IS ARISING FROM THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, SURAT FOR THE ASSESSMENT YEAR 2006-2007 DATED 18.06.2009. ITA NO.2721/AHD/2009 -2- 2. INITIALLY THE REVENUE HAS RAISED NUMBER OF GROUN DS, WHICH WERE LATER ON CONCISED, HENCE THIS ORDER IS AS PER THE CONCISE GROUNDS FILED BY THE ASSESSEE, WHICH IS REPRODUCED BELOW: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A), AS ERRED IN DELETING THE ADDITION O F RS.18,00,000/-, MADE ON ACCOUNT OF UNEXPLAINED INVE STMENT IN CASH WITHOUT APPRECIATING THE FACT THAT THE ASSESSE E WAS NOT ABLE TO FURNISH ANY CONSTRUCTIVE OR CORROBORATIVE E VIDENCES, WHICH MAY PROVE THE GENUINENESS OF THE SO-CALLED WI LL, THROUGH WHICH THIS MONEY WAS CLAIMED TO BE RECEIVED BY HER. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.35, 21,800/-, MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOLD O RNAMENTS/ JEWELLERY WITHOUT APPRECIATING THE FACT THAT THE ON US TO PROVE THE SOURCES OF SUCH JEWELLERIES/ORNAMENTS, WHICH AR E CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE THROUGH SO CALLE D WILL OF TESTATOR, I.E HER DECEASED FATHER, IS WITH THE ASSE SSEE WHICH SHE FAILED TO PROVE. BOTH THE GROUNDS ARE CONNECTED WITH EACH OTHER, THE REFORE DECIDED IN A CONSOLIDATED MANNER. 3. THE FACTS IN BRIEF, AS EMERGED FROM THE CORRESPO NDING ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 30 TH DECEMBER, 2008 WERE THAT THE ASSESSEE IN HER INDIVI DUAL CAPACITY IS RUNNING A MATERNITY HOSPITAL, AND BY PROFESSION IS A GYNECOLOGIST. IT WAS NOTICED THAT THE ASSESSEE HAD SHOWN AN AMOUNT OF RS.53,21,000/- RECEIVED BY WAY OF WILL FROM HER FATHER. BIFURCATION OF THE SAID AMOUNT WAS THAT A SUM OF RS.35,21,000/- WAS IN RESPECT OF THE VALUE OF ORNAM ENTS AND THE BALANCE WAS CASH OF RS18,00,000/-. IN SUPPORT OF T HE VALUE OF THE ITA NO.2721/AHD/2009 -3- ORNAMENTS, A VALUERS REPORT FOR ORNAMENTS HAD ALSO BEEN FURNISHED. IT WAS NOTED BY THE AO THAT THE SAID VA LUATION REPORT WAS MADE IN THE NAME OF THE ASSESSEE. A COPY OF TH E WILL HAS ALSO BEEN SUBMITTED BEFORE THE AO. IT WAS INFORMED THAT THE TESTATOR I.E. FATHER WAS STAYING IN USA. THEREFORE , THE AO HAD ASKED TO FURNISH DETAILS OF HIS VISIT TO INDIA, AND PARTICULARLY DURING THE DATE OF EXECUTION OF THE WILL. THE ASSE SSEE WAS ALSO ASKED TO FURNISH COPY OF THE PASSPORT. SINCE THE A SSESSEES FATHER WAS STAYING IN USA, THEREFORE THE ASSESSEE WAS ALSO ASKED TO FURNISH THE CHANNEL THROUGH WHICH THE CASH AND THE JEWELLERY WAS TRANSFERRED TO INDIA. ACCORDING TO THE AO, THE ASS ESSEE HAS ONLY FURNISHED A COPY OF THE VALUATION REPORT IN SUPPORT OF THE VALUE CREDITED IN THE CAPITAL ACCOUNT, BUT NO OTHER EVIDE NCE WAS FURNISHED. ACCORDING TO THE AO, THE WILL WAS NOT S IGNED BY HER FATHER, BUT ONLY THUMB IMPRESSION WAS FOUND, THEREF ORE, THE SAID WILL WAS DOUBTED BY THE AO. IN RESPECT OF CASH REC EIPT, THE EXPLANATION OF THE ASSESSEE WAS THAT HE HAD GONE TO THE USA IN THE YEAR 1990 TO STAY WITH HIS SON; WHO WAS ALREADY SETTLED IN USA. IT WAS INFORMED THAT HE WAS WORKING WITH GLOB E AIRPORT SECURITY SERVICES AND DRAWING A REMUNERATION OF $ 7 .75 PER HOUR. A CALCULATION WAS GIVEN THAT HIS WORKING HOURS WERE 40 HOURS A WEEK, THEREFORE HE HAS SAVED AROUND US $ 77,418, AN D AFTER PAYMENT OF US INCOME TAX, THE NET SAVING WERE CLAIM ED TO BE US $ 72,828. THE CONVERSION RATE AT THAT TIME WAS RS. 45/- PER US DOLLAR, THEREFORE SAVINGS WERE CLAIMED TO BE TO THE TUNE OF RS.32,77,260/-. ON THE BASIS OF THE SAID CALCULATI ON OF HIS ITA NO.2721/AHD/2009 -4- EARNINGS AND SAVINGS, THE ASSESSEE HAS CLAIMED THAT THE FATHER WAS HAVING SUFFICIENT CAPACITY TO GIVE A SUM OF RS.18 L AKHS TO HER DAUGHTER. ALTHOUGH THE ASSESSEE HAS FURNISHED A CO PY OF THE INCOME TAX RETURN FILED IN USA, BUT ACCORDING TO TH E AO, IT WAS FOR THE PERIOD 1994 TO 1997. THEREFORE, THE AO HAS COMMENTED THAT THE ASSESSEE HAD NOT FURNISHED COPY OF THE RET URNS. ACCORDING TO THE AO, THE ASSESSEE HAS ALSO NOT PROV ED THE AVAILABILITY OF THE FUNDS. THE AO HAS EMPHASIZED T HAT THE ASSESSEE HAS NOT ESTABLISHED CHANNEL THROUGH WHICH THE HUGE AMOUNT OF RS.18 LAKHS WAS BROUGHT TO INDIA FROM USA . RESULTANTLY, THE CLAIM OF RECEIVING ORNAMENTS AND C ASH THROUGH WILL WAS REJECTED BY THE AO, RESULTANTLY TAXED IN T HE HANDS OF THE ASSESSEE. 4. BEING AGGRIEVED, THE MATTER WAS CARRIED BEFORE T HE FIRST APPELLATE AUTHORITY. SINCE THE ASSESSEE HAD FURNIS HED CERTAIN DOCUMENTARY EVIDENCES SUCH AS TAX CERTIFICATE OF TH E TESTATOR, VALUATION REPORT, CERTAIN SOUVENIRS, ESTABLISHING T HE STATUS OF THE FAMILY, A CERTIFICATE OF THE DOCTOR, THE LEARNED CI T(A) HAS CALLED FOR REMAND REPORT. IN THE REMAND REPORT IT WAS REI TERATED THAT THE ASSESSEE WAS UNABLE TO SHOW THE TRANSFER OF CASH FR OM USA. 5. AFTER CONSIDERING THE REMAND REPORT AND THE REPL Y OF THE ASSESSEE, THE LEARNED CIT(A) HAS HELD THAT THERE WA S NO REASON TO QUESTION THE GENUINENESS OF THE WILL. THE LEARNED CIT(A) HAS CONSIDERED A CERTIFICATE FURNISHED BY THE ADVOCATE AND CERTIFICATE ITA NO.2721/AHD/2009 -5- OF NOTARY, IN WHOSE PRESENCE, THE SAID WILL WAS EXE CUTED. THE LEARNED CIT(A) HAS ALSO CONSIDERED THE FACT THAT TH E THUMB IMPRESSION OF THE TESTATOR WAS PLACED ON THE WILL, AND THAT THE DOCUMENT HAS TO BE CONSIDERED AS A GENUINE DOCUMENT UNLESS AND UNTIL PROVES OTHERWISE. HE HAS ALSO RECORDED THA T THE ASSESSEES MOTHER, TWO BROTHERS AND SISTER, ALL ARE STAYING IN THE USA. THE WILL WAS EXECUTED WHICH WAS ALSO ACKNOWLEDGED BY AL L THE FAMILY MEMBERS. HE WAS CONVINCED THAT THE AMOUNT W AS SAVED BY THE ASSESSEE, WITH THE KNOWLEDGE OF ALL THE FAMI LY MEMBERS, THE SAID PROPERTIES WERE GIVEN TO THE ASSESSEE, BEI NG THE ONLY DAUGHTER STAYING IN INDIA. IN RESPECT OF JEWELLERY , THE LEARNED CIT(A) HAS NOTED THAT THE TESTATOR BELONGED TO ROYA L FAMILY OF BARODA. THE LEARNED CIT(A) HAS ACKNOWLEDGED CERTAI N SOUVENIRS WHEREIN THERE WAS A DESCRIPTION OF FAMILY OF THE TE STATOR. ACCORDING TO HIM, THE ANCESTRAL ORNAMENTS PASSED FR OM ONE GENERATION TO ANOTHER GENERATION. HE HAS OPINED TH AT THE POSSESSION AS WELL AS OWNERSHIP OF THE JEWELLERY WA S SATISFACTORILY EXPLAINED. HE HAS NOTED THAT THE JE WELLERY WAS ALWAYS IN INDIA AND THE SAME WAS NEVER TAKEN BY THE FAMILY TO THE USA. THEREFORE, THERE WAS NO TRANSFER OF JEWELLERY FROM THE USA TO INDIA. HE WAS CONVINCED THAT THE JEWELLERY WAS INHERITED BY THE ASSESSEE, WHICH WAS DULY DOCUMENTED BY A WIL L. 5.1 IN RESPECT OF TRANSFER OF CASH, THE LEARNED CI T(A) HAS NOTED THAT THE ASSESSEES FATHER AND THE MOTHER WERE PERM ITTED TO TAKE US DOLLAR 10,000 TO INDIA AND THAT THE US DOLLAR CO ULD BE ITA NO.2721/AHD/2009 -6- CONVERTED INTO INDIAN RUPEES. HE HAS CONCLUDED THA T ON ACCOUNT OF FACT THAT THE WILL WAS AUTHENTIC, THEN THE CONTE NTS OF THE WILL ARE ALSO GENUINE. RESULTANTLY, HE HAS DIRECTED TO DELETE THE ADDITION. HAVING BEEN AGGRIEVED NOW, THE REVENUE I S BEFORE US. 6. FROM THE SIDE OF THE REVENUE, THE LEARNED DR, SH RI D.K. SINGH APPEARED AND VEHEMENTLY OPPOSED THE VIEW TAKE N BY THE LEARNED CIT(A), AND IN SUPPORT FURNISHED A WRITTEN SUBMISSION. IN THE WRITTEN SUBMISSION, IT IS MENTIONED THAT THE ASSESSEE WAS ASKED TO FURNISH THE RELEVANT SUPPORTING EVIDENCE T O PROVE POSSESSION OF THE ORNAMENTS AND THE CASH BY THE FAT HER. HOWEVER, THE ASSESSEE HAS NOT FURNISHED ANY BANK ST ATEMENT OR I.T. RETURNS OF THE FATHER TO ESTABLISH HIS CREDIT- WORTHINESS. ALL THESE EVIDENCES, WHICH WERE FURNISHED, WERE NOTHING BUT SELF- SERVING EVIDENCES OF THE ASSESSEE. HE HAS ALLEGED THAT THESE EVIDENCES WERE FABRICATED BY THE ASSESSEE. HE HAS ALSO DOUBTED THAT THE WILL WAS NOT SIGNED BY THE TESTATOR, BUT O NLY A THUMB IMPRESSION WAS PUT ON THE SAID WILL. HE HAS PLEADE D THAT THE LEARNED CIT(A) HAS IGNORED THE REMAND REPORT, THERE FORE, THE FINDINGS OF THE LEARNED CIT(A) DESERVES TO BE REVER SED. THE LEARNED DR HAS ALSO FILED BEFORE US SYNOPSIS PERTAI NING TO THE APPLICABILITY OF SECTION 68, AND REITERATED THAT TH E IDENTITY OF THE CREDITOR, GENUINENESS OF THE DEPOSITS AND THE CREDI T-WORTHINESS ARE REQUIRED TO BE ESTABLISHED. FOR THESE LEGAL SU BMISSIONS, HE HAS MAINLY PLACED RELIANCE ON THE DECISION IN THE C ASE OF CIT VS. P. MOHANKALA & ORS., (2007) 210 CTR (SC) 20. HE HA S ALSO ITA NO.2721/AHD/2009 -7- PLACED RELIANCE ON SEVERAL OTHER JUDGMENT, SUCH AS, SUMATI DAYAL VS. CIT, 214 ITR 801 (SC). 7. FROM THE SIDE OF THE RESPONDENTS, SHRI MEHUL SHA H, APPEARED AND PLEADED THAT A WILL CANNOT BE CHALLENG ED BY PERSON OTHER THAN THE PERSON WHO IS AFFECTED BY SUCH WILL. IN SUPPORT OF THIS LEGAL SUBMISSION, HE HAS PLACED RELIANCE ON PA GE NO.11 OF PARA-16 & 17 OF ITAT, AHMEDABAD BENCH B ORDER IN THE CASE OF ITO VS. B.S.PANWAR (INDL.) IN ITA NO.93/AHD/2002 AND FIVE OTHERS, DATED 17 TH AUGUST, 2007. THE FINDING OF THE RESPECTIVE CO-ORDINATE BENCH IS THAT THE REVENUE HAS NO LOCUS STANDI TO CHALLENGE GENUINENESS OF THE WILL, IF NOT DOUBTED B Y THE RELATIVES. THE LEARNED AR HAS ALSO SUBMITTED THAT MERELY BECAU SE A WILL IS NOT ON STAMP PAPER OR UNREGISTERED, THE SAME CANNOT BE HELD AS NON-GENUINE FOR INCOME TAX PURPOSE. FOR THIS LEGAL PROPOSITION HE HAS PLACED RELIANCE ON THE DECISION OF THE HONBLE HIGH COURT IN THE CASE OF JCIT VS. BUDH KISHORE, 87 TTJ (DEL) 140 . AN ENGLISH TRANSLATION OF THE WILL HAS ALSO BEEN FURNI SHED WHEREIN IT WAS SPECIFIED THAT THE WILL WAS EXECUTED IN FAVOUR OF DAUGHTER STAYING IN INDIA TO AVOID FUTURE LITIGATION. HE HA S DRAWN OUR ATTENTION ON THE PHOTO OF THE PASSPORT OF THE TESTA TOR TO ESTABLISH THE DATE ON WHICH THE ASSESSEE HAD VISITED INDIA. THE LEARNED AR HAS INFORMED THAT AS PER THE DETAILS OF THE PASS PORT, THE FATHER OF THE ASSESSEE HAD COME TO INDIA ON 23 RD JULY, 2002 AND REMAINED IN INDIA UPTO 5 TH JUNE, 2003. HOWEVER, THE WILL WAS EXECUTED ON 22-3-2003. ACCORDING TO HIM, THERE WAS NO DOUBT ITA NO.2721/AHD/2009 -8- FOR GENUINENESS OF THE WILL, BECAUSE, THE SAME WAS TESTIFIED BY THE ADVOCATE, AS ALSO BY NOTARY, WHO HAD NOTARISED THE DOCUMENT. THE LEARNED AR HAS ALSO PLEADED THAT THE RE ARE CERTAIN BOOK-LETS DESCRIBING THE FAMILY STATUS OF THE FATHE R, THEREFORE, THE STATUS OF THE FAMILY IN RESPECT OF JEWELLERY WAS DU LY ESTABLISHED BY THE ASSESSEE. THE LEARNED AR HAS CONCLUDED THAT THE ADDITION WAS RIGHTLY DELETED BY THE LEARNED CIT(A). 8. BEFORE WE PRONOUNCE OUR FINDINGS, IT IS WORTH TO REPRODUCE SOME OF THE RELEVANT PORTIONS OF THE SUBMISSIONS MA DE BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES. WE HAVE ENCLOSED HEREWITH A JOINT DECLARATION MADE BY THE OTHER MEMBERS OF FAMILY OF THE TESTATOR LATE SH RI PRAVINBHAI R. PARIKH I.E. HIS WIFE SMT MANJULABEN P PARIKH, HIS SON SHRI DEEPAK P. PARIKH, HIS ANOTHER SON SHRI KULDIP P. PARIKH AND HIS DAUGHTER MRS DAXA SHAURIN MEHTA, WHEREBY THEY CONFIRM TO HAVE KNOWLEDGE ABOUT THE EXECUTION OF WILL AND CONTENTS OF WILL AND THEY ALS O CONFIRMED THAT LATE SHRI PRAVINBHAI PARIKH HAD BEQUEATHED THE GOLD ORNAMENTS AND CASH AS MENTIONED IN THE WILL AFTER MUTUAL DISCUSSION WITH ALL THE FAMIL Y MEMBERS AND THEY CONFIRMED THE EXISTENCE OF ASSETS MENTIONED IN THE WILL. 8.1 THIS PARAGRAPH WAS IN RESPECT OF THE FAMILY. T HE FOLLOWING PARAGRAPHS ARE ABOUT THE STATUS OF THE FAMILY. IT IS RESPECTFULLY SUBMITTED THAT THE APPELLANTS F ATHER LATE SHRI PRAVINBHAI PARIKH WAS FROM A VERY WELL REPUTED FAMILY JEWELLERS AND SINCE LAST MORE THAN THREE GEN ERATIONS HIS FAMILY WAS ENGAGED IN THE BUSINESS OF JEWELLERY AT VADODARA AND HIS GRANDFATHER WAS REPUTED AS JEWELLE RS OF ITA NO.2721/AHD/2009 -9- MAHARAJA GAYEKWAD FAMILY OF BARODA STATE. THEREFORE , HE WAS FROM A REPUTED FAMILY WITH HIGH STATURE AND STA TUS. IN VIEW OF THIS BACKGROUND, LATE SHRI PRAVINBHAI PARIK H POSSESSED GOOD QUANTITY OF JEWELLERY. MOREOVER, HE HIMSELF WAS ALSO ENGAGED IN JEWELLERY BUSINESS FOR SO MANY YEARS AND DURING LATER PART OF HIS LIFE, HE MIGRATED TO T HE USA TO SETTLE DOWN WITH HIS TWO SONS AND ONE DAUGHTER IN T HE USA. LATE SHRI PRAVINBHAI PARIKH HAD TWO SONS AND TWO DAUGHTERS AND OUT OF FOUR CHILDREN, THREE OF THEM H AD SETTLED DOWN THERE. THEREFORE, EXCEPT THE APPELLANT DR.DIPTI PATEL, HIS ENTIRE FAMILY HAD PERMANENTLY SETTLED DO WN IN THE USA AND ALL OF THEM WERE WELL SETTLED. UNDER THESE CIRCUMSTANCES, NONE OF THE FAMILY MEMBERS WERE INCL INED TO COME BACK TO INDIA. WHILE CLOSING DOWN THE BUSINESS OF JEWELLERY AT BARODA, LATE SHRI PRAVINBHAI PARIKH HA D KEPT CERTAIN QUANTITY OF ORNAMENTS FOR HIMSELF AND HIS F AMILY MEMBERS. APART FROM ANCESTRAL JEWELLERY RECEIVED BY HIM FROM HIS FOREFATHERS, HE HAD ALSO ACQUIRED SOME ORN AMENTS FROM TIME TO TIME OVER A PERIOD OF HIS LIFE TIME DU RING HIS TENURE AT VADODARA. SINCE ALL THE FAMILY MEMBERS HA D SETTLED DOWN IN USA AND SINCE GOLD JEWELLERY WERE ANCESTRAL AND LYING IN INDIA, IT WAS A MATTER OF EM OTIONAL ATTACHMENT OF THE ENTIRE FAMILY MEMBERS WITH THE AP PELLANT AND THEREFORE, IT WAS DECIDED WITH MUTUAL DISCUSSIO N AMONGST ALL THE FAMILY MEMBERS THAT THE ENTIRE LOT OF JEWELLERY MIGHT BE GIVEN TO THE APPELLANT WHO WAS T HE ONLY MEMBER OF THE FAMILY REMAINED IN INDIA. ..... IT IS RESPECTFULLY SUBMITTED THAT THE CREDIT WORTHI NESS OF THE APPELLANT'S FATHER AND THE POTENTIALITY TO HOLD THE QUANTUM OF JEWELLERY IN DISPUTE CAN BE VERY WELL ESTABLISHE D BY THE FACT THAT HE WAS BORN IN A VERY REPUTED FAMILY OF J EWELERS AND HIS FATHER (THE APPELLANT'S GRANDFATHER) LATE S HRI RAMANLAL MANEKLAL ZAVEN HAD ESTABLISHED HIS CREDIT IN THE SOCIETY AS 'ROYAL JEWELLER' (SHAHI JHAVERI) IN THE ROYAL COURT OF GAEKWAD STATE AND HE WAS A GENEROUS DONOR / PHILANTHROPIST AND SOCIAL WORKER OF VODODARA. WE HA VE ITA NO.2721/AHD/2009 -10- ENCLOSED HEREWITH A BOOKLET PUBLISHED BY SHRI DASHA SHRI MALI SONI GYATI MANDAL, VODODARA ON THE OCCASION OF GOLDEN JUBILEE YEAR - 2008 IN WHICH A BRIEF TRIBUTE IS GIVEN TO LATE SHRI RAMANLAL MANEKCHAND JHAVERI FROM WHICH THE SOCIAL STATURE AND STATUS OF THE FAMILY CAN BE WELL ESTABLISHED. 8.2 HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, AND AFTER CONSIDERING THE DOCUMENTS ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT IT WOULD BE UNJUST AND UNFAIR ON OUR PART TO TREAT THE WILL A BOGUS DOCUMENTS OR NON-GENUINE DOCUMENT. IN SUPPORT OF THE CORRECTNESS OF THE WILL, MAXIMUM EXPECTED FROM THE ASSESSEE WAS TO PLACE THE WILL IN ORIGINAL BEFORE THE REVENU E AUTHORITIES SO THAT IN CASE OF DOUBT, THE CONTENTS OF THE WILL, SIGNATURE OR THE THUMB IMPRESSION ETC. COULD HAVE BEEN VERIFIED. TH AT EXERCISE HAD NOT BEEN DONE BY THE AO, AND HE HAS TAKEN A PRE SUMPTIVE ACTION OF DISMISSING THE CONTENTS OF THE WILL WITHO UT HAVING ANY COGENT EVIDENCE IN HIS HAND. THE SAID DISMISSAL WI THOUT HAVING ANY SUPPORTING EVIDENCES CANNOT BE APPROVED IN THE EYES OF LAW. ALTHOUGH IT IS CORRECT THAT IN A SITUATION WHERE TH E ASSESSEE IS NOT IN A POSITION TO ESTABLISH CREDIT-WORTHINESS, GENUI NENESS AND THE IDENTITY OF THE SAID PERSON, THEN IT IS POSSIBLE FO R THE REVENUE DEPARTMENT TO INVOKE THE PROVISION OF SECTION 68 OF THE I.T.ACT. BUT IN A SITUATION WHERE A WILL HAS BEEN EXECUTED, AND IT IS NOT POSSIBLE EITHER FOR THE ASSESSEE OR FOR THE REVENUE TO CROSS- EXAMINE THE TESTATOR, WHO HAS ALREADY GONE FOR HEAV ENLY ABODE, EXCEPT TO ACCEPT THE SAME. IN THE ABSENCE OF SUCH VERIFICATION, IT IS NOT FAIR TO TAKE AN ADVERSE ACTION MERELY ON PRE SUMPTION THAT ITA NO.2721/AHD/2009 -11- THE TESTATOR MIGHT NOT BE HAVING SUFFICIENT CAPACIT Y TO BEQUEATH THE PROPERTY FOUND LISTED IN THE WILL. IN THE PRES ENT CASE, AS FAR AS THE EXISTENCE OF THE JEWELLERY IS CONCERNED, WE ARE IN AGREEMENT WITH THE LEARNED CIT(A) THAT KEEPING IN MIND THE FA MILY BACK GROUND OF THE ASSESSEE, AS ESTABLISHED THROUGH SEVE RAL SOUVENIRS, THERE WAS A POSSIBILITY OF HAVING HEIR-LOOMS IN THE SHAPE OF JEWELLERY, WHICH WAS GIVEN TO THE ASSESSEE BEING DA UGHTER STAYING IN INDIA. WE HAVE BEEN INFORMED THAT THE LEARNED C IT(A) HAS TAKEN DUE COGNIZANCE OF THE EXISTENCE OF THE JEWELL ERY AS CERTIFIED BY A REGISTERED VALUER. UNDER THE TOTALITY OF THE CIRCUMSTANCES OF THE CASE, WE ARE NOT INCLINED TO REVERSE THE FINDIN GS OF THE FIRST APPELLATE AUTHORITY. 9. AS FAR AS THE QUESTION OF HAVING CASH OF RS.18 L AKHS IS CONCERNED, THE FACTS HAVE REVEALED THAT THE TESTATO R WAS WORKING IN THE USA AND EARNING REMUNERATION ON PER DAY BASI S. THE ENTIRE AMOUNT OF RS.18 LAKHS CANNOT BE ACCEPTED AS TRANSFERRED FROM THE USA TO INDIA. EVEN THE EXISTENCE OF CASH IN INDIA HAS NOT BEEN ESTABLISHED, AS IT WAS ESTABLISHED IN THE CASE OF BEQUEATHING OF THE JEWELLERY. THE REASONS GIVEN BY THE LEARNED CIT(A) IS ALSO NOT VERY CONVINCING, THEREFORE, WE H EREBY HOLD THAT MAXIMUM A SUM OF RS.10 LAKHS COULD HAVE BEEN T RANSFERRED BY THE FATHER, AS ADMITTED IN THE SUBMISSION THAT O N EACH TRIP, EACH PERSON CAN BRING US $ 10,000 ONLY. THEREFORE, THE REST OF THE AMOUNT IS NOW REQUIRED TO BE HELD AS UNEXPLAINE D INCOME OF ITA NO.2721/AHD/2009 -12- THE ASSESSEE. RESULTANTLY, THE GROUNDS OF THE APPE AL OF THE REVENUE ARE PARTLY ALLOWED. 10. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( !' !' !' !' / ANIL CHATURVEDI) #$ #$ #$ #$ /ACCOUNTANT MEMBER ( /MUKUL KR. SHRAWAT) /JUDICIAL MEMBER C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD