DCIT, New Delhi V. Smt. Sushila Singhal, Delhi

ITA 3988/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65969 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 26-11-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 26-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMANA SENDR
• Assessee Lawyers: S C GARG
• Keywords: Unexplained investment; Gift
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI G BENC H BEFORE SHRI A.N. PAHUJA, AM & SHRI C.M.GARG, JM ITA NO.3988/DEL/2010 WITH CO NO.219/DEL./2012 ASSESSMENT YEAR: 2004-05 D.C.I.T.,CENTRALCIRCLE-3, ROOM NO.355, E-2, ARA CENTRE, JHANDEWALAN EXTN., NEW DELHI V/S . SMT. SUSHILA SINGHAL, H-126, ASHOK VIHAR, PHASE-I, DELHI [PAN : AAVPL 1114 D ] ASSESSEE BY SHRI S.C. GARG, AR REVENUE BY SMT. SUMANA SEN,DR DATE OF HEARING 26-11-2012 DATE OF PRONOUNCEMENT 07-12-2012 O R D E R A.N.PAHUJA:- THIS APPEAL FILED ON 26.08.2010 BY THE REVENUE AND THE CORRESPONDING CROSS OBJECTION[CO] FILED ON 18.06.20 12 BY THE ASSESSEE AGAINST AN ORDER DATED 11.06.2010 OF THE LD. CIT(A)-II, DEL HI, RAISE THE FOLLOWING GROUNDS:- I.T.A. NO.3988/DEL./2012[REVENUE] 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF ` `9,69,586/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY. 2. (A) THE ORDER OF THE CIT(A) IS ERRONEOUS AND NOT TENABLE IN LAW AND ON FACTS. (B) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AME ND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF TH E HEARING OF THE APPEAL. ITA NO.3988/DEL./2010 2 CROSS OBJECTION NO.219/DEL./2012[ASSESSEE] 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN SUS TAINING AN ADDITION OF ` `63000/- IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN SUSTAIN ING AN ADDITION OF ` ` 63,000/- BY TREATING A PART OF JEWELLERY AS UNEXPLAINED IGNORING THE AGE OF THE ASSESSEE AND TH E TENURE OF HER MARRIED LIFE. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THA T A SEARCH U/S 132 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) WAS CONDUCTED ON 21.10.2003 IN THE RESIDENTIAL PREMISES OF THE ASSES SEE AT H-126, ASHOK VIHAR, PHASE-1, DELHI. INTER ALIA, LOCKER NO.3270 HELD BY THE ASSESSEE ALONG WITH HER SON SHRI MUKESH KUMAR IN PUNJAB NATIONAL BANK, ASHO K VIHAR, PHASE-1,DELHI WAS SEARCHED ON 10.1.2004,WHEN JEWELLERY OF THE VA LUE OF ` 10,29,949/-WAS FOUND APART FROM JEWELLERY OF ` ` 6 ,43,884/- FOUND IN THE RESIDENTIAL PREMISES OF THE ASSESSEE. SUBSEQUENTLY, THE RETURN DECLARING I NCOME OF ` ` 81,720/- FILED ON 30 TH MARCH, 2005, WAS TAKEN UP FOR SCRUTINY WITH THE SE RVICE OF A NOTICE U/S 143(2) OF THE ACT ISSUED ON 23 RD FEBRUARY, 2006 .TO A QUERY BY ASSESSING OFFICER[AO IN SHORT] ASKING THE ASSESSEE TO EXPLAIN THE SOURCE O F ACQUISITION OF THE AFORESAID JEWELLERY, THE ASSESSEE REPLIED VIDE LETTER DATED 2 0.3.2006 THAT EXPLANATION TENDERED BY HER HUSBAND SHRI MOHAN LAL VIDE LETTE R DATED 3.3.2006 MAY BE CONSIDERED. THE HUSBAND OF THE ASSESSEE EXPLAINED T HAT OUT OF JEWELLERY VALUING ` ` 6,43,884/- FOUND FROM THE RESIDENCE, JEWELLERY OF T HE VALUE OF ` ` 1,52,637/- BELONGED TO HIS WIFE I.E., THE ASSESSEE, WHICH WAS RECEIVED AT THE TIME OF MARRIAGE WHILE REMAINING JEWELLERY BELONGED TO HIS DAUGHTERS-IN-LAW. REGARDING JEWELLERY FOUND FROM THE LOCKER, THE HUSBAND OF THE ASSESSEE EXPLAINED THAT THIS BELONGED TO THE ASSESSEE AND HIS DAUGHTERS-IN-LAW. SHRI MOHAN LAL DID NOT GIVE ANY FURTHER EXPLANATION NOR EVIDENCE IN SUPPORT ACQ UISITION OF THE AFORESAID JEWELLERY. IN THESE CIRCUMSTANCES AND IN THE ABSEN CE OF ANY EVIDENCE THAT JEWELLERY FOUND IN THE LOCKER BELONGED TO HER DAU GHTERS-IN-LAW, THE AO WHILE ITA NO.3988/DEL./2010 3 ACCEPTING THE FACT THAT JEWELLERY OF ` ` 4 LACS FOUND AT THE RESIDENCE BELONGED TO THE FEMALE FAMILY MEMBERS OF THE ASSESSEE & JEWELLE RY OF ` ` 1,50,000/- WAS RECEIVED BY THE ASSESSEE ON THE OCCASION OF HER MAR RIAGE, ADDED THE AMOUNT OF ` ` 10,32,586/-[1,52,637+10,29,949-1,50,000] ON ACCOUNT OF UNEXPLAINED JEWELLERY. THE SEPARATE ADDITION OF ` 1,78,590/- ON ACCOUNT OF MADE BY THE AO WAS DELETED BY THE LD. CIT(A) AND IS NOT IN DISPUTE BEFORE US. 3. ON APPEAL, THE LD. CIT(A), AFTER HAVING A REMAN D REPORT FROM THE AO & COMMENTS OF THE ASSESSEE THEREON, VIDE HIS CONSO LIDATED ORDER IN THE CASE OF THE ASSESSEE AND HER HUSBAND, REDUCED THE ADDITION TO ` 63,000 IN THE HANDS OF THE ASSESSEE, HOLDING AS UNDER:- '2.3.4 I HAVE CONSIDERED THE FACTS OF THE CASE. TH E SUBMISSIONS OF THE APPELLANT, THE REPORT OF THE A.O. IN REMAND PRO CEEDINGS AND ASSESSEE'S SUBMISSION/STATEMENT /ARGUMENTS HAVE ALS O BEEN CONSIDERED VERY CAREFULLY. ON A CAREFUL CONSIDERATI ON OF ALL THESE, IN MY OPINION FOLLOWING ISSUES ARE TO BE CONSIDERED AN D DECIDED: I) WHETHER THE JEWELLERY FOUND IN THE LOCKER IS ON LY BELONGING TO SMT. SUSHILA SINGHAL OR TO OTHER FAMIL Y MEMBERS ALSO? II) WHETHER THE JEWELLERY FOUND AT THE RESIDENCE AND THE LOCKER SHOULD BE CONSIDERED TOGETHER AS BELONGING TO ALL THE FAMILY MEMBERS OR NOT. III) WHETHER INSTRUCTION NO.1916 OF CBOT IS APPLIC ABLE FOR SEIZURE ONLY OR CAN IT HAVE APPLICABILITY FOR ASSESSMENT PURPOSES ALSO. IV) WHETHER THE JEWELLERY SO FOUND CAN BE. SAID AS REASONABLE AND, THEREFORE, EXPLAINED IN VIEW OF THE INSTRUCTION NO.1916 OF CBDT? 2.3.4.1. THERE IS NO DISPUTE THAT BOTH THE APPELLA NTS ARE LIVING TOGETHER IN A JOINT FAMILY WITH THEIR FOUR SONS AND THEIR WIVES AND CHILDREN. EVEN THOUGH WARRANT IS IN THE NAME OF SH . MOHAN LAL BUT AO HIMSELF HAS TREATED JEWELLERY WORTH RS. 4 LAKH B ELONGING TO THE ITA NO.3988/DEL./2010 4 FOUR DAUGHTERS-IN-LAW AND ` .1,52,637/- BELONGING TO MRS. SUSHILA SINGHAL. THUS EVEN AO, AS FAR AS JEWELLERY FOUND AT THE RESIDENCE IS CONCERNED, IS OF THE OPINION THAT IT IS NOT IMPO RTANT AS IN WHOSE NAME WARRANT OF AUTHORIZATION IS THERE TO DECIDE AS IN WHOSE HAND JEWELLERY HAS TO BE TREATED FOR OWNERSHIP PURPOSES. THE OTHER FACTORS, CLAIM MADE DURING THE COURSE OF SEARCH AND OTHER RELEVANT FACTS AND CIRCUMSTANCES HAVE TO BE CONSIDERED TO DE CIDE THE OWNERSHIP OF THE ASSETS/DOCU-MENTS ETC. FOUND DURIN G THE COURSE OF SEARCH. THIS IS NOT FOREIGN CONCEPT TO INCOME TAX A CT. RATHER ONLY TO TAKE CARE OF SUCH SITUATIONS PROVISIONS OF SECTI ON 153C IS THERE IN THE ACT. THUS IN THE INSTANT CASE ALSO OTHER FACTOR S HAVE ALSO TO BE CONSIDERED. THE OTHER FACTORS ARE THE JOINT FAMILY CONSISTING OF SH. MOHAN LAL, MRS. SUSHILA SINGHAL AND THEIR FOUR SONS AND DAUGHTER- IN LAWS. FURTHER IN A JOINT FAMILY THE TRADITION OF KEEPING ALL THE JEWELLERIES EXCEPT THOSE USED FOR DAILY-WEAR PURPOS ES, IN CONTROL OF SENIOR MEMBER OF THE FAMILY ALSO EXISTS GENERALLY W HICH CAN NOT BE OVERLOOKED BY THE AO. IT CAN ALSO NOT BE OVER LOOKE D THAT THERE IS ONLY ONE LOCKER FOR ENTIRE FAMILY. IT IS ALSO WELL KNOWN THAT FOR SECURITY AND SAFETY PURPOSES VERY SMALL QUANTITY OF JEWELLERY IS KEPT AT HOME AND MAJOR JEWELLERY IS KEPT IN A LOCKER ESP ECIALLY IN NORTH INDIA AND MORE PARTICULARLY IN DELHI. I ALSO AGREE WITH THE LD. AR THAT VERY SMALL QUANTITY OF JEWELLERY HAS BEEN FOUN D FROM THE FOUR DAUGHTERS-IN-LAW AT THE RESIDENCE AS EVEN AS PER AP PELLANT'S VERSION THE JEWELLERY FOUND AT THE RESIDENCE IS WOR TH ONLY ` 4,91,247/- PERTAINING TO FOUR DAUGHTER-IN LAWS. IN THE CASE OF SMT.SARITA SINGHAL ONLY 74.500 GMS. JEWELLERY WAS C LAIMED OUT OF JEWELLERY FOUND AT THE RESIDENCE. LOOKING TO THE ST ATUS OF THE FAMILY AND THE COMMUNITY TO WHICH THEY BELONG IN WHICH TRA DITION OF GETTING HUGE JEWELLERY AT THE TIME OF MARRIAGE IS VERY COMM ON, IT CANNOT BE PRESUMED THAT SHE WILL BE HAVING JEWELLERY ONLY WEI GHING 74.500 GMS. SINCE THERE ARE FIVE LADY MEMBERS IN THE FAMIL Y THE CLAIM CANNOT BE DISCARDED THAT JEWELLERY FOUND FROM THE L OCKER IS BELONGING NOT ONLY TO SMT. SUSHILA SINGHAL BUT TO O THER FOUR LADY MEMBERS ALSO JUST BECAUSE THE LOCKER IS IN THE NAME OF SMT. SUSHILA SINGHAL. FURTHER ALL THE FOUR DAUGHTERS-IN- LAW HAVE ALSO CONFIRMED BEFORE AO. THAT JEWELLERY BELONGING TO TH EM IS ALSO LYING IN THIS LOCKER AND THEY HAVE IDENTIFIED THE ITEMS A ND QUANTIFIED ALSO THEIR JEWELLERY. THOUGH IT IS CORRECT ON THE PART O F THE AUTHORISED OFFICER NOT TO RECORD THE STATEMENT OF THE DAUGHTER S-IN-LAW AT THE TIME OF OPERATION OF LOCKER BECAUSE IT WAS NOT IN T HEIR NAMES BUT IT IS STRANGE THAT HE DID NOT RECORD THE STATEMENT OF SMT. SUSHILA SINGHAL IN WHOSE NAME THE LOCKER WAS STANDING TO GE T HER FIRST HAND VERSION ABOUT THE OWNERSHIP OF THE JEWELLERY SO FOU ND BEFORE SEIZURE. AS REGARDS REFERENCE BY THE AO IN THE REMA ND REPORT OF VERSION OF SH. MUKESH SINGHAL, OTHER JOINT HOLDER O F THE LOCKER THAT HE HAS NOTHING TO DO WITH THE CONTENTS OF THE LOCKE R, IN MY OPINION, ITA NO.3988/DEL./2010 5 THIS IS NOT GOING TO HELP THE CASE OF AO AS EVEN BO TH THE APPELLANTS HAVE NOT CLAIMED THAT IN THE LOCKER ANY JEWELLERY I S PERTAINING TO SH. MUKESH SINGHAL. I HAVE ALSO CONSIDERED THE ASSESSEE 'S SUBMISSION AND GONE THROUGH THE INVENTORY IN THE FORM OF VALUA TION REPORT PREPARED AT THE TIME OF SEARCH AND IT IS FOUND THAT FOR EACH POUCH SEPARATE PAGE HAS, BEEN USED. THIS ITSELF SHOWS THA T THE JEWELLERY WERE KEPT IN A SEPARATE PACKET/POUCH BELONGING TO E ACH PERSON. THOUGH IT HAS NOT COME OUT CLEARLY IN THE INVENTORY BUT THE APPELLANT CANNOT HELP THE WAY INVENTORY IS PREPARED . IF ASSESSEE CLAIMS THAT SOME JEWELLERY BELONGS TO HER OR TO SOM E OTHER PERSON THEN NORMALLY INVENTORY SHOULD BE PREPARED IN THAT WAY. IF INVENTORY IS NOT PREPARED IN THAT WAY THEN THE ASSESSEE CANNO T HELP IT. THERE CANNOT BE ANY EVIDENCE ALSO THAT IN THE LOCKER BELO NGING TO MOTHER- IN-LAW, JEWELLERY OF DAUGHTERS-IN-IAWS ARE ALSO KEP T EXCEPT THAT THEY PRESENT THEMSELVES AND IDENTIFY THE JEWELLERY WHICH ACCORDING TO THE APPELLANTS HAS BEEN DONE ALSO THOUGH AT PRESENT THERE IS NO EVIDENCE FOR THE SAME. BUT BEFORE A.O. THEY HAVE CE RTAINLY DONE SO BY GIVING A SEPARATE LETTERS AND HAVING IDENTIFIED THE JEWELLERY KEPT IN LOCKER AND BELONGING TO THEM. IT IS SEEN THAT A. O. HAS NOT PASSED ANY ADVERSE COMMENTS ON SUCH LETTERS. IN VIEW OF TH E ABOVE DISCUSSION, I AM OF THE OPINION THAT IT WILL BE MOS T FAIR IN THE BACKGROUND OF ABOVE FACTS TO TAKE A HOLISTIC VIEW A ND THEREFORE JEWELLERY FOUND AT RESIDENCE AND AT LOCKER HAS TO B E HELD AS BELONGING TO THE FIVE LADIES NAMELY SMT. SUSHILA S INGHAL AND OUR DEAUGHTERS-IN-IAW SMT. RENU SINGHAL, SMT. SARITA SI NGHAL, SMT. NEETU SINGHAL AND SMT. BARKHA SINGHAL. 2.3.4.2, FURTHER IT IS UNDISPUTED THAT NONE OF THE M ARE WEALTH- TAX PAYERS AND THEREFORE THERE IS NO OCCASION FOR T HEM TO SHOW THE EXISTENCE OF THIS JEWELLERY IN THEIR HANDS BEFORE T HE DEPARTMENT. PRECISELY FOR SUCH CASES INSTRUCTION NO. 1916 HAS B EEN ISSUED BY THE CBDT. IT IS UNDISPUTED THAT THIS INSTRUCTION WA S ISSUED W.R.T. TO THE SEIZURE OF JEWELLERY. THE A.O. HAS RAISED AN I SSUE IN REMAND REPORT THAT THE APPLICABILITY OF THIS INSTRUCTION I S LIMITED FOR THE PURPOSE OF SEIZURE ONLY. IT HAS NO APPLICABILITY F OR ASSESSMENT PURPOSES. THE HON'BLE ITAT, JODHPUR HOWEVER IN THE CASE OF ACIT VS. GOPI LAL MOR 107 TTJ 510 HAS HELD THAT THIS INS TRUCTION IS APPLICABLE FOR ASSESSMENT PURPOSES ALSO FOR WHICH T HEY HAVE RELIED UPON THE DECISION OF THE HON'BLE RAJASTHAN HIGH COU RT IN THE CASE OF CIT VS. KAILASH CHAND SHARMA [146 TAXMAN 376]. T HE HON'BLE ITAT, AHMDABAD ALSO IN CASE OF ACIT VS. RAMESH CHAN D R PATEL [89 ITD 203] HAS TAKEN THE SAME VIEW IN WHICH THEY HAVE CLEARLY HELD THAT THOUGH THE INSTRUCTION SPEAKS OF NOT SEIZ ING THE SAME, THE EXTENDED MEANING OF .THE SAME SHOWS THAT THE JEWELL ERY IS TO BE TREATED AS EXPLAINED ONE TO THAT EXTENT AND IS NOT TO BE TREATED AS UNEXPLAINED FOR THE PURPOSES OF INCOME TAX ACT. HON 'BLE ITAT, ITA NO.3988/DEL./2010 6 DELHI IN THE CASE OF SH. SUSHIL SINGHAL VS. DCIT, C ENTRAL CIRCLE-3, NEW DELHI IN ITA NO.1884/DEL/2007 FOR A.Y. 2004-05 (A CASE OF THE SAME GROUP) HAS ALSO TAKEN THE SAME VIEW. THUS IT I S HELD THAT THE ABOVE INSTRUCTION HAS TO BE CONSIDERED FOR THE PURP OSE OF ASSESSMENT ALSO. 2.3.4.3. IN VIEW OF THE ABOVE FACTS IT IS TO BE SE EN AS TO WHETHER THERE IS ANY EXCESS JEWELLERY IN THE HANDS OF SH. MOHAN LAL OR SMT. SUSHILA SINGHAL OR NOT. A) SMT RENU SINGHAL (404.30GMS): AS PER THE CLAIM MADE OF JEWELLERY BELONGING TO THE FOUR DAUGHTERS-I N-IAWS (REFER CHART ENCLOSED), IN THE CASE OF SMT. RENU SINGHAL, OUT OF TOTAL JEWELLERY FOUND, JEWELLERY WEIGHING 404.30 GMS. IS CLAIMED TO BE BELONGING TO HER OUT OF WHICH 224.200.GMS. WAS AT R ESIDENCE AND 180.100 GMS. WAS. AT LOCKER. SINCE THIS TOTAL AMOUN T IS LESS THAN 500 GMS., TO THAT EXTENT HER CLAIM HAS TO BE ACCEP TED AND NO JEWELLERY CAN BE SAID AS UNEXPLAINED. B) SMT SARITA SINGHAL (352.470 GMS): OUT OF JEWEL LERY SO FOUND, 352.470 GMS. IS CLAIMED TO BE BELONGING TO H ER. 74.50 GMS. OUT OF THE SAME WAS FOUND AT RESIDENCE AND 279.970 GMS. WAS CLAIMED TO BE FOUND IN LOCKER. AGAIN THIS AMOUNT I S LESS THAN 500 GMS. THEREFORE, AS PER THE INSTRUCTION NO. 1916, IN HER HAND ALSO THIS JEWELLERY HAS TO BE TREATED AS EXPLAINED. C) SMT. NEETU SINGHAL (524.600 GMS): OUT OF JEWEL LERY SO FOUND TOTAL JEWELLERY OF 524.600 GMS. IS CLAIMED TO BE BELONGING TO HER, OUT OF WHICH 199.600 GMS. WAS FOUND FROM TH E RESIDENCE AND 317.000 GMS. ARE CLAIMED TO BE FOUND FROM THE L OCKER. APART FROM THIS 8 GINIS WERE ALSO FOUND. SHE IS HAVING 2 KIDS; ONE MALE AND ONE FEMALE. AS PER CBDT INSTRUCTION N0.1916, JE WELLERY WEIGHING 500 GMS. PER MARRIED LADY, 250 GMS. PER UN MARRIED LADY AND 100 GMS. PER MALE MEMBER OF THE FAMILY NEED NOT BE SEIZED. IN HER CASE THE JEWELLERY IS MARGINALLY HIGH BY 24.600 GMS; THAN 500 GMS. BUT WE HAVE TO CONSIDER THAT THERE ARE TWO KID S ALSO AND THEY WOULD HAVE RECEIVED SMALL JEWELLERY AT THE TIME OF THEIR BIRTH AND OTHER OCCASIONS ETC. AS PER THE PREVALENT CUSTOM AN D TRADITIONS. THEREFORE IN HER CASE ALSO THE ENTIRE JEWELLERY FOU ND HAS TO BE CONSIDERED AS EXPLAINED. ITA NO.3988/DEL./2010 7 D) SMT. BARKHA SINGHAL (305.570 GMS): IN THE CASE OF SMT. BARKHA SINGHAL JEWELLERY OF 305.570 GMS. ARE C LAIMED TO BE BELONGING TO HER OUT OF WHICH 210.00 GMS WAS FOUND AT THE RESIDENCE AND 102.410 GMS. WAS CLAIMED TO BE IN LOC KER. AS THIS IS ALSO LESS THAN 500 GMS. FOLLOWING THE BOARD'S INSTR UCTION NO. 1916, JEWELLERY FOUND IN HER CASE HAS ALSO TO BE TREATED AS EXPLAINED. 2.3.4.4. THUS OUT OF TOTAL JEWELLERY FOUND (953.99 GMS) AT RESIDENCE AND 1152.090 FOUND AT THE LOCKER AND 83.7 20 GMS. BEING GINIS (COINS), JEWELLERY WEIGHING TO 1584.88 GMS. I N TOTAL ARE TO BE TREATED AS BELONGING TO FOUR DAUGHTERS-IN-IAWS AND EXPLAINED ALSO. THUS IN THE CASE OF SH. MOHAN LAL OR SMT. SUSHIIA S INGHAL, JEWELLERY ONLY TO THE EXTENT OF 604.83 GMS; HAS TO BE EXPLAINED. THE LD.AR TRIED TO SEEK BENEFIT OF THE INSTRUCTION N0.1 916 TO CLAIM THAT 500 GMS. IN THE HAND OF THE APPELLANT AND 100 GMS. IN THE HANDS OF PER MALE IF CONSIDERED THEN THIS JEWELLERY WILL ALS O BE EXPLAINED. HOWEVER, WHEN ASKED TO IDENTIFY AS TO WHETHER ANY G ENTS ITEMS OF JEWELLERY IS FOUND AND AS TO WHETHER ANY SUCH CLAIM THAT A PARTICULAR JEWELLERY BELONGS EITHER TO SH. MOHAN LAL OR HER SO NS WERE MADE EITHER AT THE TIME OF SEARCH OR BEFORE A.O. AT THE TIME OF ASSESSMENT, HIS REPLY WAS NEGATIVE. THUS AT THIS ST AGE THIS CONTENTION CANNOT BE ACCEPTED. IT HAS TO BE TREATED THAT 604.83 GMS. JEWELLERY BELONGS TO MRS. SUSHILA SINGHAL. FOL LOWING THE INSTRUCTION NO. 1916 DATED 11.5.04 FROM CBDT JEWELL ERY ONLY TO THE EXTENT OF 500 GMS. CAN BE HELD AS EXPLAINED AND REM AINING JEWELLERY OF 104.830 GMS. HAS TO BE TREATED AS UNEX PLAINED. TAKING THE RATE PREVAILING ON THE DAY OF VALUATION WHICH I S APPROXIMATELY RS.600/- PER GM, THE UNEXPLAINED INVESTMENT IN JEWE LLERY CAN BE WORKED OUT AT ` . 63,000/- APPROXIMATELY ( 600 X 104.830 GMS.) THUS ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY IN THE HANDS OF SMT. SUSHILA SINGHAL TO THE EXTENT OF ` . 63,000/- HAS TO BE UPHELD. AT THE SAME TIME NO ADDITION OF JEWELLER Y IN THE HANDS OF SH. MOHAN LAL IS REQUIRED TO BE MADE AS NO JEWELLER Y ACTUALLY BELONGS TO HIM. THE ADDITION OF ` .91,247/- MADE BY THE A.O. IN HIS HAND IS ALSO DIRECTED TO BE DELETED. 2.3.5. THUS TO SUM UP WHEREAS GROUND N0.2 IN THE CA SE OF SH. MOHAN LAL IS ALLOWED AND ADDITION MADE OF ` . 91,247/- IS DIRECTED TO BE DELETED, IN THE CASE OF SMT. SUSHILA SINGHAL GROUNDS NO. 1 & 3 ARE DECIDED IN FAVOUR OF THE APPELLANT DELETING T HE ADDITION OF ` .1,78,590/- AND GROUNDS NO.2 & 4 IS PARTLY ALLOWED IN THE FAVOUR OF THE APPELLANT AND AGAINST THE ADDITION OF ` .10,32,586/-, ADDITION OF ` .63,000/- IS UPHELD AND ON THAT GROUND APPELLANT G ETS RELIEF OF RS.9,69,586/-. THUS ON ACCOUNT OF ADDITION OF JEWEL LERY IN THE CASE ITA NO.3988/DEL./2010 8 OF SH. MOHAN LAL NO ADDITION IS UPHELD WHEREAS IN T HE CASE. OF MRS SUSHILA SINGHAL, ADDITION OF ` .63,000/- IS UPHELD.' 4. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST THE AFORESAID FINDINGS OF THE LD. CIT(A) ,DELETING THE ADDITION O F ` `9,69,586/- WHILE THE ASSESSEE IN CROSS OBJECTION DISPUTED THE FINDINGS OF LD. CIT (A), UPHOLDING THE ADDITION OF ` `63,000/-.THE LD. DR WHILE CARRYING US THROUGH THE IMPUGNED ORDER CONTENDED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN REDUCING T HE ADDITION ON THE BASIS OF CBDT INSTRUCTION NO. 1916, APPLICABLE ONLY FOR SEIZURE O F JEWELLERY DURING THE SEARCH. WHILE REFERRING TO REMAND REPORT SUBMITTED BY THE A O, THE LD. DR VEHEMENTLY ARGUED THAT THERE IS NOTHING TO SUGGEST THAT THE JE WELLERY FOUND IN THE LOCKERS OF THE ASSESSEE BELONGED TO DAUGHTERS-IN-LAW OF THE A SSESSEE. 5. ON THE OTHER HAND, THE LD. AR ON BEHALF OF THE ASSESSEE WHILE RELYING UPON CBDT INSTRUCTION NO.1916 AND DECISIONS IN RADHA KISHAN SONI VS. CIT 277 ITR 56 (RAJ) AND ASHOK CHADDHA VS. INCOME- TAX OFFICER IN I.T.A. NO.274 DATED JULY 5, 2011 (DELHI) ARGUED THAT INSTR UCTION NO.1916 DATED 11.5.1994, NO DOUBT IS APPLICABLE TO SEIZURE OF JEW ELLERY DURING THE COURSE OF SEARCH, THE ITAT & VARIOUS HIGH COURTS HAVE BEEN RELYING UPON THIS INSTRUCTION WHILE EXAMINING THE SOURCE OF ACQUISITION OF JEWELL ERY EVEN DURING THE ASSESSMENT PROCEEDINGS. ACCORDINGLY, THE LD. AR AR GUED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF EVEN ` 63,000/-. 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROU GH THE FACTS OF THE CASE AS ALSO DECISIONS RELIED UPON BY THE LD. AR O N BEHALF OF THE ASSESSEE. INDISPUTABLY, JEWELLERY WEIGHING 1152.090 GMS. OF T HE VALUE OF ` ` 10,29,949/- INCLUDING SILVER COINS WEIGHING 83.720 GMS OF THE VALUE OF ` 74,708/-WAS FOUND FROM THE LOCKER NO.3270 OF PNB, ASHOK VIHAR, PHASE- I, NEW DELHI IN THE JOINT NAME OF THE ASSESSEE AND HER SON SHRI MUKESH KUMAR WHILE JEWELLERY WEIGHING 953.99 GMS OF THE VALUE OF 6,43,884/- AT RESIDENCE. THE AO CONCLUDED THAT NO PART OF JEWELLERY FOUND IN THE LOCKER BELONGED TO D AUGHTERS IN LAW OF THE ASSESSEE AND ACCORDINGLY ADDED AN AMOUNT OF ` 10,32,586/-. THE LD. CIT(A) WHILE ITA NO.3988/DEL./2010 9 OBSERVING THE TRADITIONS IN A JOINT FAMILY AND THE FACT THERE WAS ONLY ONE L OCKER FOR ENTIRE FAMILY WHILE VERY SMALL QUANTITY OF JEWE LLERY WAS FOUND FROM THE ASSESSEE AND HER FOUR DAUGHTERS-IN-LAW AT THE RESI DENCE AND ALL THE FOUR DAUGHTERS-IN-LAW HAVING IDENTIFIED THEIR RESPECTIVE ITEMS OF JEWELLERY, CONFIRMED BEFORE AO THAT JEWELLERY BELONGING TO THEM WAS ALSO LYING IN THE LOCKER AS ALSO THE JEWELLERY FOUND AT THE TIME OF SEARCH ,KEPT IN EACH POUCH HAVING BEEN VALUED AND INVENTORIED SEPARATELY, CONCLUDED THAT JEWELLERY FOUND AT RESIDENCE AND IN THE LOCKER BELONGED TO THE FIVE LADIES NAME LY SMT. SUSHILA SINGHAL AND HER DAUGHTERS-IN-IAW SMT. RENU SINGHAL, SMT. SARITA SINGHAL, SMT. NEETU SINGHAL AND SMT. BARKHA SINGHAL . ACCORDINGLY, IN THE LIGHT OF CBDT INSTRUCTION NO. 1916 ISSUED BY THE CBDT AND REFERRING TO DECISI ONS IN ACIT VS. GOPI LAL MOR, 107 TTJ 510 (JODHPUR),CIT VS. KAILASH CHAND SH ARMA,146 TAXMAN 376(RAJ); ACIT VS. RAMESH CHAND R PATEL,89 ITD 203( AHD.) & SUSHIL SINGHAL VS. DCIT, CENTRAL CIRCLE-3, NEW DELHI IN ITA NO.188 4/DEL/2007 FOR A.Y. 2004-05, THE LD. CIT(A) CONCLUDED THAT OUT OF TOTAL JEWELLERY OF 953.99 GMS FOUND AT RESIDENCE AND 1152.090GMS.FOUND IN THE LOCKER AND 8 3.720 GMS. BEING GINIS (COINS), JEWELLERY WEIGHING 1584.88 GMS. BELONGED TO FOUR DAUGHTERS-IN-IAWS AND WAS EXPLAINED ALSO. OUT OF THE REMAINING JEWELLERY OF 604.83 GMS, THE LD. CIT(A) ALLOWED BENEFIT OF 500 GMS TO THE ASSESSEE IN TERMS OF CBDT INSTRUCTION NO..1916 WHILE THE ASSESSEE OR HER HUSBAND HAVING NOT IDENTIFIED ANY GENTS ITEMS OF JEWELLERY, UPHELD ADDITION OF ` . 63,000/- ( 600 X 104.830 GMS.). HERE WE MAY POINT OUT THAT THE DECISIONS RELIED UPON BY THE LD. AR IN RADHA KISHAN SONI (SUPRA) AND ASHOK CHADDHA(SUPRA) BEFORE US WERE REN DERED ON THEIR OWN FACTS AND NO PARALLEL CAN BE DRAWN NOR THE LD. AR DEMONST RATED BEFORE US AS TO HOW THESE DECISIONS ARE APPLICABLE IN THE PECULIAR FACT S IN THE INSTANT CASE. THE AFORESAID INSTRUCTION NO. 1916 HAS BEEN CONSIDERED BY THE CO-ORDINATE BENCHES AND HONBLE HIGH COURTS IN THEIR VARIOUS DECISIONS. HONBLE KARNATAKA HIGH COURT CONSIDERED THE SAID INSTRUCTION IN THEIR DECISION I N SMT. PATI DEVI V. INCOME-TAX OFFICER,240 ITR 727(KAR.).HONBLE GUJRAT HIGH COURT IN CIT VS. RATANLAL VYAPARILAL JAIN,235 CTR 568(GUJ) IN THIS CONTEXT OB SERVED AS UNDER: ITA NO.3988/DEL./2010 10 . THOUGH IT IS TRUE THAT THE CBDT CIRCULAR NO. 1916, DT. 11TH MAY, 1994 LAYS DOWN GUIDELINES FOR SEIZURE OF JEWELLERY AND ORNAMENTS IN THE COURSE OF SEARCH,THE SAME TAKES INTO ACCOUNT THE QU ANTITY OF JEWELLERY WHICH WOULD GENERALLY BE HELD BY FAMILY MEMBERS OF AN ASS ESSEE BELONGING TO AN ORDINARY HINDU HOUSEHOLD. THE APPROACH ADOPTED BY T HE TRIBUNAL IN FOLLOWING THE SAID CIRCULAR AND GIVING BENEFIT TO T HE ASSESSEE, EVEN FOR EXPLAINING THE SOURCE IN RESPECT OF THE JEWELLERY B EING HELD BY THE FAMILY IS IN CONSONANCE WITH THE GENERAL PRACTICE IN HINDU FA MILIES WHEREBY JEWELLERY IS GIFTED BY THE RELATIVES AND FRIENDS AT THE TIME OF SOCIAL FUNCTIONS, VIZ., MARRIAGES, BIRTHDAYS, MARRIAGE ANNIVERSARY AND OTHE R FESTIVALS. THESE GIFTS ARE CUSTOMARY AND CUSTOMS PREVAILING IN A SOCIETY C ANNOT BE IGNORED. THUS ALTHOUGH THE CIRCULAR HAD BEEN ISSUED FOR THE PURPO SE OF NON-SEIZURE OF JEWELLERY DURING THE COURSE OF SEARCH, THE BASIS FO R THE SAME RECOGNIZES CUSTOMS PREVAILING IN HINDU SOCIETY. IN THE CIRCUMS TANCES, UNLESS THE REVENUE SHOWS ANYTHING TO THE CONTRARY, IT CAN SAFE LY BE PRESUMED THAT THE SOURCE TO THE EXTENT OF THE JEWELLERY STATED IN THE CIRCULAR STANDS EXPLAINED. THUS, THE APPROACH ADOPTED BY THE TRIBUNAL IN CONSI DERING THE EXTENT OF JEWELLERY SPECIFIED UNDER THE SAID CIRCULAR TO BE A REASONABLE QUANTITY, CANNOT BE FAULTED WITH. 6.1 IN THE INSTANT CASE, THE LD. CIT(A) ,CONSIDE RING THE STATUS & TRADITIONS OF THE FAMILY AND THE FACT THERE WAS ONLY ONE LOCKER FOR E NTIRE FAMILY WHILE ALL THE FOUR DAUGHTERS-IN-LAW IDENTIFIED THEIR RESPECTIVE ITEMS OF JEWELLERY AS ALSO CONFIRMED BEFORE AO THAT JEWELLERY BELONGING TO THEM WAS ALSO LYING IN THE LOCKER, CONCLUDED THAT JEWELLERY FOUND AT RESIDENCE AND I N THE LOCKER BELONGED TO THE FIVE LADIES NAMELY SMT. SUSHILA SINGHAL AND HER DAU GHTERS-IN-IAW SMT. RENU SINGHAL, SMT. SARITA SINGHAL, SMT. NEETU SINGHAL AN D SMT. BARKHA SINGHAL . ACCORDINGLY, WHILE GIVING BENEFIT OF 500 GMS OF JEW ELLERY TO EACH OF THE FIVE LADIES AND NO GENTS JEWELLERY HAVING BEEN FOUND DURING SEA RCH, REDUCED THE ADDITION TO 63,000/-. CONSIDERING THE TOTALITY OF FACTS AND CIR CUMSTANCES, IN THE LIGHT OF VIEW TAKEN IN VARIOUS DECISIONS RELIED UPON BEFORE US AN D ESPECIALLY THE VIEW IN RATANLAL VYAPARILAL JAIN (SUPRA) AND THE REVENUE AN D THE ASSESSEE HAVING NOT PLACED BEFORE BEFORE US ANY MATERIAL SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER, WE DO NOT FIND ANY BA SIS TO INTERFERE. THEREFORE, GROUND NO.1 IN THE APPEAL OF THE ASSESSEE AND GROUN D NOS. 1 & 2 IN THE CO ARE DISMISSED. ITA NO.3988/DEL./2010 11 7. GROUND NO.2(A) IN THE APPEAL OF THE REVENUE BE ING GENERAL IN NATURE, DOES NOT REQUIRE ANY SEPARATE ADJUDICATION WHILE NO ADDITIONAL GROUND HAVING BEEN RAISED BEFORE US IN TERMS OF RESIDUARY GROUND NO.2(B) IN THEIR APPEAL, ACCORDINGLY, THESE GROUNDS ARE DISMISSED. 8. NO OTHER PLEA OR ARGUMENT WAS MADE BEFORE US. 9. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE A ND THE CORRESPONDING CO FILED BY THE ASSESSEE ARE DISMISSED. SD/- SD/- (C.M.GARG) (A.N. PAHUJA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEE 2. D.C.I.T.,CENTRALCIRCLE-3, ROOM NO.355, E-2, ERA CENTRE, JHANDEWALAN EXTN., NEW DELHI 3. CIT CONCERNED. 4. CIT(A)-II, DELHI 5. DR, ITAT, G BENCH, NEW DELHI 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, DELHI ORDER PRONOUNCED IN OPEN COURT