PAWAN AGRAWAL, BILASPUR(CG) V. ACIT-1(1), BILASPUR(CG)

ITA 39/BIL/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2419 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 25-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H M MOHARANA
• Assessee Lawyers: G S AGARWAL
• Section: 143(3); 153A

Judgement Text

, RA IPUR IN THE INCOME TA X A PPELLA TE TRIBUNA L, RA IPUR BEFORE S/SHRI MUKUL SHRAW AT ( JM) SHAMIM YAH Y A (AM) , , ./ I.T.A. NO. 39/BLPR/2013 ( / ASSESSMENT YEAR : 2010 - 2011 ) PAW AN AGARWAL, S/O. SHRI SATYAPAL AGARWAL,HANSA VIHAR, SRIKANT VERMA MARG, BILASPUR / VS. ACIT - 1(1), MAHIMA COMPLEX, VYAPAR VIHAR, BILASPUR ./ ./ PAN/GIR NO. : ADYPA 3854 F ( / AP PELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI G.S.AGARWAL / RESPONDENT BY : SHRI H.M. MOHARANA / DATE OF HEARING : 1 6 - 02 - 2016 / DATE OF PRONOUNCEMENT : 17 - 02 - 2016 / O R D E R PER MUKUL SHRAWAT, JM THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATING FROM A N ORDER OF THE LD CIT(A), BILASPUR DATED 15.3.2013 FOR THE ASSESSMENT YEAR 2010 - 2011. T HE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE IS REPRODUCED HEREINBELOW: 2 I.T.A. NO.39/BLPR/2013 ASSESSMENT YEAR :2010 - 2011 PAWAN AGARWAL ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) ERRED IN MAINTAINING ADDITION OF RS.2,04,000/ - WHICH WAS MADE BY THE AO OBSERVING 149.63 GMS (GROSS) OF JEWELLERY OUT OF 1119.63 GRAMS AS EXCESS, REJECTING THE EXPLANATION FILED. 2. AN ASSESSMENT WAS MADE UNDER SECTION 143(3) R.W.S 153A OF THE I.T.ACT, 1961 DATED 28.12.2011. A R ETURN OF INCOME WAS FIELD DECLARING RS.12,65,620/ - ON 28.3.2011. A S EARCH UNDER SECTION 132A WAS COND UCTED ON 7.10.2009 AT THE RESIDENTIAL PREMISES OF THE ASSESSE. THE AO HAS MENTIONED THE DETAILS OF THE ASSETS FOUND AT THE TIME OF SEARCH MAINLY GOLD JEWELLERY AT THE RESIDENCE AND IN THE LOCKER. T HE AO HAS ALSO MENTIONED THAT AS FAR AS QUESTION OF CASH FOUND AT THE TIME OF SEARCH, THE MATTER HAD ALREADY BEEN DECIDED BY AN ORDER OF THE SETTLEMENT COMMISSION DATED 14.9.2011. I N R ESPECT OF GOLD JWELLERY, HE HAS RECORDED THAT THE FAMILY OF THE ASSESSEE CONSIST OF TWO MALE MEMBERS AND TWO FEMALE MEMBERS. T HE GROSS WEIGHT OF THE GOLD JEWELLERY WAS 1119.63 GRAMS AND THE NET WEIGHT HAS ALSO BEEN MENTIONED BY THE AO AS 852.07 GRAMS. THEREAFTER, THE AO DISCUSSED THE DIRECTION/GUIDELINES OF THE CBDT PERTAINING JEWELLERY/ORNAMENTS SEIZED IN THE COURSE OF SEARCH. HE HAS HIGHLIGHTED THAT IF A PERSON NOT ASSESSED TO WEALTH TAX, THEN JEWELLERY TO THE EXTENT OF 500 GRAMS PER MARRIED LADY AND 250 GRAMS PER UNMARRIED LADY AND 100 GRAMS FOR MALE MEMBER OF THE FAMILY NEED NOT TO BE SEIZED. T HE AO HAS G IVEN DUE CREDIT BY GRANTING RELIEF TO THE EXTENT OF 950 GRAMS. T HE RELIEF SO GRANTED BY THE AO WAS SUMMARIZED AS UNDER: 3 I.T.A. NO.39/BLPR/2013 ASSESSMENT YEAR :2010 - 2011 PAWAN AGARWAL SR NO. NUMBER OF MEMBERS OF FAMILY QNT. CAN BE KEPT WITH(AS PER BOARDS CIRCULAR TOTAL FOUND EXCESS WITH FAMILY (DIFFERENCE) 1. ASSESSEE AND HIS SON WI FE OF ASSESSEE 100X2=200 500X1=500 1119.63 169.63 2. DAUGHTER (UNMARRIED 250X1=250 3. TOTAL: =950 1119.63 169.63 3.1 THE AO HAS FURTHER GRANTED REBATE OF 20 GRAMS OF GOLD STATED TO BE BELONGING TO ANOTHER PERSON. T HE AO HAS ALSO GRANTED 15 % IMPURITIES WHILE CALCULATING THE VALUE OF THE GOLD. B Y APPLYING GOLD RATE, THE VALUE OF THE BALANCE SEIZED GOLD WAS ASSESSED AT RS.2,04,000/ - IN THE HANDS OF THE ASSESSEE. 4. WH EN THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, LD CIT(A) H AS AFFIRMED THE ACTION OF THE AO IN THE FOLLOWING MANNER: IN THE CASE OF THE APPELLANT, GOLD ORNAMENTS WEIGHING 1119.63 GRAMS WERE FOUND IN HIS RESIDENTIAL PREMISE BELONGING TO THE APPELLANT AND SMT SASHI DEVI, OUT OF WHICH 361.300 GRAMS HAS BEEN SEIZED. NO EVIDENCE OF JEWELRY RECEIVED AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM THE SIDE OF IN - LAWS AND OTHERS WERE FOUND AT THE TIME OF PHYSICAL INVENTORISATION OF JEWLLERY OR AT THE TIME OF SEIZURE. T HESE WERE NOT PRODUCED IN ANY PROCEEDINGS UNDER TH E ACT. I N ABSENCE OF ANY EVIDENCE OF THIS KIND LEGAL PRESUMPTION AGAINST THE APPELLANT AS PROVIDED IN SECTION 132(4A) AND SECTION 292C ARE ATTRACTED TO PRESUME THAT THE JEWLLERY BELONGS TO THE APPELLANT AND THE SOURCE OF POSSESSION OF GOLD EXCEEDING THE L IMIT AS PRESCRIBED IN THE CIRCULAR OUGHT TO HAVE BEEN EXPLAINED WITH COGENT EVIDENCE. THE APPELLANT HAVING FAILED TO EXPLAIN THE SAME, THE ADDITION ON THIS COUNT IS HELD AS JUSTIFIED AND HENCE, IT IS CONFIRMED. 4 I.T.A. NO.39/BLPR/2013 ASSESSMENT YEAR :2010 - 2011 PAWAN AGARWAL 5. FROM THE SIDE OF THE ASSSSEE, SHRI G.S .AGARWAL.. LD A.R. APPEARED AND IN ADDITION WHATEVER STATED, HE HAS PLACED RELIANCE ON THE DECISION OF ITAT AHEMEDABAD BENCH IN THE CASE OF ACIT VS RASIK GOPALDAS PATEL, (2015) 45 CCH 0032 (AHD TRIB). O N THE OTHER HAND F ROM THE SIDE OF THE REVENUE, SHRI H.M.MO HARANA, LD D.R. APPEARED AND VEHEMENTLY PLEADED THAT DUE RELIEF HAD ALREADY BEEN GIVEN BY THE REVENUE AUTHORITIES IN THE LIGHT OF CBDT CIRCULAR , THEREFORE, THE ASSESSEE DO NOT DESERVE ANY FURTHER RELIEF. 6. WE F IND FORCE IN THE ARGUMENTS OF LD D.R. W E H AVE EXAMINED THE CALCULATION MADE BY THE AO , RELEVANT PORTION A LREADY BEEN PRODUCED ABOVE. I N OUR OPINION THE AO HAS CORRECTLY FOLLOWED THE GUIDELINES OF CBDT. T HE AO HAS ALSO GIVEN RELIEF IN RESPECT OF IMPURITIES WHILE COMPUTING THE VALUE OF EXCESS GO LD. THE ONLY ARGUMENT BEFORE US FROM THE SIDE OF THE ASSESSEE IS THAT ONLY NET WEIGHT WAS REQUIRED TO BE ADOPTED INSTEAD OF GROSS WEIGHT OF THE JEWELLERY. T HIS ARGUMENT IS NOT CONVINCING BECAUSE THE AO HAS EXAMINED THE GROSS WEIGHT AND NET WEIGHT AND THE REAFTER GRANTED DUE RELIEF TO THE ASSESSEE. M OREOVER, THERE IS NO CONCRETE EVIDENCE IN SUPPORT OF THE ALLEGED CLAIM OF NET WEIGHT. R ATHER THIS ARGUMENT APPEARS TO BE ON PRESUMPTION ONLY. THE SAME IS HEREBY REJECTED. W E, HEREBY CONFIRM THE FI NDINGS OF T HE AUTHORITIES BELOW BY DISMISSING THE GROUND OF APPEAL TAKEN BY THE ASSESSEE. 5 I.T.A. NO.39/BLPR/2013 ASSESSMENT YEAR :2010 - 2011 PAWAN AGARWAL 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 /02/2016 . SD/ - SD/ - ( , ) ( , ) SHAMIM Y AHY A , ACCOUNT ANT MEMBER MUKUL SHRA WA T , JUDICIAL M EM BER RAIPUR , DATED 17 / 02 /20 1 6 . . ./ PARIDA , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : PAWAN AGARWAL, S/O. SHRI SATYAPAL AGARWAL,HANSA VI HAR, SRIKANT VERMA MARG, BILASPUR 2. / THE RESPONDENT : ACIT - 1(1), MAHIMA COMPLEX, VYAPAR VIHAR, BILASPUR 3. ( ) / THE CIT(A) - BILASPUR 4. / CIT , BILASPUR 5. , , / DR, ITAT , RAIPU R 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SR. PS, ITAT, CAMP: RAIPUR