Income Tax Officer- 5(3), Lucknow V. Shri Rajeev Kumar Jaiswal, Lucknow

ITA 392/LKW/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3337 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-06-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 12-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Assessee Lawyers: A P SINHA
• Keywords: Unexplained investment; Gift
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B : LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER I.T.A. NO. 392 /LKW/ 2012 ASSESSMENT YEAR: 2009 - 10 INCOME TAX OFFICER - 5(3), VS. SHRI RAJEEV KUMAR JAISWAL, RANGE - V, PROP. M/S RAJ NARAIN SARAF, LUCKNOW. 117/114, J.N. ROAD, GOLAGANJ, LUCKNOW. PAN:AAVPJ4647B (APPELLANT) (RESPONDENT) I.T.A. NO. 450 /LKW/ 2012 ASSESSMENT YEAR: 2009 - 10 SHRI RAJEEV KUMAR JAISWAL, VS. INCOME T AX OFFICER - 5(3), PROP. M/S RAJ NARAIN SARAF, RANGE - V, 117/114, J.N. ROAD, GOLAGANJ, LUCKNOW. LUCKNOW. PAN:AAVPJ4647B (APPELLANT) (RESPONDENT) REVENUE BY : SMT. RANU BISWAS, D.R. ASSESSEE BY : SHRI A. P. SINHA, ADVOCATE DATE OF HEARING : 04 /0 6 /201 3 DATE OF PRONOUNCEMENT :07/06/2013 ORDER PER SUNIL KUMAR YADAV: THESE CROSS APPEALS ARE PREFERRED BY THE REVENUE AS WELL AS THE ASSESSEE AGAINST THE ORDER O F CIT(A) FOR THE ASSESSMENT YEAR 2009 - 2010. 2 SINCE THESE APPEALS WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. WE, HOWEVER, PREFER TO DISPOSE THESE APPEALS ONE AFTER THE OTHER. I.T.A. NO.392/LKW/2012 2. THIS IS REVENUES APPEAL IN WHICH THE REVENUE HAS ASSAILED THE ORDER OF CIT(A) ON VARIOUS GROUNDS BUT THEY ALL RELATE TO DELETION OF ADDITION OF ` 20,87,920/ - MADE U/S 69A OF THE I.T. ACT AS UNEXPLAINED INVESTMENT ON ACCOUNT OF UNEXPLAINED GOLD AND SILVER F OUND AT THE BUSINESS PREMISES OF THE ASSESSEE DURING THE COURSE OF SURVEY U/S 133A OF THE ACT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE LEARNED D.R. HAS INVITED OUR ATTENTION TO THE FACT THAT T HE ASSESSEE HAS DECLARED NET INCOME AT ` 1,13,910/ - THROUGH ORIGINAL RETURN OF INCOME AND DURING THE COURSE OF SURVEY 1KG. GOLD AND 40 KG. SILVER WAS FOUND AT THE PREMISES OF THE ASSESSEE. THE ASSESSEE HAD INTRODUCED 1 KG. GOLD AND 40 KG. SILVER IN THE CAPI TAL ACCOUNT OF THE PROPRIETOR. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS EXPLAINED TO HAVE RECEIVED THROUGH WILL 1KG. GOLD AND 20 KG. SILVER FROM HIS GRANDMOTHER SMT. RAM KISHORI JAISWAL. THIS WILL WAS FILED BEFORE THE ASSESSING OFFIC ER BUT DID NOT PRODUCE THE WITNESS BEFORE THE ASSESSING OFFICER TO PROVE THE GENUINENESS OF THE GIFT. THE LEARNED D.R. FURTHER INVITED OUR ATTENTION TO THE STATEMENT RECORDED DURING THE COURSE OF SURVEY THAT THE ASSESSEE HAS NEVER STATED DURING THE COURSE OF SURVEY THAT THIS GOLD AND SILVER WAS RECEIVED BY HIM THROUGH WILL FROM HIS 3 GRANDMOTHER. THIS STORY HAS BEEN DEVELOPED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE CIT(A), WITHOUT VERIFYING THE CONTENTS OF THE WILL HAS ACCEPTED THE CLAIM OF THE AS SESSEE. THE LEARNED D.R. FURTHER INVITED OUR ATTENTION THAT SMT. RAM KISHORI JAISWAL HAD SIX SONS, TWO DAUGHTERS AND MANY GRANDSONS & GRANDDAUGHTERS AND THE ASSESSEE IS ONE OF HER GRANDSONS . THEREFORE, THERE IS NO VALID REASON TO EXECUTE A WILL OF 1 KG G OLD AND 20 KG SILVER IN FAVOUR OF THE ASSESSEE. THEREFORE, IN THE IN THE INTEREST OF JUSTICE, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE GENUINENESS OF THE WILL BY MAKING NECESSARY VERIFICATION AND ENQUIRY OR EVEN BY EXAMINING THE WITNESS OF THE WILL. IT IS ALSO CONTENDED THAT THE WILL WAS NOT REGISTERED, THEREFORE, IT CANNOT BE RELIED ON. 4. THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT DURING THE COURSE OF SURVEY, NO QUESTION WAS PUT T O THE ASSESSEE WITH REGARD TO THE SOURCE OF THE GOLD AND SILVER. THE CIT(A) HAS PROPERLY EXAMINED THE ISSUE IN DISPUTE AND AFTER HAVING CONVINCED WITH THE GENUINENESS OF THE WILL HAS ALLOWED THE RELIEF TO THE ASSESSEE. 5. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS, WE FIND THAT DURING THE COURSE OF SURVEY PROCEEDINGS A SPECIFIC QUERY WAS RAISED BY THE SURVEY TEAM WITH REGARD TO THE SOURCE OF ACQUISITION OF THE JEWELLERY, GOLD AND SILVER BUT IT WAS NOT STATED THAT IT WAS INHERITED BY VIRTUE OF WILL FROM THE GRANDMOTHER OF THE ASSESSEE. THE WILL WAS FIRST TIME PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDINGS BUT NO WITNESS WAS PRODUCED BEFORE THE ASSESSING OFFICER TO PROVE THE GENUINENESS OF THE WILL . UNDISPUTEDLY, THE WILL WAS NOT REGISTERED AS IT WAS 4 NOT REQUIRED TO REGISTER UNDER THE LAW BUT THE DOCUMENTS CAN ONLY BE PROVED BY PRODUCING ONE OF THE WITNESSES OF THE DOCUMENTS. THIS WILL WAS ACCEPTED BY THE CIT(A) AND GRANTED THE RELIEF TO THE ASSES SEE. WE ARE OF THE VIEW THAT THE GENUINENESS OF THE WILL WAS NOT PROPERLY EXAMINED BY THE ASSESSING OFFICER, THEREFORE, THE MATTER SHOULD BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR CONDUCTING NECESSARY ENQUIRY WITH REGARD TO THE GENUINENESS OF T HE WILL. ACCORDINGLY, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE MATTER IS RESTORED TO TH E FILE OF THE ASSESSING OFFICER FOR READJUDICATING THE ISSUE AFRESH AFTER AFFORDING AN OPPORTUNITY TO THE ASSESSEE BY MAKING NECESSARY ENQUIRY WITH REGARD TO THE GE NUINENESS OF THE WILL. I.T.A. NO.452/LKW/2012 6. THROUGH THIS APPEAL THE ASSESSEE HAS ASSAILED THE ADDITION MADE OF ` 8,04,760/ - ON THE BASIS OF A DIARY OF PAWNING FOUND AT THE SHOP OF THE ASSESSEE DURING THE COURSE OF SURVEY. THIS ADDITION WAS CONFIRMED BY THE CIT(A). 7. AGGRIEVED, THE ASSESSEE IS BEFORE US WITH THE SUBMISSION THAT THE ASSESSING OFFICER SHOULD HAVE CALLED SHRI AYODHYA PRASAD TO WHOM THE DIARY BELONGS BEFORE MAKING THE ADDITION BUT HE DID NOT DO SO. EVEN THE CIT(A) DID NOT MAKE ANY EFFORT TO VERIFY THE OWNERSHIP OF THIS DIARY FOUND FROM THE SHOP OF THE ASSESSEE DURING THE COURSE OF SURVEY. THEREFORE, THE MATTER BE RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE SHRI AYODHYA PRASAD TO WHOM THE DIARY BELONGS. 5 8. THE LEARNED D.R., ON THE OTHER HAND, CONTENDED THAT THE ONUS IS UPON THE ASSESSEE TO PRODUCE SHRI AYODHYA PRASAD IN SUPPORT HIS CONTENTION THAT IN FACT THE DIARY BELONGS TO HIM. SINCE THE ASSESSEE COULD NOT PRODUCE HIM BEFORE THE ASSESSING OFFICER, THE ASSESSING OFFICER HAS RIGHTLY MADE THE ADDITION ON THE BASIS OF THE DIARY FOUND. 9. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT DURING THE COURSE OF SURVEY A DIARY OF PAWNING WAS FOUND FROM THE SHOP OF THE ASSESSEE . T HOUGH THE ASSESSEE HAS CLAIMED THAT THE DIARY CONTAINING UNACCOUNTED TRANSACTIONS OF MONEY LENDING BELONGS TO SHRI AYODHYA PRASAD BUT NO EVIDENCE IN THI S REGARD WAS PRODUCED BEFORE THE ASSESSING OFFICER NOR HE PRODUCED SHRI AYODHYA PRASAD BEFORE THE ASSESSING OFFICER. OUR ATTENTION WAS ALSO INVITED TO ONE LETTER WRITTEN BY THE ASSESSEE TO THE ASSESSING OFFICER REQUESTING THE ASSESSING OFFICER TO ISSUE A NOTICE TO SHR AYODHYA PRASAD AS HE IS UNABLE TO PRODUCE HIM BEFORE THE ASSESSING OFFICER . T HOUGH HE HAS FURNISHED ADDRESS AND MOBILE NUMBER OF SHRI AYODHYA PRASAD BUT THE ASSESSING OFFICER DID NOT MAKE ANY EFFORT TO EXAMINE HIM. IN THE LIGHT OF THESE FAC TS, WE ARE OF THE VIEW THAT THIS ISSUE WAS NOT PROPERLY EXAMINED BY THE ASSESSING OFFICER. WE, ACCORDINGLY, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO READJUDICATE THE ISSUE AFRESH AFTER EXA MINING SHRI AYODHYA PRASAD. IN ORDER TO EXAMINE SHRI AYODHYA PRASAD, THE ASSESSING OFFICER IS AT LIBERTY TO ISSUE NOTICE OR TO ADOPT OTHER MEASURES TO ENFORCE HIS PRESENCE BEFORE HIM FOR EXAMINATION. NEEDLESS TO MENTION HERE THAT NECESSARY OPPORTUNITY SH OULD BE AFFORDED TO THE ASSESSEE WHILE ADJUDICATING THE ISSUE BY THE 6 ASSESSING OFFICER. THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL SORT OF COOPERATION TO THE ASSESSING OFFICER IN THIS REGARD SO THAT ISSUE CAN BE PROPERLY ADJUDICATED. 10. IN THE RESULT T HE APPEALS OF THE REVENUE AND ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/06/201 3 ) SD/. SD/. ( PRAMOD KUMAR) ( SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07/06/2013 *SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR