SUBH KARAN PAEEK, ALWAR V. DCIT, CENTRAL CIRCLE, ALWAR

ITA 312/JPR/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8660 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 20-11-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: WAY OF PURCHASE BILLS
• Keywords: Unexplained investment; Gift; Search and seizure; Document seized; Transactions in derivatives; Corroborative evidences; Documents seized
• Section: 68; 132; 142(1); 201; 69A; 13; 153C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 312/JP/2020 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2016-17 SHRI SUBH KARAN PAREEK A-90, ASHOK VIHAR ALWAR, ALWAR-301001. CUKE VS. THE DCIT, CENTRAL CIRCLE, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACJPP 7321 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI AJAY CHANDRA (CIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 21/06/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 20/07/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE ORDER OF LD. CIT(A), JAIPUR DATED 10.11.2020 FOR THE ASSESSMENT YEAR 2016-17 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN MAKIN G AN ADDITION OF RS.12,85,536/- ON ACCOUNT OF UNEXPLAINED JEWELLE RY U/S 69A OF THE INCOME TAX ACT, 1961 AND ADDED BACK FOR THE INC OME OF THE ASSESSEE AND LD. CIT(A) HAS ERRED IN SUSTAINING TH E SAME. ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 2 2. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN MAKIN G AN ADDITION OF RS.7,33,400/- ON ACCOUNT OF UNDISCLOSED RECEIPT U/S 68 OF THE INCOME TAX ACT, 1961 AND ADDED BACK TO THE INCOME O F THE ASSESSEE AND THE LD. CIT(A) HAS ERRED IN SUSTAININ G THE SAME. 3. THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN INITI ATING THE PENALTY PROCEEDINGS UNDER SECTION 271AAB(1)(C) OF T HE INCOME TAX ACT, 1961 AND THE LD. CIT(A) HAS ERRED IN SUSTA INING THE SAME. 2. REGARDING GROUND NO. 1, THE LD AR SUBMITTED THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 27.09.2016 DECLARING TOTAL INCOME OF RS.15,23,040/-. A SEARCH AND SEIZURE ACTION U/S 13 2 OF IT ACT, 1961 WAS CARRIED OUT ON THE RESIDENTIAL PREMISES OF ASSE SSEE ON 14.10.2015. DURING THE COURSE OF SEARCH GOLD JEWELLERY WEIGHING 1640.32 GMS VALUED AT RS.42,16,575/- AND SILVER ARTICLES WEIGHI NG 10994 GMS VALUED AT RS.3,64,672/- WAS FOUND AT THE RESIDENCE OF ASSE SSEE. THE ASSESSEE VIDE LETTER DT. 29.09.2017 (REPRODUCED AT PG 2-4 OF THE ORDER) AND VIDE LETTER DT. 08.12.2017 (REPRODUCED AT PG 5-12 OF THE ORDER) EXPLAINED THAT 1300 GMS OF GOLD JEWELLERY IS A REASONABLE POS SESSION AS PER CBDT INSTRUCTION NO.1916 DT. 11.05.1994. FURTHER HE HAS PURCHASED 588.672 GMS OF GOLD JEWELLERY BETWEEN 2008 TO 2015 WHICH AR E SUPPORTED WITH PROPER BILLS SEIZED DURING THE COURSE OF SEARCH ANN EXED AS ANNEXURE N- 3/2 AND 119.554 GMS OF GOLD JEWELLERY DURING AY 201 2-13 WHOSE INVOICES WERE FURNISHED ALONG WITH THE REPLY OF AY 2012-13. THUS, TOTAL EXPLAINED JEWELLERY COMES TO 2008.226 GMS (1300+588 .672+119.554) AS AGAINST 1640.32 GMS FOUND AT THE TIME OF SEARCH. HENCE, NO QUANTITY/ AMOUNT OF GOLD JEWELLERY CAN BE CONSIDERE D AS UNEXPLAINED. ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 3 3. IT WAS SUBMITTED THAT THE AO AFTER CONSIDERING T HE SUBMISSION OF ASSESSEE HELD THAT THE LIMIT FOR EXEMPTION OF JEWEL LERY PRESCRIBED BY CBDT CIRCULAR ALSO INCLUDE THE JEWELLERY ACQUIRED/ PURCHASED BY ASSESSEE OR RECEIVED BY IT AS GIFT IN MARRIAGE/ ANY OTHER FAMILY OCCASION. CONSIDERING THE GENERAL/ ROUTINE PHENOMENA OF INDIA N MARRIAGES REGARDING GIFTING THE JEWELLERY AND A ROUTINE HOLDI NG OF JEWELLERY BY INDIAN FEMALES, A REASONABLE EXEMPTION LIMIT HAS BE EN CONSIDERED BY CBDT ITSELF BUT IT DOESNT LEAD TO THE PRESUMPTION THAT THE EXEMPTION LIMIT IS OVER AND ABOVE THE SELF PURCHASE OF JEWELL ERY. FURTHER THE ASSESSEE HAS SIMPLY STATED THAT PURCHASES HAVE BEEN MADE OUT OF CASH IN HAND/ CASH WITHDRAWAL OF HIS AND HIS FAMILY MEMB ERS AND NOTHING SUBSTANTIAL HAS BEEN PRODUCED IN SUPPORT OF THE SAM E. IN THE BALANCE SHEET AS ON 31.03.2016 ASSESSEE HAS SHOWN GOLD/SILV ER OF RS.3,42,000, VALUE OF WHICH IS MUCH BELOW THAN THE VALUE OF JEWE LLERY ALREADY HELD EXEMPTED IN VIEW OF CBDT INSTRUCTION. IN THE ABSENC E OF ANY PROPER SUPPORTING, THE CLAIM OF ASSESSEE FOR ITS CASH PURC HASE IS REJECTED. THUS, OUT OF TOTAL GOLD JEWELLERY OF 1640.320 GMS F OUND, BY GIVING BENEFIT OF CBDT INSTRUCTION, JEWELLERY OF 1300 GMS IS HELD AS EXPLAINED AND BALANCE 340.32 GMS OF GOLD JEWELLERY VALUED AT RS.9,18,864/- IS TREATED AS UNEXPLAINED. REGARDING SILVER OF 10994 G MS VALUED AT RS.3,64,672/-, ASSESSEE HAS FURNISHED NO JUSTIFICAT ION AND THUS, THE SAME IS ALSO HELD UNEXPLAINED. ACCORDINGLY, AO MADE ADDITION OF RS.12,83,536/- ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69A OF THE IT ACT. THE LD. CIT(A) UPHELD THE FINDINGS OF AO AND C ONFIRMED THE ADDITION MADE BY HIM. ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 4 4. IN THE AFORESAID FACTUAL BACKGROUND, THE LD. AR SUBMITTED THAT THE BENEFIT OF CBDT INSTRUCTION NO. 1916 DT. 11.05.1994 IS AVAILABLE TO THE ASSESSEE IN RESPECT OF JEWELLERY RECEIVED BY VARIOU S FAMILY MEMBERS ON THE OCCASION OF MARRIAGES AND OTHER SOCIAL & CUSTOM ARY OCCASIONS. THE SAID CBDT INSTRUCTION DOES NOT INCLUDE THE JEWELLER Y WHICH IS PURCHASED BY THE ASSESSEE AND FAMILY MEMBERS FROM TIME TO TIM E WHICH IS SUPPORTED BY PURCHASE BILLS. HENCE, THE QUANTITY OF JEWELLERY WHICH IS OTHERWISE EXPLAINED BY THE ASSESSEE WOULD NOT BE TR EATED AS PART OF THE QUANTITY OF REASONABLE POSSESSION AS PRESCRIBED UND ER THE SAID CBDT INSTRUCTION NO. 1916 DATED 11-05-1994. THEREFORE, T HE BENEFIT OF CBDT INSTRUCTION WILL NOT TAKE AWAY THE BENEFIT OF THE E XPLAINED JEWELLERY ACQUIRED BY THE ASSESSEE. FOR THIS PURPOSE, RELIANC E IS PLACED ON THE DECISION OF HONBLE ITAT, JAIPUR BENCH IN CASE OF S H. RAM PRAKASH MAHAWAR VS. DCIT (ITA NO.918/JP/19 ORDER DT. 20.02.2020) WHERE AT PARA 2.6, IT WAS HELD AS UNDER:- WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL A S THE RELEVANT MATERIALS AVAILABLE ON RECORD. THE FIRST ISSUE IS R EGARDING THE ADDITION SUSTAINED BY THE LD. CIT(A) TO THE TUNE OF RS.4,57, 404/- ON ACCOUNT OF UNEXPLAINED GOLD JEWELLERY BY REJECTING THE CLAI M OF THE ASSESSEE BEING ACQUISITION OF THE SAID JEWELLERY BY WAY OF P URCHASES MADE FROM TIME TO TIME AND ALSO RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THERE IS NO DISPUTE REGARDING THE FACT TH AT JEWELLERY TO THE EXTENT 343.328 GMS.REPRESENTS THE PURCHASES MADE BY THE ASSESSEE FROM TIME TO TIME WHICH IS DULY SUPPORTED BY THE PU RCHASE BILLS FOUND DURING THE SEARCH AND SEIZURE ACTION. THE SAI D QUANTITY OF JEWELLERY IS DULY RECORDED IN THE BALANCE SHEET/ BO OKS OF ACCOUNT OF THE ASSESSEE AND HIS FAMILY MEMBERS. ONCE THE AO HA S NOT DISPUTED THE PURCHASES MADE BY THE ASSESSEE OF THE SAID QUAN TITY OF JEWELLERY THEN THE SAME CANNOT BE TREATED AS UNEXPLAINED JEWE LLERY OF THE ASSESSEE. THE AO HAS DENIED THE BENEFIT OF THE SAID QUANTITY OF ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 5 JEWELLERY ON THE GROUND THAT SINCE THE BENEFIT OF R EASONABLE JEWELLERY TO THE EXTENT OF 850 GMS AS PER CBDT INST RUCTION NO. 1916 DATED 11-05-1994 IS ALREADY GRANTED, THEREFORE, TO THAT EXTENT, NO FURTHER BENEFIT CAN BE GRANTED. IT IS PERTINENT TO NOTE THAT CBDT INSTRUCTION NO. 1916 DATED 11-05-1994 HAS EXPLAINED IN CASE OF GOLD JEWELLERY FOUND IN THE POSSESSION OF THE ASSESSEE D URING THE COURSE OF SEARCH AND SEIZURE ACTION AND THE ASSESSEE IS NO T ABLE TO EXPLAIN THE SAME THEN THE QUANTITY PRESCRIBED UNDER THE SAI D CBDT INSTRUCTION NO. 1916 IN RESPECT OF MARRIED FEMALE M EMBER, UNMARRIED FEMALE MEMBER AND MALE MEMBER OF THE ASSE SSEE WOULD BE TREATED AS A REASONABLE HOLDING OF JEWELLERY ON ACCOUNT OF ACQUISITION OF THAT MUCH JEWELLERY ON VARIOUS OCCAS IONS OF MARRIAGES, OTHER SOCIAL & CUSTOMARY OCCASIONS AS PREVAILING IN THE SOCIETY. THEREFORE, REASONABLE POSSESSION OF THE JEWELLERY A S PER THE CUSTOMS PREVAILING IN THE SOCIETY IS THE BASIS FOR ALLOWING THE BENEFIT OF CERTAIN QUANTITY OF JEWELLERY EXPLAINED BY THE CBDT INSTRUCTION NO. 1916 DATED 11-05-1994 WHICH MEANS THAT THE ASSESSEE NEED NOT TO EXPLAIN THE SOURCE OF JEWELLERY FOUND IN HIS POSSES SION TO THE EXTENT OF SPECIFIED QUANTITY TREATED AS REASONABLE POSSESS ION BY FAMILY MEMBERS OF THE ASSESSEE. THE SAID CBDT INSTRUCTION NO. 1916 ALLOWING THE SPECIFIC QUANTITY AS REASONABLE AND NE ED NOT TO BE EXPLAINED, DOES NOT INCLUDE THE JEWELLERY WHICH IS OTHERWISE EXPLAINED BY PROOF OF DOCUMENTS OF ACQUISITION AS W ELL AS DECLARED/ RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. H ENCE, THE QUANTITY OF JEWELLERY WHICH IS OTHERWISE EXPLAINED BY THE ASSESSEE BY PRODUCING THE PURCHASE BILLS AS WELL AS RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND THE AO HAD NOT DISPUTED THE SAID EXPLANATION THEN THE QUANTITY WHICH IS EXPLAINED OT HERWISE BY PRODUCING THE PURCHASE BILLS AND BOOKS OF ACCOUNT W OULD NOT BE TREATED AS PART OF THE QUANTITY OF REASONABLE POSSE SSION AS PRESCRIBED UNDER THE SAID CBDT INSTRUCTION NO. 1916 DATED 11-05- 1994. THEREFORE, THE BENEFIT OF CBDT INSTRUCTION NO . 1916 DATED 11- 05-1994 WILL NOT TAKE AWAY THE BENEFIT OF THE EXPLA INED JEWELLERY ACQUIRED BY THE ASSESSEE. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCE OF THE CASE, THE QUANTITY OF JEWELLERY TO THE EXTEN T OF 343.328 ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 6 GMS.HAS TO BE ALLOWED SEPARATELY AS EXPLAINED JEWEL LERY AND NO ADDITION CAN BE MADE TO THAT EXTENT. 5. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE AND H IS FAMILY MEMBERS HAVE PURCHASED GOLD JEWELLERY OF 708.226 GMS BETWEE N 2008 TO 2015. THESE PURCHASES ARE DULY SUPPORTED WITH PROPER BILL S SEIZED DURING THE COURSE OF SEARCH ANNEXED AS ANNEXURE N-3/2. A CHART SHOWING THE GOLD JEWELLERY PURCHASED IS PLACED AS PAGE 1 OF PAPERBOO K. IT INCLUDES GOLD JEWELLERY WEIGHING 266.138 GMS PURCHASED ON THE OCC ASION OF MARRIAGE OF ASSESSEES SON SH. SHAURAV PAREEK ON 05.12.2011. THUS, WHEN THE JEWELLERY PURCHASED ARE DULY SUPPORTED BY BILLS, AD DITION OF 340.32 GMS OF GOLD JEWELLERY VALUED AT RS.9,18,864/- MADE BY T HE AO AND CONFIRMED BY LD. CIT(A) BY TREATING IT AS UNEXPLAIN ED IS UNCALLED FOR AND BE DELETED. OTHERWISE ALSO, WHEN IT IS A FACT ON RE CORD THAT GOLD JEWELLERY WERE PURCHASED IN EARLIER YEARS AND THERE IS NO EVIDENCE THAT ANY GOLD ORNAMENT IS PURCHASED DURING THE YEAR, THE ADDITION FOR 340.32 GMS OF GOLD ORNAMENTS IN THE YEAR UNDER CONSIDERATI ON IS UNJUSTIFIED. 6. REGARDING SILVER OF 10994 GMS FOUND DURING THE C OURSE OF SEARCH, IT WAS SUBMITTED THAT THE ASSESSEE ALONG WITH HIS FAMI LY MEMBERS HAS PURCHASED SILVER WEIGHING 3844.500 GMS DURING THE Y EAR 2009 & 2011. COPY OF PURCHASE BILLS WHICH WERE SEIZED DURING THE COURSE OF SEARCH ANNEXED AS ANNEXURE N-3/2 IS AT PB6, 13 & 14. HENCE , SILVER ARTICLES TO THE EXTENT OF 3844.500 GMS IS FULLY EXPLAINED. THE REMAINING SILVER ARTICLES OF 7149.50 GMS IS A REASONABLE POSSESSION IN THE HANDS OF ASSESSEE AND HIS FAMILY MEMBERS AS RECEIVED ON THE OCCASION OF MARRIAGES AND OTHER SOCIAL & CUSTOMARY OCCASIONS. T HUS, CONSIDERING THE STATUS AND STANDING OF THE FAMILY OF ASSESSEE, ADDITION OF ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 7 RS.3,64,672/- MADE BY THE AO AND CONFIRMED BY LD. C IT(A) BY TREATING IT AS UNEXPLAINED IS UNCALLED FOR AND BE DELETED. R EGARDING OBSERVATION OF LOWER AUTHORITIES THAT IN THE BALANCE SHEET AS O N 31.03.2016 ASSESSEE HAS SHOWN GOLD/ SILVER OF RS.3,42,000/-, I T IS SUBMITTED THAT ASSESSEE LIVED IN A JOINT FAMILY AND THE GOLD AND S ILVER ARTICLE FOUND DURING THE SEARCH BELONGS TO ALL MEMBERS OF FAMILY. SINCE ASSESSEE WAS REQUIRED TO GET HIS ACCOUNTS AUDITED, BALANCE SHEET OF ASSESSEE WAS ONLY FURNISHED WHICH SHOWS GOLD/ SILVER HOLDING OF ASSESSEE ONLY AND DID NOT SHOW GOLD/ SILVER HOLDING OF OTHER FAMILY MEMBE RS. THUS, WHEN THE BALANCE SHEET OF ASSESSEE AS ON 31.03.2016 INDICATE THE VALUE OF GOLD & SILVER JEWELLERY WHICH WAS ACQUIRED IN EARLIER YEAR S, IT ALL THE MORE SUPPORT THE CASE OF ASSESSEE THAT THE GOLD JEWELLER Y PURCHASED FROM TIME TO TIME BY VARIOUS FAMILY MEMBERS FROM THEIR O WN SOURCES FOR WHICH BILLS ARE FOUND IN SEARCH NEEDS TO BE CONSIDE RED EXPLAINED. IN VIEW OF ABOVE, ADDITION CONFIRMED BY LD. CIT(A) BE DIRECTED TO BE DELETED. 7. PER CONTRA, THE LD. DR/CIT RELIED ON THE FINDING OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD CIT(A) WHICH READ AS UNDER: 2.3 I HAVE PERUSED THE WRITTEN SUBMISSIONS SUBMITT ED BY THE LD. A/R AND THE ORDER OF AO. I HAVE ALSO GONE THROU GH VARIOUS JUDGMENTS CITED. IN THE PRESENT CASE, THE JEWELLERY FOUND IN THE COU RSE OF SEARCH WAS 1640.32 GMS OUT OF WHICH DUE TO CBDT INSTRUCTIO N NUMBER 1916, JEWELLERY TO THE TUNE OF 1300 GMS WAS CONSIDE RED AS EXPLAINED. THE LD. A/R HAS CONTENDED THAT THERE WER E CERTAIN ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 8 BILLS OF JEWELLERY WHICH WERE PRESENTED BEFORE THE AO WHICH WOULD MAKE JEWELLERY TO THE EXTENT OF 588.672 GMS E XPLAINED. IN A NUT SHELL THE LD. A/R CONTENDS THAT BENEFIT OF TH OSE BILLS SHOULD BE OVER AND ABOVE TO THE JEWELLERY ALLOWANCE AS PER CBDT INSTRUCTION NUMBER 1916. THE AO REJECTED THIS CONTE NTION AND HELD THAT JEWELLERY CONSIDERED AS EXPLAINED AS PER CBDT INSTRUCTION NUMBER 1916 WOULD COVER SUCH JEWELLERY FOR WHICH BILLS ARE AVAILABLE. ALSO ADMITTEDLY THE APPELLANT AND FAMILY MEMBERS ARE NOT WEALTH TAX ASSESSEES. THUS, THE AO STATED THAT NO FURTHER BENEFIT OF SUCH BILLS CAN BE ALLOWED. THE DETAILS AND SOURCE OF JEWELLERY AS PER BILLS WERE STATED BY ASSESSEE AS PURCHASED/PAID OUT OF CASH AV AILABLE WITH APPELLANT AND FAMILY WHICH WAS WITHDRAWN FROM TIME TO TIME FROM BANK ACCOUNTS. HOWEVER THE NEXUS BETWEEN WITHDRAWAL AND PURCHASE IS NOT ESTABLISHED. AO ALSO OBSERVED THAT ASSESSEES BALANCE SHEET ONLY SHOWED RS. 3,42,000/- UNDER THE HEAD JEWELLERY. THE CASE LAWS CITED BY APPELLANT ARE ALS O NOT APPLICABLE TO THIS CASE. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE ADDITION OF RS. 9,18,864/- MADE BY THE AO IS UPHELD . REGARDING SILVER ITEMS OF RS. 3,64,672/- THE AO HAS ADDED THE AMOUNT OF ENTIRE SILVER ARTICLES FOUND. LOOKING TO THE FACTS OF THE CASE AND IN ABSENCE OF ANY SUPPORTING EVIDENCE, I A M OF THE VIEW THAT AO HAS RIGHTLY MADE THE ADDITION. IN APPEAL AL SO, ASSESSEE FAILED TO ESTABLISH THE SOURCE OF ACQUISITION OR JU STIFICATION OF SUCH SILVER ARTICLES. THEREFORE NO RELIEF REGARDING THE ADDITION OF RS. 3,64,672/- CAN BE GRANTED. ACCORDINGLY, THE ADDITIO N MADE BY AO ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 9 OF RS. 12,83,536/- IS HEREBY UPHELD. GROUND OF APPE AL IS DISMISSED. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE COORDINATE BENCH IN CASE OF SHRI RAM PRAKASH MAHAWAR (SUPRA) HAS HELD THAT THE CBDT INSTRUCTION NO. 1916 ALLOWING THE SPECIFIC QUANTITY OF GOLD JEWELLERY AS REASONAB LE AND NEED NOT TO BE EXPLAINED, DOES NOT INCLUDE THE JEWELLERY WHICH IS OTHERWISE EXPLAINED BY PROOF OF DOCUMENTS OF ACQUISITION AS WELL AS DEC LARED/ RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. IN ABSENCE OF ANY CONTRARY AUTHORITY BROUGHT TO OUR NOTICE OR THE FACT THAT AF ORESAID DECISION OF THE COORDINATE BENCH HAS BEEN STAYED OR REVERSED BY THE HONBLE HIGH COURT, FOLLOWING THE PROPOSITION LAID DOWN THEREIN, WHAT NEEDS TO BE EXAMINED IS WHETHER THE GOLD JEWELLERY SEIZED DURIN G THE SEARCH FROM THE RESIDENCE OF THE ASSESSEE OVER AND ABOVE TREATE D AS REASONABLE AS PER THE CBDT CIRCULAR HAS BEEN DULY EXPLAINED BY TH E ASSESSEE. 9. IT HAS BEEN CONTENDED BY THE LD AR THAT THE ASSE SSEE AND HIS FAMILY MEMBERS HAVE PURCHASED GOLD JEWELLERY OF 708 .226 GMS BETWEEN 2008 TO 2015. THESE PURCHASES ARE DULY SUPPORTED WI TH PROPER BILLS SEIZED DURING THE COURSE OF SEARCH ANNEXED AS ANNEX URE N-3/2 AND INCLUDES GOLD JEWELLERY WEIGHING 266.138 GMS PURCHA SED ON THE OCCASION OF MARRIAGE OF ASSESSEES SON SH. SHAURAV PAREEK ON 05.12.2011. IT HAS BEEN FURTHER SUBMITTED THAT IN T HE BALANCE SHEET OF THE ASSESSEE AS ON 31.03.2016, THE ASSESSEE HAS ALS O DISCLOSED HIS INDIVIDUAL GOLD JEWELLERY WORTH RS 3,42,000/- WHICH HAS NOT BEEN APPRECIATED BY THE LOWER AUTHORITIES. PER CONTRA, THE LD CIT/DR HAS CONTENDED THAT ON PERUSAL OF PURCHASE BILLS PLACED ON RECORD AS PER ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 10 ASSESSEES OWN PAPERBOOK, MOST OF THE PURCHASES HAV E BEEN MADE IN CASH AND THE ASSESSEE HAS FAILED TO DEMONSTRATE THE AVAILABILITY OF CASH AT THE RELEVANT POINT IN TIME AND/OR NEXUS BETWEEN THE WITHDRAWALS FROM THE BANK AND THE PURCHASES SO MADE OUT OF SUCH CASH WITHDRAWALS. WE FIND THAT OUT OF TOTAL 708.226 GRAM S OF GOLD JEWELLERY, 266.138 GRAMS OF GOLD JEWELLERY HAS BEEN PURCHASED DURING THE FINANCIAL YEAR RELEVANT TO A.Y 2012-13 AND REST ALL JEWELLERY HAS BEEN PURCHASED EITHER PRIOR OR SUBSEQUENT TO A.Y 2012-13 . THOUGH THESE PURCHASES ARE SUPPORTED BY THE BILLS WHICH ARE DEMO NSTRATIVE OF PURCHASES MADE BY THE ASSESSEE, HOWEVER, GIVEN THE FACT THAT MOST OF THESE PURCHASES HAVE BEEN MADE IN CASH, WHAT IS CRI TICAL TO DETERMINE IS THE SOURCE AND THE AVAILABILITY OF CASH IN THE H ANDS OF THE ASSESSEE AT THE RELEVANT POINT OF TIME OF PURCHASE AS FOR TAX P URPOSES, WHAT IS RELEVANT TO DETERMINE IS NATURE AND SOURCE OF ACQUI SITION OF SUCH JEWELLERY AND NOT MERELY THE ACQUISITION OF JEWELLE RY. IN THIS REGARD, WE FIND THAT IN RESPECT OF 266.138 GRAMS OF GOLD JEWEL LERY PURCHASED DURING THE FINANCIAL YEAR RELEVANT TO A.Y 2012-13 AMOUNTIN G TO RS 782,233/-, THE ASSESSEE HAS COME FORWARD WITH AN EXPLANATION T HAT THESE PURCHASES HAVE BEEN MADE ON THE OCCASION OF MARRIAG E OF HIS SON, SHAURAV PAREEK AND SOURCE OF SUCH PURCHASES HAS BEE N STATED TO BE CASH PAYMENT OF RS 4,92,233/- AND REMAINING THROUGH CHEQUE. AND WE FIND THAT THE SOURCE OF CASH PAYMENT HAS BEEN REASO NABLY EXPLAINED BY WAY OF CASH WITHDRAWALS BY THE ASSESSEE FROM HIS BA NK ACCOUNTS AROUND THE SAME TIME WHEN THE MARRIAGE OF HIS SON W AS SOLEMNIZED. THEREFORE, TO THE EXTENT OF RS 782,233 WORTH OF GOL D JEWELLERY, THE SAME IS TAKEN AS EXPLAINED BY THE ASSESSEE BY WAY O F PURCHASE BILLS AND WITHDRAWALS/PAYMENT FROM HIS BANK ACCOUNT. REGARDIN G THE REMAINING ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 11 JEWELLERY WORTH RS 136,631/-, WE FIND THAT NO SUFFI CIENT EXPLANATION IS AVAILABLE ON RECORD IN TERMS OF SOURCE OF CASH PAYM ENT TOWARDS PURCHASE OF SUCH JEWELLERY. THE DISCLOSURE OF GOLD JEWELLERY IN THE BALANCE SHEET AS ON 31.03.2016 IS DEMONSTRATE OF PU RCHASES MADE DURING THE FINANCIAL YEAR 2015-16 RELEVANT TO A.Y 2 016-17 IN ABSENCE OF ANYTHING ON RECORD THAT SUCH PURCHASES WERE MADE IN THE EARLIER PERIOD AND THUS DOESNT COME TO THE AID OF THE ASSESSEE IN TERMS OF EXPLANATION OF POSSESSION OF THE JEWELLERY DURING T HE FINANCIAL YEAR RELEVANT TO IMPUGNED ASSESSMENT YEAR. THEREFORE, T HE ADDITION TO THE EXTENT OF RS 136,631/- TOWARDS UNEXPLAINED GOLD JEW ELLERY IS HEREBY CONFIRMED. 10. REGARDING SILVER ARTICLES, THE AO HAS RECORDED A FINDING THAT ASSESSEE HAS FURNISHED NO EXPLANATION AND THE LD CI T(A) HAS RECORDED A FINDING THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF ACQUISITION OF SILVER ARTICLES. BEFORE US, IT HAS BEEN CONTENDE D FOR THE FIRST TIME THAT THE SILVER ARTICLES WEIGHING 3844.50 GRAMS ARE SUPP ORTED BY PURCHASE BILLS SEIZED DURING THE COURSE OF SEARCH. AS WE HAV E HELD ABOVE, MERE PURCHASE BILLS ARE NOT SUFFICIENT TO EXPLAIN THE SO URCE OF PURCHASE OF SILVER ITEMS WHERE SUCH PURCHASES ARE MADE IN CASH AND IN ABSENCE OF ANY EXPLANATION ON RECORD IN TERMS OF AVAILABILITY OF CASH IN THE HANDS OF THE ASSESSEE AT THE RELEVANT POINT OF TIME OF PURCH ASE, SUCH PURCHASES CANNOT BE TREATED AS EXPLAINED BY THE ASSESSEE. IN THE RESULT, THE ADDITION OF RS 3,64,672/- MADE BY THE AO IS HEREBY CONFIRMED. 11. IN THE RESULT, THE GROUND OF APPEAL NO. 1 IS TH US PARTLY ALLOWED. ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 12 12. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED TH E ADDITION OF RS. 7,33,400/- ON ACCOUNT OF UNDISCLOSED RECEIPT U/ S 68 OF THE IT ACT. 13. IN THIS REGARD, THE LD AR SUBMITTED THAT DURING THE COURSE OF SEARCH A PAPER MARKED AS PG 30 OF EXHIBIT-10 OF ANN EXURE AS WAS SEIZED FROM THE RESIDENTIAL PREMISES OF ASSESSEE (P G 14 OF THE ASSESSMENT ORDER). THE PAPER SHOWS RECEIPT OF RS.25 ,000/- AGAINST TRADING MARGIN AND RS.8,400/- RECEIVED AS INTEREST ON INVESTMENT OF RS.7 LACS FROM CHINTU ON 25.05.2015. FURTHER RS.1,5 00/- IS REDUCED WITH THE NARRATION MOM JI AND RS.16,500/- WITH THE NARRA TION DRAWN FOR EXPENSES WITH DATE 28.08.2015. THE AO ACCORDINGLY R EQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF RECEIPT OF RS.7,3 3,400/- (7,00,000+25,000+,8400). THE ASSESSEE VIDE REPLY DT . 28.11.2017 (REPRODUCED AT PG 15 OF THE ORDER) SUBMITTED THAT T HE PAPER BELONGS TO HIS SON SH. SHAURAV PAREEK. SH. SHAURAV PAREEK CARR IES THE BUSINESS OF TRADING AND BROKING IN EQUITY, DERIVATIVE, COMMODIT Y, CURRENCY AND PROFESSIONAL WORK INCLUDING CONSULTANCY AND SERVICE PROVIDERS. THIS PAPER HAS NO RELEVANCY WITH THE ASSESSEE. THE AO, H OWEVER, HELD THAT ON THE PAPER THERE IS NO REFERENCE OF SH. SHAURAV P AREEK TO ASCERTAIN THAT TO WHOM IT PERTAINS. THE PAPER CONTAINS THE DE TAILS REGARDING SHARE TRANSACTIONS. THE ASSESSEE IS ALSO INVOLVED IN THE SHARE TRADING AND F&O BUSINESS DURING THE YEAR UNDER CONSIDERATION AS REF LECTED FROM HIS BALANCE SHEET, P&L A/C, COMPUTATION OF INCOME. THUS , THE CONTENTION OF ASSESSEE THAT THE PAPER PERTAINS TO SH. SHAURAV PAR EEK AND NOT TO HIM DOESNT HAVE ANY STRONG FOOTING. ACCORDINGLY, HE MA DE THE ADDITION OF RS.7,33,400/- AS UNDISCLOSED RECEIPT IN THE HANDS O F ASSESSEE. THE LD. ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 13 CIT(A) UPHELD THE FINDINGS OF AO AND CONFIRMED THE ADDITION MADE BY HIM. 14. IT WAS SUBMITTED BY THE LD AR THAT THE PAPER BE LONGS TO SH. SHAURAV PAREEK, SON OF ASSESSEE IS EVIDENT FROM TH E FACT THAT IT IS IN HIS HANDWRITING AND ALSO THAT THERE IS A NOTING OF MOM JI AGAINST THE AMOUNT OF RS.1,500/- WHICH INDICATE THAT SH. SHAURA V PAREEK HAS GIVEN RS.1,500/- TO HIS MOTHER. THEREFORE, BOTH THE LOWER AUTHORITIES ARE NOT CORRECT IN CONSIDERING THIS PAPER IN THE HANDS OF A SSESSEE ONLY FOR THE REASON THAT ASSESSEE IS INVOLVED IN THE SHARE TRADI NG AND F&O BUSINESS IGNORING THAT SH. SHAURAV PAREEK IS ALSO INVOLVED I N SHARE TRADING AND F&O BUSINESS. 15. IT WAS SUBMITTED THAT AFTER THE ASSESSMENT ORDE R PASSED IN CASE OF ASSESSEE, IN COURSE OF ASSESSMENT PROCEEDINGS OF THE SON OF ASSESSEE SH. SHAURAV PAREEK FOR AY 2015-16, HIS STATEMENT WA S RECORDED ON 11.10.2018 WHERE IN REPLY TO Q.NO.11 & 12 HE HAS AD MITTED THAT THE PAPER PERTAINS TO HIM AND ALSO EXPLAINED THE INDIVI DUAL ENTRY RECORDED ON THIS PAPER. THEREAFTER IN NOTICE U/S 142(1) DT. 13.12.2018, IN QUERY NO.14, AO REQUIRED HIM TO EXPLAIN EACH OF THE ENTRY RECORDED ON THE SAID PAPER. THE SAME WAS EXPLAINED BY HIM VIDE LETT ER DT. 20.12.2018 WHERE EACH OF THE AMOUNT IS EXPLAINED AND WHERE WIT H REFERENCE TO THE AMOUNT OF RS.1,500/- HE HAS STATED THAT MOMJI REFER S TO HIS MOTHER. THEREAFTER, AO PASSED THE ORDER DT. 27.12.2018 IN W HICH NO ADVERSE INFERENCE IS DRAWN AGAINST SH. SHAURAV PAREEK ON TH E BASIS OF THIS PAPER. THUS, WHEN THE PAPER BELONGS TO SH. SHAURAV PAREEK AND HAS ALSO BEEN CONSIDERED IN HIS CASE, ADDITION MADE IN THE HANDS OF ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 14 ASSESSEE IS UNJUSTIFIED AND BE DELETED. OTHERWISE A LSO, SH. SHAURAV PAREEK HAS EXPLAINED EACH OF THE ENTRY NOTED ON THI S PAPER WITH SUPPORTING EVIDENCE, EVEN THE ADDITION ON MERIT IS NOT SUSTAINABLE. IN VIEW OF ABOVE, ADDITION CONFIRMED BY LD. CIT(A) BE DIRECTED TO BE DELETED. 16. PER CONTRA, THE LD. DR/CIT RELIED ON THE FINDIN G OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD CIT(A) WHICH READ AS UNDER: 3.3 I HAVE PERUSED THE WRITTEN SUBMISSIONS SUBMITT ED BY THE LD. A/R AND THE ORDER OF AO. I HAVE ALSO PERUSED TH E SCANNED COPY OF SEIZED DOCUMENT PAGE 30/EXHIBIT 10 OF ANNEX URE AS 1. THE LD. A/R CONTENDED THAT TRANSACTIONS OF THE SEIZ ED DOCUMENT PERTAIN TO MR. SHAURAV PAREEK, SON OF APPELLANT, AS IT HAS BEEN OWNED UP AND INCORPORATED IN THE RETURN OF INCOME. THE AO REJECTED THE CONTENTION OF THE A/R. I AM OF THE VIEW THAT THE AO IS RIGHT IN REJECTING THE LD. A/RS CONTENTION AS THERE IS NO REFERENCE OF NAME OF SHAU RAV PAREEK IN THE SEIZED DOCUMENT FOUND FROM THE POSSESSION OF TH E APPELLANT. THE CONTENTION THAT TRANSACTIONS HAVE BEEN INCORPOR ATED BY SHAURAV PAREEK IS ALSO WITHOUT ANY BASIS AS THE LD. A/R HAS NOT BEEN ABLE TO DEMONSTRATE HOW TRANSACTION ARE INCORP ORATED IN BOOKS AND THE AMOUNT OFFERED FOR TAXATION BY THE SH AURAV PAREEK. THUS CONSIDERING THE FACTS AND THE CIRCUMST ANCES OF THE CASE, THE AO HAS RIGHTLY TREATED THE AMOUNT OF RS. 7,33,400/- AS UNDISCLOSED INCOME OF ASSESSEE. GROUND NO. 2 IS DIS MISSED. ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 15 17. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE SEIZED DOCUMENT HAS BEEN FOUND FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE AND DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS CONTENDED THAT THE SAID DOCUMENT PERTAINS TO HIS SON, SHRI SHAURAV PAREEK W HICH WAS HOWEVER NOT ACCEPTED AND ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE. POST COMPLETION OF THE IMPUGNED ASSESSMENT PROCEEDINGS, BASIS THE AFORESAID SUBMISSIONS OF THE ASSESSEE THAT THESE AN D OTHER DOCUMENTS SEIZED FROM HIS PREMISES ARE RELATED TO HIS SON, SH RI SHAURAV PAREEK, PROCEEDINGS IN THE HANDS OF SHRI SHAURAV PAREEK WER E INITIATED U/S 153C OF THE ACT AND IN TERMS OF NOTICE U/S 142(1) DATED 13.12.2018, REFERRING TO SEIZED DOCUMENT UNDER CONSIDERATION I.E, PAGE NO . 30 OF EXHIBIT 10 OF ANNEXURE A, THE AO HAS STATED THAT SINCE THE SAID D OCUMENTS PERTAINS TO SHRI SHAURAV PAREEK, HE WAS CALLED UPON TO FURNI SH HIS EXPLANATION AND SUBMISSIONS BEFORE THE AO. IN RESPONSE, SHRI S HAURAV PAREEK SUBMITTED THAT THE SAID DOCUMENT PERTAINS TO HIM AN D GIVEN HIS EXPLANATION REGARDING THE ENTRIES FOUND IN THE SAID DOCUMENT. THERE IS THUS A CLEAR FINDING BY BOTH THE REVENUE AND THE AD MISSION BY SHRI SHAURAV PAREEK THAT THE SAID DOCUMENTS PERTAINS TO HIM AND IN SUCH A SCENARIO, THE CONTENTION OF THE ASSESSEE HAS TO BE ACCEPTED THAT THE SAID DOCUMENT PERTAINS TO HIS SON AND WE THEREFORE FIND THAT THE ADDITION, IF ANY, WHERE REQUIRED AS PER LAW NEEDS T O BE MADE IN THE HANDS OF SHRI SHAURAV PAREEK AND THERE IS NO BASIS FOR MAKING ADDITION BASED ON SUCH SEIZED DOCUMENTS IN THE HANDS OF THE ASSESSEE. IN THE RESULT, THE ADDITION SO MADE IS DIRECTED TO BE DELE TED AND THE GROUND OF APPEAL IS ALLOWED. ITA NO.312/JP/2020 SHRI SUBH KARAN PAREEK, ALWAR VS. DCIT, ALWAR 16 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/07/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20/07/2021. *GANESH KUMAR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SUBH KARAN PAREEK, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CENTRAL CIRCLE, ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 312/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR