PRATIBHA JAIN, MUMBAI V. ITO 24(2)(1), MUMBAI

ITA 3922/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6248 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 14-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Keywords: Unexplained cash credit
• Section: 143(3); 68

Judgement Text

1 ITA 3922/M/10, MS. PRATIBHA JAIN IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER ITA NO. 3922/MUM/2010 ASSESSMENT YEAR 2006-07 MS. PRATIBHA JAIN, 1203 VASTU TOWER, BLDG. NO. T-2, LINK ROAD, MALAD (W), MUMBAI 400 064. PAN AEIPJ 4044D VS. THE INCOME TAX OFFICE- 24(20(1), C-13 PRATYAKSHA KAR BHAWAN, 5 TH FLOOR, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI 51. APPELLANT RESPONDENT APPELLANT BY SHRI VIJAY MEHTA RESPONDENT BY SHRI SURENDRA KUMAR ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A) XXIV, MUMBAI DATED 19.2.10 AND THE SOLITARY ISSUE ARISING OUT OF THE SAME RELATES TO THE ADDITION OF ` 2,69,880/- MADE BY THE A.O. AND CONFIRMED BY THE L D. CIT(A) ON ACCOUNT OF PROCEEDS RECEIVED BY THE ASSESSEE TOWARDS SALE OF GOLD ORNAM ENTS TREATING THE SAME AS UNEXPLAINED CASH CREDIT U/S 68. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDI VIDUAL WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 22.2.07 DECLARING T OTAL INCOME OF ` 97,542/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND BY T HE A.O. THAT THE ASSESSEE HAS RECEIVED A SUM OF ` 2,69,880/- ON ACCOUNT OF SALE OF JEWELLERY. IT WA S SUBMITTED BEFORE THE A.O. THAT THE JEWELLERY SO SOLD HAD BEEN RECEIVED BY THE ASSESSEE ON THE OCCASION OF HER MARRIAGE. ACCORDING TO THE A.O., THE ASSESSEE, HOWE VER, COULD NOT SUPPORT AND SUBSTANTIATE HER CLAIM RELATING TO THE OWNERSHIP OR POSSESSION OF THE SAID JEWELLERY AND ACCORDINGLY REJECTING THE CLAIM OF THE ASSESSEE OF HAVING SOLD THE JEWELLERY FOR ` 2 ITA 3922/M/10, MS. PRATIBHA JAIN 2,69,880/-, HE ADDED THE SAID AMOUNT TO THE TOTAL INCOME OF THE ASSESSEE U/S 68 BY TREATING THE SAME AS UNEXPLAINED CASH CREDIT IN THE ASSESSMENT COMPLETED U/S 143(3) BY AN ORDER DATED 26.11.08. AGAINST THE ORDER PASSED BY THE A.O. U/S 143(3), AN APPEAL WAS FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) CHALLEN GING THEREIN THE ADDITION OF ` 2,69,880/- MADE BY THE A.O. U/S 68. DURING THE COURSE OF APPE LLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE STAND TAKEN BEFORE THE A.O. WAS REITERA TED ON BEHALF OF THE ASSESSEE BY STATING THAT THE JEWELLERY SOLD FOR ` 2,69,880/- DURING THE YEAR UNDER CONSIDERATION HAD BEEN RECEIVED BY THE ASSESSEE AT THE TIME OF HER MA RRIAGE. THIS STAND OF THE ASSESSEE, HOWEVER, WAS NOT FOUND ACCEPTABLE BY THE LD. CIT(A) IN THE ABSENCE OF ANY EVIDENCE PRODUCED BEFORE HIM TO SUPPORT AND SUBSTANTIATE THE SAME. HE ALSO NOTED IN THIS CONTEXT THAT THE TRANSACTION OF SALE OF JEWELLERY WAS NOT D ISCLOSED BY THE ASSESSEE IN HER RETURN OF INCOME AND IT WAS DETECTED ONLY BY THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHICH PROVED MALAFIDE INTENTION OF THE ASSESSEE. H E, THEREFORE, CONFIRMED THE ADDITION OF ` 2,69,880/- MADE BY THE A.O. TREATING THE SALE PROC EEDS OF GOLD JEWELLERY AS UNEXPLAINED CASH CREDIT. AGGRIEVED BY THE ORDER OF THE LD. CIT (A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDE S AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE TRANSACTION OF S ALE OF JEWELLERY ENTERED INTO BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAD RESULT ED IN A LONG TERM CAPITAL LOSS AND IN THE ABSENCE OF ANY LONG TERM CAPITAL GAIN ARISEN IN THA T YEAR OR LIKELY TO BE ARISEN IN THE SUBSEQUENT YEAR TO CLAIM THE SET OFF, THE LONG TERM CAPITAL LOSS WAS NOT SHOWN BY THE ASSESSEE IN HER RETURN OF INCOME AS CLAIMED BY THEM . THERE IS NOTHING BROUGHT ON RECORD EITHER BY THE A.O. OR BY THE LD. CIT(A) TO DISLODGE THIS CLAIM OF THE ASSESSEE AND THIS BEING SO, I AM OF THE OPINION THAT NO ADVERSE INFER ENCE CAN BE DRAWN AGAINST THE ASSESSEE ON THE BASIS OF SUCH NON-DISCLOSURE. ON THE CONTRA RY, THE CLAIM OF THE ASSESSEE OF HAVING SOLD THE OLD JEWELLERY FOR ` 2,69,880/- WAS DULY SUPPORTED BY A BILL ISSUED BY THE CONCERNED JEWELER M/S MILAN CHAIN AND DESPITE THE C OPY OF THE SAID BILL HAVING BEEN FILED BY THE ASSESSEE BEFORE THE A.O. GIVING ALL TH E RELEVANT DETAILS, NO ENQUIRY, 3 ITA 3922/M/10, MS. PRATIBHA JAIN WHATSOEVER, WAS MADE BY THE A.O. WITH THE SAID JEWE LER TO ASCERTAIN THE GENUINENESS OF THE TRANSACTION. THE A.O. AS WELL AS THE LD. CIT(A ) PROCEEDED TO TREAT THE SALE PROCEEDS OF GOLD JEWELLERY RECEIVED BY THE ASSESSEE AS UNEXP LAINED CASH CREDIT MERELY ON THE GROUND THAT THERE WAS NO EVIDENCE WHICH COULD BE FI LED BY THE ASSESSEE TO SUPPORT AND SUBSTANTIATE HER EXPLANATION THAT THE JEWELLERY SOL D WAS ACTUALLY RECEIVED BY HER ON THE OCCASION OF HER MARRIAGE. I FIND IT DIFFICULT TO SU BSCRIBE TO THIS VIEW TAKEN BY THE AUTHORITIES BELOW IN THE MATTER SINCE IT IS A COMMO N PRACTICE AND CUSTOM PREVAILING IN THE HINDU FAMILY TO GIVE CERTAIN JEWELLERY AS STREE DHAN TO THE DAUGHTERS AT THE TIME OF MARRIAGE. EVEN THE CBDT HAS RECOGNIZED THIS PRACTI CE/CUSTOM IN THE INSTRUCTION NO. 1916 ISSUED ON 11.5.94 TO ITS OFFICERS DIRECTING TH EM NOT TO SEIZE GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500 GRAMS FOUND DURING T HE COURSE OF SEARCH IN CASE OF A MARRIED LADY EVEN THOUGH SHE IS NOT ASSESSED TO WEA LTH TAX. THEREFORE, I AM OF THE VIEW THAT THERE IS NO JUSTIFIABLE REASON FOR THE AUTHORI TIES BELOW TO HAVE NOT ACCEPTED THE EXPLANATION OFFERED BY THE ASSESSEE IN RESPECT OF J EWELLERY OF 346 GRAMS SOLD IN THE YEAR UNDER CONSIDERATION AND SETTING ASIDE THEIR ORDERS ON THIS ISSUE, I DELETE THE ADDITION OF ` 2,69,880/- MADE U/S 68 OF THE ACT. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 30 TH NOVEMBER, 2010. S D/- (P.M. JAGTAP) ACCOUNTANT MEMBER MUMBAI, DATED 30 TH NOVEMBER , 2010. RK 4 ITA 3922/M/10, MS. PRATIBHA JAIN COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) - 34 - MUMBAI 4. THE CIT- -24, MUMBAI 5. THE DR BENCH, SMC 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 5 ITA 3922/M/10, MS. PRATIBHA JAIN DATE INITIALS 1. DRAFT DICTATED 29.11.10 SR.P.S./P.S. 2. DRAFT PLACED BEFORE AUTHOR 30.11.10 SR.P.S./P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER. - J.M./A.M. 4.DRAFT DISCUSSED/ APPROVED BY SECOND MEMBER. J.M./A.M. 5. APPROVED DRAFT COMES TO THE SR.P.S./P.S. SR.P.S./P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S. 8. DATE OF WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.