SMITA A THAKKAR, MUMBAI V. ASST CIT CEN CIR 39, MUMBAI

ITA 4102/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0734 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 15-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POOJA SWARUP
• Assessee Lawyers: DI LIP J THAKKAR
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI RAVISH SOOD (JM) I.T.A. NO. 4102 /MUM/20 1 6 (ASSESSMENT YEAR 20 12 - 13 ) SMT. SMITA A. THAKKAR C/O. M/S. JAYANTILAL THAKKAR & CO., 111 - A M.G. ROAD, FORT MUMBAI - 40 0 023. PAN : AABPT2808E VS. ACIT CENTRAL CIRCLE 39 MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI DILIP J. THAKKAR & SHRI RAJESH P. SHAH DEPARTMENT BY MS. POOJA SWARUP DATE OF HEARING 16 . 1 . 201 8 DATE OF PRONOUNCEMENT 16 . 1 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 31 - 03 - 2016 PASSED BY LD CIT(A) - 52, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2012 - 13. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN PARTIALLY CONFIRMING THE ADDITION RELATING TO UNEXPLAINED JEWELLERY. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE WAS SUBJECTED TO SEARCH OPERATIONS U/S 132 OF THE ACT ON 10 - 08 - 2011. IT WAS FOUND THAT THE ASSESSEE WAS HAVING TWO BANK LOCKERS. THE AGGREGATE QUANTITY OF JEWELLERY FOUND AT THE TIME OF SEARCH IN LOCKERS AND RESIDENCE WAS 3251.480 GRAMS. THE AO TREATED JEWELLERY WEIGHING 1693.250 GRAMS AS EXPLAINED. OUT OF THE REMAINING JEWELLERY WEIGHING 1558.23 GRAMS, THE AO ASSESSED 1136.210 G RAMS VALUED AT RS.26,98,498/ - ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE. THE REMAINING 421.990 GRAMS VALUED AT RS.10,02,226/ - WAS ASSESSED ON SUBSTANTIVE SMT. SMITA A. THAKKAR 2 BASIS IN THE HANDS OF ASSESSEES HUSBAND, BUT STILL THE AO ASSESSED THE SAME IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS. 3. THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE JEWELLERY WEIGHING 1121 GRAMS FOUND IN LOCKER NO.1144A MAINTAINED WITH BANK OF BARODA ACTUALLY BELONG TO HER DAUGHTER NAMED DR. DARSHITA THAKKER TALIM, WHO IS RESIDING IN USA. THE ASSESSEE STATED THE SAME IN THE STATEMENT TAKEN FROM HER U/S 132(4) OF THE ACT AND ALSO CORROBORATED THE SAME BY FURNISHING AFFIDAVIT FROM HER DAUGHTER. THE AO DID NOT AGREE WITH THE SAME. 4. THE LD CIT(A) DELETED THE PROTECTIVE ADDITIO N OF RS.10,02,226/ - , SINCE THE SUBSTANTIVE ADDITION HAS BEEN MADE IN THE HANDS OF ASSESSEES HUSBAND. THE LD CIT(A) ALSO AGREED WITH THE ASSESSEE THAT THE JEWELLERY BELONGING TO DAUGHTER DR.DARSHITA THAKKER TALIM SHOULD NOT BE ASSESSED IN THE HANDS OF TH E ASSESSEE. 5. WE HAVE EARLIER NOTICED THAT THE SUBSTANTIVE ADDITION MADE IN THE HANDS OF THE ASSESSEE WAS 1136.210 GRAMS VALUED AT RS.26.98 LAKHS. THE REMAINING ADDITION WAS PROTECTIVE ADDITION, WHICH HAS ALREADY BEEN DELETED BY THE LD CIT(A) AND T HE REVENUE HAS NOT CHALLENGED THE SAME. WE HAVE ALSO NOTICED THAT THE LD CIT(A) HAS ALSO EXPRESSED THE VIEW THAT THE JEWELLERY BELONGING TO THE DAUGHTER OF THE ASSESSEE SHOULD NOT BE ASSESSED IN THE HANDS OF THE ASSESSEE. 6. THE CASE OF THE ASSESSEE IS THAT THE LD CIT(A), HAVING OBSERVED SO, HAS NOT GIVEN CREDIT OF 1121 GRAMS, I.E., JEWELLERY BELONGING TO THE DAUGHTER OF THE ASSESSEE. ON A PERUSAL OF THE ORDER OF LD CIT(A), WE NOTICE THAT THE LD CIT(A) HAS GIVEN CREDIT FOR NET WEIGHT OF 419.38 GRAMS (GROSS WEIGHT 597.70 GRAMS) ONLY AS JEWELLERY BELONGING TO DAUGHTER OF THE ASSESSEE. THIS DISCUSSION FINDS SMT. SMITA A. THAKKAR 3 PLACE IN PARAGRAPH 17 OF HIS ORDER. WE HAVE EARLIER NOTICED THAT THE AO HAS GIVEN CREDIT FOR 1693.250 GRAMS. THE LD CIT(A) DISCUSSES ABOUT THE SAM E IN PARAGRAPH 15 OF HIS ORDER. HE RAISES DOUBT ABOUT THE EVIDENCES FURNISHED BEFORE THE TAX AUTHORITIES, I.E., WHETHER THOSE EVIDENCES RELATE TO THE JEWELLERY ALREADY GIVEN CREDIT OR NOT. IN THIS PROCESS, HE OBSERVES THAT EVIDENCES FOR GROSS WEIGHT OF 5 97.700 GRAMS (NET WEIGHT 419.300 GRAMS) VALUED AT RS.9,89,000/ - WAS NOT EXPLAINED. HOWEVER THE LD CIT(A) FINALLY GIVES CREDIT FOR THE VERY SAME AMOUNT AS JEWELLERY BELONGING TO THE DAUGHTER OF THE ASSESSEE. 7. WE NOTICE THAT THERE IS LACK OF CLARITY IN THIS MATTER. THE LD A.R ALSO SUBMITTED THAT THE RATIONALE ADOPTED BY LD CIT(A) IS NOT UNDERSTANDABLE. HIS CASE IS THAT THE LD CIT(A) SHOULD HAVE EXCLUDED 1121 GRAMS FULLY AFTER ACCEPTING THAT THE SAME BELONGED TO THE DAUGHTER OF THE ASSESSEE. HE FURT HER CONTENDS THAT THE EVIDENCES FURNISHED IN THE FORM OF PAYMENTS MADE TO JEWELLERS SHOULD HAVE ALSO BEEN ACCEPTED BY CONSIDERING THE DIFFICULTY OF THE ASSESSEE TO EXPLAIN OLD TRANSACTIONS OF MORE THAN 15 YEARS OLD. 8. HAVING REGARD TO THE RIVAL SUBM ISSIONS, WE ARE OF THE VIEW THAT THERE IS NO CLARITY IN THE WORKINGS GIVEN BY LD CIT(A). WE FIND MERIT IN THE SUBMISSIONS OF THE LD A.R THAT THE LD CIT(A) SHOULD HAVE EXCLUDED ENTIRE QUANTUM OF JEWELLERY BELONGING TO THE DAUGHTER. WITH REGARD TO THE EVID ENCES FURNISHED BY THE ASSESSEE, WE NOTICE THAT THE LD CIT(A) HAS DRAWN CERTAIN INFERENCES, INSTEAD OF GETTING CLARIFICATIONS ON THE SAME FROM THE AO. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THIS ISSUE MAY BE EXAMINED AFRESH BY LD CIT(A) BY DULY CONSIDERING ALL THE RELEVANT FACTS. ACCORDINGLY WE RESTORE THIS ISSUE TO THE FILE OF LD CIT(A) AND THE ASSESSEE IS FREE TO MAKE ALL THE CONTENTIONS BEFORE HIM. SMT. SMITA A. THAKKAR 4 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURP OSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 16 . 1 .201 6 . SD/ - SD/ - (RAVISH SOOD ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 16 / 1 / 20 1 8 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI