ACIT, New Delhi V. Smt Rajni Malik, Gurgaon

ITA 3641/DEL/2011

• Counselvise Citation: 364120114 RSA 2011
• Duration Of Justice: 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 19-10-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 26-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Keywords: Unexplained investment; Gift; Income from undisclosed sources; Additional evidence; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI F BENC H BEFORE SHRI R.P. TOLANI, JM & SHRI A.N. PAHUJA, AM ASSESSEE BY SHRI VIVEK VERMA, AR REVENUE BY SHRI A.K. MONGA, DR DATE OF HEARING 19-10-2011 DATE OF PRONOUNCEMENT 25-10-2011 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 26.7.2011 BY THE REVENUE AGAIN ST AN ORDER DATED 31.05.2011 OF THE LD. CIT(A)-XXIV, NEW DELHI, RAISES THE FOLLOWING GROUNDS:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW CIT(A) HAS ERRED IN:- 1. DELETING THE ADDITION WITHOUT EXAMINING THE FACT THAT THE ASSESSEE HAS NOT DECLARED THE ALLEGED JEWELLERY INH ERITED FROM HER PARENTS IN HER WEALTH TAX RETURN SO AS TO CONST RUE AS CONCLUSIVE PROOF OF RECEIVING SUCH JEWELLERY. 2. THE APPELLANT CRAVES THE RIGHT TO ADD, DELETE, ALTE R OR AMEND ANY GROUND OF APPEAL. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT RETURN DECLARING INCOME OF ` 6,02,021/- FILED ON 5 TH OCTOBER, 2008 BY THE ASSESSEE, AFTER BEING PROCESS ED U/S 143(1) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) WAS SELECTED FOR SCRUTINY WITH THE SERVICE OF A NOTICE U/S 143(2) OF THE ACT ,ISSUED ON 21 ST AUGUST, 2009. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, THE ASSESSING OFFICER (A.O. IN SHORT) NOTICED THAT THE ASSESSEE, INTER ALIA, REFLECTED INCOME FROM LONG TERM GAIN ON SALE OF HER JEWELLERY. TO A QUER Y BY THE AO REGARDING THE SOURCE OF ACQUISITION OF JEWELLERY, THE ASSESSEE RE PLIED THAT SHE INHERITED A LOCKER CONTAINING JEWELLERY IN TERMS OF A RELINQUISHMENT D EED REGISTERED ON 24 TH ITA NO.3641/DEL/2011 ASSESSMENT YEAR:2008-09 ACIT CIRCLE-25(1), ROOM NO. 315D,3 RD FLOOR, VIKAS BHAVAN, NEW DELHI V/S . SMT. RAJNI MALIK, 73/17, SECTOR DEFENCE COLONY, GURGAON [PAN:ACKPM 1998 F] (APPELLANT) (RESPONDENT) ITA N O.3641 /DEL./2011 2 DECEMBER, 2003 AND ENCLOSED A COPY OF MOU. ON PERU SAL OF RELINQUISHMENT DEED DATED 7.10.2003 BETWEEN THE ASSESSEE AND SHRI SUNIL ANAND, HER BROTHER AND SMT. ANURADHA SUKHEJA, HER SISTER, TO A FURTHER QUERY BY THE AO, THE ASSESSEE SUBMITTED A LETTER OF CONFIRMATION FROM BA NK MANAGER, UCO BANK, CONNAUGHT PLACE, NEW DELHI, MENTIONING THAT THE ASS ESSEE OPERATED LOCKER NO.168 ON 24.12.2003. THE ASSESSEE EXPLAINED THAT SHE RECEIVED JEWELLERY (71.9 TOLA) OF THE VALUE OF ` ` 7,21,684/- AT THE TIME OF HER MARRIAGE. HOWEVER, TH E AO DID NOT ACCEPT THE SUBMISSIONS OF THE ASSESSEE, THEREBEING SOME DISCREPANCY IN MENTIONING THE WEIGHT OF JEWELLERY I N HER DIFFERENT SUBMISSIONS. SINCE THE ASSESSEE DID NOT DISCLOSE THE JEWELLERY I N HER WEALTH TAX RETURN NOR ANY EVIDENCE THAT THE AFORESAID JEWELLERY WAS TAKEN OUT OF LOCKER, WHILE DOUBTING THE GENUINENESS OF CLAIM OF THE ASSESSEE, THE AO AD DED AN AMOUNT OF ` `1,32,00,000/- BY WAY OF INCOME FROM UNDISCLOSED SO URCES. 3. ON APPEAL, THE LEARNED CIT(A) ADMITTED THE ADDI TIONAL EVIDENCE IN THE FORM OF VALUATION CERTIFICATE DATED 5.1.1993 AND A BANK CERTIFICATE THAT THE ASSESSEE OPERATED THE LOCKER ONLY ON 24.12.2003 A FTER MARCH,2000 AND DELETED THE DELETION, HOLDING AS UNDER:- 6.3(I) GROUND NOS. 2, 3 & 4 PERTAIN TO ADDITION OF RS.1,32,00,000/- ON ACCOUNT OF SALE OF JEWELLERY, WITHOUT GIVING BEN EFIT OF EXEMPTION U/S 54EC FOR INVESTMENT IN CAPITAL GAINS BONDS FOR A SUM OF RS.`45 LACS. THE AO HAS BROUGHT OUT IN THE BODY OF THE OR DER THAT JEWELLERY WAS PASSED ON TO THE APPELLANT BY WAY OF GIFT FROM HER DECEASED MOTHER AND FATHER. HE HAS ALSO MENTIONED THAT THE APPELLANT SOLD HER JEWELLERY TO THE JEWELERS NAMELY M/S USKAN JEWE LLERY PVT. LTD. FOR A SUM OF RS.`76,69,810/- FROM 27.09.2007 TO 22. 10.2007 AND TO M/S BADSHAH JOHRI PVT. LTD. FOR A SUM OF RS. 55,82, 399/- FROM 08.10.2007 TO 13.10.2007. HE ALSO ACKNOWLEDGES THA T COPY OF THE SALE BILLS AND DETAILS OF PAYMENTS RECEIVED HAVE BE EN FURNISHED BY THE ASSESSEE. THE AO HAS ALSO MADE A MENTION OF TH E RELINQUISHMENT DEED DATED 07.10.2003 ENTERED INTO B ETWEEN SH. SUNIL ANAND AND SMT. ANURADHA SUKHEJA (BROTHER AND SISTER OF THE APPELLANT) ALONG WITH THE APPELLANT HERSELF, AS PER WHICH MOVABLE ASSETS, SECURITIES AND ESTATE, NAMELY LOCKER IN BAN K OF INDIA, BRANCH SONGARH, DISTRICT BHAVNAGAR, GUJARAT HELD JO INTLY BY SMT. KRISHNA ANAND DR. A.L. ANAND (PARENTS OF THE APPELL ANT), WERE RELINQUISHED BY SHRI SUNIL ANAND AND SMT. ANURADHA SUKHEJA IN ITA N O.3641 /DEL./2011 3 FAVOUR OF THE APPELLANT. THE AO HAS ALSO MENTIONED ABOUT LOCKER NO.168 A OF UCO BANK, CONNAUGHT PLACE, NEW DELHI WH ICH WAS SURRENDERED BY THE APPELLANT AFTER BEING BROKEN OPE N ON 24.12.2003. MENTION HAS ALSO BEEN MADE ABOUT THE J EWELLERY RECEIVED BY THE APPELLANT AT THE TIME OF HER MARRIA GE AS ALSO THE JEWELLERY RECEIVED BY HER FROM HER DECEASED MOTHER- IN-LAW. 6.3(II) HAVING BROUGHT ALL THE ABOVE FACTS ON RECOR D, THE ASSESSING OFFICER HAS GONE ON TO CONCLUDE THAT THE APPELLANT HAS MADE UNACCOUNTED INVESTMENT IN JEWELLERY TO THE EXTENT O F RS.`1,32,00,000/- ON THE PREMISE THAT HE COULD NOT COMPREHEND AS TO HOW THE WEIGHT OF JEWELLERY GOT REDUCED FROM 217 .90 TOLAS TO 196.91 TOLAS. HE HAS COME TO A CONCLUSION THAT THE APPELLANT COULD NOT EXPLAIN THE REDUCTION IN WEIGHT OR THE REASON F OR NOT DISCLOSING THE JEWELLERY IN WEALTH TAX RETURN AFTER OPENING TH E LOCKER, AND HAS CONSIDERED THE WHOLE ARGUMENT PUT FORTH BY THE APPE LLANT AS A COLORFUL DEVICE TO ESCAPE ASSESSMENT. 6.3(III) I HAVE GIVEN CAREFUL CONSIDERATION TO THE FACTS OF THE CASE, THE ARGUMENTS OF THE ASSESSING OFFICER, THE MATERIA L ON RECORD AND THE ADDITIONAL EVIDENCES SUBMITTED BY THE APPELLANT . DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT HAS SUBMITTED A COPY OF THE RELINQUISHMENT DEED DATED 24.12.2003 ALONG WITH THE MEMORANDUM OF UNDERSTANDING ARRIVED AT BETWEEN SH. SUNIL ANAND , SMT. ANURADHA SUKHEJA AND THE APPELLANT, SMT. RAJNI MALI K, REGARDING THE ESTATE OF THEIR DECEASED PARENTS. THE APPELLAN T HAS EXPLAINED TO THE ASSESSING OFFICER THAT THE JEWELLERY WAS ACQ UIRED BY HER AS AN INHERITANCE AFTER THE DEATH OF HER PARENTS. SHE HAS SUPPLIED THE BILLS FOR THE SALE OF THE JEWELLERY. THE APPELLANT HAS ALSO GIVEN THE DETAILS OF THE JEWELLERY RECEIVED BY HER AT THE TIM E OF HER MARRIAGE ON 2 ND DECEMBER, 1984. SHE HAS ALSO SUPPLIED THE CALCULA TION OF INDEXED COST OF ACQUISITION OF JEWELLERY VIDE HER L ETTERS DATED 20.10.2010, 29.10.2010, 09.11.2010 AND 26.11.2010. SHE HAS ALSO SUBMITTED A COPY OF A CRUMPLED PAPER WHICH CAME OUT OF LOCKER NO.168A IN UCO BANK, CONNAUGHT PLACE, NEW DELHI STA NDING IN THE NAME OF THE APPELLANT ALONG WITH SMT. KRISHNA ANAND AND DR. A.L. ANAND (PARENTS OF THE APPELLANT), WHICH CONTAINED A LIST OF JEWELLERY PURPORTED TO BE IN THE LOCKER. THE BANK CERTIFICAT E REGARDING OPERATION OF LOCKER BY THE APPELLANT ON 24.12.2003 WAS ALSO SUBMITTED BY HER. AS AN ADDITIONAL EVIDENCE, THE A PPELLANT HAS SUBMITTED AN AFFIDAVIT OF HER OWN DATED 24.02.2011, AN AFFIDAVIT OF HER SISTER SMT. ANURADHA SUKHEJA, THE DEATH CERTIFI CATE OF HER MOTHER IN LAW MRS. SUDERSHAN MALIK DATED 06.07.1992 , AN AFFIDAVIT BY HER HUSBAND SH. SANJIV MALIK (STATING THAT HE HA D SHOWN THE LIST OF JEWELLERY FOUND FROM LOCKER NO.168A, THE VALUATI ON CERTIFICATE OF HIS WIFES JEWELLERY AND THE DEATH CERTIFICATE OF H IS MOTHER TO THE ITA N O.3641 /DEL./2011 4 ASSESSING OFFICER), THE JEWELLERY VALUATION CERTIFI CATE DATED 05.01.1993 AND A CERTIFICATE FROM UCO BANK, CONNAUG HT PLACE, NEW DELHI STATING THAT SMT. RAJNI MALIK HAD NOT OPE RATED LOCKER NO.168A SINCE MARCH, 2000 TILL THE DATE OF ITS BREA KING OPEN I.E., 24.12.2003. 6.3(IV) IN MY OPINION, THE APPELLANT HAS GONE ON TO PLACE SUFFICIENT EVIDENCE ON RECORD TO PROVE THE SOURCE OF ACQUISITI ON OF JEWELLERY ALONG WITH THE DATES OF ACQUISITION. AS SUCH, THE ASSESSING OFFICER SHOULD HAVE GIVEN DUE CONSIDERATION TO THESE EVIDEN CES. THE ASSESSING OFFICER IS ON EXTREMELY SHAKY GROUNDS WHI LE TREATING THE INVESTMENT IN JEWELLERY OUT OF UNACCOUNTED INCOME. HE HAS NOT BROUGHT ANY PROOF ON RECORD TO SUBSTANTIATE HIS ALL EGATION. ON THE OTHER HAND, THE APPELLANT HAS BEEN ABLE TO CONCLUSI VELY PROVE HER POINT. IN VIEW OF THE ABOVE FACTS AND DISCUSSIONS, THE CONTENTIONS OF THE APPELLANT ARE ACCEPTED AND/ THE ADDITION OF `1,32,00,000/- IS DELETED. 4. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST T HE AFORESAID FINDINGS OF THE LD. CIT(A).THE LD. DR SUPPORTED THE AO WHILE T HE LD. AR ON BEHALF OF THE ASSESSEE SUPPORTED THE FINDINGS OF THE LD. CIT(A). 5.. WE HAVE HEARD BOTH THE PARTIES AND GONE TH ROUGH THE FACTS OF THE CASE. WE FIND THAT THE LD. CIT(A) ADMITTED THE ADDITION AL EVIDENCE IN THE FORM OF VALUATION CERTIFICATE DATED 5.1.1993 AND A BANK CER TIFICATE THAT THE ASSESSEE OPERATED THE LOCKER ONLY ON 24.12.2003 AFTER MARCH ,2000, AFTER HAVING A REPORT FROM THE AO AS MENTIONED IN PARA 3 OF THE IMPUGNED ORDER. ON PERUSAL OF VARIOUS DOCUMENTS VIZ. A COPY OF THE RELINQUISHMENT DEED D ATED 24.12.2003 ALONG WITH THE MEMORANDUM OF UNDERSTANDING ARRIVED AT BETWEEN SH. SUNIL ANAND, SMT. ANURADHA SUKHEJA AND THE ASSESSEE, A COPY OF A CRUM PLED PAPER STATED TO BE OUT OF LOCKER NO.168A IN UCO BANK, CONNAUGHT PLACE, NEW DELHI STANDING IN THE NAME OF THE ASSESSEE AND HER DECEASED PARENTS, THE BANK CERTIFICATE REGARDING OPERATION OF LOCKER BY THE ASSESSEET ON 24.12.2003 AND HER AFFIDAVIT AS ALSO AFFIDAVIT OF HER SISTER AND AFFIDAVIT OF HER HUSBAN D SH. SANJIV MALIK BESIDES THE JEWELLERY VALUATION CERTIFICATE DATED 05.01.1993 AN D A CERTIFICATE FROM UCO BANK, MENTIONING THAT THE ASSESSEE DID NOT OPERATE LOCKER NO.168A SINCE MARCH, 2000 TILL THE DATE OF ITS BREAKING OPEN I.E., 24.12.2003 , THE LD. CIT(A) CONCLUDED THAT ITA N O.3641 /DEL./2011 5 THE ASSESSEE PLACED SUFFICIENT EVIDENCE ON RECORD R EGARDING SOURCE OF ACQUISITION OF THE JEWELLERY AND THAT THE AO WAS N OT JUSTIFIED IN ADDING THE AMOUNT BY WAY OF UNEXPLAINED INVESTMENT . THE LD. DR DID NOT PLACE ANY MATERIAL BEFORE US, CONTROVERTING THE AFORESAID FIN DINGS OF FACTS RECORDED BY THE LD. CIT(A) SO AS TO ENABLE US TO TAKE A DIFFERENT V IEW IN THE MATTER. IN THESE CIRCUMSTANCES, WE HAVE NO ALTERNATIVE BUT TO UP HOL D THE FINDINGS OF LD. CIT(A). THEREFORE, GROUND NO.1 IN THE APPEAL IS DISMISSED. 6. NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE U S IN TERMS OF RESIDUARY GROUND NO.2 IN THE APPEAL, ACCORDINGLY, THIS GROUND IS DISMISSED. 7. NO OTHER PLEA OR SUBMISSION WAS MADE BEFORE US. 8.. IN THE RESULT, APPEAL IS DISMISSED. SD/- SD/- (R.P. TOLANI) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) NS COPY OF THE ORDER FORWARDED TO :- 1. SMT. RAJNI MALIK, 73/17, SECTOR DEFENCE COLONY, GURGAON. 2. ACIT CIRCLE-25(1), ROOM NO. 315D,3 RD FLOOR, VIKAS BHAVAN,NEW DELHI 3. CIT(A)-XXIV, NEW DELHI. 4. CIT CONCERNED. 5. DR, ITAT,F BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT