DCIT-CENTRAL-CIRCLE-2(1), Nagpur V. SHRI CHETAN B. SHAH, Nagpur

ITA 417/NAG/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93415 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 02-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: K P DIWANI
• Keywords: Unexplained investment; Corroborative evidences; Onus to prove
• Section: 143(3); 139

Judgement Text

ITA S 417 TO 423 / NAG /2 0 1 3 1 IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT , JUDICIAL MEMBER AND SHRI SH AMI M YA H Y A , ACCOUNTANT MEMBER ITA NO. : 417 / NAG /20 1 3 (ASSESSMENT YEAR: 2011 - 12 ) DCIT - CC - 2(1), AAYAKAR BHAWAN, 3 RD FLOOR, R.NO.310, TELANK HEDI ROAD, NAGPUR - 440 001 VS SHRI CHETAN B SHAH , 102/B, KRISHNA VILLA, SHIVAJI NAGAR NAGPUR - 440 015 .: PAN: AHFPS 7411 K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NARENDRA KANE RESPONDENT BY : SHRI K P DIWANI ITA NO. : 418 / NAG /20 13 (ASSESSMENT YEAR: 2011 - 12 ) DCIT - CC - 2(1), AAYAKAR BHAWAN, 3 RD FLOOR, R.NO.310, TELANKHEDI ROAD, NAGPUR - 440 001 VS SHRI MOHANDAS S ADIGE, 02, PEARL, PLOT NO. 163, SECTOR - 28, VASHI, NAVI MUMBAI .: PAN: AARPA 3809 K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NARENDRA KANE RESPONDENT BY : SHRI K P DIWANI ITA NO. : 419 / NAG /20 13 (ASSESSMENT YEAR: 2011 - 12 ) DCIT - CC - 2(1), AAYAKAR BHAWAN, 3 RD FLOOR, R.NO.310, TELANKHEDI ROAD, NAGPUR - 440 001 VS SHRI PANKAJ B SHAH , 102/ B, KRISHNA VILLA, SHIVAJI NAGAR NAGPUR - 440 015 .: PAN: AFCPS 4954 A (APPELLANT) (RESPONDENT) ITA NO. : 420 / NAG /20 13 (ASSESSMENT YEAR: 2011 - 12 ) DCIT - CC - 2(1), AAYAKAR BHAWAN, 3 RD FLOOR, R.NO.310, TELANKHEDI ROAD, NAGPUR - 440 001 VS SHRI MANOJ B SHAH , 102/B, KRISH NA VILLA, SHIVAJI NAGAR NAGPUR - 440 015 .: PAN: ADIPS 6048 M (APPELLANT) (RESPONDENT) ITA NO. : 421 / NAG /20 13 (ASSESSMENT YEAR: 2011 - 12 ) DCIT - CC - 2(1), AAYAKAR BHAWAN, 3 RD FLOOR, R.NO.310, TELANKHEDI ROAD, NAGPUR - 440 00 1 VS SMT MADHAVI MANOJ SHAH , 102/B, KRISHNA VILLA, SHIVAJI NAGAR NAGPUR - 440 015 .: PAN: AFCPS 4958 N (APPELLANT) (RESPONDENT) ITA S 417 TO 423 / NAG /2 0 1 3 2 ITA NO. : 422 / NAG /20 13 (ASSESSMENT YEAR: 2011 - 12 ) DCIT - CC - 2(1), AAYAKAR BHAWAN, 3 RD FLOOR, R.NO.310, TELANKHEDI ROAD, NAGPUR - 440 001 VS SMT REENA PANKAJ SHAH , 102/B, KRISHNA VILLA, SHIVAJI NAGAR NAGPUR - 440 015 .: PAN: AEWPS 1829 K (APPELLANT) (RESPONDENT) ITA NO. : 423 / NAG /20 13 (ASSESSMENT YEA R: 2011 - 12 ) DCIT - CC - 2(1), AAYAKAR BHAWAN, 3 RD FLOOR, R.NO.310, TELANKHEDI ROAD, NAGPUR - 440 001 VS SMT RUPA CHETAN SHAH , 102/B, KRISHNA VILLA, SHIVAJI NAGAR NAGPUR - 440 015 .: PAN: AETPS 6464 D (APPELLANT) (RESPONDEN T) APPELLANT BY : SHRI NARENDRA KANE RESPONDENT BY : SHRI K P DIWANI /DATE OF HEARING : 27 - 0 5 - 201 5 / DATE OF PRONOUNCEMENT : 26 - 06 - 201 5 ORDER PER BENCH : ALL THESE SEVEN A PPEALS HAVE BEEN FILED BY THE REVENUE FROM THE ORDER OF THE CIT(A) - III, NAGPUR DATED 27.09.2013. IN THE CASE OF RESPONDENT - ASSESSEE, SHRI MOHANDAS S ADIGE THE DATE OF ORDER OF CIT(A) IS 30TH SEPTEMBER, 2013. REVENUE HAS RAISED IDENTICALLY WORDED GROUNDS IN RESPECT OF ALL THESE CASES, EXCEPT THERE IS VARIATION IN RESPECT OF THE QUANTUM OF ADDITION. FOR THE SAKE OF CONVENIENCE, WE HAVE TAKEN THE CASE OF SHRI CHETAN B SHAH AS THE LEAD CASE TO DECIDE ALL THESE APPEALS. THE GROUNDS RAISED BY THE REVENUE ARE AS U NDER: '1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 24,20,783/ - , MADE BY THE ASSESSING OFFICER, ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN JEWELLERY, ON THE GROUNDS THAT THE JEW ELLERY FOUND BELONGS TO THE JOINT FAMILY MEMBERS OF THE ASSESSEE. 2 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE JEWELLERY WAS FOUND IN THE BED ROOM AND BANK LOCKER HANDLED BY THE ASSESSEE AND HIS WIFE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE JEWELLERY FOUND IN THE BAD ROOM AND BANK LOCKER OF THE ASSESSEE, HAVE BEEN SEPARATELY INVENTORISED. 4 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) HAS FAILED TO CONSIDER THE FACT ITA S 417 TO 423 / NAG /2 0 1 3 3 THAT BOARD'S INSTRUCTION NO. 1916 DATED 11/05/1994, MENTIONS ABOUT THE QUANTITY OF GOLD JUEW E LLERY AND ORNAMENTS THAT MAY BE SEIZED, DURI NG THE SEIZURE OPERATION, AND IT DOES NOT MEAN THAT THE SOURCES OF JEWELLERY, NOT BE SEIZED, HAVE BEEN EXPLAINED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) HAS FAILED TO CONSIDER THE FACT THAT BOARD'S INSTRUCTI ONS NO. 1616 DATED 11/05/1994, REFERS TO GOLD JEWELLERY AND ORNAMENTS ONLY, WHEREAS JEWELLERY FOUND AT THE PREMISES OF THE ASSESSEE INCLUDED SILVER AND DIAMOND ALSO. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) HA S ERRED IN RELYING ON THE DECISION OF THE GUJARAT HIGH COURT IN THE CASE OF CIT VS. RATANLAL V JAIN (339 ITR 351), AS THE FACTS OF THIS CASE ARE DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE, AS THE JEWELLERY FOUND AT THE PREMISES OF THE ASSESSEE INCL UDED SILVER AND DIAMOND ALSO'. 2. FACTS IN BRIEF, AS DISCUSSED IN THE ASSESSMENT ORDER PASSED U/S 143(3) DATED 28.03.2013/31.01.2013, (IDENTICALLY WORDED IN ALL CASES) WERE THAT, A SEARCH OPERATION U/S 132 WAS CONDUCTED ON 10TH MARCH, 2011 AT THE BUSINESS PREMISES OF M/S ARTIFACT PROJECT LTD., NAGPUR AND ALSO AT THE RESIDENTIAL PREMISES OF THE DIRECTORS, THE AO HAS MENTIONED IN RESPECT OF EACH CASE THAT THE ASSESSEE BEING ONE OF THE MEMBER OF THE GROUP WAS ALSO COVERED U/S 132(1) BY VIRTUE OF AUTHORIZATION . 3. IN THE CASE OF SHRI CHETAN B SHAH, A RETURN U/S 139 FOR AY 2011 - 12 WAS FILED AS A REGULAR RETURN ON 26.03.2013 DECLARING AN INCOME OF RS. 33,20,580/ - . IN THE CASE OF SHRI PANKAJ B SHAH, INCOME DECLARED AS PER INCOME - TAX RETURN U/S 139 WAS RS. 32,52, 990/ - . IN RESPECT OF MANOJ P SHAH, INCOME WAS DECLARED AT RS. 35,96,820/ - . IN RESPECT OF ALL THE THREE LADIES, RETURNS WERE FILED U/S 139 RESPECTIVELY OF RS. 2,47,250/ - (SMT. MADHVI H SHAH) RS. 4,38,320/ - (SMT RUPA C SHAH) & RS. 2,27,630/ - (MRS. R EENA P SH AH). LIKEWISE, IN THE CASE OF MOHANDAS S ADIGE INCOME WAS DECLARED AT RS. 8,25,470/ - , A S PER THE RETURN U/S 139 DATED 27.07.2011. 4. AT THIS JUNCTURE, IT IS WORTH TO MENTION THAT THE IMPUGNED ADDITION, WHICH IS THE SUBJECT MATTER OF THIS CONTROVERSY HAS B EEN MADE IN THE HANDS OF THE THREE LADIES ON 'PROTECTIVE BASIS'. IT IS WORTH TO MENTION THAT, AS PER COMPUTATION OF THE TOTAL ASSESSED ITA S 417 TO 423 / NAG /2 0 1 3 4 INCOME IN EACH CASE, THE ONLY ADDITION MADE BY THE AO WAS IN RESPECT OF THE IMPUGNED UNEXPLAINED JEWELLERY. AT THIS JUNCT URE, IT IS ALSO WORTH TO MENTION THAT LD. AR HAS STATED BEFORE US THAT IN THE ABSENCE OF ANY OTHER INCRIMINATING MATERIAL, THE ONLY ADDITION, WHICH WAS MADE IN THIS CASE, PERTAINED TO THE ALLEGED UNEXPLAINED JEWELLERY. 5. OBSERVATION OF THE AO WAS THAT TH E JEWELLERY WAS FOUND FROM THE POSSESSION OF THE RESPECTIVE ASSESSEE'S AND ALSO FROM THE BANK LOCKER. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF ACQUISITION OF JEWELLERY. 5.1) THE AO HAS REPRODUCED A STATEMENT OF SHRI MANOJ B . SHAH U/S 132(4) OF THE I.T. ACT ON 15.04.2011. FOR REFERENCE THE QUESTION AND ANSWER IS EXTRACTED BELOW FROM PARA 4 OF THE ASSESSMENT ORDER: Q 2 DURING THE COURSE OF SEARCH PROCEEDINGS CONDUCTED AT THE RESIDENTIAL PREMISED 102/BUSINESS, KRISHNA VILLA, SHIVAJI NAGAR, NAGPUR OCCU PIED BY YOURSELF AND YOUR BROTHERS NAME SHRI P ANKAJ SHAH AND SHRI CHETAN SHAH GOLD AND DIAMOND JEWELLERY WAS FOUND AND INVENTORISED. SUBSEQUENTLY DURING SEARCH PROCEEDINGS CONDUCTED ON LOCKERS MAINTAINED AT ICICI BANK, RAMDASPETH, NAGPUR GOLD AND DIAMOND J EWELLERY WAS ALSO FOUND AND INVENTORISED. THE TOTAL JEWELLERY FOUND IS AT 4546.68 GMS VALUED AT RS. 1,00,60,659/ - BOTH AT RESIDENCE AS WELL AS LOCKERS. KINDLY EXPLAIN THE SOURCE OF THE ABOVE JEWELLERY FOUND AT RESIDENCE AS WELL AS LOCKERS. ANS: THE TOTAL JEWELLERY FOUND AT RESIDENTIAL PREMISES AND BANK LOCKERS BELONG TO ENTIRE FAMILY MEMBER. THE FAMILY MEMBERS COMPRISE OF MY FATHER SHRI BALKRISHNAN SHAH, MY MOTHER SMT. SUSHILA SHAH. MYSELF AND MY TWO BROTHERS FAMILY COMPRISING OF 6 ADULTS AND 6 CHILDREN. THE JEWELLERY FOUND INCLUDES JEWELLERY RECEIVED AT THE TIME OF VARIOUS MARRIAGES IN THE FAMILY AND ON BIRTH OF CHILDREN. THE ORNAMENTS AND JEWELLERY FOUND WERE RECEIVED FROM RELATIVES AND FRIENDS AT THE TIME OF MARRIAGE AND BIRTH. CERTAIN ORNAMENTS HAVE BE EN ACQUIRED SUBSEQUENT TO MARRIAGE AND SAME IS SHOWN IN THE RESPECTIVE BALANCE SHEET OUT OF SOURCES DISCLOSED IN RETURN OF INCOME OF RESPECTIVE MEMBERS. THE TOTAL JEWELLERY AND ORNAMENTS FOUND IS REASONABLE CONSIDERING THE STATUS ENJOYED BY THE FAMILY AND STANDS FULLY EXPLAINED. ITA S 417 TO 423 / NAG /2 0 1 3 5 5.2) THE MAIN CONTENTION OF THE ASSESSEE WAS THAT THE JEWELLERY FOUND BELONGED TO THE ENTIRE FAMILY MEMBERS. THE FAMILY MEMBERS COMPRISES: FATHER, MOTHER, AND THEIR SONS. IT WAS INFORMED THAT THERE WERE SIX ADULTS IN THE FAMILY. IT WAS ALSO INFORMED THAT THE ORNAMENTS BELONGED TO THE ENTIRE FAMILY JOINTLY. THEY WERE HELD BY THE FAMILY BEYOND THE BLOCK PERIOD. IT WAS ALSO INFORMED THAT THE JEWELLERY WAS RECEIVED B Y THE LADIES AT THE TIME OF MARRI AGE AS THEIR ' STRIDHAN '. 6. HOWEVE R, THE AO WAS NOT CONVINCED AND HELD THAT THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE ABOUT THE SOURCE OF ACQUISITION OF THE JEWELLERY. IN THE CASE OF SHRI CHETAN B SHAH, THE AO HAS COMPUTED THE AMOUNT OF UNEXPLAINED JEWELLERY AS FOLLOWS: 4.4 IT IS SEEN T HAT ORNAMENTS OF RS. 44,801/ - ARE SHOWN IN THE BALANCE - SHEET (AS ON 31.03.2005) OF ASSESSEES WIFE SMT RUPA SHAH. THIS JEWELLERY SHOWN IN THE OLD BALANCE - SHEET OF THE ASSESSEES WIFE IS CONSIDERED TO BE HER STRIDHAN. SIMILARLY, THE JEWELLERY WORTH RS. 2247 .5/ - SHOWN IN THE BALANCE - SHEET (AS ON 31.03.2005) OF THE ASSESSEE IS CONSIDERED TO BE RECEIVED AT TIME OF HIS MARRIAGE. AS PER ASSESSEES SUBMISSION HE GOT MARRIED IN 1992. THUS, OUT OF THE JEWELLERY FOUND AT THE TIME OF SEARCH, JEWE LLE RY WORTH RS. 47,048 .5/ - (RS. 44,801 + RS. 2,247.5) IS CONSIDERED TO BE IN POSSESSION OF ASSESSEE AND HIS WIFE SINCE THEIR MARRIAGE IN 1992. THE AVERAGE RATE OF GOLD IN 1992 AS PER WEBSITE OF RBI ( WWW.RBI:ORG.IN ) WAS RS. 4,298/ - PER TEN G RAMS. AT THIS RATE, THE GOLD JEWELLERY IN THE POSSESSION OF THE ASSESSEE AND HIS WIFE PRIOR TO THE BLOCK PERIOD COMES TO 110 GMS (47048.5/429.8). BESIDES THIS THE ASSESSEE ACQUIRED JEWELLERY OF 46.08 GMS IN 2007 - 08, 5.82 GMS IN 2009 - 10, 151.65 GMS IN 200 9 - 10 AND 181.53 GMS IN 2009 - 10 AS PER THE CHART SUBMITTED BY THE ASSESSEE. THUS, THE TOTAL GOLD JEWELLERY OF 560.08 GMS, OUT OF 1523.82 GMS, FOUND FROM THE BEDROOM AND BANK LOCKER OF THE ASSESSEE AND HIS WIFE CAN BE CONSIDERED TO BE EXPLAINED. THE BALANCE AM OUNT OF GOLD OF 963.74 GMS (1523.82 GMS 560.08 GMS), DIAMOND (17.62 K) AND SILVER (2890 GMS) IS CONSIDERED TO BE UNEXPLAINED. THE TOTAL WORTH OF THIS UNEXPLAINED JEWELLERY IS CALCULATED AS BELOW: - GOLD (963.74 GMS) = 963.74 X RS. 1920/ - (WEIGHTED AVERAGE OF GOLD RATES ADOPTED BY VALUER AT THE TIME OF SEARCH)= RS. 18,50,381/ - . - SILVER (3150 GMS) = RS. 1,35,472/ - (AS PER VALUERS REPORT ) - DIAMOND (17.62 K) = RS. 4,34,930/ - (AS PER VALUERS REPORT) THUS, TOTAL UNEXPLAINED JEWELLERY COMES TO RS. 24,20,783/ - . ITA S 417 TO 423 / NAG /2 0 1 3 6 7. IN THE LIKE MANNER IN THE CASE OF PANKAJ B SHAH, THE AO HAS ADOPTED THE SAME METHODOLOGY AND ASSESSED THE VALUE OF THE JEWELLERY AT RS. 29,47,431/ - . IN THE CASE MANOJ B SHAH, THE ADDITION WAS TO THE TUNE OF RS. 17,42,374/ - . T HE IDENTICAL QUANTUM WAS TAX ED IN THE HANDS OF THEIR RESPECTIVE WIVES BUT ON (PROTECTIVE BASIS). BEING AGGRIEVED, THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY. 8. THE LD. CIT(A) HAS PASSED SEPARATE ORDERS FOR EACH ASSESSEE, HOWEVER, ALMOST IN IDENTICALLY WORDED JUDGME NT HELD AS UNDER: IN THE FACTS IN THE CASE OF THE APPELLANT, IT IS SEEN THAT DURING THE COURSE OF THE SEARCH ACTION ITSELF, IT WAS CLAIMED BY (IN REPLY TO QUESTION NO. 2 STATEMENT OF SHRI MANOJ B SHAH RECORDED ON 15/04/2011 U/S 132(4) OF THE I.T. ACT, 196 1) THAT THE JEWELLERY FOUND BELONGED TO THE ENTIRE FAMILY COMPRISING OF SHRI BALKRISHNA SHAH & HIS WIFE SMT. SUSHILA B SHAH; THEIR THREE SONS (I.E. APPELLANT & HIS TWO BROTHERS) ALONG WITH THEIR WIVES AND SIX CHILDREN. THIS QUANTITY OF GOLD ORNAMENTS IN TE RMS OF CIRCULAR OF BOARD DATED 11/5/94 WORKS OUT TO 3300 GMS AS IS EVIDENT FROM THE DETAILS PLACED ON RECORD, VIDE LETTER DATED 25/09/1013. THE TOTAL ORNAMENTS FOUND DURING THE COURSE OF SEARCH WERE 4546 GMS OF GOLD JEWELLERY OUT OF WHICH THE ASSESSING OFF ICER HAD ACCEPTED 865 GMS OF JEWELLERY TO HAVE BEEN PURCHASED DURING THE BLOCK PERIOD. THUS THE SUM TOTAL OF ORNAMENTS WHICH WERE CLAIMED BY ASSESSEE TO HAVE BEEN HELD PRIOR TO THE BLOCK PERIOD IS 3681.20 GMS. THE ABOVE QUANTITY OF GOLD ORNAMENTS ARE CLAIM ED TO BE IN NEAR VICINITY OF TOTAL GOLD ORNAMENTS COMPUTED IN TERMS OF CIRCULAR OF BOARD DATED 11/5/94. FURTHER, ON GOING THROUGH THE ASSESSMENT ORDER, IT IS OBSERVED THAT THE ASSESSING OFFICER HAS DISTRIBUTED THE ENTIRE ORNAMENTS FOUND AMONGST THREE BROTH ERS ALTHOUGH MR MANOJ B SHAH HAD SPECIFICALLY STATED AT THE TIME OF SEARCH THAT THE ORNAMENTS BELONGED TO THE APPELLANTS FATHER SHRI BALKRISHNA SHAH & HIS MOTHER SMT SUSHILA B SHAH, THREE BROTHERS INCLUDING HIMSELF & THEIR WIVES AND THEIR SIX UNMARRIED CH ILDREN (2 EACH TO THE APPELLANT AND HIS BROTHERS). THIS CRUCIAL ASPECT HAS BEEN TOTALLY IGNORED BY THE ASSESSING OFFICER WHILE MAKING THE ASSESSMENT ORDER. THUS THE ACTION OF ASSESSING OFFICER IN NOT GRANTING CREDIT FOR ORNAMENTS BELONGING TO FATHER, MOTHE R AND SIX CHILDREN IS UNJUSTIFIED. IN LIEU OF THE ABOVE STATED FACTS OF THE PRESENT CASE AND CONSIDERING THE JUDICIAL PRECEDENTS REFERRED TO HEREINABOVE, TOTAL ORNAMENTS & JEWELLERY FOUND IS CONSIDERED REASONABLE & IN COMMENSURATE TO THE STATUS ENJOYED BY THE FAMILY. I THEREFORE HOLD THAT NO AMOUNT OR ORNAMENTS & JEWELLERY FOUND BELONGING TO ENTIRE FAMILY REMAIN UNEXPLAINED SO AS TO JUSTIFY ANY ADDITION IN THE HANDS OF THE APPELLANT. 9. FROM THE SIDE OF THE REVENUE, LD. DR HAS CHALLENGED THE RELIEF GRA NTED BY LD. CIT(A). HE HAS VEHEMENTLY CONTESTED THAT THE EXPLANATION OF THE ASSESSEE WAS VAGUE AND NOT SUBSTANTIATED BY ITA S 417 TO 423 / NAG /2 0 1 3 7 ANY EVIDENCE, THEREFORE, THE BENEFIT OF THE CIRCULAR SHOULD NOT HAVE BEEN GRANTED TO THE ASSESSEE. LD. DR SHRI NARENDRA KANE HAS PLACED BEFORE US THE COMPUTATION OF ADDITION MADE BY THE AO TO EXPLAIN THE BASIS ON WHICH THE ADDITIONS HAVE BEEN MADE. HE HAS EXPLAINED THAT THE ASSESSMENT YEAR UNDER CONSIDERATION WAS WITHIN THE 'BLOCK PERIOD' THEREFORE IN THE ABSENCE OF ANY EVIDENCE THAT THE J EWELL E RY WAS ACQUIRED BY THE FAMILY MEMBERS BEYOND THE BLOCK PERIOD TO GET THE RELIEF SHOULD NOT BE ACCEPTED IN THE ABSENCE OF SUPPORTING EVIDENCE . O NCE A JEWELLERY WAS RECOVERED FROM THE POSSESSION OF A PERSON THEN IT IS A DUTY TO EXPLAIN THE SOURCE OF TH E JEWELLERY. EVEN AT THE TIME OF SEARCH, THE MEMBERS OF THE FAMILY MEMBERS HAVE NOT IDENTIFIED THE JEWELLERY BELONGING TO EACH ONE OF THEM. ALL THE REPLIES WERE GENERAL IN NATURE BUT NOT SPECIFIC ABOUT THE ITEMS OF JEWELLERY. THEREFORE, THE AO HAS TAKEN IN TO ACCOUNT THE JEWELLERY FOUND IN POSSESSION OF EACH MEMBER AND GIVEN RELIEF OF EACH JEWELLERY ALREADY DISCLOSED IN THEIR RESPECTIVE INCOME - TAX RETURNS AND ALSO GIVEN RELIEF OF THE JEWELLERY WHICH WAS SHOWN AS PRODUCED IN THE BLOCK PERIOD AND THE BALANCE W EIGHT OF JEWELL E RY WAS HELD AS UNEXPLAINED INVESTMENT IN THE JEWELLERY. HE HAS ALSO PLEADED THAT AS ON 30.03.2005 A NOMINAL JEWELLERY WAS MENTIONED IN THE CAPITAL ACCOUNT, WHICH WAS DULY ALLOWED BY THE AO IN THE ASSESSMENT ORDER. THE ASSESSEE HAS NOT DISCH ARGED THE ONUS TO PROVE THAT THE JEWELLERY WAS IN POSSESSION OF THE ASSESSEE PRIOR TO THE BLOCK PERIOD AND SO THAT OUT OF THE AMBITS OF THE BLOCK PERIOD ASSESSMENT. HE HAS ALSO PLEADED THAT CIRCULAR DATED 11.05.1994, AS MENTIONED BY LD. CIT(A), ISSUED BY C BDT ONLY AS A GUIDELINE FOR THE PURPOSE OF SEIZURE OF JEWELLERY, BUT NOT FOR THE PURPOSE OF ASSESSING THE SAME UNDER THE HEAD 'UNEXPLAINED INVESTMENT'. 10. FROM THE SIDE OF THE RESPONDENT - ASSESSEE, LD. AR SHRI K P DIWANI APPEARED AND PLEADED THAT SINCE IN CEPTION OF SEARCH ACTION, THE ASSES S EE HAS CATEGORICALLY STATED THAT THE JEWELLERY BELONGED TO THE FAMILY MEMBERS JOINTLY THEREFORE, THE BENEFIT OF THE CIRCULAR WAS TO BE APPLIED. IN THE HANDS OF MARRIED LADY, JEWELLERY TO THE EXTENT OF 500 GRAMS, IN RESPE CT OF UNMARRIED LADY JEWELLERY TO THE ITA S 417 TO 423 / NAG /2 0 1 3 8 EXTENT OF 250 GRAMS AND 100 GRAMS PER MALE MEMBER OF THE FAMILY WAS NOT BE TAXED. LD. AR HAS ALSO PLEADED THAT ALTHOUGH IT IS CORRECT THAT U/S 132(4A) A PRESUMPTION IS THAT THE JEWELLERY IF FOUND IN POSSESSION OF A PER SON SHALL BE PRESUMED AS IF BELONGED TO THAT PERSON BUT THAT PRESUMPTION IS REBUTTABLE. THE LD. AR HAS ALSO PLEADED THAT EVEN WHEN THE EXTREME STEP OF SEARCH WAS TAKEN BY THE REVENUE DEPARTMENT, THERE WAS NO INCRIMINATING EVIDENCE FOUND ABOUT THE PURCHASE OF JEWELLERY WITHIN THE BLOCK PERIOD, SO, HE PLEADED THAT JEWELLERY WAS IN EXISTENCE BEYOND THE BLOCK PERIOD. LD. AR HAS ALSO CLARIFIED THAT THE MAJOR ARTIFACT OF JEWELLERY WERE IN POSSESSION OF THE FAMILY MEMBERS SINCE THE TIME OF THEIR MARRIAGE, BUT IF A CQUIRED ANY NEW JEWELLERY LATER , ON THEN THE SAME HAD BEEN RECORDED IN THE BOOKS OF ACCOUNTS. THE ASSESSEE HAS SUPPORTED BILLS AS THE SAME HAVE DULY BEEN SHOWN IN THE CAPITAL ACCOUNT. HOWEVER, THE AO HAS INTERPRETED IT DIFFERENTLY THAT THE TOTAL JEWELL E RY IN EXISTENCE WITH THE FAMILY WAS THAT MUCH AS PER THE AMOUNT HA D BEEN DISCLOSED IN THE ACCOUNTS OF THE ASSESSEE. THE SAID WRONG INTERPRETATION OF FACTS WAS CONSIDERED BY LD. CIT(A) AND THEREUPON THE RELIEF WAS GRANTED. 11. WE HAVE HEARD BOTH THE SIDES AT SOME LENGTH. WE HAVE ALSO CAREFULLY PERUSED THE RESPECTIVE ORDERS OF THE CASES OF THIS GROUP PLACED BEFORE US, TOTAL SEVEN IN NUMBER, IN THE LIGHT OF THE COMPILATION OF CASE LAWS FILED. THE TOTAL ORNAMENTS WHICH WERE RECOVERED FROM THIS GROUP WERE WEIGHING 45 46.380 GRAMS. THE AO WAS OF THE VIEW THAT THE JEWELLERY WHICH WAS DISCLOSED IN THE BALANCE SHEET WAS THE ONLY JEWELLERY IN THE POSSESSION OF THE RESPECTIVE ASSESSEE. HOWEVER, THE FACTS OF THE CASE HAVE REVEALED THAT VARIOUS ITEMS OF JEWELLERY WERE PURCH ASED AND DISCLOSED IN THE RETURN OF INCOME IN THE YEAR 2009 - 10, 2010 - 11 ETC. BUT, SIDE BY SIDE AO HAS ALSO MENTIONED, SAY FOR EXAMPLE IN THE CASE OF CHETAN B SHAH THAT HE GOT MARRIED IN THE YEAR 1992. BECAUSE OF THIS REASON THE MAIN PLANK OF ARGUMENT WAS T HAT IT WAS NEXT TO IMPOSSIBLE THAT AT THE TIME OF MARRIAGE IN THE YEAR 1992 THERE WAS NO JEWEL L E RY GIVEN TO THE BRIDE AS HER ' STRIDHAN ' . IT HAS ALSO BEEN ITA S 417 TO 423 / NAG /2 0 1 3 9 ARGUED, IT IS CUSTOMARY IN HINDU MARRIAGES TO OFFER VARIOUS ITEMS OF JEWELLERY TO THE BRIDE AS WELL AS BRIDE - GROOM. THAT ARGUMENT OF THE ASSES S EE WAS APPRECIATED BY THE LD. CIT(A) AND THEREFORE CONSIDERED THE CBDT I NSTRUCTION NO. 1916 (F. NO. 286/63/93 - IT[INV. II] DT. 11 TH MAY, 1994 . 12. BEFORE LD. CIT(A) , FEW DECISIONS HAVE BEEN CITED, NAMELY SHRI ASHO K CHADDHA VS ITO 69 DTR 89 ( DEL), WHEREIN IT WAS HELD THAT WOM E N HAVING MARRIED LIFE OF 25 TO 30 YEARS COULD HAVE REASONABLY POSSESSED 906.90 0 GRAMS OF JEWELLERY. THE LD. CIT(A) HAS ALSO CONSIDERED THE DECISION OF P K NOORJ A HAN 237 ITR 570 (SC) WHEREIN, T HE LEGAL PROPOSITION LAID DOWN WAS THAT IT WAS NOT MANDATORY TO INVOKE PROVISIONS OF SECTION 69 OF THE INCOME - TAX ACT BUT IT IS DISCRETIONARY. IN THIS CONTEXT, THERE WAS A DECISION OF HON'BLE GUJARAT HIGH COURT PRONOUNCED IN THE CASE OF CIT VS RATANLAL VY A PA RILAL JAIN 339 ITR 351 (GUJ) WHEREIN IT WAS HELD THAT, ALTHOUGH THE CIRCULAR WAS ISSUED FOR THE PURPOSE OF LAYING DOWN GUIDELINES FOR SEIZURE OF JEWELLERY BUT UNLESS ANYTHING CONTRARY IS SHOWN, IT CAN BE SAFELY PRESUMED THAT SOURCE TO THE EXTENT OF JEWELLE RY REFERRED TO IN THIS CIRCULAR STANDS EXPLAINED. IT HAS ALSO BEEN INFORMED THAT THE SLP BY THE REVENUE DEPARTMENT AGAINST THE SAID DECISION OF GUJARAT HIGH COURT HAD BEEN DISMISSED BY HON'BLE APEX COURT VIDE SLP (CIVIL) NO. 5557 - 5558/2011 DATED 04.04.201 1. 13. IN THE LIGHT OF THE ABOVE JUDGMENT, IT HAS ALSO BEEN INFORMED THAT SHRI BALKRISHNA SHAH GOT MARRIED IN THE YEAR 1960, SHRI MANOJ B SHAH IN THE YEAR 1988, SHRI PANKAJ B SHAH IN THE YEAR 1990 AND SHRI CHETAN B SHAH IN THE YEAR 1992. FURTHER, IT WAS E XPLAINED THAT THERE ARE AS MANY AS 14 FAMILY MEMBERS AND JOINTLY THEY HAVE POSSESSED THE JEWELLERY IN QUESTION . S O , IF THE I NSTRUCTION S OF CBDT ARE TO BE APPLIED AND FURTHER PURCHASE OF JEWELLERY ALREADY MENTIONED IN THE CAPITAL ACCOUNT IS ALSO TAKEN INTO ACCOUNT, THEN, NO PART OF THE JEWELLERY IN QUESTION REMAINED UNEXPLAINED . SINCE LD. CIT(A) HAS GIVEN THE FINDINGS ON FACTS IN THE ITA S 417 TO 423 / NAG /2 0 1 3 10 LIGHT OF CASE LAWS RECORDED THEREFORE, IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED BEFORE US FROM THE SIDE OF THE REVENUE D EPARTMENT, WE FIND NO F A LLACY IN THE VERDICT OF LD. CIT(A) AND THE SAME IS HEREBY AFFIRMED. REVENUE'S GROUNDS ARE DISMISSED. 14. IN THE RESULT, ALL THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 - 06 - 2015. SD/ - SD/ - ( SH AMIM YAHYA ) ( MUKUL K. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR , DATE: 26 - 0 6 - 2015 / COPY TO: - 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT (A) - I I I , NAGPUR . 4) THE CIT(CENTRAL) , NAGPUR . 5) , , NAGPUR / THE D.R. ITAT, NAGPUR BENCH, NAGPUR . 6) COPY TO GUARD FILE. BY OR DER ASSTT. REGISTRAR I.T.A.T., NAGPUR * . . *CHAVAN, SR.PS