UMESH JOSHI, PUNE V. ACIT, CC- 8(4), MUMBAI

ITA 3842/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3463 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 31-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Keywords: Unexplained investment; Gift; Search and seizure
• Section: 250

Judgement Text

P A G E | 1 ITA NO.3842/MUM/2018 A.Y. 2014 - 15 SHRI UMESH JOSHI VS. ACIT,CC - 8(4) IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.3842 /MUM/2018 (ASSESSMENT YEAR: 2014 - 15 ) SHRI UMESH JOSHI A - 401, KOHINOOR COMPLEX, MULA ROAD, KHADKI, PUNE 411005 VS. ASSISTANT COMMISSIONER OF INCOME TAX , CENTRAL CICLE - 8(4) MUMBAI PAN ABOPJ0541Q (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI CHAITNYA ANJARIA, D.R DATE OF HEARING: 25.04.2019 DATE OF PRONOUNCEMENT: 3 0 .04.2019 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) - 50, MUMBAI, DATED 27.04.2018, WHICH IN TURN ARISES FROM THE ORDER PASSED BY THE A.O UNDER SEC.143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT I - T ACT), DATED NIL FOR A.Y 2014 - 15 . THE ASSESSEE ASSAILING THE ORDER OF THE CIT(A) HAS RAISED BEFORE US THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCE OF THE CASE A S WELL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN RESTRICTING THE ACTION OF THE LEARNED ASSESSING OFFICER IN MAKING AN ADDITION OF RS.8,18,134/ - ON ACCOUNT OF ALLEGED UNEXPLAINED GOLD JEWELLERY FOUND DURING THE COURSE OF SEARCH ACTION, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR DELETE THE SA ID GROUND OF APPEAL. 2. BRIEFLY STATED, SEARCH AND SEIZURE ACTION UNDER SEC. 132(1) OF THE I . T ACT WAS CARRIED OUT IN THE CASE OF R OSE GROUP OF COMPANIES ON P A G E | 2 ITA NO.3842/MUM/2018 A.Y. 2014 - 15 SHRI UMESH JOSHI VS. ACIT,CC - 8(4) 20.02.2014 AND ON SUBSEQUENT DATES. DURING THE COURSE OF THE SEARCH PROCEEDINGS TOTAL GOLD & DIAMOND JEWELLERY OF THE ASSESSEE AND HIS FAMILY MEMBERS OF A VALUE OF RS.1,03,67,275/ - WAS FOUND , AS UNDER: TYPE OF PREMISE OWNER OF PREMISE JEWELLERY LOCKER 1003 SWATI JOSHI UMESH JOSHI MEENA JOSHI 24,58,401/ - LOCKER 264 SWATI JOSHI BIREN VAIDYA 15,06,807/ - RESIDENCE SWATI JOSHI 64,02,067/ - TOTAL 1,03,67,275/ - DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE COULD NEITHER PRODUCE ANY BILLS, INVOICES, SOURCE OF PAYMENTS ETC. WITH RESPECT TO GOLD JEWELLERY WEIGHING 938.03 GMS OF RS.22,70,313/ - . APART THERE FROM, IT WAS OBSERVED BY THE A.O THAT NO WEALTH TAX RETURN WAS FILED BY THE ASSESSEE. FURTHER, IT WAS NOTICED BY HIM THA T THE ONLY RETURN OF WEALTH WAS FILED BY HIS FAMILY MEMBER VIZ. SMT. SWATI JOSHI WAY BACK IN THE YEAR 1992. DURING THE COURSE OF THE SEARCH PROCEEDINGS , IT WAS SUBMITTED BY THE ASSESSEE THAT THE ADDITION , IF ANY, WITH RESPECT TO THE UNEXPLAINED JEWELLERY M AY BE DONE IN HIS HANDS. IN THE BACKDROP OF THE AFORESAID FACTS, THE A.O AFTER CONSIDERING 100 GMS OF GOLD JEWELLERY OF THE VALUE OF RS. 2,80,000/ - AS EXPLAINED, HELD THE BALANCE GOLD JEWELLERY ( WEIGHT 838.03 GMS ) OF A VALUE RS.19,90,313/ - AS AN UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE. 3. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). THE CIT(A) AFTER DELIBERATING ON THE CONTENTION S ADVANCED BY THE ASSESSEE, OBSERVED THAT THE A.O HAD AFTER CONSIDER ING 100 GMS ( OUT OF THE TOTAL JEWELLERY OF 938.03 GMS ) AS EXPLAINED , HAD MADE THE ADDITION OF THE BALANCE 838.03 GMS OF GOLD JEWELLERY OF A VALUE OF RS.19,90,313/ - IN THE HANDS OF THE ASSESSEE. THE CIT(A) TAKING P A G E | 3 ITA NO.3842/MUM/2018 A.Y. 2014 - 15 SHRI UMESH JOSHI VS. ACIT,CC - 8(4) COGNIZANCE OF THE CBDT INSTRUCTION NO. 1916, DATED 11.05 .1994 , OBSERVED THAT AS HELD BY VARIOUS COURTS , GOLD JEWELLERY FOUND TO THE EXTENT OF LIMIT MENTIONED IN THE AFORE SAID CBDT INSTRUCTION NO. 1916, DATED 11.05.1994 WAS TO BE TREATED AS EXPLAINED AND NO ADDITION CO U LD BE MADE TO THAT EXTENT. IN THE BACKDROP OF HIS AFORESAID VIEW , IT WAS OBSERVED BY THE CIT(A) THAT AS PER C LAUSE (II) OF THE AFORESAID CBDT INSTRUCTION NO. 1916, GOLD JEWELLERY AND ORNAMENTS IN THE CASE OF A PERSON WHO WAS NOT ASSESSED TO WEALTH TAX TO THE EXTENT OF VIZ. (I). 500 GMS PER MARRIED LADY ; (II). 250 GMS PER UNMARRIED LADY ; AND (III). 100 GMS PER MALE MEMBER OF THE FAMILY , WAS NOT TO BE SEIZED. IT WAS THUS OBSERVED BY THE CIT(A) THAT KEEPING IN VIEW THE SPIRIT OF THE CBDT INSTRUCTION NO. 1916 AND THE VARIOUS JUDICIAL PRONOUNCEMENT S, AS WELL AS THE CUSTOMS AND TRADITIONS, THE ASSESSEE ALONG WITH WIFE WAS ENTITLED TO A BENEFIT OF GOLD JEWELLERY OF 600 GMS [ 500 GMS FOR ASSESSES WIFE (+) 100 GMS FOR THE ASSESSEE ] . INSOFAR THE EXCESS GOLD JEWELLERY WEIGHING 338.03 GMS [938.03 GMS ( - ) 600 GMS ] WAS CONCERNED, THE SAME WAS HELD BY THE CIT(A) AS UNEXPLAINED. ON THE BASIS OF HIS AFORESAID OBSERVATIONS THE CIT(A) SUSTAINED THE ADDITION TO THE EXTENT OF RS. 8,18,134/ - I.E THE VALUE OF 338.03 GMS OF GOLD JEWELLERY. 4. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. WE FIND THAT AS THE ASSESSEE HAS FAILED TO PUT UP AN APPEARANCE DURING THE COURSE OF HEARING OF THE APPEAL, THEREFORE, WE ARE CONSTRAINED TO PROCEED WITH THE MATTER AS PER RULE 25 OF THE APPELLATE TRIBUNAL RULES, 1963 , AND THEREIN DISPOSE OFF THE APPEAL AFTER PERUSING THE ORDERS OF THE LOWER AUTHORITIES AND HEARING THE RESPONDENT REVENUE. 5. THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. IT WAS SUBMITTED BY THE LD. D.R P A G E | 4 ITA NO.3842/MUM/2018 A.Y. 2014 - 15 SHRI UMESH JOSHI VS. ACIT,CC - 8(4) THAT AS THE ASSESSEE HAD FAILED TO SUBSTANTIATE THE SOURCE OF GOLD JEWELLERY OF RS. 8,18,134/ - , THEREFORE, THE CIT(A) HAD RIGHTLY UPHELD THE ADDITION TO THE SAID EXTENT. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, DURING THE COURSE OF THE SEARCH PROCEEDINGS GOLD & DIAMOND JEWELLERY OF RS.1,03,67,275/ - WAS FOUND LYING THE BANK LOCKERS AN D THE RESIDENCE OF THE ASSESSEE AND HIS FAMILY MEMBERS. AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES, THE ASSESSEE COULD NEITHER FILE ANY BILLS, INVOICES N OR PUT FORTH AN Y EXPLANATION AS REGARDS THE SOURCE OF ACQUIRING THE GOLD ORNAMENTS WEIG HING 938.03 GMS OF A VALUE OF RS.22,70,313/ - . APART THERE FROM, IT WAS ALSO NOTICED BY THE A.O THAT NO WEALTH TAX RETURN WAS FILED BY THE ASSESSEE. IN FACT, THE ONLY RETURN OF WEALTH AS OBSERVED BY THE A.O WAS FILED BY THE FAMILY MEMBER OF THE ASSESSEE VIZ . SMT. SWATI JOSHI , AND TOO WAY BACK IN THE YEAR 1992 . THE PROBABILITY OF ANY PART OF THE GOLD JEWELLERY HAVING BEEN RECEIVED BY THE ASSESSEE OR HIS FAMILY MEMBERS AS GIFTS WAS ALSO RULED OUT BY THE A.O, WHO OBSERVED THAT EXCEPT FOR A GIFT DEED FOR 100 GMS OF GOLD GIFTS RECEIVED BY SMT. SWATI JOSHI VORA FROM HER PARENTS, NO OTHER CONFIRMATIONS OF GIFTS RECEIVED BY THE ASSESSEE OR HIS FAMILY MEMBERS WAS PLACED ON RECORD. AS THE ASSESSEE COULD NOT PUT FORTH AN EXPLANATION AS REGARDS THE GOLD JEWELLERY (WEIGHT 938.03 GMS) OF A VALUE OF RS.22,70,314/ - , THEREFORE, THE A.O AFTER CONSIDERING GOLD JEWELLERY (WEIGHT 100 GMS) OF A VALUE OF RS.2,80,000/ - AS EXPLAINED, MADE AN ADDITION OF THE BALANCE GOLD JEWELLERY (WEIGHT 838.03) OF A VALUE OF RS.19,90,313/ - AS AN UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE. 7. WE FIND THAT THE CIT(A) AFTER TAKING COGNIZANCE OF THE CBDT INSTRUCTION NO. 1916 , DATED 11.05.1994, HAD OBSERVED THAT AS P A G E | 5 ITA NO.3842/MUM/2018 A.Y. 2014 - 15 SHRI UMESH JOSHI VS. ACIT,CC - 8(4) OBSERVED BY VARIOUS COURTS , GOLD JEWELLERY FOUND TO THE EXTENT OF THE LIM IT MENTIONED IN THE AFORESAID INSTRUCTION WAS TO BE TREATED AS EXPLAINED AN D NO ADDITION COULD BE MADE TO THAT EXTENT. ON THE BASIS OF HIS AFORESAID OBSERVATIONS, THE CIT(A) HAD AFTER CONSIDERING 600 GMS OF GOLD JEWELLERY [ 500 GMS FOR ASSESSES WIFE (+) 100 GMS FOR THE ASSESSEE ] AS EXPLAINED JEWELLERY , THEREIN RESTRICTED THE ADDITION AS REGARDS THE BALANCE JEWELLERY (WEIGHT 338.03 GMS) OF A VALUE OF RS.8,18,134/ - . 8. WE HAVE DELIBERATED AT LENGTH ON THE FACTS OF THE CASE , IN THE BACKDROP OF THE OBSERVATIONS OF THE LOWER AUTHORITIES. IN OUR CONSIDERED VIEW , THE CIT(A) BY ADOPTING A LIBERAL APPROACH HAD ALREADY GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE . AS IS DISCERNIBLE FROM THE ORDERS OF THE LOWER AUTHORITIES, THE CIT(A) HAD AFTER GIVING BENEFIT OF GOLD JEWELLERY OF 600 GMS [ 500 GMS FOR THE ASSESSES WIFE (+) 100 GMS FOR ASSESSEE ] , HAD RIGHTLY OBSERVED THAT BALANCE GOLD JEWELLERY ( WEIGH T 338.03 GMS ) OF A VALUE OF RS . 8,18,134/ - WAS TO BE TREATED AS AN UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE . IN OUR CONSIDERED VIEW AS NO INFIRMITY ARISES FROM THE AFORESAID WELL REASONED ORDER OF THE CIT(A) , THEREFORE, FINDING NO MERIT IN THE APPEAL FILED BY THE ASSESSEE , WE DISMISS THE SAME. 9. THE APPEAL OF THE ASSESSEE IS DISMI SSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 3 0 . 04.2019 S D / - S D / - ( SHAMIM YAHYA) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 30 .04.2019 PS. ROHIT P A G E | 6 ITA NO.3842/MUM/2018 A.Y. 2014 - 15 SHRI UMESH JOSHI VS. ACIT,CC - 8(4) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI