DCIT CEN CIR 22, MUMBAI V. PRAVIN B SHAH, MUMBAI

ITA 2842/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88108 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 12-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R N DSOUZA
• Assessee Lawyers: AJEET A MANWANI
• Keywords: Gift; Business income; Valuation report

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BE NCH, MUMBAI , !' #$%& , '' ' ( BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 2842/MUM/2013 ( ! ! ! ! ) ) ) ) / ASSESSMENT YEAR : 2010-11 THE DCIT, CEN.CIR.22, ROOM NO.403, 4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020 ! ! ! ! / VS. SHRI PRAVIN B. SHAH, 102, CHADRAMUNI, HANUMAN ROAD, VILEPARLE(E), MUMBAI 400057 * '' ./ + ./ PAN/GIR NO. : AFGPS2040K ( *, / APPELLANT ) .. ( -.*, / RESPONDENT ) *, / ' / APPELLANT BY: SHRI R.N.DSOUZA -.*, 0 / ' / RESPONDENT BY: SHRI AJEET A. MANWANI ! 0 12' / DATE OF HEARING :27.01.2015 3) 0 12' / DATE OF PRONOUNCEMENT :27.01.2015 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST T HE ORDER OF THE LD.CIT(A)-39, MUMBAI DATED 17/01/2013 PERTAINING TO ASSESSMENT YEAR 2010-11. THE SOLE GRIEVANCE OF THE REVENUE IS THAT LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.11,60,775/- MADE UNDER SECTION 69A OF THE INCOME TAX ACT, 1961(THE ACT) AS UNEXPLAINED JEWELL ERY. I .T.A. NO. 2842/MUM/2013 2 2. THE ASSESSEE IS TRADING IN BUILDING MATERIALS. THE BUSINESS INCOME WAS SHOWN AT RS.23,92,142/-. DURING THE COURSE OF SEARCH AT HIS RESIDENCE, CERTAIN JEWELLERY WERE FOUND. THE TOTAL JEWELLERY FOUND WAS OF RS.37.88 LACS OUT OF WHICH JEWELLERY WORTH RS.13 .96 LACS WERE SEIZED. THE ASSESSEE OFFERED ADDITIONAL INCOME OF RS. 15.00 LACS IN HIS STATEMENT RECORDED ON 04/12/2009. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF ACQUISITION OF THE JEWELLERY. THE ASSESSEE REPLIED THAT THE JEWELLERY BELONGS TO HIS MOTHER, WHICH IS ABOUT 495.800 GRAMS AND SILVER ARTICLE OF ABOUT 9.30 KGS. WHICH WAS ACQUIRED BY HER AT THE T IME OF HER MARRIAGE, SOCIAL FUNCTIONS ETC. IT WAS FURTHER EXPLAINED TH AT ASSESSEES WIFE AND HIS SONS INHERITED THE JEWELLERY FROM HIS MOTHER AND AL SO FROM THE MATERNAL GRANDMOTHER. HOWEVER, ON RECEIVING NO DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM, THE AO MADE AN ADDITION OF RS .11,60,775/- UNDER SECTION 69A OF THE ACT IN THE HANDS OF THE ASSESSEE . 3. THE ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A ) AND REITERATED ITS CLAIM. AFTER CONSIDERING THE FACTS AND THE SUBMISS ION, THE LD. CIT(A) WAS CONVINCED WITH THE REPLY OF THE ASSESSEE AND HE LD AS UNDER: 8. I HAVE CONSIDERED THE ASSESSMENT AS MADE AND A LSO THE SUBMISSIONS AS MADE BY THE APPELLANT. IT IS SEEN T O BE AN UNDISPUTED FACT THAT THE APPELLANTS MOTHER HAD BEE N LIVING WITH HIM THROUGH OUT HER LIFE AND IN THESE CIRCUMSTANCES CIRCUMSTANCES, REASONABLE BELIEF CAN BE FORMED THAT THE SAID ITEMS OF JEWELLERY AND GOLD HAD COME TO BE INHERITED FROM HER, WHICH IS NO T UNUSUAL IN JOINT FAMILIES. MOREOVER, IT IS ALSO TO BE RECKONED THAT AN AMOUNT OF RS. 15 LAKHS HAS ALREADY BEEN DISCLOSED AND OFFERED TO TAX BY THE APPELLANT TOWARDS VALUE OF UNACCOUNTED JEWELLERY. N OT ONLY THIS, THE APPELLANT HAD GOT A SEPARATE VALUATION OF JEWEL LERY AND SILVER UTENSILS DONE BY THE GOVERNMENT APPROVED VALUER AND SUBMITTED THAT THE VALUATION REPORT WAS IN THE NAME OF HIS LA TE MOTHER. THE SAID VALUATION REPORT HAS NOT BEEN REJECTED. IN THE SE CIRCUMSTANCES, AND ALSO CONSIDERING THE JOINT FAMIL Y STATUS AND THAT THE APPELLANT BELONGS TO A BUSINESS COMMUNITY AND A LSO THE FACT THAT THERE IS THE TRADITION OF RECEIVING GIFTS DURI NG OCCASIONS OF I .T.A. NO. 2842/MUM/2013 3 MARRIAGE ETC., I AM OF THE VIEW THAT THE SAID ADDIT ION UNDER S.69A IS NOT CALLED FOR ON THE FACTS OF THE CASE AS EXISTING . ACCORDINGLY, THE ADDITION MADE UNDER S. 69A STANDS DELETED. 4. REVENUE IS IN APPEAL AGAINST THIS FINDING OF L D. CIT(A). NONE APPEARED ON BEHALF OF THE ASSESSEE. 5. WE HAVE HEARD LD. DEPARTMENTAL REPRESENTATIVE AT LENGTH, WHO STRONGLY SUPPORTED THE ASSESSMENT ORDER. WE HAVE C AREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE AO HAS REJECT ED THE CLAIM OF THE ASSESSEE MERELY BECAUSE THE ASSESSEE COULD NOT SUBS TANTIATE THE CLAIM BY FILING DOCUMENTARY EVIDENCE/WILL OF THE GRANDMOTHE R. HOWEVER, WE FIND THAT FOR ADOPTING THE VALUATION, THE AO HAS CONSIDE RED THE VALUATION REPORT OF THE GOVERNMENT APPROVED VALUER FOUND AT T HE TIME OF SEARCH. THE GOVERNMENT APPROVED VALUERS REPORT IS IN THE N AME OF THE MOTHER OF THE ASSESSEE, WHICH SHOWS THAT THE VALUATION WAS DONE DURING THE LIFE TIME OF THE MOTHER OF THE ASSESSEE. THIS VALUATION REPORT HAS NOT BEEN REJECTED. WE AGREE WITH THE OBSERVATION OF LD. CIT (A) THAT REASONABLE BELIEF CAN BE FORMED THAT THE SAID ITEMS OF JEWELL ERY HAD COME TO BE INHERITED FROM THE MOTHER WHICH IS NOT UNUSUAL IN J OINT FAMILIES. CONSIDERING THE FACTS IN TOTALITY, WE DO NOT FIND A NY REASON TO INTERFERE WITH THE FINDING OF THE LD. CIT(A). THE APPEAL FIL ED BY THE REVENUE IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 27 TH JANUARY, 2015. SD/- SD/- (JOGINDER SINGH ) (N.K. BILLAIYA) /JUDICIAL MEMBER '' / ACCOUNTANT MEMBER MUMBAI; 5! DATED : 27.01.2015 . ! . ./ VM , SR. PS I .T.A. NO. 2842/MUM/2013 4 '4 '4 '4 '4 0 00 0 -1# -1# -1# -1# 6'#)1 6'#)1 6'#)1 6'#)1 / COPY OF THE ORDER FORWARDED TO : 1. *, / THE APPELLANT 2. -.*, / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. #8 -1! , , / DR, ITAT, MUMBAI 6. 9 : / GUARD FILE. '4! '4! '4! '4! / BY ORDER, .#1 -1 //TRUE COPY// ; ;; ; / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI