DCIT, Jaipur V. VIJAY MEHTA, Jaipur

ITA 326/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2160 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 06-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VERINDRA MEHTA
• Keywords: Unexplained investment; Gift; Search and seizure; Salary income; Document seized; Documents seized
• Section: 131; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 326/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2012-2013 THE DCIT CENTRAL, CIRCLE- 2, JAIPUR. CUKE VS. SHRI VIJAY MEHTA, C-14, JAMUNA NAGAR, SODALA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACTPM0495J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT C.O. NO. 8/JP/2016 (ARISING OUT OF VK;DJ VIHY LA- @ ITA NO. 326/JP/2016) SHRI VIJAY MEHTA, C-14, JAMUNA NAGAR, SODALA, JAIPUR. CUKE VS. THE DCIT CENTRAL, CIRCLE- 2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACTPM0495J 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 VERINDRA MEHTA( CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 20/04/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 25/04/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 2 THIS IS AN APPEAL FILED BY THE REVENUE AND CROSS OB JECTION BY THE ASSESSEE AGAINST THE ORDER DATED 19.01.2016 PASSED BY THE LD. CIT (A)- 2, JAIPUR FOR THE A.Y. 2012-13. 2. IN ITS APPEAL, THE REVENUE HAS TAKEN THE FOLLOWI NG GROUNDS OF APPEAL:- 1. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF TH E CASE LD. CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 35 ,00,000/- IGNORING THE FACT THAT ASSESSEE HIMSELF STATED IN HIS STATEMENTS RECORDED DURING THE COURSE OF SEARCH AS WELL AS POST SEARCH PROCEEDINGS THAT HE HAS GIVEN CASH OF RS. 35,00,000/- TO M/S MEGHA REALMART (P) L TD. AND SUBSEQUENTLY ALSO HE FAILED TO FURNISH THE SOURCE O F THE SAME. 2. WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF TH E CASE THE CIT(A) WAS RIGHT IN RESTRICTING THE ADDITION OF RS. 2,43,515/- TO RS. 1,50,000/- MADE ON ACCOUNT OF UNEXPLAINED INVESTMEN T IN SILVER ARTICLES WITHOUT APPRECIATING THE FACTS THAT 50% RELIEF HAD ALREADY BEEN GIVEN BY THE AO ON THE TOTAL VALUE OF THE SILVER ARTICLES FOUND FROM THE RESIDENCE OF THE ASSESSEE. IN HIS CROSS OBJECTION, THE ASSESSEE HAS TAKEN SOLI TARY GROUND OF APPEAL AS UNDER:- 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 1,50,000/- U/S 69A ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SILVER ARTICLES. 3. REGARDING GROUND NO. 1, BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM SALARY , HOUSE PROPERTY, CAPTIAL GAIN, BUSINESS AND OTHER SOURCES. A SEARCH AND SEIZURE/SURVEY OPERATION WAS CARRIED OUT U/S 132/133A OF THE INCOM E TAX ACT, 1961 ON 01-12-2011 ON UPASANA GROUP IN WHICH ASSESSEE IS ON E OF THE MEMBER. CONSEQUENTLY THE RESIDENTIAL PREMISES OF THE ASSESS EE WERE ALSO ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 3 SEARCHED. IN COURSE OF SEARCH OF RESIDENTIAL PREMIS ES, A PAPER AT PAGE 47 OF ANNEXURE AS-2 WAS FOUND. SUBSEQUENTLY, THE A DIT RECORDED THE STATEMENT OF THE ASSESSEE U/S 131 ON 21-12-2011 WHE RE THE ASSESSEE IN REPLY TO QUESTION NO. 6 WITH REFERENCE TO THIS P APER STATED THAT HE HAS INVESTED IN CASH RS. 35 LACS IN MEGHA REALMART PROJECT BUT AS HIS SHARE WAS ONLY 10% IN TOTAL CASH INVESTMENT OF RS. 71,13,000/- AS NOTED ON THIS PAPER, RS. 7,13,000/- WERE RETAINED AND RS. 23,26,667/- AMOUNT WAS REFUNDED BACK IN CASH. HE FURTHER STATED THAT ON BACK SIDE OF THE SAME PAPER, THERE IS NOTING OF RS. 73,10,000 /- WHICH IS THE AMOUNT INVESTED BY HIM AND HIS FAMILY MEMBERS BY CH EQUE IN THE PROJECT OF MEGHA REALMART. 3.1 IN COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE E XPLAINED THE INDIVIDUAL FIGURE NOTED ON FRONT SIDE AND BACK SIDE OF THIS PAPER. IT WAS EXPLAINED THAT THE AMOUNT OF RS. 35 LACS NOTED ON T HIS PAPER WAS GIVEN BY THE ASSESSEE TO M/S MEGHA REALMART PVT. LTD. BY CHEQUE BUT WRONGLY MENTIONED IN THE STATEMENT DATED 21.12.2011 AS CASH INVESTMENT. THE RELEVANT SUPPORTING PAPERS WERE FIL ED. IT IS FURTHER CLARIFIED THAT ON THIS PAPER IT IS NOWHERE MENTIONE D THAT RS.35 LACS IS GIVEN IN CASH. THE CASH AMOUNT GIVEN WAS RS. 23,26, 667/- AS NOTED ON LOWER SIDE OF THIS PAPER OUT OF WHICH RS. 7,13,000/ - BEING 10% CONTRIBUTION IN CASH EXPENDITURE OF RS. 71,30,000/- IS RETAINED AND BALANCE AMOUNT OF RS. 16,13,667/- IS RECEIVED BACK. THEREFORE, SIMPLY ON THE BASIS OF THE STATEMENT BY IGNORING THE DOCUM ENTARY EVIDENCE IT CANNOT BE PRESUMED THAT THE AMOUNT OF RS. 35 LACS I S GIVEN IN CASH. THE AO HOWEVER HELD THAT THE ASSESSEE IN HIS STATEM ENT DATED 21-12- 2011 WHICH WAS RECORDED AFTER 20 DAYS FROM CONCLUSI ON OF SEARCH HAS ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 4 STATED THAT HE HAS CONTRIBUTED RS. 35 LACS IN CASH IN THE PROJECT OF M/S MEGHA REALMART PVT. LTD. THE ASSESSSEE HAS NOT RETR ACTED THE ABOVE ADMISSION TILL THE TIME OF ASSESSMENT PROCEEDINGS. THEREFORE, THE CLAIM OF THE APPLICANT VIDE ITS LETTER DATED 18-03-2014 T HAT SUCH AMOUNT IS CONTRIBUTED BY CHEQUE IS AN AFTER THOUGHT. HE THERE FORE, MADE ADDITION OF RS. 35 LACS U/S 69 OF THE ACT. IN APPELLATE PROC EEDINGS, THE LD. CIT(A) AFTER CONSIDERING THE REMAND REPORT AND THE SUBMISSION FILED BY THE ASSESSEE, DELETED THE DISALLOWANCE. AGAINST WH ICH, THE REVENUE IS IN APPEAL BEFORE US. 3.2 DURING THE COURSE OF HEARING, THE LD AR SUBMITT ED THAT FROM THE COPY OF THE SEIZED PAPER, IT CAN BE NOTED THAT VARI OUS AMOUNTS ARE NOTED ON THE FRONT SIDE AND THE BACK SIDE OF THIS P APER. ALL THESE AMOUNTS RELATE TO INVESTMENT IN MAGHA REALMART PROJ ECT. THE ASSESSEE HAS EXPLAINED EACH OF THE AMOUNT NOTED ON THIS PAPE R VIDE LETTER DATED 18-03-2014 WHICH IS REPRODUCED AT PAGE 8-9 OF THE A SSESSMENT ORDER. THE AO HAS ACCEPTED THE EXPLANATION IN RESPECT OF E ACH OF THE AMOUNT NOTED ON THIS PAPER EXCEPT THE AMOUNT OF RS. 35 LAC S WHICH IS CONTRIBUTED BY THE ASSESSEE BY CHEQUE AND NOT IN CA SH AS STATED IN THE STATEMENT DATED 21-12-2011. THE FACT THAT THE AMOUN T OF RS. 35 LACS WAS GIVEN BY THE ASSESSEE TO M/S MEGA REALMART PVT. LTD. BY CHEQUE IS EVIDENT FROM THE COPY OF LEDGER ACCOUNT OF THE ASSE SSEE IN THE BOOKS OF M/S MEGA REALMART PVT. LTD. THE ASSESSEE HAS GIVEN RS. 35 LACS TO MEGA REALMART PVT LTD. ON 20-01-2011 BY CHEQUE OUT OF WHICH RS. 25 LACS IS TRANSFERRED TO HIS LOAN ACCOUNT AND RS. 10 LACS WAS ADJUSTED AGAINST THE SHARE CAPITAL ISSUED TO THE ASSESSEE. T HIS FACT IS ALSO APPEARING ON THE BACK PAGE OF THIS PAPER WHERE AGAI NST THE NAME OF ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 5 VM ( VIJAY MEHTA), RS. 10 LACS IS NOTED AGAINST S HARE APPLICATION ( 35- 25) AND RS. 25 LACS IS NOTED AGAINST LOAN ACCOUNT. THESE NOTING CLEARLY INDICATE THAT RS. 35 LACS WAS CONTRIBUTED BY THE AS SESSEE BY CHEQUE AND NOT IN CASH. 3.3 IT WAS FURTHER SUBMITTED THAT ON THIS PAPER ITS ELF, THERE IS A NOTING FOR CASH CONTRIBUTION TO BE MADE BY THE PARTNERS FO R RS. 71.30 LACS IN WHICH ASSESSEES SHARE WAS RS. 7.13 LACS. AGAINST T HIS, ASSESSEE HAS PAID RS. 23,26,667/- IN CASH. THE SOURCE OF THIS CA SH IS EXPLAINED TO BE OUT OF RS. 10.46 LACS WITHDRAWAL BY SMT. KANTA MEHT A, WIFE OF ASSESSEE OUT OF BOOKING AMOUNT RECEIVED IN CASH OF RS. 633 L ACS IN THE PROJECT ROSEWOOD APARTMENT OF M/S KIRAN UPASANA BUILDERS WH ERE SHE WAS A PARTNER. M/S KIRAN UPASANA BUILDERS HAVE OFFERED RS . 633 LACS FOR TAX IN THE SETTLEMENT PETITION FILED BY IT. THUS, THE SOUR CE OF RS. 23,26,667/- CONTRIBUTED BY THE ASSESSEE OUT OF SUCH AMOUNT IS E XPLAINED IN SUPPORT OF WHICH DETAILS OF WITHDRAWAL MADE BY THE ASSESSE E/HIS WIFE FROM KIRAN UPASANA BUILDERS AND THE LEDGER ACCOUNT OF AS SESSEE IN MEGHA REALMART PVT. LTD. WHERE THE AMOUNT OF RS. 23,26,6 67/- WAS DEPOSITED WAS FILED. THE AO HAS NOT TAKEN ANY ADVERSE VIEW IN RESPECT OF THE CASH CONTRIBUTION OF RS. 23,26,667/ NOTED ON THIS PAPER. 3.4 IT WAS FURTHER SUBMITTED THAT IN STATEMENT DATE D 21-12-2011, THE ASSESSEE WAS NOT CONFRONTED WITH ALL THE FIGURES NO TED ON THIS PAPER BUT CONFRONTED WITH ONLY SOME OF THE FIGURES. THIS CREA TED A CONFUSION IN HIS MIND AND THEREFORE ASSESSEE STATED THAT HE CONTRIBU TED CASH OF RS. 35 LACS IN THIS PROJECTS OF WHICH RS. 7,13,000/- IS RE TAINED AND BALANCE RS. 23,26,667/- OUT OF AMOUNT OF RS. 35 LACS WAS REFUND ED BACK. THE TOTAL OF RS. 7,13,000/- AND RS. 23,26,667/- COMES TO RS. 30,39,667/- AND NOT ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 6 RS. 35 LACS. THIS SHOWS THAT ASSESSEE WAS CONFUSED WITH FIGURES WHILE GIVING THE STATEMENT. AS AGAINST THIS, THE CORRECT FACT, AS CAN BE GATHERED FROM THE PAPER, IS THAT ASSESSEE MADE CASH CONTRIBUTION OF RS. 23,26,667/- OF WHICH RS. 7,13,000/- IS RETAINED AND BALANCE RS. 16,13,667/- IS REFUNDED BACK. IT MAY ALSO BE NOTED THAT AGAINST THE AMOUNT OF RS. 35 LACS NOTED ON THIS PAPER THERE IS NO NOTING THAT THIS AMOUNT IS CONTRIBUTED IN CASH WHEREAS THE AMOUNT OF RS. 23,26,667/- IS NOTED UNDER THE HEADING CASH. THEREFORE, ONLY ON THE BASIS OF STATEMENT OF ASSESSEE GIVEN ON 21-12-2011, BY IGNOR ING THE DOCUMENTARY EVIDENCE, IT CANNOT BE PRESUMED THAT TH E AMOUNT OF RS. 35 LACS IS GIVEN IN CASH. THEREFORE, THE ADDITION O F RS. 35 LACS MADE BY THE AO IS BY NOT APPRECIATING THE CORRECT FACTS. 3.5 IT WAS FURTHER SUBMITTED THAT IT IS SETTLED LAW THAT ADDITION CANNOT BE MADE ONLY ON THE BASIS OF STATEMENT BY IGNORING THE DOCUMENTARY EVIDENCE. THOUGH AN ADMISSION IS AN IMPORTANT PIECE OF EVIDENCE IT CANNOT BE A CONCLUSION FOR ASSESSMENT. IN THIS CONN ECTION REFERENCE CAN BE MADE TO THE FOLLOWING DECISIONS:- - CHETNABEN J. SHAH LR OF JAGDISHCHANDRA K. SHAH VS . ITO (2016) 140 DTR 235 (GUJ.) (HC) - PULLANGODE RUBBER PRODUCE COMPANY LTD. V. STATE O F KERALA AND ANOTHER 91 ITR 0018 (SC) - FEDERAL BANK LTD. VS. STATE OF KERELA 124 CTR 355 (KER.) (HC) - CIT VS. ASHOK KUMAR SONI 291 ITR 172 ( RAJ.) (HC) - ASHOK KUMAR VS. ITO 201 CTR 178 (J&K) (HC) - REJESH JAIN VS. DCIT 100 TTJ 929 (DEL.) (TRIB.) ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 7 - SURENDRA PAL VERMA VS. ACIT 89 ITD 129 (CHD) 3.6 THE LD DR IS HEARD WHO HAS VEHEMENTLY ARGUED TH E MATTER AND RELIED ON THE ORDER OF THE AO. 3.7 WE HAVE HEARD THE RIVAL CONTENTIONS, PURSUED TH E MATERIAL AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION RELATES TO FIGURE OF RS 35 LACS WHICH FOUND MENTION IN THE SEIZED DOCUME NT FOUND DURING THE COURSE OF SEARCH AND WHETHER THE SAME WAS PAID IN CASH OR IN CHEQUE. THE LD CIT(A) HAS EXAMINED THE MATTER AT L ENGTH AND HIS FOLLOWING FINDINGS REMAIN UNCONTROVERTED BEFORE US AND THE SAME ARE HEREBY CONFIRMED: ON CAREFUL PERUSAL OF AFOREMENTIONED SEIZED DOCUME NTS, IT IS SEEN THAT AGAINST THE FIGURE OF RS. 35 LAKHS, CHEQUE AMOUNTS HAVE BEEN MENTIONED AND SO THE BREAK UP AMOUNTS HAVE ALSO BE EN MENTIONED ON THE BACK SIDE OF THE SEIZED DOCUMENTS WHICH IS ALSO VERIFIABLE FROM THE BANK STATEMENTS/BOOKS OF ACCOUNTS. ON FURTHER PERUS AL OF LEDGER A/C SUBMITTED BY THE LD AR IT IS ALSO SEEN THAT THE AMO UNT OF RS. 35 LACS WAS GIVEN BY THE ASSESSEE TO M/S MEGHA REALMART PVT LTD. BY CHEQUE WHICH IS EVIDENT FROM THE COPY OF LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S MEGHA REALMART PVT. LTD. THE ASSESSE E HAS JGIVEN RS. 35 LACS TO M/S MEGHA REALMART PVT LTD. ON 20.01.2011 B Y CHEQUE OUT OF WHICH RS. 25 LACS IS TRANSFERRED TO HIS LOAN ACCOUN T AND RS. 10 LACS WAS ADJUSTED AGAINST THE SHARE CAPITAL ISSUED TO THE AS SESSEE. IT IS ALSO A FACT THAT FOR MAKING THIS ADDITION, AO HAS SIMPLY R ELIED ON THE SWORN STATEMENT ONLY. TO CORROBORATE HIS FINDINGS, AO HAS ALSO NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THAT ASSESSEE HAD MADE CASH PAYMENT OF RS. 35 LACS INSTEAD OF PAYMENT OF PAYMENT BY CHEQUE AS CLAIMED BY THE ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 8 ASSESSEE. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS ELABORATED ABOVE, ADDITION MADE OF RS. 35 LAKHS CAN NOT BE SUSTAINED, HENCE DELETED. 3.8 IN LIGHT OF ABOVE, WE DONOT SEE ANY INFIRMITY I N THE ORDER OF LD CIT(A) AND THE SAME IS HEREBY CONFIRMED. GROUND NO. 1 OF THE REVENUE IS THUS DISMISSED. 4. REGARDING GROUND NO. 2 OF THE REVENUES APPEAL A ND CROSS OBJECTION FILED BY THE ASSESSEE, BRIEFLY THE FACTS OF THE CASE ARE THAT IN COURSE OF SEARCH, 1300.95 GMS OF GOLD JEWELRY AND 8 .620 KG OF SILVER ARTICLE WERE FOUND. NO PART OF GOLD/SILVER JEWELRY/ ARTICLES WAS SEIZED. 4.1 IN COURSE OF ASSESSMENT PROCEEDINGS IT WAS EXPL AINED THAT ASSESSEE IN Q. NO. 7 OF HIS STATEMENT U/S 132(4) DA TED 07.12.2011 HAS STATED THAT HIS FAMILY OWNS AROUND 70-80 TOLA GOLD ORNAMENTS AND 10 KG OF SILVER ARTICLES WHICH BELONGS TO HIM, HIS WIF E AND TWO DAUGHTER-IN- LAW. THE AO ACCEPTED THE EXPLANATION IN RESPECT OF GOLD ORNAMENTS CONSIDERING THE CBDT INSTRUCTION BUT IN RESPECT SLI VER ARTICLES HE OBSERVED THAT IN ABSENCE OF CBDT INSTRUCTION ONLY 5 0% OF THE SILVER ARTICLE CAN BE REASONABLE ATTRIBUTED TO THE CUSTOMA RY GIFTS. HE THEREFORE, TREATED SILVER ARTICLES OF 4.310 KG AS U NEXPLAINED AND MADE ADDITION OF RS. 2,43,515/-. 4.2 IN APPELLATE PROCEEDINGS, THE LD. CIT(A) AFTER CONSIDERING THE REMAND REPORT AND THE SUBMISSION FILED BY THE ASSES SEE CONFIRMED THE ADDITION TO A LUMP SUM AMOUNT OF RS. 1,50,000/- ON ACCOUNT OF INVESTMENT IN SILVER ARTICLES. ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 9 4.3 DURING THE COURSE OF HEARING, IT WAS SUBMITTED THAT THE ASSESSEE IN HIS PRELIMINARY STATEMENT U/S 132(4) HAS CATEGOR ICALLY STATED THAT FAMILY OWNS 10 KG OF SILVER ARTICLES. IN SEARCH, 45 SILVER COIN WEIGHING 520 GRAMS, SILVER GLASS AND TRAY WEIGHING 2.1 KG. A ND SILVER UTENSILS WEIGHING 6 KG TOTALING TO 8.620 KG WAS FOUND. FROM THE DESCRIPTION OF ITEM ITSELF IT CAN BE NOTED THAT THESE ITEMS ARE RE CEIVED IN GIFT/ON THE OCCASION OF MARRIAGE. THE QUANTITY OF SILVER ITEMS IS REASONABLE IN THE HANDS OF THREE LADIES MEMBERS IN THE FAMILY. IN SEA RCH NO EVIDENCE OF PURCHASE OF THESE ITEMS WAS FOUND. CONSIDERING THE REASONABILITY, EVEN THE SEARCH PARTY HAS NOT SEIZED ANY PART OF SILVER ARTICLES. FURTHER WHEN 1300 GM OF GOLD JEWELLERY IS ACCEPTED AS REASONABLE POSSESSION, 8.620 KG OF SILVER ARTICLE CANNOT BE CONSIDERED AS UNREAS ONABLE POSSESSION BY THE ASSESSEE AND HIS FAMILY. THEREFORE, AO IS NOT J USTIFIED IN PRESUMING THAT ONLY 4.310 KG CAN BE REASONABLY ATTRIBUTED TOW ARDS CUSTOMARY GIFTS. FURTHER, THERE IS NO BASIS WITH THE LD. CIT( A) TO HOLD THAT SILVER ARTICLES OF RS. 1,50,000/- IS UNEXPLAINED. HENCE, T HE LUMP SUM ADDITION CONFIRMED BY THE LD. CIT(A) WITHOUT ANY BASIS DESER VES TO THE DELETED. 4.4 THE LD DR IS HEARD WHO HAS RELIED ON THE ORDER OF THE AO AND SUBMITTED THAT 50% OF SILVERY ARTICLES FOUND DURING THE COURSE OF SEARCH HAS ALREADY BEEN ALLOWED AS REASONABLY ATTRIBUTED T O CUSTOMARY GIFTS BY THE ASSESSEE. THEREFORE, THERE IS NO BASIS FOR ANY FURTHER RELIEF PROVIDED BY THE LD CIT(A) AND HENCE, THE ORDER OF T HE AO BE SUSTAINED. 4.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. SILVER ARTICLES IN TERMS OF S ILVER COINS, SILVER GRASS AND TRAY, AND UTENCILS WEIGHING 8.620 KGS WERE FOUN D DURING THE COURSE OF SEARCH OPERATION. THE AO NOTED AND ACCEPTED THE ASSESSEES ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 10 EXPLANATION THAT GIFTS OF SILVER ARTICLES DURING SO CIAL FUNCTIONS AND OCCASIONS OF BIRTH OF CHILDREN ETC ARE CUSTOMARY IN INDIAN FAMILIES. REGARDING THE QUANTUM OF SUCH GIFTS, THE AO NOTED T HAT STATUS AND BACKGROUND IN TERMS OF SOCIAL AND FINANCIAL PARAMET ERS ARE TO BE TAKEN INTO CONSIDERATION AND THEREAFTER, HELD THAT 50% OF SILVER ARTICLES FOUND CAN BE REASONABLY ATTRIBUTED TO SUCH CUSTOMARY GIFT S AND BALANCE 50% OF SILVER ARTICLES VALUED AT RS 245,515 WAS HELD TO BE UNEXPLAINED MONEY IN THE HANDS OF THE ASSESSEE BY THE AO WHICH WAS SUBSEQUENTLY REDUCED TO RS 150,000 BY THE LD CIT(A). IT IS THER EFORE NOT IN DISPUTE THAT THESE SILVER ITEMS ESPECIALLY GIVEN THE NATURE OF THESE ITEMS IN TERMS OF COIN, TRAYS, UTENCILS, ETC ARE GENERALLY G IVEN AS GIFTS ON VARIOUS SOCIAL AND OTHER FAMILY OCCASIONS/FUNCTIONS. HOWEVE R, IN TERMS OF REASONABLENESS OF SUCH GIFTS WHICH CAN BE GIVEN OR ACCEPTED, THERE CANNOT BE ANY STRAIGHT JACKET FORMULA. IT ALL DEPE NDS UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE. THE ONUS IS ON THE ASSESSEE TO COME OUT WITH THE PLAUSIBLE EXPLANATION IN THIS REGARD A S THE SILVER ARTICLES HAVE BEEN FOUND IN HIS POSSESSION. HOWEVER, IN ABS ENCE OF THE SAME, THE AO TAKING INTO CONSIDERATION THE SOCIAL AND FIN ANCIAL STANDING OF THE FAMILY HAS ARRIVED AT 50% WHICH WE FIND JUST AND PR OPER. IN LIGHT OF ABOVE, THE ADDITIONS MADE BY THE AO IS SUSTAINED AN D THE ORDER OF THE LD CIT(A) IS SET ASIDE. THE GROUND NO. 2 OF REVENUE S APPEAL IS ALLOWED AND GROUND IN ASSESSEES CROSS OBJECTION IS DISMISS ED. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOWED A ND ASSESSEES CROSS OBJECTION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/04/2017 ITA NO. 326/JP/2016 C.O. NO. 8/JP/2016 DCIT CENTRAL, CIRCLE-2 VS. SHRI VIJAY MEHTA, JAIPU R. 11 SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25/04/2017. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DCIT CENTRAL, CIRCLE-2, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI VIJAY MEHTA, C-14, JAMUNA NAG AR, SODALA, JAIPUR. 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. 326/JP/2016& C.O. NO. 8/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR