ITO, Chandigarh V. Sh. Subhash Chander Goyal, Chandigarh

ITA 389/CHANDI/2014

• Counselvise Citation: 38921514 RSA 2014
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-05-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 11-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TEJ MOHAN SINGH
• Assessee Lawyers: MANJIT SINGH
• Keywords: Reopening of assessment; Gift; Tangible material; Bad and doubtful debts; Corroborative evidences; Valuation report; Assessment record; Reason to believe
• Section: 147; 131; 145; 27; 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA MEHROTRA,ACCOUNTANT MEMBER ITA NO. 282/CHD/2014 ASSESSMENT YEAR: 2006-07 SHRI SUBHASH CHANDER GOEL, VS THE ITO, HOUSE NO. 699, WARD 1(3), SECTOR 7-B, CHANDIGARH. CHANDIGARH. PAN: ABEPG3737H & ITA NO. 389/CHD/2014 ASSESSMENT YEAR: 2006-07 THE ITO, VS SHRI SUBHASH CHANDER GOEL , WARD 1(3), HOUSE NO. 699, CHANDIGARH. SECTOR 7-B, CHANDIGARH. PAN: ABEPG3737H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ MOHAN SING H RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 03.11.2015 DATE OF PRONOUNCEMENT : 18.11.2015 O R D E R PER BHAVNESH SAINI,JM BOTH THE CROSS APPEALS ARE DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) CHANDIGARH DATED 28.01.2014 FOR ASSESSMENT YEAR 2006-07 (WRONGLY MENTIONED 2010-11) . 2 2. IN THE APPEAL OF THE ASSESSEE, ASSESSEE CHALLENG ED THE INITIATION OF THE RE-ASSESSMENT PROCEEDINGS UND ER SECTION 148 OF THE INCOME TAX ACT CLAIMING TO BE IL LEGAL AND VOID ABINITIO, CHALLENGED THE ADDITION OF RS. 8 LACS ( OUT OF RS. 10,87,500/- ORIGINALLY MADE BY THE ASSES SING OFFICER) ON ACCOUNT OF ESTIMATION OF MARRIAGE EXPE NSES OF DAUGHTER OF THE ASSESSEE AND ADDITION OF RS. 24,30, 000/- (ORIGINALLY MADE BY ASSESSING OFFICER AT RS. 55 LAC S) ON ACCOUNT OF ASSESSEE ALLEGEDLY GIFTING JEWELLERY TO THE DAUGHTER OF ASSESSEE AT THE TIME OF HER MARRIAGE. 2(I) THE REVENUE IS IN APPEAL AGAINST THE ORDER OF LD. CIT(APPEALS) IN ALLOWING PART RELIEF ON THE ADDITIO NS MADE ON THE ABOVE GROUNDS RELATING TO MARRIAGE EXPENSES AND JEWELLERY GIFTED AT THE TIME OF MARRIAGE. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE HAD ADMITTED IN HIS STATEMENT GIVEN TO POLICE AUTHORITI ES ON 09.12.2009 THAT HE HAD SPENT APPROXIMATELY RS. 45.5 0 LACS ON THE MARRIAGE OF HIS DAUGHTER. IN THE ASSES SMENT PROCEEDINGS, ASSESSEE SUBMITTED THAT HE HAD SPENT A SUM OF RS. 10 LACS ONLY ON THE MARRIAGE OF HIS DAUGHTER BESIDES JEWELLERY AND SILVER ORNAMENTS, VALUE OF WH ICH WAS RS. 29-30 LACS AT THAT TIME. IT WAS ALSO CONTENDED THAT ASSESSEE HAD RECEIVED SHAGUN OF RS. 14.13 LACS AND LIST OF 144 PERSONS WHO HAD GIVEN SHAGUN WAS ALSO FILED BEF ORE THE ASSESSING OFFICER. THE ASSESSING OFFICER NOTED THAT THE EXPLANATION OF THE ASSESSEE WAS NOT IN CONSONAN CE WITH THE STATEMENT GIVEN TO THE POLICE AUTHORITIES. THE 3 ASSESSING OFFICER ASKED FOR THE DETAILS OF MARRIAGE EXPENSES INCURRED BY ASSESSEE ON THE MARRIAGE OF HI S DAUGHTER INCLUDING THE AMOUNT SPENT IN THE ENGAGEME NT AND RING CEREMONY AND SOURCE OF THIS EXPENDITURE AN D ALSO TO FURNISH THE EVIDENCE IN RESPECT OF SHAGUN OF RS. 11,000/- AND ABOVE. THE ASSESSING OFFICER QUESTION ED THE CLAIM OF ASSESSEE THAT HE HAD SPENT ONLY RS. 3 LACS ON DINNER ARRANGEMENTS. THE ASSESSING OFFICER, ULTIMA TELY, MADE ADDITION OF RS. 10,87,000/- BY ESTIMATING THE EXPENDITURE ON MARRIAGE AT RS. 25 LACS AND GIVING B ENEFIT OF SHAGUNS RECEIVED OF RS. 14.13 LACS. 4. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE FILED WRITTEN SUBMISSIONS WHICH IS INCORPO RATED IN THE APPELLATE ORDER IN WHICH THE ASSESSEE BRIEFL Y EXPLAINED THAT ASSESSING OFFICER NEVER ASKED FOR TH E ESTIMATE OF THE EXPENDITURE. THE ASSESSING OFFICER IN THE RE-OPENING OF THE ASSESSMENT HAS NOTED THAT MARRIAG E EXPENSES APPEAR TO BE OF RS. 10 LACS, THEREFORE, ES TIMATE IS VERY EXCESSIVE AND WITHOUT BRINGING ANY INDEPEND ENT EVIDENCE OR ENQUIRY CONDUCTED BY THE ASSESSING OFFI CER. NO EVIDENCE IS BROUGHT ON RECORD TO SUPPORT THE EST IMATE OF RS. 25 LACS AS MARRIAGE EXPENSES. IT WAS EXPLAI NED THAT ASSESSEE IS A GOVERNMENT SERVANT AND HAS SOURCE OF INCOME. VARIOUS FAMILY MEMBERS, FRIENDS AND RELATI VES HAVE CONTRIBUTED THE EXPENSES BY OFFERING SHAGUNS I N A SUM OF RS. 14.13 LACS. THE JEWELLERY WAS GIFTED BY MOTHER OF THE ASSESSEE TO HIS DAUGHTER AS PER WILL AND T HE 4 VALUATION OF THE JEWELLERY AS IN 2005 WAS REASONABL E, THEREFORE, ADDITION OF MARRIAGE EXPENSES SHOULD BE DELETED. IT WAS ALSO SUBMITTED THAT ASSESSEE GAVE STATEMENT TO THE POLICE AUTHORITIES IN 2009. THE F IR WAS LODGED BY HIS DAUGHTER WHO WAS IN COMPLETE MENTAL TRAUMA. THE STATEMENT OF THE ASSESSEE WAS RECORDED BY POLICE AUTHORITIES AND SUCH STATEMENT WOULD NOT LEA D TO CONCLUSION THAT SAID MARRIAGE EXPENSES WERE INCURRE D BY THE ASSESSEE ALONE. 5. THE LD. CIT(APPEALS) NOTED THAT NO DETAILS OF MARRIAGE EXPENSES HAVE BEEN GIVEN. THE ASSESSEE MAD E A CLAIM OF RECEIPT OF SHOGUNS OF RS. 14.13 LACS WHICH IS NOW STATED TO BE EXPENSES INCURRED ON MARRIAGE AS CONTR IBUTED BY VARIOUS FAMILY MEMBERS, FRIENDS AND RELATIVES. 6. THE LD. CIT(APPEALS), CONSIDERING SUBMISSIONS OF THE ASSESSEE, FACTS AND CIRCUMSTANCES OF THE CASE AND S TATUS OF THE ASSESSEE, ESTIMATED THE MARRIAGE EXPENSES IN A SUM OF RS. 20 LACS, OUT OF WHICH BENEFIT OF ESTIMATED P AST SAVINGS OF RS. 6 LACS, WAS GIVEN AND BENEFIT OF RS. 6 LACS OF SHAGUNS WAS ALSO GIVEN AND ACCORDINGLY, ADDITION WAS MAINTAINED IN A SUM OF RS. 8 LACS AS AGAINST MADE B Y ASSESSING OFFICER OF RS. 10,87,000/-. 7. THE ASSESSEE ALSO CHALLENGED THE ADDITION OF RS. 55 LACS ON ACCOUNT OF GIFT OF JEWELLERY TO THE DAUGHTE R OF THE ASSESSEE. THE ASSESSEE HAS STATED IN THE FIR THAT JEWELLERY OF APPROXIMATELY 55 LACS WAS GIVEN IN THE 5 MARRIAGE OF HIS DAUGHTER. THE ASSESSING OFFICER AS KED FOR THE SOURCE. THE ASSESSEE SUBMITTED A REPLY EXPLAIN ING THEREIN THAT JEWELLERY AND SILVER UTENSILS WERE GIV EN AS PER WILL DATED 04.07.2002 OF MOTHER OF THE ASSESSEE A ND VALUE OF THE JEWELLERY WAS RS. 29.3 LACS AT THE TIM E OF MARRIAGE. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF THE ASSESSEE AND NOTED THAT WILL I S UNREGISTERED AND NO LETTER OF ADMINISTRATION HAS BE EN OBTAINED FROM THE COURT. IT WAS ALSO FOUND THAT TH E FACT OF GIFT OF ENTIRE JEWELLERY TO THE GRAND DAUGHTER I S UNBELIEVABLE. THE ASSESSING OFFICER, THEREFORE, MA DE ADDITION OF RS. 55 LACS ON ACCOUNT OF UNEXPLAINED JEWELLERY GIVEN IN THE MARRIAGE OF DAUGHTER OF THE ASSESSEE. 8. THE ASSESSEE CHALLENGED THE ADDITION BEFORE LD. CIT(APPEALS) AND WRITTEN SUBMISSIONS OF THE ASSESSE E ARE REPRODUCED IN THE APPELLATE ORDER IN WHICH THE ASSE SSEE EXPLAINED THAT ASSESSEE NEVER MADE ANY STATEMENT OF VALUE OF JEWELLERY OF RS. 55 LACS. THE VALUE OF JE WELLERY IN 2005 AT THE TIME OF MARRIAGE WAS RS. 29.30 LACS. TH E VALUATION REPORT WAS PROVIDED TO ASSESSING OFFICER WHICH CLEARLY SUPPORT THE EXPLANATION OF ASSESSEE. IT WA S ALSO EXPLAINED THAT ASSESSEE HAS NOT GIFTED ANY JEWELLER Y TO HIS DAUGHTER AT THE TIME OF HER MARRIAGE. THE JEWELLER Y WAS GIVEN AS PER WILL OF HIS MOTHER WHO HAS EXPIRED O N 15.05.2003. COPY OF THE WILL AND DEATH CERTIFICAT E WAS FILED. IT WAS SUBMITTED THAT THE JEWELLERY WAS GIV EN OUT OF 6 THE WILL, THEREFORE, THE SAME WOULD NOT FALL IN ASSESSMENT YEAR UNDER APPEAL. THE JEWELLERY WAS KEP T IN THE CUSTODY OF SMT. ANJU, WIFE OF THE ASSESSEE WHIC H WAS GIVEN TO THE DAUGHTER OF THE ASSESSEE MS. MEGHA AT THE TIME OF HER MARRIAGE, THEREFORE, THE SAID GIFT TRAN SACTION WOULD NOT FALL IN ASSESSMENT YEAR UNDER APPEAL. THE WILL WAS WITNESSED BY TWO INDEPENDENT PERSONS AND WAS ATTESTED BY NOTARY PUBLIC. THE AFFIDAVITS OF THE W ITNESSES AND NOTARY PUBLIC WERE FILED BEFORE THE ASSESSING O FFICER. THEREFORE, NO ADDITION IN THE HANDS OF THE ASSESSEE COULD BE MADE. THE ADOPTION OF THE VALUE BY THE ASSESSING OFFICER WAS ALSO INCORRECT. 9. THE LD. CIT(APPEALS) NOTED THAT THE WILL IS UNREGISTERED SO IT CANNOT BE TREATED AS GENUINE. TH EREFORE, THE WILL WITNESSED BY TWO WITNESSES IS NOT MUCH REL EVANT. THE LD. CIT(APPEALS), CONSIDERING DIFFERENCE IN THE GOLD MENTIONED IN THE WILL AND GOLD JEWELLERY GIVEN IN THE MARRIAGE, DID NOT ACCEPT CONTENTION OF THE ASSESSEE THAT JEWELLERY AT THE TIME OF MARRIAGE WAS OUT OF THE GI FT RECEIVED FROM THE MOTHER OF THE ASSESSEE. THE LD. CIT(APPEALS), HOWEVER, ACCEPTED THE VALUATION OF TH E JEWELLERY AT THE TIME OF MARRIAGE IN 2005 AT RS. 29 .30 LACS AND AFTER GIVING BENEFIT OF OLD FAMILY JEWELLERY IN SUM OF RS. 5 LACS, RESTRICTED THE ADDITION TO RS. 24.30 LA CS. 10. THE LD. CIT(APPEALS), AS REGARDS ISSUE OF NOTIC E UNDER SECTION 148 OF THE INCOME TAX ACT NOTED THAT THE CASE LAW RELIED UPON BY ASSESSEE ARE DISTINGUISHABL E ON 7 FACTS. THE REASONS RECORDED BY THE ASSESSING OFFIC ER SHOWS THAT ASSESSING OFFICER HAD FORMED HIS OWN REA SONS TO BELIEVE ON THE BASIS OF THE INFORMATION, THEREFO RE, ISSUE OF NOTICE UNDER SECTION 148 WAS VALID. THE APPROVA L OF JCIT WAS ALSO TAKEN. THE LD. CIT(APPEALS) ALSO NOT ED THAT THE REASONS WERE RECORDED ON THE BASIS OF SUBJECTIV E SATISFACTION OF THE ASSESSING OFFICER, THEREFORE, R E-OPENING OF THE ASSESSMENT WAS HELD TO BE VALID AND ACCORDIN GLY, DISMISSED THIS GROUND OF APPEAL OF THE ASSESSEE. T HE APPEAL OF THE ASSESSEE WAS THUS, PARTLY ALLOWED. 11. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD . COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND REFERRED TO PB-66 WHIC H IS THE REASONS RECORDED FOR RE-OPENING OF THE ASSESSME NT. PB-23 IS THE STATEMENT OF THE ASSESSEE TO THE POLIC E AUTHORITIES UNDER SECTION 161 OF THE CPC DATED 09.12.2009. PB-106 IS THE JUDGEMENT OF THE HIGH CO URT DATED 12.12.2014 THROUGH WHICH THE MATRIMONIAL DISP UTES WERE SETTLED BETWEEN THE DAUGHTER OF THE ASSESSEE M S. MEGHA GARG AND HER HUSBAND SHRI DHEERAJ GARG. HE HA S REFERRED TO PB-33 WHICH IS FIR LODGED BY DAUGHTER O F ASSESSEE ON 21.11.2009 IN WHICH IT WAS EXPLAINED TH AT IN THE MARRIAGE OF COMPLAINANT, THE PARENTS OF THE COMPLAINANT AND RELATIVES AND FRIENDS GAVE GOLD, SI LVER AND DIAMONDS ORNAMENTS. LIST OF THE ITEMS WAS ALSO ENCLOSED. THE LD. COUNSEL FOR THE ASSESSEE SUBMITT ED THAT 8 THERE IS NO REQUIREMENT IN THE COLUMN OF RETURN TO DISCLOSE MARRIAGE EXPENSES. THE ASSESSING OFFICER IN THE REASONS FOR RE-OPENING OF ASSESSMENT WANTED TO VERI FY THE MARRIAGE EXPENSES AND JEWELLERY GIVEN TO HIS DAUGHT ER THROUGH THE WILL OF HIS MOTHER, THEREFORE, FOR VE RIFICATION PURPOSES ONLY, RE-OPENING OF THE ASSESSMENT WOULD N OT BE VALID. THE ASSESSING OFFICER CANNOT BE ALLOWED FIS HING ENQUIRIES IN THE GARB OF RE-OPENING OF THE ASSESSME NT. THE ASSESSEE DISCLOSED ALL THE MATERIAL EVIDENCE AT THE TIME OF ASSESSMENT BUT ASSESSING OFFICER WANTED TO VERIFY THE FACTS. HE HAS SUBMITTED THAT ASSESSING OFFICER , WITHOUT, VERIFYING THE FACTS HAS RECORDED THE REASO NS FOR RE-OPENING OF THE ASSESSMENT AND RELIED UPON DECISI ON OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PARAMJIT KAUR 311 ITR 38. HE HAS RELIED UPON ORDER OF ITAT CHANDIGARH IN THE CASE OF ITO V DR. S.S.CHAUHA N DATED 29.03.2012. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT STATEMENT GIVEN TO THE POLICE IS NOT RELEVANT FOR RE-OPENING OF THE ASSESSMENT. THE LD. COUNSEL FOR THE ASSESSEE, ON MERITS SUBMITTED THAT ASSESSEE SUBMITTED LIST OF SHAGUNS GIVEN BY VARIOUS FRIENDS, RELATIVES AND GUESTS ON WHICH ASSESSING OFFICER DID NOT MAKE ANY ENQUIRY AND ULTIMATELY ASSESSING OFFICER ACCEPTED RECEIPT OF SHAGUNS BY ASSESSEE AT THE TI ME OF MARRIAGE OF HIS DAUGHTER IN A SUM OF RS. 14,13,100/ - COPY OF THE SAME IS FILED AT PAGE 51 OF THE PAPER BOOK. IN THE REASONS, ASSESSING OFFICER HAS STATED THAT MARRIAGE EXPENSES WERE INCURRED FOR RS.10 LACS ONLY. THERE IS NO 9 EVIDENCE ON RECORD TO SUPPORT THE ESTIMATE OF MARRI AGE EXPENSES BY ASSESSING OFFICER, ADDITION IS MADE WIT HOUT BRINING ANY EVIDENCE ON RECORD. ADDITION ON ACCOUN T OF ESTIMATE OF MARRIAGE EXPENSES WAS MADE ON SURMISES AND CONJECTURES. NO ENQUIRY HAVE BEEN MADE FROM ANY GU EST OR RELATIVE WHO HAVE OFFERED SHAGUN. THE LD. CIT(AP PEALS), WITHOUT ANY REASONS, REDUCED THE RELIEF GRANTED BY THE ASSESSING OFFICER IN RESPECT OF SHAGUN OF RS. 14, 13,000/- 11(I) THE LD. COUNSEL FOR THE ASSESSEE FURTHER SU BMITTED THAT MOTHER OF THE ASSESSEE EXECUTED A GENUINE WIL L WHICH WAS WITNESSES BY THE WITNESSES AND ATTESTED B Y NOTARY PUBLIC. THE REGISTRATION OF WILL IS NOT R EQUIRED AS PER LAW AND THERE IS NO REQUIREMENT TO GET LETTER O F ADMINISTRATION OR PROBATE. HE HAS RELIED UPON DECI SION OF HON'BLE SUPREME COURT IN THE CASE OF ISHWAR DEO NAR AIN SINGH V KANTA DEVI AIR 1954 SC 280 IN WHICH IT WAS HELD THAT THERE IS NOTHING IN LAW WHICH REQUIRES THE REGISTRATION OF WILL AND WILLS ARE IN A MAJORIT Y OF CASES, ARE NOT REGISTERED AT ALL, TO DRAW ANY INFERENCE AG AINST THE GENUINENESS OF THE WILL ON THE GROUND OF ITS NON REGISTRATION APPEARS TO US TO BE WHOLLY UNWARRANTED . HE HAS SUBMITTED THAT VALUATION REPORT OF THE JEWELLER Y AT THE TIME OF MARRIAGE WAS FILED WHICH SUPPORT VALUE OF T HE JEWELLERY AS PER WILL WAS RS. 29.30 LACS. FAMILY JEWELLERY BENEFIT HAS BEEN CORRECTLY GIVEN BY THE L D. CIT(APPEALS) OF RS. 6 LACS. HE SUBMITTED THAT ASSE SSEE DID NOT GIVE GIFT ANY JEWELLERY TO HIS DAUGHTER. T HE WILL 10 IS GENUINE AND AFTER DEATH OF TESTATOR OF WILL TH E JEWELLERY WAS HANDED OVER TO HIS WIFE WHO IN-TURN A T THE TIME OF MARRIAGE OF HIS DAUGHTER HAS GIVEN THE ENTI RE JEWELLERY TO HIS DAUGHTER. THEREFORE, ADDITION OF JEWELLERY IN THE HANDS OF ASSESSEE IS UNJUSTIFIED. AFFIDAVIT S OF BOTH THE WITNESSES TO THE WILL AND NOTARY PUBLIC WERE FILED BEFORE ASSESSING OFFICER WHICH HAVE NOT BEEN DISBEL IEVED. MOTHER OF ASSESSEE EXPIRED ON 15.05.2003 AND THEREA FTER DAUGHTER OF ASSESSEE BECAME OWNER OF THE GOLD JEWEL LERY. THEREFORE, NO ADDITION IN ASSESSMENT YEAR UNDER APP EAL COULD BE MADE. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE RE-OPENING OF ASSESSM ENT IS BAD IN LAW AND BOTH THE ADDITIONS ON MERIT ARE ALSO REQUIRED TO BE DELETED. 12. ON THE OTHER HAND, LD. DR RELIED UPON ORDER OF THE ASSESSING OFFICER AND ALSO RELIED UPON DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAGAN NATH SINGHAL V DCIT 242 ITR 554 AND SUBMITTED THAT ONCE INFORMATION CAME TO THE DEPARTMENT ABOUT UNACCOUNTE D EXPENSES INCURRED IN THE MARRIAGE OF DAUGHTER OF ASSESSEE, RE-OPENING WAS CORRECTLY MADE AND RELIED UPON DECISION OF THE SUPREME COURT IN THE CASE RAJESH JH AVERI 291 ITR 500. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE RETUR N OF INCOME DECLARING AN INCOME OF RS. 2,97,290/- HAS BE EN FILED BY ASSESSEE ON 17.07.2006. THE SAME WAS PROCE SSED 11 UNDER SECTION 143(1) OF THE INCOME TAX ACT. SUBSEQU ENTLY, PROCEEDINGS WERE REOPENED BY ISSUING NOTICE UNDER S ECTION 148 OF THE INCOME TAX ACT ON THE BASIS OF INFORMATI ON RECEIVED FROM DDIT (INVESTIGATION), CHANDIGARH. TH E ASSESSING OFFICER RECORDED THE REASONS FOR RE-OPENI NG OF THE ASSESSMENT. COPY OF THE REASONS DATED 13.03.201 1 IS FILED AT PAGE 66 OF THE PAPER BOOK AND REPRODUCED A S UNDER: NAME OF THE ASSESSEE : SHRI SUBHASH CHANDER GOY AL HOUSE NO. 737, SECTOR 7B (NOW # 699,SECTOR 7-B,CHANDIGARH) PAN ABEPG3737H ASSESSMENT YEAR 2006-07 REASONS FOR INITIATING PROCEEDINGS UNDER SECTION 1 47 THE RETURN OF INCOME WAS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2006-07 ON 17.07.2006 DECLARING TOTAL INCOME OF RS. 2,97,920/- . THE RETURN HAS BEEN PROCESSED U/S 143(1) OF THE INCOME-TAX ACT, 1961 ON 28.04.2008 AC CEPTING THE RETURNED INCOME. IT HAS COME TO THE NOTICE THAT DURING THE YEAR 2005 -06 RELEVANT TO ASSESSMENT YEAR 2006-07, THE ASSESSEE HAS SOLEMNIZED THE MARRIAGE O F HIS DAUGHTER, MS MEGHA, ON 18.11.2005. IN A STATEMENT GIVEN TO THE POLICE ON 0 9.12.2009, THE ASSESSEE, SH. SUBHASH GOYAL HAS STATED THAT HE HAD INCURRED APPROXIMATELY RS. 45-50 LAKH ON THE MARRIAGE OF HIS DAUGHTER. BESIDES, IT HAS COME TO NOTICE THAT T HE ASSESSEE HAS GIFTED JEWELLERY WORTH RS. 55 LAKH TO HIS DAUGHTER AT THE TIME OF MARRIAGE WHICH IS STATED TO BE AS PER WILL OF ASSESSEE'S MOTHER. THE SOURCES OF EXPENDITURE INCUR RED ON MARRIAGE INCLUDING COST OF JEWELLERY GIFTED BY THE ASSESSEE TO HIS DAUGHTER AR E REQUIRED TO BE VERIFIED. 1 HAVE, THEREFORE, REASONS TO BELIEVE THAT APPROXIM ATE INCOME OF RS. 65 LAKH ( RS. 10 LAKH ON MARRIAGE CEREMONY + RS. 55 LAKH ON JEWEL LERY) HAS ESCAPED INCOME. IN VIEW OF ABOVE, 1 HAVE REASONS TO BELIEVE THAT BY REASON OF OMISSION ON THE PART OF ASSESSEE TO DISCLOSE FULLY & TRULY ALL MATERIAL FACTS IN THE RE TURN OF INCOME, INCOME TO THE TUNE OF APPROXIMATELY RS. 65 LAKH HAS ESCAPED ASSESSMENT. SD/- ( VINOD K. SHARMA ) DATED 13.03.2011 INCOME-TAX OFFICER WARD 1(3),CHANDIGARH 12 ACCORDING TO THE ABOVE REASONS, THE MARRIAGE OF DAU GHTER OF ASSESSEE MS. MEGHA WAS SOLEMNIZED ON 18.11.2005. IT IS ALSO NOTED IN THE REASONS THAT IN THE STATEMENT GIVEN TO THE POLICE ON 09.12.2009, ASSESSEE HAS STATED TO HA VE INCURRED APPROXIMATELY RS. 45-50 LACS ON THE MARRIA GE OF HIS DAUGHTER. FURTHER, THE GIFT OF JEWELLERY OF RS. 55 LACS TO HIS DAUGHTER AT THE TIME OF MARRIAGE WAS STATED TO BE AS PER WILL OF ASSESSEE'S MOTHER. THE ASSESSING OFF ICER IN THE REASONS NOTED THAT SOURCE OF EXPENDITURE INCURR ED ON THE MARRIAGE INCLUDING COST OF JEWELLERY GIFTED BY ASSESSEE TO HIS DAUGHTER ARE REQUIRED TO BE VERIFIED. THUS, ASSESSING OFFICER IN THE REASONS RECORDED WANTED TO VERIFY THE FACTS OF INCURRING OF THE MARRIAGE EXPENSES BY ASSESSEE FOR PERFORMING THE MARRIAGE OF HIS DAUGHTE R ON 18.11.2005. THUS, THE ASSESSING OFFICER REFERRED T O THE STATEMENT GIVEN TO THE POLICE ON 09.12.2009 UNDER S ECTION 161 CRPC AS WELL AS WILL OF HIS MOTHER DATED 04.0 7.2002 (PB-42). THE ASSESSING OFFICER, THEREFORE, STATED T O HAVE HAD A REASON TO BELIEVE FOR ESCAPEMENT OF INCOME ON LY AFTER VERIFICATION OF THE FACT OF MARRIAGE EXPENSES OF DAUGHTER OF THE ASSESSEE AFTER VERIFYING THE STATEM ENT MADE TO THE POLICE AS WELL AS CONSIDERATION OF THE WILL. THE RE-OPENING OF THE ASSESSMENT ONLY ON THE BASIS OF VERIFICATION OF THE FACTS IS NOT PERMISSIBLE UNDER THE LAW. THE ASSESSING OFFICER IS NOT EMPOWERED TO REOPEN TH E ASSESSMENT NOR VERIFY THE FACTS FOR RE-ASSESSMENT. WE RELY UPON DECISION OF DELHI HIGH COURT IN THE CASE OF CI T VS 13 ORIENT CRAFT LTD. 354 ITR 536 IN WHICH IT WAS HELD AS UNDER : HELD, DISMISSING THE APPEAL, THAT THE REASONS DISCL OSED THAT THE ASSESSING OFFICER REACHED THE BELIEF THAT THERE WAS ESCAPEMENT OF INCOME 'ON GOING THROUGH THE RETU RN OF INCOME' FILED BY THE ASSESSEE AFTER HE ACCEPTED THE RETURN UNDER SECTION 143(1) WITHOUT SCRUTINY, AND NOTHING MORE. THIS WAS NOTHING BUT A REVIEW OF THE EARLIER PROCEEDINGS AND AN ABUSE OF POWER BY THE ASSESSING OFFICER. THE REASONS RECORDED BY THE ASSESSING OFFICER DID CONFIRM THE APPREHENSION ABOU T THE HARM THAT A LESS STRICT INTERPRETATION OF THE W ORDS 'REASON TO BELIEVE' VIS-A-VIS AN INTIMATION ISSUED UNDER SECTION 143(1) COULD CAUSE TO THE TAX REGIME. THERE WAS NOTHING IN THE REASONS RECORDED TO SHOW THAT ANY TANGIBLE MATERIAL HAD COME INTO THE POSSESSION OF T HE ASSESSING OFFICER SUBSEQUENT TO THE ISSUE OF THE INTIMATION. THE NOTICE REFLECTED AN ARBITRARY EXERC ISE OF THE POWER CONFERRED UNDER SECTION 147. 14. THE HON'BLE GUJRAT HIGH COURT IN THE CASE OF INDUCTOTHERM (INDIA) P. LTD. V M.GOPALAN, DCIY 356 ITR 481 ALSO OBSERVED THAT THERE SHOULD BE TANGIBLE MA TERIAL TO COME TO THE CONCLUSION THAT THERE IS ESCAPEMENT OF INCOME FROM ASSESSMENT. REASONS MUST HAVE A LIVE LI NK WITH THE FORMATION OF THE BELIEF. IT WAS HELD AS UNDER : (II) THAT IN TWO OUT OF THE FOUR REASONS RECORDED BY THE ASSESSING OFFICER FOR REOPENING THE ASSESSMENT, HE S TATED THAT HE NEEDED TO VERIFY THE CLAIMS TO BAD DEBTS AND THE ADMISSIBILITY OF THE BAD DEBTS WRITTEN OFF. FOR MERE VERIFICATION OF THE CLAIM, POWER FOR REOPENING OF ASSESSMENT COULD N OT BE EXERCISED. THE ASSESSING OFFICER IN THE GUISE OF POW ER TO REOPEN AN ASSESSMENT CANNOT SEEK TO UNDERTAKE A FIS HING OR 14 ROVING INQUIRY AND SEEK TO VERIFY THE CLAIMS AS IF IT WERE A SCRUTINY ASSESSMENT. 15. THE SOLE RELIANCE ON THE STATEMENT RECORDED BY THE POLICE UNDER SECTION 161 OF CRPC ON 09.12.2009 ITSE LF WAS WRONG BECAUSE SECTION 161 OF CRPC DEALS WITH EXAMINATION OF WITNESS BY POLICE. IT REQUIRES THAT THE INVESTIGATION OFFICER MAY EXAMINE ORALLY ANY PERSON SUPPOSED TO BE ACQUAINTED WITH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE STATEMENT RECORDED BY THE POLICE OFFICER UNDER SECTION 161 OF THE CRPC IS NOT SIGNED BY THE WITNESS. THE GENUINENESS OF THE STATEMENT RECORDED UNDER SECTION 161 OF CRPC COULD BE TESTED ONLY AT THE TIME OF THE STATEMENT OF WITNESS RECORDED IN THE COURT. THE STATEMENT RECORDED BY POLICE OFFICER DU RING INVESTIGATION IS NEITHER GIVEN ON OATH NOR IT IS TESTED BY CROSS EXAMINATION. ACCORDING TO THE LAW OF EVIDENC E, SUCH STATEMENT IS NOT EVIDENCE OF THE FACT STATED T HEREIN AND THEREFORE, IT IS NOT CONSIDERED AS SUBSTANTIVE EVIDENCE. 16. HON'BLE HIMACHAL PRADESH HIGH COURT IN THE CASE OF SMT. SEWAKI V STATE OF HIMACHAL PRADESH 1981 CRIMIN AL LAW JOURNAL 919 HELD THAT IT IS BEYOND THE PALE OF CONTROVERSY THAT STATEMENT MADE BY WITNESS UNDER SE CTION 161 OF THE CRPC DURING INVESTIGATION OF THE CASE, A RE NOT SUBSTANTIVE EVIDENCE. 16(I) HON'BLE GAUHATI HIGH COURT IN THE CASE OF GYA SUDIN & OTHERS VS STATE OF ASSAM 1977 CRIMINAL LAW JOURNA L 15 1512 HELD THAT THE TRIAL JUDGE IN THE COURSE OF H IS JUDGEMENT HAD FREELY REFERRED TO THE STATEMENT SAID TO HAVE BEEN MADE BY PROSECUTION WITNESSES BEFORE POLI CE. THEY WERE NOT SUBSTANTIVE EVIDENCE IN THE CASE AND SHOULD NOT HAVE BEEN CONSIDERED AGAINST THE APPELLANTS BUT THE JUDGEMENT, WE FIND, UNFORTUNATELY BRISTLES WITH REF ERENCE TO SUCH INADMISSIBLE MATERIAL. THEREFORE, CONSIDE RING THE ABOVE DISCUSSION, IT IS CLEAR THAT STATEMENTS MADE TO THE POLICE UNDER SECTION 161 OF THE CRPC IS NOT SUBSTAN TIVE EVIDENCE. SECTION 162 OF THE CRPC IMPOSES A BAR ON THE USE OF ANY STATEMENT MADE BY ANY PERSON TO POLICE O FFICER IN THE COURSE OF INVESTIGATION AT ANY ENQUIRY OR TR IAL IN RESPECT OF ANY OFFICER UNDER INVESTIGATION AT THE T IME WHEN SUCH STATEMENT WAS MADE, EXCEPT FOR THE PURPOSE OF CONTRADICTING THE WITNESSES IN THE MANNER PROVIDED BY SECTION 145 OF THE EVIDENCE ACT. WHERE ANY PART OF SUCH STATEMENT IS SO USED, ANY PART THEREOF MAY ALSO BE USED IN RE-EXAMINATION OF THE WITNESS FOR THE LIMITED PURPO SE OF EXPLAINING ANY MATTER REFERRED TO IN HIS CROSS EXAMINATION. THE ONLY OTHER EXCEPTION TO THIS EMBA RGO ON THE USE OF THE STATEMENTS MADE IN THE COURSE OF INVESTIGATION RELATES TO THE STATEMENTS FALLING WIT HIN THE PROVISIONS OF SECTION 32(1) OF THE EVIDENCE ACT OR PERMITTED TO BE PROVED UNDER SECTION 27 OF THE EVID ENCE ACT. 17. THE LD. COUNSEL FOR THE ASSESSEE FILED A COPY O F THE JUDGEMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COUR T IN 16 FAO-M NO. 234 OF 2014 DATED 12.12.2014 IN WHICH THE DAUGHTER OF THE ASSESSEE AND HER HUSBAND HAVE SETTL ED THE MATRIMONIAL DISPUTE AND SOME OF THE CONDITIONS FOR COMPROMISE WERE THAT PARTIES WILL MOVE FOR QUASHING OF THE FIR NO. 482/2009 UNDER SECTION 498A/406 IPC PENDING AT JAIPUR AND ASSESSEE'S DAUGHTER WILL NOT OBJECT IN THE COURT. ANOTHER WAS THAT THE FAMILY MEMBERS OF THE HUSBAND OF THE ASSESSEE WILL NOT PURSUE THE CASE OF INCOME TAX AGAINST THE FATHER OF MS. MEGHA GARG I.E . THE ASSESSEE. THE ASSESSEE HAS ALSO INTIMATED THAT THE CASE IN QUESTION IN WHICH THE ASSESSEE HAS MADE A STATEM ENT UNDER SECTION 161 CRPC WHICH IS REFERRED TO IN THE REASONS FOR RE-OPENING OF THE ASSESSMENT, THE TRIAL IS PENDING AT JAIPUR. IT WOULD, THEREFORE, SHOW THAT STATEMENT OF THE ASSESSEE UNDER SECTION 161 CRPC WA S NOT SIGNED BY HIM AND COULD NOT BE TREATED AS SUBSTANTI VE EVIDENCE AND IT WAS MERELY PART OF THE INVESTIGATIO N. IT COULD BE USED ONLY FOR A LIMITED PURPOSE UNDER THE LAW, THEREFORE, RELIANCE PLACED BY THE ASSESSING OFFICER ON SUCH A STATEMENT WAS WHOLLY MISPLACED FOR THE PURPOSE OF RECORDING THE REASONS FOR RE-OPENING OF THE ASSESSM ENT. THE ASSESSING OFFICER ALSO REFERRED TO THE WILL O F MOTHER OF THE ASSESSEE THROUGH WHICH JEWELLERY WAS GIVEN A FTER DEATH OF THE TESTATOR TO MS. MEGHA AND MOTHER OF TH E ASSESSEE EXPIRED ON 15.05.2003, THEREFORE, AFTER DE ATH OF THE TESTATOR IF JEWELLERY OF GOLD IS INHERITED BY M S. MEGHA, THE SAME WOULD NOT FALL IN ASSESSMENT YEAR UNDER AP PEAL AND FURTHER IN THE WILL NOTHING IS MENTIONED IF A SSESSEE 17 WAS BENEFICIARY OF ANY OF THE ARTICLES OR THAT ASSE SSEE HAS GIFTED ANY GOLD JEWELLERY TO HIS DAUGHTER AT THE TI ME OF MARRIAGE. THEREFORE, ASSESSING OFFICER WAS NOT JUS TIFIED IN RE-OPENING OF THE ASSESSMENT ON THE BASIS OF THE AFORESAID FACTS. IT WOULD SHOW THAT THERE WAS NOTH ING IN THE REASONS RECORDED TO SHOW THAT ANY TANGIBLE MATE RIAL HAD COME INTO THE POSSESSION OF ASSESSING OFFICER SUBSEQUENT TO THE ISSUE OF INTIMATION UNDER SECTION 143(1) OF THE ACT. THE NOTICE UNDER SECTION 148 REFLECTED ARBITRARILY EXERCISE OF POWER CONFERRED UNDER SECTI ON 147 OF THE INCOME TAX ACT. IN THE REASONS RECORDED BY THE ASSESSING OFFICER FOR RE-OPENING OF THE ASSESSMENT, ASSESSING OFFICER STATED THAT HE WANTED TO VERIFY T HE MARRIAGE EXPENSES OF THE DAUGHTER OF THE ASSESSEE. FOR MERE VERIFICATION OF THE CLAIM, POWER FOR RE-OPENIN G OF THE ASSESSMENT COULD NOT BE EXERCISED. THE ASSESSING O FFICER IN THE GUISE OF POWER TO REOPEN THE ASSESSMENT, CAN NOT SEEK TO UNDERTAKE A FISHING OR ROWING ENQUIRY AND S EEK TO VERIFY THE CLAIM AS IF IT WERE A SCRUTINY ASSESSMEN T. THE JUDGEMENT OF GUJRAT HIGH COURT IN THE CASE OF INDUCTOTHERM (INDIA) PVT. LTD. (SUPRA) THEREFORE, S QUARELY APPLY IN FAVOUR OF THE ASSESSEE AND WOULD NOT JUSTI FY THE RE-OPENING OF THE ASSESSMENT IN THE MATTER. 17(I) THE LD. DR, HOWEVER, RELIED UPON DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAGAN NATH SINGHAL (SUPRA) IN WHICH IN THE DIVORCE PROCEE DINGS BEFORE DISTRICT JUDGE, DAUGHTER OF THE ASSESSEE FIL ED AN 18 AFFIDAVIT WHEREIN SHE HAD STATED THAT HER FATHER HA D SPENT RS. 7-8 LAS IN THE MARRIAGE. ON THE BASIS OF THIS AFFIDAVIT, THE ASSESSING OFFICER RECORDED THE REASONS FOR RE-O PENING OF THE ASSESSMENT WHICH WERE HELD TO BE JUSTIFIED. WE MAY NOTE THAT THERE IS DIFFERENCE BETWEEN AFFIDAVIT FIL ED IN THE JUDICIAL PROCEEDINGS AS WELL AS STATEMENT RECORDED BY POLICE UNDER SECTION 161 OF THE CRPC AS EXPLAINED A BOVE. THEREFORE, STATEMENT RECORDED BY INVESTIGATING OFFI CER AT THE INVESTIGATION STAGE, CANNOT BE EQUATED WITH AFF IDAVIT FILED IN JUDICIAL PROCEEDINGS. THEREFORE, THIS CAS E IS CLEARLY DISTINGUISHABLE ON FACTS. 18. CONSIDERING FACTS AND CIRCUMSTANCES ABOVE AND DISCUSSION, WE ARE OF THE VIEW ASSESSING OFFICER WA S NOT JUSTIFIED IN RE-OPENING THE ASSESSMENT UNDER SECTIO N 148 OF THE ACT. WE, THEREFORE, QUASH THE RE-OPENING OF THE ASSESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT. RESULTANTLY, ORDERS OF THE AUTHORITIES BELOW ARE SE T ASIDE AND QUASHED. THIS GROUND OF APPEAL OF ASSESSEE IS ACCORDINGLY ALLOWED. 19. AS FAR AS THE ADDITIONS ON MERITS ARE CONCERNED , THE ASSESSING OFFICER ESTIMATED THE MARRIAGE EXPENSES I N A SUM OF RS. 25 LACS AND HAS GIVEN A BENEFIT OF SHOGU NS RECEIVED BY ASSESSEE OF RS. 14,13,000/- AND MADE AD DITION OF RS. 10,87,000/-. THE ASSESSEE HAS GIVEN LIST OF PERSONS WHO HAVE GIVEN SHAGUN AT THE TIME OF MARRIAGE OF DA UGHTER OF THE ASSESSEE. THIS LIST CONTAINED THE COMPLETE NAMES AND ADDRESSES AND IN SOME OF THE CASES, THEIR TELEP HONE 19 NUMBER AS WELL. THE ASSESSING OFFICER, WITHOUT MAK ING ANY ENQUIRY FROM ANY OF THESE PERSONS WHO HAVE GIVE N SHAGUN TO THE ASSESSEE IN THE MARRIAGE OF HIS DAUGH TER, HAS ACCEPTED THE CLAIM OF ASSESSEE OF RECEIPT OF SH AGUNS IN A SUM OF RS. 14,13,000/-. THE LD. CIT(APPEALS), WITHOUT GIVING ANY NOTICE TO THE ASSESSEE FOR TAKING ANY AD VERSE VIEW IN THIS REGARD, HAS RESTRICTED THE BENEFIT OF SHAGUNS IN A SUM OF RS. 6 LACS ONLY. THE ORDER OF THE LD. CIT(APPEALS) IS, THEREFORE, UNJUSTIFIED AND CANNOT BE SUSTAINED IN LAW. IF LD. CIT(APPEALS) WANTED TO RE DUCE THE BENEFIT EXTENDED BY THE ASSESSING OFFICER, IT WOULD AMOUNT TO ENHANCEMENT OF THE ASSESSMENT AND AS SUCH, LD. CIT(APPEALS) IS REQUIRED TO GIVE SPECIFIC NOTICE TO THE ASSESSEE SHOWING HIS INTENTION TO ENHANCE THE ASSES SMENT BY REDUCING THE RELIEF ALREADY GRANTED BY THE ASSES SING OFFICER. HOWEVER, THE IMPUGNED ORDER DID NOT SHOW ANYTHING AND AS SUCH, LD. CIT(APPEALS) WAS NOT JUST IFIED IN RESTRICTING THE BENEFIT OF SHAGUN OF RS. 6 LACS AS AGAINST BENEFIT GIVEN BY THE ASSESSING OFFICER IN A SUM OF RS. 14,13,000/-. IT MAY ALSO BE NOTED HERE AGAIN THAT WHEN ASSESSEE DISCLOSED COMPLETE NAMES, ADDRESS AND TELE PHONE NUMBERS IN SOME OF THE CASES OF THE PERSONS WHO HAV E OFFERED SHAGUN TO THE ASSESSEE AT THE TIME OF MARRI AGE OF HIS DAUGHTER, THE LD. CIT(APPEALS) WAS REQUIRED TO VERIFY THE SAME FACTS IF HE WAS NOT SATISFIED WITH THE FIN DING OF THE ASSESSING OFFICER. HOWEVER, LD. CIT(APPEALS) H AS ALSO DID NOT MAKE ANY ENQUIRY FROM ANY SUCH PERSON AND WITHOUT ANY BASIS OR JUSTIFICATION, DISBELIEVED THE RECEIPT 20 OF SHAGUN BY ASSESSEE IN A SUM OF RS. 14,13,000/-. IT MAY ALSO BE NOTED HERE THAT ASSESSING OFFICER WITHO UT BRINGING ANY EVIDENCE ON RECORD ESTIMATED THE MARRI AGE EXPENSES IN A SUM OF RS. 25 LACS. SIMILARLY, LD. CIT(APPEALS) WITHOUT ANY BASIS OR JUSTIFICATION OR WITHOUT BRINGING ANY EVIDENCE ON RECORD, MADE THE ESTIMATE OF MARRIAGE EXPENSES OF ASSESSEE IN A SUM OF RS. 20 LA CS. THEREFORE, BOTH THE ESTIMATES MADE BY ASSESSING OFF ICER AND LD. CIT(APPEALS) CANNOT BE SUSTAINED. 19(I) THE ASSESSING OFFICER IN THE REASONS RECORDED FOR RE- ASSESSMENT HAS CONSIDERED RS. 10 LACS SPENT BY ASSE SSEE ON MARRIAGE CEREMONY. THEREFORE, IF ASSESSING OFFI CER WANTED TO ENHANCE THE MARRIAGE EXPENSES OR TO ESTIM ATE THE HIGHER MARRIAGE EXPENSES SHOULD HAVE EXAMINE T HE INDEPENDENT WITNESSES, PARTICULARLY OF THE PERSONS WHO HAVE OFFERED SHAGUN TO THE ASSESSEE AT THE TIME OF MARRIAGE OF DAUGHTER OF THE ASSESSEE. THE ASSESSIN G OFFICER FAILED TO EXAMINE ANY OF THE GUESTS IN THIS REGARD AS PER LIST GIVEN TO HIM. THE ASSESSING OFFICER DI D NOT EXAMINE THE ASSESSEE OR HIS DAUGHTER UNDER SECTION 131 OF THE INCOME TAX ACT NOR ELICIT THE TRUTH FROM THEM O F MARRIAGE EXPENSES. NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO SUPPORT THE ESTIMATE OF MARRIAGE EXPENSES . NO SUPPORTING EVIDENCES HAVE BEEN BROUGHT ON RECORD TO PROVE TO WHAT EXTENT MARRIAGE EXPENSES WERE INCURRE D BY ASSESSEE IN THE MARRIAGE. THEREFORE, IT IS CASE WH ERE ESTIMATE OF MARRIAGE EXPENSES HAVE BEEN MADE WITHOU T 21 ANY BASIS OR EVIDENCE OR MATERIAL ON RECORD. MAY B E THE ASSESSEE HAS NOT FILED THE COMPLETE DETAILS ACCORDI NG TO THE ASSESSING OFFICER BUT IT WAS THE DUTY OF THE AS SESSING OFFICER TO MAKE A REASONABLE ESTIMATE ON MARRIAGE EXPENSES BASED ON THE EVIDENCE AND MATERIAL ON RECO RD. IN THE ABSENCE OF ANYTHING ON RECORD, LD. COUNSEL F OR THE ASSESSEE IS JUSTIFIED IN CONTENDING THAT MARRIAGE E XPENSES HAVE BEEN ESTIMATED MERELY ON SURMISES AND CONJECTU RES. THUS, THERE IS NO BASIS TO SUSTAIN THE ORDERS OF AUTHORITIES BELOW FOR ESTIMATING MARRIAGE EXPENSES IN A SUM OF RS. 20/25 LACS. THE LD. CIT(APPEALS) GAVE A BENEFIT OF ESTIMATED PAST SAVINGS AND CONTRIBUTIONS MADE BY THE FAMILY MEMBERS OF RS. 6 LACS FOR THE PURPOSE OF RESTRICTING PART ADDITION. IF THE SAME AMOUNT IS A DDED TO SHAGUN RECEIVED BY ASSESSEE IN A SUM OF RS. 14,13,0 00/-, NO ADDITION OF RS. 8 LACS WOULD SUSTAIN BECAUSE ASS ESSING OFFICER HAS HIMSELF GRANTED RELIEF TO THE ASSESSEE IN A SUM OF RS. 14.13 LACS WHICH LD. CIT(APPEALS) WITHOUT AN Y REASONS DID NOT CONSIDER FAVOURABLY TO THE ASSESSEE . 19(II) THE ASSESSING OFFICER IN THE ASSESSMENT O RDER, CONSIDERING THE STATUS OF THE ASSESSEE HAS PRESUMED THAT ASSESSEE MIGHT HAVE INCURRED SO MANY EXPENDITURE ON DIFFERENT OCCASIONS BUT NOTHING WAS BROUGHT ON RECO RD WHETHER ASSESSEE HAS PERFORMED ANY OF SUCH CEREMONI ES WHICH ARE LARGE IN NUMBER NOTED IN THE ASSESSMENT O RDER. THEREFORE, THE ORDER OF THE ASSESSING OFFICER WAS W HOLLY BASED UPON ASSUMPTIONS ON CERTAIN FACTS WHICH DID N OT 22 EXIST. IN THIS CASE, AT THE TIME OF HEARING OF THE APPEAL, THE ASSESSMENT RECORD WAS AVAILABLE WITH LD. DR BUT NO TAX EVASION PETITION WAS CONTAINING. FROM THE SETT LEMENT ARRIVED AT BETWEEN THE HUSBAND AND WIFE BEFORE HON' BLE HIGH COURT, AS NOTED ABOVE, WHICH CONTAINED THE DIS POSAL OF THE INCOME TAX MATTER, WOULD CLEARLY REVEAL THAT FROM THE SIDE OF IN-LAWS OF MS. MEGHA GARG, DAUGHTER OF THE ASSESSEE, SAME INFORMATION MIGHT HAVE BEEN PROVIDED TO THE INCOME TAX DEPARTMENT SO AS TO INITIATE THE ABO VE PROCEEDINGS BUT THE ASSESSING OFFICER DID NOT RECOR D STATEMENT OF ANY OF THE IN-LAWS OF MS. MEGHA NOR AR RIVED AT FAIR ESTIMATE OF MARRIAGE EXPENSES. IT IS, THER EFORE, A CLEAR CASE OF ADDITIONS MADE MERELY ON ASSUMPTIONS AND PRESUMPTIONS. THUS, THERE WERE NO BASIS, WHAT-SO-E VER TO ESTIMATE HIGHER MARRIAGE EXPENDITURE AS AGAINST THE EXPLANATION GIVEN BY THE ASSESSEE. MAY BE THERE IS SOME VAGUE EXPLANATION GIVEN BY ASSESSEE BEFORE ASSESSIN G OFFICER BUT IT WOULD NOT PROVE THE CASE OF THE ASSE SSING OFFICER TO MAKE HIGHER ESTIMATE OF MARRIAGE EXPENSE S. 20. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES NOTED ABOVE, WE DO NOT SUSTAIN THE ADDITIONS MADE BY THE AUTHORITIES BELOW. WE, ACCOR DINGLY, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELET E THE ADDITION OF RS. 8 LACS ON ACCOUNT OF MARRIAGE EXPEN SES. 21. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D AND DEPARTMENTAL APPEAL IS DISMISSED. 23 22. THE SECOND ISSUE IS WITH REGARD TO ADDITION MAD E ON ACCOUNT OF JEWELLERY, SILVER UTENSILS AND DIAMONDS ETC. GIVEN TO MS. MEGHA GARG IN HER MARRIAGE. THE ASSES SEE PLEADED THAT HER MOTHER SMT. SHEELA DEVI HAS EXECUT ED A WILL ON 04.07.2002 WHICH WAS EXECUTED IN THE PRES ENCE OF THE WITNESSES SHRI PAWAN KUMAR AND SHRI K.K.GUPT A, ADVOCATE. IT WAS ALSO ATTESTED BEFORE NOTARY PUBLI C. COPY OF THE WILL IS FILED AT PAGE 42 ALONGWITH TRANSLA TED COPY IN WHICH SMT. SHEELA DEVI HAS MADE WILL OF HER EN TIRE JEWELLERY AND SILVER UTENSILS IN FAVOUR OF MS. MEGH A, DAUGHTER OF THE ASSESSEE. IT IS STATED IN THE WIL L THAT SHE WILL REMAIN OWNER OF THE ORNAMENTS AND SILVER UTENS ILS AND AFTER HER DEATH, ALL THE ORNAMENTS AND SILVER U TENSILS WILL BE GIVEN TO HER GRAND DAUGHTER MS. MEGHA. UPT O THE MARRIAGE OF MS. MEGHA, ALL THE ORNAMENTS AND SILVER UTENSILS WILL REMAIN WITH SMT. ANJU AND IN THE MARR IAGE OF MS.MEGHA, ALL THESE ORNAMENTS WILL BE USED BY SMT. ANJU ACCORDING TO HER WISH. THE TESTATOR SMT.SHEELA DEV I EXPIRED ON 15.05.2003. THUS, ACCORDING TO THE WIL L OF SMT. SHEELA DEVI, MS. MEGHA BECAME OWNER OF ALL THE JEWELLERY AND SILVER UTENSILS. THESE ORNAMENTS THU S, CAME IN POSSESSION OF MS. MEGHA ACCORDING TO THE WILL AND WOULD PERTAIN TO ASSESSMENT YEAR 2004-05. MAY BE T HAT HER MOTHER ON ACCOUNT OF CUSTODIAN OF THE ORNAMENTS AND SILVER UTENSILS HAVE GIVEN THE PHYSICAL CUSTODY TO MS. MEGHA AT THE TIME OF HER MARRIAGE ON 18.11.2005 BUT SHE BECAME RIGHTFUL OWNER OF THESE ORNAMENTS ON THE DEA TH OF SMT. SHEELA DEVI. THEREFORE, SAME WOULD NOT FALL IN 24 ASSESSMENT YEAR UNDER APPEAL I.E. 2006-07. THE ASS ESSEE FILED AFFIDAVIT OF BOTH THE WITNESSES BEFORE THE AS SESSING OFFICER ALONGWITH AFFIDAVIT OF NOTARY PUBLIC WHO HA S ATTESTED THE WILL OF SMT. SHEELA DEVI. THEY HAVE CONFIRMED EXECUTION OF THE GENUINE WILL BY TESTAT OR SMT. SHEELA DEVI. IF THE ASSESSING OFFICER WANTED TO DI SPUTE THE GENUINENESS OF THE WILL, THE ASSESSING OFFICE R SHOULD HAVE EXAMINED THE WITNESSES TO THE WILL AT THE ASSESSMENT STAGE, BUT THE ASSESSING OFFICER DID NOT MAKE ANY EFFORT TO EXAMINE ANY OF THE WITNESSES OR THE N OTARY PUBLIC WHO HAS ATTESTED THE WILL AT THE ASSESSMEN T STAGE. THE ASSESSING OFFICER DISBELIEVED THE EXECUTION OF THE WILL BECAUSE WILL WAS NOT REGISTERED AND NO PRO BATE OR LETTER OF ADMINISTRATION HAS BEEN OBTAINED. THERE IS NO LAW TO PRESCRIBE THAT WILL SHOULD NECESSARILY BE REGISTERED. THERE IS ALSO NO NEED IN EACH AND EVER Y CASE TO OBTAIN PROBATE OR LETTER OF ADMINISTRATION FROM THE COURT BECAUSE WHEN THERE IS NO DISPUTE AMONGST THE LEGAL HEIRS OF INHERITANCE OF THE PROPERTY THROUGH THE W ILL. THUS, THE OBJECTIONS OF THE AUTHORITIES BELOW ARE W HOLLY IRRELEVANT AND AGAINST THE PROVISIONS OF LAW. THE ASSESSING OFFICER ALSO DISBELIEVED EXECUTION OF WIL L BECAUSE SMT. SHEELA DEVI MUST BE HAVING ANY OTHER F AMILY MEMBERS AND THERE MAY BE SOME OBJECTION BUT NOTHING IN THIS REGARD HAS BEEN BROUGHT ON RECORD. FURTHER, I T WAS NOTED THAT SINCE ASSESSEE HAS NOT SHOWN THIS JEWELL ERY AND SILVER UTENSILS IN HIS SERVICE RECORD, THEREFOR E, NO BENEFIT WAS GIVEN TO ASSESSEE. SINCE ASSESSEE HAS NOT 25 ACQUIRED ANY JEWELLERY OR SILVER UTENSILS, THEREFOR E, THERE WAS NO NEED TO DECLARE THE SAME IN THE SERVICE RECO RD. 22(I) FURTHER, IT IS ADMITTED FACT THAT NO JEWEL LERY HAS BEEN GIFTED BY ASSESSEE TO HER DAUGHTER IN THE MARR IAGE PERFORMED ON 18.11.2005. THE ASSESSING OFFICER HAS ALSO NOT BROUGHT ANY EVIDENCE ON RECORD IF ASSESSEE GIFT ED ANY GOLD JEWELLERY OR SILVER ORNAMENTS TO HER DAUGHTER IN THE MARRIAGE. THEREFORE, ALL OBJECTIONS OF AUTHORITIES BELOW FOR NOT CONSIDERING THE GENUINE WILL WERE WHOLLY UNJUSTIFIED AND AGAINST THE LAW. THE ASSESSEE HAS PRODUCED SUFFICIENT EVIDENCE AND MATERIAL ON RECORD TO PROVE WILL GENUINELY EXECUTED BY HIS MOTHER AND T HROUGH THE WILL, THE GOLD ORNAMENTS AND SILVER UTENSILS WERE GIVEN TO MS. MEGHA. THEREFORE, THE ENTIRE ADDITION AGAINST THE ASSESSEE WAS WHOLLY UNJUSTIFIED. THE ASSESSEE ALSO PRODUCED SUFFICIENT EVIDENCE ON RECORD ABOUT THE VALUATION OF THE JEWELLERY AT THE TIME OF MARRIAGE OF THE DAUGHTER OF ASSESSEE. NO EVIDENCE AGAINST THE VALU ATION REPORT HAS BEEN BROUGHT ON RECORD, THEREFORE, DEPARTMENTAL APPEAL WOULD HAVE NO MERIT AND IS LIAB LE TO BE DISMISSED. 23. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTA NCES AND ABOVE DISCUSSION, WE ARE OF THE VIEW THAT ENTIR E ADDITION SUSTAINED BY LD. CIT(APPEALS) IS LIABLE TO BE DELETED. WE, ACCORDINGLY, SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DELETE THE ENTIRE ADDITION ON ACCOUNT OF VALUATION OF THE GIFT. IN THE RESULT, T HIS GROUND 26 OF APPEAL OF ASSESSEE IS ALLOWED AND DEPARTMENTAL A PPEAL IS DISMISSED. 24. NO OTHER POINT IS ARGUED OR PRESSED. 25. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D AND DEPARTMENTAL APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (ANNAPURNA MEHROTRA) (BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH NOVEMBER, 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD