Sh. Shrichand Dembla, UDAIPUR V. DCIT, UDAIPUR

ITA 421/JODH/2013

• Counselvise Citation: 42123314 RSA 2013
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SEHGALCIT
• Keywords: Gift; Salary income; Principle of natural justice; Retraction
• Section: 143(3); 234B; 132; 12; 15

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 421/JODH/2013 (A.Y. 2008-09) SHRI SRICHAND DEMBLA, VS DCIT, 21-22, NEW MADHAV NAGAR, CENTRAL CIRCLE-2, UDAIPUR. UDAIPUR. PAN NO. ABWPD7336F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI. DEPARTMENT BY : SHRI DEEPAK SEHGAL-CIT- DR. DATE OF HEARING : 27/08/2013. DATE OF PRONOUNCEMENT : 23/09/2013. O R D E R PER HARI OM MARATHA, J.M. : THIS APPEAL OF THE ASSESSEE, FOR A.Y. 2008-09, IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), CENTRAL, JAIPUR, DATED 03/ 05/2013. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT A SEARCH U/S 132 OF THE INCOME TAX ACT, 1961, (THE ACT FOR SHORT) WA S CONDUCTED ON 20/09/2007 AT THE RESIDENCE AND BUSINESS PREMISES O F THE ASSESSEE 2 WHO, AS INDIVIDUAL, DERIVED INCOME FROM SALARY, FRO M BUSINESS, HOUSE PROPERTY AND FROM OTHER SOURCES. THE ASSESSEE HAD F ILED ORIGINAL RETURN OF INCOME (ROI) U/S 139(1) OF THE ACT ON 30/09/2006 DECLARING TOTAL INCOME OF RS. 7,65,310/-. HE SUBSEQUENTLY, REVISED HIS ROI ON 21/08/2009 AND DECLARED TOTAL INCOME OF RS. 9,01,52 0/- AND ALSO DISCLOSED AGRICULTURAL INCOME OF RS. 58,500/-. THE ASSESSMENT ORDER WAS MADE U/S 143(3) ON 24.12.2009 AT A TOTAL INCOME OF RS. 27,51,520/- AND BY ACCEPTING THE DISCLOSED AGRICULT URAL INCOME. 2.1 AGGRIEVED, THE ASSESSEE WENT BEFORE LD. CIT(A), WHO HAS APPROVED THE IMPUGNED ADDITION MADE BY THE AO. THE ASSESSEE IS FURTHER AGGRIEVED. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN HIS APPEAL :- 1. THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ORDER PASSED BY THE LD. AO WHICH WAS BAD IN LAW BAD ON FACTS AND CONTRARY TO ALL CANNONS OF NATURAL JUSTICE. 2. THE VARIOUS ADDITIONS MADE IN THE IMPUGNE D ORDER AND AS SUSTAINED BY THE ID. CIT(A) ARE OUTSIDE THE SCOPE OF SECTION 153A. 3 3. THE ID. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 12,44,943/- ON ACCOUNT OF ALLEGED UNEXPLAINED GOLD JEWELLERY FOUND DURING THE COURSE OF SEARCH. THE ADDITION SUSTAINED IN THE HANDS OF THE ASSESSEE IS BAD IN LAW AND BAD ON FACTS. 4. THE ID. CIT(A) HAS ERRED IN SUSTAININ G THE ADDITION OF RS. 5,00,000/- ON ACCOUNT OF ALLEGED UNEXPLAINED HOUSEHOLD ARTICLES FOUND DURING THE COU RSE OF SEARCH, WHICH IS-BAD IN LAW AND BAD ON FACTS. 5. THE APPROVAL GRANTED BY THE ID. ADDITIONAL CIT IS BAD IN LAW AND BAD ON FACTS, AND IS ALSO CONTRARY TO THE P RINCIPLES OF NATURAL JUSTICE. 6. THE INTEREST CHARGED U/S 234B IS BAD IN LAW AND BAD ON FACTS. 7. THE APPELLANT PRAY FOR SUITABLE COSTS. 8. THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALT ER, AND MODIFY ANY OF THE GROUND OF APPEAL ON OR BEFORE ITS HEARING BEFORE YOUR HONOUR. 2.2 BEFORE US BOTH THE PARTIES HAVE REITERATED THEI R EARLIER STAND. GROUND NO. (1) HAS NOT BEEN PRESSED, THEREFORE, IT IS DISMISSED AS NOT PRESSED. GROUND NO. (2) IS GENERAL AND SIMPLY SUPPO RTS GROUND NOS. 3 4 AND 4. LIKEWISE GROUND NO. (5) IS ALSO NOT PRESSED. GROUND NO. (6) IS REGARDING CHARGING OF INTEREST. GROUND NO. 7 WAS NO T PRESSED. GROUND NO. 8 IS GENERAL IN NATURE. THE ONLY GROUNDS, WHICH SURVIVE FOR ADJUDICATION IS GROUND NO. 3 ON WHICH ARGUMENTS WER E ADVANCED BY BOTH THE PARTIES. 2.3 GROUND NO. 3 IS REGARDING SUSTAINED ADDITION OF RS. 12,44,943/- ADDED ON ACCOUNT OF UNEXPLAINED GOLD JEWELLERY ALLE GEDLY FOUND DURING THE SEARCH GOLD JEWELLERY WEIGHING 4462.6660 GRAMS WERE FOUND FROM THE RESIDENCE OF THE ASSESSEE. LIKEWISE, GOLD JEWEL LERY WEIGHING 107.610 GRAMS WAS FOUND FORM THE RESIDENCE OF SHRI NARENDER KUMAR DEMBLA, THE SON OF THIS ASSESSEE. THE FOLLOWING EXC ERPTS FROM THE ASSESSMENT ORDER AND TAKEN FROM APPELLATE ORDER AT PAGES 4 TO 7 WILL CLEARLY NARRATE AND EXPLAIN THE ENTIRE FACTS OF THI S ISSUE. THIS PORTION IS AS UNDER :- 'SHRI SRICHAND DEMBLA IN HIS STATEMENTS RECORDED DU RING SEARCH (REPLY TO Q. NO.42) ADMITTED THAT 1.5 KG. OF GOLD ORNAMENTS HAVE BEEN ACQUIRED OUT OF HIS UNDISCLOSED INCOME AND SURRENDERED FOR TAXATION. THIS STATEMENT WAS CONFIRMED BY SHRI SANJAY DEMBLA SON OF THE ASSESSEE VIDE REPLY TO Q.NO.LO OF HIS STATEMENTS RECORDED DURING SEARCH ON 20/09/2007. ON FURTHER CONFRONTATION DURING STATEMENTS U/S.131 DATED 19/12/2007 VIDE REPLY TO Q . NO. 5 0.2 SRICHAND DEMBLA CONFIRMED THE SURRENDER OF 1.5 KG. GOLD WITH VALUE OF RS. 13,50,000/- AND SURRENDERED RS. 10 LAKHS IN THE HANDS OF HIS DAUGHTER IN LAW SMT. RAVI TA DEMBLA AND RS.350000/- IN THE HANDS OF HIS ANOTHER DAUGHTER-IN-LAW SMT. SANGEETA DEMBLA. HOWEVER, WHIL E FILING RETURN OF INCOME U/S 153A, SUCH SURRENDERED INCOME HAS NEITHER BEEN OFFERED BY SHRI SRICHAND DEMBLA NO R BY HIS ANY OF DAUGHTERS IN LAW. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS REQUIRED T O FURNISH THE DETAILS REGARDING EXPENDITURE MADE IN T HESE JEWELLERY ITEMS AND SOURCES THEREOF. THE A.R. OF TH E ASSESSEE VIDE HIS SUBMISSION DATED 12/10/2009 FURNI SHED DETAILS IN THIS REGARD. THE SOURCE OF CLAIMED BY TH E ASSESSEE IS SUMMARIZED AS UNDER: S.NO. SOURCE WEIGHT 1 SMT. PUSPA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HER PARENTS 5 10 GRAM 2 SMT. PUSPA DEMBLA AT THE TIME OF MARRIAGE FROM HER IN-LAWS 160 GRAM 3 SMT. PUSPA DEMBLA VDIS, 1 997 300 GRAM 4 SMT. PUSPA DEMBLA PURCHASE DURING FY 2007 - 08 (AS PER THE SEIZED MATERIAL) 901 GRAM 5 SH. SRICHAND DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HIS IN-LOW 77 GRAM 6 SH. SRICHAND DEMBLA PURCHASED THROUGH HIS GRAND -FATHER IN 1 957 259 1.39 GRAM 7 SMT. SANGEETA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HER 345 GRAM 6 PARENTS 8 SH. NARENDRA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HIS IN LAWS 75 GRAM 9 SH. NARENDRA DEMBLA VDIS 1 997 622 G RAM 10 SH. NARENDRA DEMBLA FROM GRAND MOTHER 117 GRAM 11 SMT. RAVITA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HER PARENTS 380 GRAM 12 SH SANJAY DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HIS IN LAWS 65 GRAM 13 SH SANJAY DEMBLA VDIS 1997 534 GRAM 14 SH SANJAY DEMBLA FROM GRAND MOTHER 11 7GRAM 15 SH SANJAY DEMBLA PURCHASE ON 30 - 09 - 06 153 GRAM TOTAL 6947 GRAM THE ASSESSEE SUBMITTED THAT OUT OF ABOVE 6947 GMS, SOME OF THE JEWELLERY WAS GIFTED BY HIM TO HIS DAUGHTERS AND OTHER RELATIVES AND REST OF THE JEWELLERY LEFT WITH HIM WAS 5540 GMS OF NET WEIGHT. THUS, IT WAS CLAIMED THAT T HE JEWELLERY OF NET WEIGHT OF 5540 GMS FOUND DURING TH E COURSE OF SEARCH WAS TOTALLY EXPLAINED. THE CLAIM O F THE ASSESSEE WAS CONSIDERED AND THE SAME WAS NOT FOUND ACCEPTABLE ON FOLLOWING GROUNDS: THE ASSESSEE HAS NOT PRODUCED ANY CREDIBLE EVIDENCE IN SUPPORT OF THE JEWELLERY CLAIMED TO BE RECEIVED FRO M THE RELATIVES. THE AFFIDAVITS SUBMITTED BY THE ASSESSEE SNOWS THAT IN MOST OF THE CASES THESE ARE SUBMITTED BY TH E PERSONS OTHER THEN THE PERSONS WHO HAVE BEEN SHOWS TO HAVE GIVEN THE GIFT OF JEWELLERY TO THE ASSESSEE FA MILY; 7 THEREFORE THESE AFFIDAVITS CANNOT BE ACCEPTED AS EV IDENCE. THESE AFFIDAVITS COMMENCE WITH THE WORDINGS THAT 'A S PER MY INFORMATION JEWELLERY OF WEIGHT OF....... WAS MA DE TO DEMBLA FAMILY. ' THE AFFIDAVITS SUBMITTED BY THE ASSESSEE ARE NOTHIN G BUT THIRD PARTY, SELF SERVING STATEMENTS IN DOCUMENTS A ND SINCE THESE ARE WITHOUT ANY SUPPORTING DOCUMENTS, THE SAM E CANNOT BE ADMITTED AS EVIDENCE. THE CONTENTS OF THE AFFIDAVITS ARE NOT SUPPORTED BY ANY EVIDENCE OR SUPPORTING DOCUMENT. THE AFFIDAVITS SUBMITTED BY THE ASSESSEE, ALONE CAN NOT SUPPORT THE CLAIM OF THE ASSESSEE AS HELD BY THE AP EX COURT IN THE CASE OF COMMISSIONER OF INCOME TAX, WE ST BENGAL V/S DURGA PRASAD MORE (82 ITR 540) SC. THE H ON'BLE COURT HAS HELD THAT: '.....IN A CASE OF THE PRESENT KIND, A PARTY WHO RE LIES ON A RECITAL IN A DEED HAS TO ESTABLISH THE TRUTH OF THO SE RECITALS; OTHERWISE IT WILL BE VERY EASY TO MAKE SE LF SERVING STATEMENTS IN DOCUMENTS EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECITALS. IF ALL THAT AN AS SESSEE WHO WANTS TO EVADE TAX IS TO HAVE SOME RECITALS MADE IN A DOCUMENT EITHER EXECUTED, BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OPEN TO EVAD E TAX ......... 'THE TAXING AUTHORITIES WERE NOT REQUIRE D TO PUT 8 ON BLINKERS WHILE LOOKING AT THE DOCUMENTS PRODUCED BEFORE THEM. THEY WERE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY O F THE RECITALS MADE IN THOSE DOCUMENTS.' AS THE ASSESSEE HAS FAILED TO ESTABLISH THE TRUTH O F THE AFFIDAVIT, THE SAME ARE REJECTED AS EVIDENCE. THE ASSESSEE HAS CLAIMED THAT PART OF THE JEWELLERY FOUND REPRESENT THE JEWELLERY DECLARED IN VDIS BY THE FAM ILY MEMBERS DURING THE YEAR 1997. THIS CLAIM IS ALSO NO T ACCEPTABLE IN TOTO BECAUSE THE ASSESSEE COULD NOT C ORRELATE THE JEWELLERY FOUND WITH THE JEWELLERY DECLARED DUR ING VDIS. AS REGARD THE CLAIM OF JEWELLERY PURCHASED THROUGH THE GRANDFATHER OF THE ASSESSEE. IT WAS SUBMITTED BY TH E AR THAT: 'HE HAS ALSO PURCHASED GOLD ORNAMENTS GROSS WEIGHTE D 2591.39 GRAMS (222.66 TOLA) IN THE YEAR 1957 THROUG H HIS GRANDFATHER SHRI GOVINDRAMJI. THE COPY OF PURCHASE BILL IS ENCLOSED HEREWITH AND ORIGINAL IS ALSO PRODUCED HER EWITH FOR YOUR KIND VERIFICATION.' THE ABOVE CLAIM OF THE ASSESSEE IS NOT ACCEPTABLE O N THE FOLLOWING GROUNDS:- 9 1. THE ASSESSEE HAS NEVER MENTIONED THE SOURCE DUR ING THE COURSE OF SEARCH AND POST SEARCH PROCEEDINGS. 2. NONE OF THE FAMILY MEMBERS HAS MENTIONED THE S OURCE DURING THE COURSE OF SEARCH OR POST SEARCH PROCEEDI NGS. 3. IT IS QUITE UNUSUAL THAT THE ASSESSEE AND HIS FAMILY MEMBERS HAS MENTIONED OTHER SOURCE INCLUDING THE JEWELLERY RECEIVED FROM PARENTS / IN LAWS AND ALSO MENTIONED THE JEWELLERY DECLARED IN VDIS BUT THEY F ORGOT TO MENTION THIS HEAVY SOURCE. 4. IT WAS CLAIMED THAT THE ASSESSEE. HAS PUR CHASED THE GOLD ORNAMENTS GROSS WEIGHTED 2591.39 GRAMS (222.66 TOLA) IN THE YEAR 1957 THROUGH HIS GRANDFATHER SHRI GOVIN DRAMJI THE DATE OF BIRTH OF SH. SRICHAND DEMBLA IS 02-02-1 944, THAT MEANS DURING THE YEAR 1957 HIS AGE WOULD BE AR OUND 13 YEARS. HERE THE RELEVANT QUESTION IS HOW A BOY O F 13 YEAR OF AGE CAN PURCHASE GOLD ORNAMENTS OF 2591 GRA MS? WHAT WAS THE SOURCE OF PURCHASE? WHAT WAS THE PURPO SE OF PURCHASE? EITHER INVESTMENT OR TRADING OR ANY OTHER INTENTION? 5. THE PURCHASE WAS CLAIMED TO HAVE BEEN MADE DURI NG THE YEAR 1957 AND THE SAME IS NOT SUBJECT TO VERIFI CATION FROM THE SELLER OR FROM THE PERSON, THROUGH WHOM TH E PURCHASE WAS MADE. THUS THE ONUS LIES ON THE ASSESS EE TO GET THE SAME VERIFIED BUT THE ASSESSEE HAS FAILED T O DO SO. 10 EVEN THE DESCRIPTION OF THE BILL DOES NOT MATCH WIT H THE JEWELLERY FOUND. 6. IT WAS THE DUTY OF ASSESSEE TO FURNISH MATERIAL EVIDENCE BEFORE AO FOR HIS CLAIM. THE ASSESSEE CANNOT SAY TH AT THE AO MAY VERIFY THE ABOVE DETAILS. IT IS ESTABLISHED LAW THAT IT IS THE DUTY OF ASSESSEE TO PROVE THAT HE HAS RIG HTLY MADE HIS CLAIMS. THE ASSESSEE CANNOT THROW HIS BURDEN ON THE AO TO MAKE IMPOSSIBLE INVESTIGATIONS. THIS VIEW IS SUP PORTED BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF ESCORTS LTD. VS. CIT 257 ITR 468 WHERE IT WAS HELD THAT 'LEX NON COGIT AD IMPOSSIBILIA' IS A WELL-KNOWN MAXIM. I T MEANS THE LAW DOES NOT COMPEL A MAN TO DO THAT WHICH-HE C ANNOT POSSIBLY PERFORM. IF THE ASSESSING OFFICER NOT PERF ORM HIS DUTIES TO COMPLETE THE ORDER-OF ASSESSMENT IN THE A BSENCE OF ANY EVIDENCE FURNISHED BY THE ASSESSEE, THE DEPA RTMENT CANNOT BE BLAMED THEREFORE'. THUS THE CLAIMS OF THE ASSESSEE ARE DEFECTIVE AND W ITHOUT ANY MATERIAL SUPPORT AND THEREFORE THE SAME CANNOT BE ACCEPTED ON ITS FACE VALUE. DURING THE COURSE OF THE SEARCH PROCEEDING, JEWELLE RY OF WEIGHING 4462.660 GMS WAS FOUND FROM THE RESIDENCE OF THE ASSESSEE. FURTHER, JEWELLERY OF 1077.610 GMS WA S FOUND FROM THE RESIDENCE OF SHRI NARENDRA KUMAR DEMBLA, S ON OF THE ASSESSEE. 11 THE SOURCE OF THE ABOVE JEWELLERY HAS BEEN EXPLAINE D BY THE ASSESSEE VIDE SUBMISSION DATED 12/10/2009. AS DISCUSSED IN THE ABOVE PARA, THE EXPLANATION OFFERE D BY THE ASSESSEE IS NOT FULLY SATISFACTORY. HOWEVER, IT IS ALSO TO BE KEPT IN MIND THAT THE ASSESSEE FAMILY MUST HAVE REC EIVED SOME JEWELLERY FROM SOME RELATIVES ON VARIOUS OCCAS IONS AS PER SOCIAL CUSTOMS. FURTHER, THE ASSESSEE FAMILY HA D SURRENDERED SOME JEWELLERY IN VDIS IN 1997. CONSIDE RING THE TOTALITY OF FACTS AND CIRCUMSTANCES, IT APPEARS THAT WHAT THE ASSESSEE HAD OFFERED AS UNDISCLOSED JEWELL ERY OF 1.5 KG IN THE STATEMENT RECORDED DURING THE COURSE OF SEARCH AND CONFIRMED IN LATER STATEMENTS, WAS A TRU E DISCLOSURE. THUS CONSIDERING THE VARIOUS CLAIMS OF THE ASSESSEE AND CONSIDERING THE STATEMENTS OF THE ASSESSEE AND CONS IDERING THE OTHER FACTS AND SURROUNDING CIRCUMSTANCES, JEWE LLERY WEIGHING 1500 GRAMS NET IS TREATED AS UNDISCLOSED A ND IT IS HELD THAT THE ASSESSEE HAS PURCHASED THIS JEWELLERY OUT OF HIS UNDISCLOSED INCOME OF RS. 13,50,000/-. THE SAME IS BEING ADDED TO THE TOTAL INCOME OF THE ASSESSEE. TH IS ADDITION IS IN ADDITION TO THE SURRENDER OF RS.8.34 LACS MADE BY SMT. PUSHPA DEMBLA IN HER RETURN OF INCOME BEING AMOUNT UTILIZED FOR JEWELLERY PURCHASE BECAUSE THIS CLAIM HAS ALREADY CONSIDERED AT SR. NO. 4 OF THE CHART PR EPARED ABOVE IN THE TOTAL CLAIM OF THE ASSESSEE , WHILE AR RIVING AT ABOVE FIGURE OF RS. 13.50 LACS.]. PENALTY PROCEEDIN G U/S.271AAA IS ALSO INITIATED ON THE 'UNDISCLOSED IN COME.' 12 6.3 DURING THE APPELLATE PROCEEDINGS THE APPELLANT HAS SUBMITTED THE WRITTEN SUBMISSIONS AS UNDER AND ARGU ED THE APPEAL ON THE SAME LINES: 'THE ASSESSING OFFICER ERRED IN THE LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN REJECTING TH E AFFIDAVITS FURNISHED BY THE APPELLANT. 1.1 THE APPELLANT HAS FURNISHED THE AFFIDAVITS OF T HE RELATIVES WHO HAD GIVEN THE GOLD JEWELLERY TO THE F AMILY OF THE APPELLANT ON THE VARIOUS? OCCASIONS LIKE MARRIA GES OF THE SON, BIRTH OF GRANDSONS ETC. 2.4 THE LD. CIT(A) HAS GIVEN A RELIEF OF RS. 1,05,0 57/- AND HAS SUSTAINED THIS ADDITION AT RS. 12,44,943/-. THE ASS ESSEE IS FURTHER AGGRIEVED. 2.5 BEFORE US BOTH THE PARTIES HAVE ADVANCED THEIR ARGUMENTS SO WHAT THEY TOOK BEFORE LD. CIT(A). WE HAVE CAREFULLY CIRCUMSPECTED THE ENTIRE RECORD IN THE LIGHT OF THE ORAL, AS WELL AS WRITTEN SUBMISSIONS OF THE PARTIES. IT IS TRUE THAT THIS ASSESSEE HAD MADE A STATEMENT DURING SEARCH AND IN ANSWER TO QUESTION NO. 42 OF HIS STAT EMENT HE HAD STATED THAT OUT OF TOTAL GOLD ORNAMENTS WEIGHING 5540.270 GRAMS, 1.5 KG OF GOLD ORNAMENTS BELONG TO SMT. RAVITA DEMBLA HER DAU GHTER-IN-LAW AND 13 RS. 3.50 LAKHS BELONGED TO HIS ANOTHER DAUGHTER-IN- LAW SMT. SANGEETA DEMBLA. HOWEVER, THIS SURRENDERED INCOME AS UNDISCL OSED INCOME DID NOT FIND PLACE IN HIS ROI FILED IN CONSEQUENCE TO T HE NOTICE U/S 153A. DURING ASSESSMENT PROCEEDINGS HE EXPLAINED GOLD ORN AMENTS WEIGHING 6947 GRAMS AS FOLLOWS :- S.NO. SOURCE WEIGHT 1 SMT. PUSPA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HER PARENTS 510 GRAM 2 SMT. PUSPA DEMBLA AT THE TIME OF MARRIAGE FROM HER IN-LAWS 160 GRAM 3 SMT. PUSPA DEMBLA VDIS, 1 997 300 GRAM 4 SMT. PUSPA DEMBLA PURCHASE DURING FY 2007 - 08 (AS PER THE SEIZED MATERIAL) 901 GRAM 5 SH. SRICHAND DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HIS IN-LOW 77 GRAM 6 SH. SRICHAND DEM BLA PURCHASED THROUGH HIS GRAND-FATHER IN 1957 259 1.39 GRAM 7 SMT. SANGEETA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HER PARENTS 345 GRAM 8 SH. NARENDRA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HIS IN LAWS 75 GRAM 9 SH. NARENDRA DEMBLA VDIS 1 997 622 GRAM 10 SH. NARENDRA DEMBLA FROM GRAND MOTHER 117 GRAM 11 SMT. RAVITA DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HER PARENTS 380 GRAM 12 SH SANJAY DEMBLA AT THE TIME OF MARRIAGE AND OTHER OCCASIONS FROM HIS IN LAWS 65 GRAM 14 13 SH SANJAY DEMBLA VDIS 1997 534 GRAM 14 SH SANJAY DEMBLA FROM GRAND MOTHER 11 7GRAM 15 SH SANJAY DEMBLA PURCHASE ON 30 - 09 - 06 153 GRAM TOTAL 6947 GRAM IN OUR CONSIDERED OPINION, THIS ENTIRE ADDITION IS UNCALLED FOR BECAUSE THE ASSESSEE DID NOT STATE THAT GOLD JEWELLERY BELO NGED TO HIM. HE HAS SPECIFICALLY MENTIONED THE NAMES OF OTHER MEMBERS O F HIS FAMILY. THEREAFTER, IT IS THE RIGHT OF THE ASSESSEE TO EXPL AIN AWAY ANYTHING WRONGLY STATED IN HIS STATEMENT SO RECORDED. THE SO URCE OF THE ENTIRE GOLD HAS BEEN EXPLAINED. THEREFORE, WE ARE OF THE C ONSIDERED OPINION THAT NO ADDITION CAN BE MADE IN THE HANDS OF THIS A SSESSEE. THE QUESTION OF RETRACTION OF THE STATEMENT IS ALSO NOT MUCH RELEVANT IN THE GIVEN FACTS AS THE ASSESSEE HAS NOT STATED THAT THE GOLD JEWELLERY BELONGED TO HIM. THE CHART EXTRACTED ABOVE IS SELF- EXPLANATORY, IN WHICH SOURCES OF INDIVIDUAL GOLD JEWELLERY ARE ALSO GIVEN. THE REVENUE HAS NOT BROUGHT ON RECORD ANY EVIDENCE EXCEPT FOR T HE UN-ADMITTED STATEMENT OF THE ASSESSEE. THE RECEIPT OF GOLD JEWE LLERY AT THE TIME OF MARRIAGE AND OTHER OCCASIONS IS THE REALITY OF LIFE AND THIS REALITY CANNOT BE WASHED AWAY IN CASE THEY HAVE NOT DISCLOS ED THEIR JEWELLERY IN THEIR WEALTH TAX RETURNS ETC. THOSE PROCEEDINGS ARE ENTIRELY SEPARATE AND DISTINCT. THERE CANNOT OVERLAP SUPPLAN T OR SUPPLEMENT 15 EACH OTHER. ACCORDINGLY, WE ORDER TO DELETE THE ENT IRE ADDITION AND ALLOW GROUND NO 3 OF ASSESSEES APPEAL. 3. THE FACTS OF GROUND NO. (4) ARE THAT THE AO HAS MADE AN ADDITION OF RS. 5 LAKHS ON THE BASIS OF HIS OBSERVATION ABOU T THE COSTLY ELECTRICAL / ELECTRONIC ITEMS FOUND IN THE HOUSE OF THE ASSESS EE. DURING HEARING OF THIS CASE IT WAS SPECIFICALLY QUERIED IF ANY OF THOSE ITEMS WERE FOUND TO HAVE BEEN PURCHASED DURING THE YEAR. BUT NO SPEC IFIC REPLY WITH THE SUPPORT FROM THE ORDER OF THE AUTHORITIES BELOW WAS GIVEN. WE ARE OF THE CONSIDERED OPINION THAT SUCH LIKE ESTIMATED ADD ITION ARE NOT LEGALLY WARRANTED. RATHER, THE ASSESSEE HAS EXPLAINED THE S OURCE(S) OF ALL THESE ITEMS. ACCORDINGLY, WE DELETE THE ESTIMATED A DDITION OF RS. 5 LAKHS FROM THE HANDS OF THE ASSESSEE AND ALLOW GROU ND NO. (4) OF THIS APPEAL. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/09/201 3. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23/09/2013. 16 VL/ COPY TO : 1. THE APPELLANT BY ORDER 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR