Ms. Indu Seth, New Delhi V. ACIT, New Delhi

ITA 4500/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97039 (ITAT-DELHI)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-01-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 14-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Unexplained investment; Gift; Valuation report
• Section: 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D, NEW DELHI) BEFORE SHRI. I. C. SUDHIR, JUDICIAL MEMBER AND SHRI J. S. REDDY, ACCOUNTANT MEMBER I.T.A. NO.6284 /DEL/202012 ASSESSMENT YEAR : 2010-11 KRITIKA SETH, VS. ACIT, CC-25, 507, INTERNATIONAL TRADE TOWER, NEW DELHI NEHRU PLACE, NEW DELHI. PAN:AOVPS9481G I.T.A.NO. 6436/DEL/2012 (ASSESSMENT YEAR 2010-11) DCIT, CC-25, VS. KRITIKA SETH, NEW DELHI A1/92, SAFDURJUNG ENCALVE, NEW DELHI PAN:AOVPS9481G I.T.A.NO. 4500/DEL/2014 (ASSESSMENT YEAR 2010-11) INDU SETH, VS. ACIT, CC-25, 14, CHINAR DRIVE, NEW DELHI DLF CHHATARPUR FARMS, NEW DELHI PAN:AASPS9458A I.T.A.NO. 4505/DEL/2014 (ASSESSMENT YEAR 2010-11) RAHUL SETH, VS. ACIT, CC-25, 14, CHINAR DRIVE, NEW DELHI DLF CHHATARPUR FARMS NEW DELHI PAN: AASPS9459B ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 2 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SALIL AGARWAL, ADV. SHRI SAILESH GUPTA, CA RESPONDENT BY : SMT. SULEKHA VERMA, CIT DR DATE OF HEARING : 09.07.2015 DATE OF PRONOUNCEMENT : 14.08.2015 ORDER PER J. S. REDDY, AM: I.T.A. NO. 6784/DEL/2012 AND 6436/DEL/2012 ARE CRO SS APPEALS FILED BY ASSESSEE AND THE REVENUE DIRECTED AGAINST THE OR DER OF LD. CIT(A) I, NEW DELHI DATED 26.10.2012 FOR THE ASSESSMENT YEAR 2010 -11. I.T.A. NO. 4500/DEL/2014 IS THE APPEAL FILED BY ASSESSEE AGAIN ST ORDER OF LD. CIT(A) XXV, NEW DELHI DATED 27.05.2014 AND I.T.A. NO. 4505 /DEL/2014 IS THE APPEAL FILED BY ASSESSEE AGAINST ORDER OF LD. CIT(A ) XXV, NEW DELHI DATED 27.05.2014. THE ISSUES ARISING IN THESE APPEALS AR E COMMON, THEREFORE, FOR THE SAKE OF CONVENIENCE; THESE APPEALS WERE HEA RD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER. 2. WE FIRST TAKE UP THE APPEAL FILED BY MRS. KRITIK A SETH IN I.T.A. NO. 6784/DEL/20123. THE BRIEF FACTS OF THE CASE AS NOT ED IN THE ASSESSMENT ORDER READ AS UNDER: A SEARCH OPERATION WAS CONDUCTED ON 10.02.2010 IN SUDHIR GROUP OF CASES. BRIEF FACTS OF THE CASE ARE THAT SMT. KRITI KA SETH BELONGS TO SUDHIR GROUP OF CASES. THE GROUP IS HEADED BY SH. SUDHIR SETH AND IS IN THE AREA OF ASSEMBLY OF D G SETS SINCE MORE THAN A DECADE. THE GROUP HAS IN THE RECENT PERIOD VENTURED INTO REAL E STATE SECTOR. NO SURRENDER OF UNDISCLOSED INCOME WAS MADE I THE GROU P EITHER DURING OR POSTS SEARCH PROCEEDINGS. ASSESSMENT PROCEEDING S IN THE CASE WERE INITIATED BY ISSUING NOTICE U/S 142(1) DATED 1 .11.2010 FOR FILING ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 3 OF RETURN OF INCOME WHICH WAS DULY SERVED ON THE AS SESSEE. IN RESPONSE TO THE SAID NOTICE A RETURN DECLARING INCO ME OF RS.7,58,261/- WAS FILED ON 20.01.2011. NOTICE U/S 143(2), 142(1) DATED 15.03.2011 ALONG WITH DETAILED QUESTIONNAIRE WERE ISSUED. 3. THE A.O. COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT DETERMINING THE TOTAL INCOME OF ASSESSEE AT RS.48,33,370/- INTE R ALIA MAKING FOLLOWING ADDITIONS: I) UNEXPLAINED JEWELLERY RS.31,79,480/- II) UNEXPLAINED CASH RS.03,75,000/- III) UNEXPLAINED GIFTS RS.05,21,000/- 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN AP PEAL BEFORE LD. CIT(A). THE FIRST APPELLATE AUTHORITY GRANTED PART RELIEF TO THE ASSESSEE. FURTHER AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: I) THE WORTHY CIT HAS ERRED IN DISALLOWING UNEXPLA INED JEWELLERY WORTH RS.24,67,018/- II) THE WORTHY CIT HAS ERRED IN MAKING DISALLOWANCE OF UNEXPLAINED CASH AMOUNTING TO RS.3,75,000/-. 5. THE REVENUE FILED CROSS APPEAL ON THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN:- I) THE ORDER OF THE CIT(A) IS NOT CORRECT IN LAW AND F ACTS. II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. CIT(A) HAS ERRED IN RESTRICTING THE ADDITION OF RS.31,79,480/- TO RS.24,67,018/- GIVING RELIEF OF RS.7,12,462/- OUT OF ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED JEWELLERY AND NOT DISCLOSING THE SAME IN THE BOOKS OF ACCOUNTS. THE ASSESSEE COULD BE NOT PROVE THE GENUINENESS OF THE TRANSACTION DURING POST SEARCH PROCEEDINGS. III) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.5,21,000/- MAD E BY THE AO ON ACCOUNT OF UNEXPLAINED GIFT. ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 4 6. WE FIRST TAKE UP THE APPEAL FILED BY ASSESSEE. GROUND NO.1 IS AGAINST THE ADDITION ON ACCOUNT OF UNEXPLAINED JEWELLERY. THE FACTS RELATING TO THIS GROUND AS STATED IN THE ASSESSMENT ORDER ARE EXTRAC TED AS UNDER: UNEXPLAINED JEWELLERY; DURING THE COURSE OF SEARCH OF LOCKER NO.458 OF HDF C BANK, G.K. PART - II, NEW DELHI AND LOCKER NO. 49 OF AXIS BANK LTD, LAJPAT NAGAR, NEW DELHI HELD BY THE ASSESSEE, JEWELLERY WO RTH RS.94,92,531/- (63,64,835 + 31,27,696) WAS FOUND, O UT OF WHICH JEWELLERY AMOUNTING TO RS.24,67,018/- WAS SEIZED. D URING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF JEWELLERY FOUND DURING THE COURSE OF SEAR CH. IN RESPONSE TO WHICH THE ASSESSEE HAS SUBMITTED THE DETAILS OF JEW ELLERY HELD BY FAMILY MEMBERS INCLUDING HERSELF BUT HAS NOT FILED ANY ITEM WISE RECONCILIATION OF JEWELLERY. THE WEIGHT WISE DETAIL S OF JEWELLERY FOUND AT THE TIME OF SEARCH AND EXPLAINED BY THE ASSESSEE DURING THE COURSE OF SEARCH IS AS UNDER: GROSS WEIGHT NET WEIGHT %AGE OF IN GRAMS IN GRAMS WEIGHT REDUCED TO ARRIVE AT NET WEIGHT___ JEWELLERY FOUND FROM LOCKER NO. 49 AXIS 2853.850 1959.450 45.64% BANK LTD. LAJPAT NAGAR, NEW DELHI OF THE ASSESSEE JEWELLERY FOUND FROM LOCKER NO. 458 HDFC 5095.700 3441.000 48.08% BANK, G. KAILASH PART-II, NEW DELHI OF THE ASSESSEE TOTAL JEWELLERY FOUND FROM THE LOCKERS OF 7949.55 0 5400.457 THE ASSESSEE LESS: JEWELLERY EXPLAINED BY THE ASSESSEE 5686.31 0 5144.600 10.52% DURING THE COURSE OF ASSTT. PROCEEDING UNEXPLAINED JEWELLERY 2263.240GMS 255.850 GMS NET WEIGHT OF UNEXPLAINED JEWELLERY BY 2025.147 GMS TAKING THE SAME %AGE AS ADOPTED BY THE ASSESSEE. ON PERUSAL OF THE ABOVE TABLE IT HAS BEEN NOTICED T HAT THE ASSESSEE HAS REDUCED 10.52% FROM THE GROSS WEIGHT TO ARRIVE AT N ET WEIGHT OF THE ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 5 JEWELLERY. THE METHOD ADOPTED BY THE ASSESSEE TO AR RIVE NET WEIGHT APPEARS TO BE CORRECT AS THIS IS PRACTICALLY USED B Y THE JEWELERS AT THE TIME OF TAKING OLD JEWELLERY FROM THE CUSTOMERS. DEPARTMENTAL VALUER VALUED TOTAL 31 ITEMS OF JEWELL ERY FOUND FROM LOCKER NO. 458 AND 15 ITEMS FROM LOCKER NO. 49 OUT OF WHICH 15 ITEMS OF JEWELLERY FROM LOCKER NO. 458 WERE REMAINED UNEX PLAINED BY THE ASSESSEE. THE ITEMS WHICH WERE NOT EXPLAINED ARE ME NTIONED AT 51. NO. 2,10, 11, 15, 16, 20, 21, 22, 23, 24, 26, 28, 2 9, 30 & 31 IN THE LIST OF VALUATION REPORT FROM THE LOCKER NO. 458. THE AS SESSEE HAD HERSELF ADMITTED IN HER STATEMENT RECORDED ON 30.3.2010 THA T THE ABOVE MENTIONED JEWELLERY MAY BE CONSIDERED AS UNEXPLAINE D. THE GROSS WEIGHT OF THE UNEXPLAINED ITEMS OF JEWELLERY FROM L OCKER NO. 458 AS DISCUSSED ABOVE COMES TO 2098.15 GMS WHEREAS THE AS SESSEE HAS NOT EXPLAINED THE GROSS WEIGHT 2263.240 GMS AS PER DETA ILS GIVEN IN THE TABLE ABOVE. TILL DATE NO EXPLANATION OF THE SAME H AS BEEN OFFERED BY THE ASSESSEE. IT CLEARLY SHOWS THAT THE JEWELLERY F OUND DURING THE SEARCH WAS MORE THAN WHAT HAS BEEN DECLARED BY THE ASSESSEE TO THE DEPARTMENT. AS THE ASSESSEE HAS REDUCED 10.52%FROM THE GROSS WE IGHT OF THE JEWELLERY TO ARRIVE AT NET WEIGHT, FOLLOWING THE SA ME METHOD AS ADOPTED BY THE ASSESSEE, NET WEIGHT OF THE UNEXPLAI NED JEWELLERY COMES TO 2025.147 GMS AS COMPUTED IN THE TABLE ABOV E. THE TOTAL VALUE OF THE UNEXPLAINED JEWELLERY OF 2025.147 GMS @ 15,700 PER 10 GMS. AS ON THE DATE OF SEARCH COMES TO RS. 31,79,48 0/- OUT OF WHICH JEWELLERY WORTH RS.24,67,018/- HAS ALREADY BEEN ADM ITTED BY THE ASSESSEE TO BE UNEXPLAINED AT THE TIME OF SEARCH IN HER STATEMENT RECORDED ON 30.03.2010. ADMISSION OF UNEXPLAINED JE WELLERY AMOUNTING TO RS.24,67,018/- DURING THE SEARCH STREN GTHENS THE FINDING THAT THERE HAS BEEN UNEXPLAINED JEWELLERY WHICH HAS BEEN COMPUTED AT 2025.147 GMS. THEREFORE, I HEREBY ADDED A SUM OF RS . 31,79,480/- VALUE OF UNEXPLAINED JEWELLERY TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENT IN JEWELLERY. THE AMOUNT OF RS. 31,79,480/- REPRESENTS INVESTMENT OF UNDISCLOSED INCOME IN JEWELLARY, FOUND DURING THE COURSE OF SEA RCH AND SUCH SHE IS LIABLE FOR PENALTY U/S 271AAA, THEREFORE, PENALTY P ROCEEDINGS U/S 271AAA ARE BEING INITIATED SEPARATELY IN THE CASE. ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 6 7. LD. COUNSEL FOR THE ASSESSEE SHRI SALIL AGARWAL SUBMITTED THAT THE A.O. HAS NOT ACCEPTED THE METHOD OF VALUATION ADOPT ED BY THE ASSESSEE. LD. COUNSEL FURTHER SUBMITTED THAT THE METHOD ADOPTED B Y ASSESSEE WAS ALSO VERIFIED BY DVO. THE ASSESSEE HAD REDUCED 10.52% F ROM THE GROSS WEIGHT TO ARRIVE AT THE NET WEIGHT OF JEWELLERY. LD. COUNS EL SPECIFICALLY DREW OUR ATTENTION TO THE LAST PARA OF PAGE 2 OF ASSESSMENT ORDER IN SUPPORT OF THIS ARGUMENT. HE SUBMITTED THAT UNEXPLAINED JEWELLERY IS ONLY 255.850 GMS. AS PER THE DVOS REPORT AND THAT THE A.O. REJECTED THE VALUATION REPORT AND MADE AN ESTIMATED ADDITION ON THE GROUND THAT THERE IS UNEXPLAINED JEWELLERY. ON THE ONE HAND THE A.O. AGREED THAT TH E ASSESSEE HAS EXPLAINED 5144.600 GMS OF JEWELLERY AND ON THE OTHER HAND, HE MADE ONE ESTIMATE ADDITION. HE FURTHER SUBMITTED THAT THE ASSESSEE H AS NEVER ADMITTED TO HAVE ANY UNEXPLAINED JEWELLERY DURING THE SEARCH PROCEED INGS. IN SUPPORT OF THIS CONTENTION, HE REFERRED TO QUESTIONS NO.3 & 4 AND A NSWERS THERETO GIVEN IN THE STATEMENT RECORDED FROM THE ASSESSEE ON 30.03.2 010. HE FURTHER ARGUED THAT THE FIRST APPELLATE AUTHORITY HAS COMMITTED AN ERROR IN CHANGING THE BASIS OF ADDITION. WHILE THE A.O. HAS RECORDED THE FINDI NG THAT THE ASSESSEE HAS EXPLAINED THE JEWELLERY AND NET WEIGHT OF 5144.600 GMS, THE LD. CIT(A) BROUGHT A NEW CONCEPT OF ITEM-WISE TALLY OF JEWELLE RY AND MADE THE ADDITION. THIS ADDITION WAS ALSO NOT BASED ON THE DEPARTMENTA L VALUATION REPORT. 8. REGARDING THE ISSUE OF ADDITION ON ACCOUNT OF UN EXPLAINED CASH, HE SUBMITTED THAT THE ASSESSEE BELONGS TO THE SUDHIR G ROUP OF COMPANIES WHICH HAS TURNOVER OF RS.1,000 CRORES AND THERE ARE SEVEN MEMBERS OF THE ASSESSEES FAMILY WHO PAY SUBSTANTIAL AMOUNT OF TAX . IN ADDITION, HE SUBMITTED THAT THERE ARE HUF OF OVER 10 SMALL PRIVA TE LIMITED COMPANIES AND ALL OF THEM HAVE CERTAIN CASH BALANCES WHICH ARE KE PT WITH THE DIRECTOR OR ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 7 PROPRIETOR. HE FURTHER SUBMITTED THAT THE TOTAL CA SH WITHDRAWAL WAS RS.1,13,19,000/- AND IN FACT, MR. SUDHIR IN HIS PRE LIMINARY STATEMENT RECORDED, HAS STATED THAT CASH OF RS.20 LACS WOULD BE AVAILABLE IN THE HOUSE OF THE ASSESSEE AND, THEREFORE, CASH IS KEPT FOR GE NERAL NECESSITY. HE SUBMITTED THAT THERE IS NO EVIDENCE WHATSOEVER WITH THE A.O. THAT THERE IS UNACCOUNTED CASH AND KEEPING IN VIEW OF THE STATUS OF THE FAMILY, INCOME RETURNED AND WITHDRAWAL, THE ADDITION IN QUESTION I S UNCALLED FOR. 9. LD. D.R. ON THE OTHER HAND OPPOSED THE CONTENTIO N OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE HAS NOT COOPERATED DESP ITE REPEATED OPPORTUNITIES, GIVING ITEM-WISE RECONCILIATION. SH E SUBMITTED THAT ONUS WAS ON THE ASSESSEE TO RECONCILE THE ITEMS OF JEWELLERY AND HEN CERTAIN ITEMS OF JEWELLERY NOT BEING EXPLAINED THE FIRST APPELLATE A UTHORITY HAS RIGHTLY HELD THE SAME TO BE UNEXPLAINED JEWELLERY. SHE SUBMITTED TH AT ASSESSEE HAD NOT GIVEN ANY EXPLANATION AT THE TIME OF SEARCH IN THE STATEM ENT RECORDED FROM HER NOR HAS THE ASSESSEE FILED ANY WEALTH TAX RETURN PRIOR TO THE DATE OF SEARCH. SHE DISTINGUISHED THE RATIO LAID DOWN IN THE DECISION O F PUNE BENCH OF THE TRIBUNAL IN THE CASE OF MS. PADMANI SHRIKRISHNA GAD GIL VS ACIT IN I.T.A. NO. 1339/PN/2008 RELIED UPON BY THE ASSESSEE. ON T HE ADDITION AS UNEXPLAINED CASH, SHE SUBMITTED THAT BEING A BIG CO MPANY DOES NOT MEAN THAT SUBSTANTIAL AMOUNT WOULD BE KEPT IN CASH BY DI RECTORS / PROPRIETORS. SHE ARGUED THAT THE ASSESSEE WAS NOT ABLE TO SUBSTA NTIATE THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH AND SO FAR AS DRAWINGS ARE CONCERNED, SHE SUBMITTED THAT IT BELONGS TO A PERIOD OF 6 YEARS AN D HENCE, THE EXPLANATION OF THE ASSESSEE HAS TO BE REJECTED. 10. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE ASSESSEE MAINTAINED BOOKS OF ACCOUNTS AND THE AVAILABILITY O F CASH IS SUPPORTED BY THE ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 8 BOOKS OF ACCOUNTS AND IN THE ABSENCE OF ANY CONTRAR Y MATERIAL / EVIDENCE, THE ADDITION CANNOT BE SUSTAINED. 11. ON THE REVENUES APPEAL, LD. D.R. RELIED UPON T HE ORDER OF A.O. WHEREAS LD. COUNSEL FOR THE ASSESSEE RELIED UPON TH E ORDER OF FIRST APPELLATE AUTHORITY. 12. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED ON RECORD. ON A CAREFUL CONSIDERATION OF THE FACTS AN D CIRCUMSTANCES OF THE CASE, A PERUSAL OF PAPERS ON RECORD AND THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE CASE LAW CITED, WE HOLD AS FOLLOWS:- T HE DEPARTMENTAL VALUER IN THIS CASE HAS REPORTED THAT THE JEWELLERY FOUND WIT H THE ASSESSEE HAS GROSS WEIGHT OF 7949.550 GMS AND NET WEIGHT WAS 5400.450 GMS. THE A.O. HELD THAT THE ASSESSEE HAS EXPLAINED JEWELLERY HAVING GR OSS WEIGHT 5686.310 GMS AND NET WEIGHT 5144.600 GMS. THIS LEAVES US WITH U NEXPLAINED JEWELLERY OF NET WEIGHT OF 255.850 GMS AND GROSS WEIGHT OF 2263. 240 GMS. THE DIFFERENCE IN NET WEIGHT IS REPORTED BY THE DEPARTM ENTAL VALUER. INSTEAD OF ACCOUNTING THE NET WEIGHT JEWELLERY AS ARRIVED BY DEPARTMENTAL VALUER, THE A.O. DEDUCTED 10.52% FROM THE GROSS WEIGHT OF JEWEL LERY I.E. 2263.2450 GMS, WHICH IS GROSS WEIGHT OF UNEXPLAINED JEWELLERY ARRIVED AT PAR THE DEPARTMENTAL VALUER AND ARRIVED AT A NET WEIGHT OF 2025.147 GMS. OF JEWELLERY. SUCH ESTIMATION CANNOT BE THE BASIS OF ADDITION. WHEN DVO HAS GIVEN A REPORT SPECIFYING THE GROSS AND NET WEIGHT OF JEWELLERY FOUND, THEN APPLYING A ROUGH AND READY FORMULAE WITHOUT AN SCIE NTIFIC BASIS TO ARRIVE AT NET WEIGHT, IS ONLY SURMISES AND CONJECTURES. SUCH A CALCULATION CANNOT BE THE BASIS OF ADDITION. AN EXPERT OPINION CANNOT BE DISCARDED WITHOUT GIVING ANY ROOM. THUS, THE ORDER OF A.O. IS BAD IN LAW. ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 9 13. WE HAVE ALSO EXAMINED THE STATEMENT OF ASSESSEE RECORDED AT THE TIME OF SEARCH. THERE IS NO ADMISSION OR CONFESSION BY THE ASSESSEE AS CLAIMED BY THE REVENUE. 14. COMING TO LD. CIT(A)S ORDER, SHE HAS RIGHTLY H ELD THAT THE METHODOLOGY ADOPTED BY THE A.O. CANNOT BE ACCEPTED. AT THE SAME TIME, SHE HELD THAT 15 ITEMS OF JEWELLERY FOUND AND SEIZED FR OM THE LOCKER WHICH BELONG TO THE ASSESSEE ARE UNEXPLAINED ITEMS OF JEW ELLERY. WHEN THE A.O. HAS HELD THAT THE ASSESSEE HAS EXPLAINED THE JEWELL ERY FOUND IN THE LOCKER THE FIRST APPELLATE AUTHORITY CANNOT HOLD OTHERWISE WIT HOUT ANY EVIDENCE. THE ENTIRE BASIS OF DETERMINING UNEXPLAINED JEWELLERY I S CHANGED BY LD. CIT(A). THE LD. CIT(A) HAS NOT STATED AS TO WHICH ARE THE I TEMS OF JEWELLERY WHICH THE ASSESSEE COULD NOT EXPLAIN AND WHY THE A.O. WAS WRONG IN ACCEPTING THE EXPLANATION OF THE ASSESSEE. MERELY SAYING THAT TH E ASSESSEE HAS NOT EXPLAINED, WHEN THE A.O. STATED OTHERWISE, CANNOT B E COUNTENANCED. THE SHORTAGE OR EXCESS HOLDING OF GOLD AND JEWELLERY, U NDER THE FACTS OF THIS CASE, HAS TO BE ARRIVED AT ON AN OVERALL BASIS. REPORT O F THE DEPARTMENTAL VALUATION OFFICER SHOULD BE THE BASIS OF DETERMININ G THE VALUE OF UNEXPLAINED JEWELLERY. THUS, THIS GROUND OF ASSESSE E IS ALLOWED AND ADDITION TOWARD UNEXPLAINED JEWELLERY IS DELETED. 15. THE NEXT GROUND OF APPEAL IS REGARDING UNEXPLAI NED CASH. THE ASSESSEE STATED THAT BOOKS OF ACCOUNTS ARE MAINTAIN ED AND THE CASH IS EVIDENCED BY THE BOOKS OF ACCOUNTS. THE ENTIRE ADD ITION IN THIS CASE IS MADE ON THE BASIS OF GENERAL HUMAN BEHAVIOUR, SURROUNDIN G CIRCUMSTANCES AND HUMAN PROBABILITIES. THE ASSESSEES EXPLANATION IS ALSO A GENERAL EXPLANATION. THE ONLY ARGUMENT THAT CAN BE CONSIDE RED IS THAT BOOKS OF ACCOUNTS ARE MAINTAINED EVIDENCING CASH BALANCE. T HE ASSESSEE FILED ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 10 DETAILED CHART EXPLAINING THE CASH WITHDRAWAL FROM BANK BY VARIOUS MEMBERS OF SUDHIR GROUP IN ITS PAPER BOOK. COPIES OF THE RELEVANT PAGES IN THE CASH BOOK ARE FURNISHED. AS THE ADDITION IS MA DE ON THE OPINION OF THE ASSESSING OFFICER AGAINST EXPLANATION GIVEN BY THE ASSESSEE WITH CERTAIN CASH FLOW STATEMENTS, WE ARE OF THE CONSIDERED OPINION T HAT THE BOOKS OF ACCOUNTS SHOULD BE THE BASIS FOR ARRIVING AT A CONCLUSION. GENERAL EXPLANATION GIVEN BY THE ASSESSEE OR THE LOGIC GIVEN BY REVENUE AUTHO RITIES CANNOT BE THE BASIS OF ADDITION. UNLESS THE BOOKS OF ACCOUNTS AND SUM MARY OF THE CASH FLOW STATEMENT FILED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES ARE REJECTED, THE ADDITION CANNOT BE SUSTAINED. WITHOUT FINDING DEFECT IN THESE BOOKS OF ACCOUNTS AND WITHOUT SPECIFICALLY STATING AS TO WHY THE CASH FLOW STATEMENT CANNOT BE ACCEPTED, AN ADDITION ON GENERAL PRESUMPT ION MADE BY THE AND ASSUMPTION CANNOT BE SUSTAINED. 16. LD. D.R. VEHEMENTLY SUBMITTED THAT EVIDENCE HAS NOT BEEN GIVEN BY THE ASSESSEE. THE A.O. AND LD. CIT(A) DO NOT STAT E THAT WHICH EVIDENCE IS SOUGHT BY THEM AND WHAT WAS NOT FURNISHED BY THE AS SESSEE. WITHDRAWAL FROM BANK ACCOUNTS IS VERY MUCH EVIDENCED BY BANK P ASS BOOK AND STATEMENT. IN VIEW OF ABOVE DISCUSSION, THOUGH WE ARE NOT ACCEPTING THE GENERAL ARGUMENT MADE BY ASSESSEE BASED ON TURNOVER OF THE GROUP AND TAXES PAID, STATUS OF FAMILY ETC., WE DELETE THE ADDITION SOLELY ON THE BASIS THAT THE EXTRACT OF COPIES OF BOOKS OF ACCOUNTS, REMAINED UN CONTROVERTED BY THE DEPARTMENT. THIS ADDITION IS DELETED. 17. WE NOW COME TO THE REVENUES APPEAL IN I.T.A.NO . 6436/DEL/2012. GROUND NO. 1 IS GENERAL IN NATURE. GROUND NO.2 IS ON THE RELIEF GIVEN BY THE FIRST APPELLATE AUTHORITY OF THE ADDITION MADE ON A CCOUNT OF UNEXPLAINED ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 11 JEWELLERY. IN VIEW OF OUR DISCUSSION IN THE ASSESS EES APPEAL ABOVE, THIS GROUND HAS TO BE DISMISSED. 18. GROUND NO.3 IS REGARDING DELETION OF ADDITION O F RS.5,21,000/- BEING UNEXPLAINED GIFT. THE FIRST APPELLATE AUTHORITY DE ALT WITH THE ISSUE AT PARA 5.2 OF THE ORDER. THE GIFT OF RS.5 LACS WAS RECEIVED FROM THE FATHER SHRI RAKESH BATRA THROUGH CHEQUE. HE IS AN INCOME TAX ASSESSE E AND FILED A CONFIRMATION LETTER BEFORE THE A.O. SIMILARLY AN A MOUNT OF RS.21,000/- WAS RECEIVED BY THE ASSESSEE FROM HER BROTHER SHRI MANA V BATRA WHO IS ALSO AN INCOME TAX ASSESSEE. ON THESE FACTS, THE FIRST AP PELLATE AUTHORITY DELETED THE ADDITION. WE FIND NO INFIRMITY IN THE SAME. HEN CE, WE CONFIRM THE ORDER OF LD. CIT(A) AND DISMISS THIS GROUND OF REVENUE. THEREFORE, THE APPEAL OF REVENUE IS DISMISSED. 18. IN I.T.A. NO. 4500/DEL/2014, THE ASSESSEE HAS R AISED FOLLOWING SOLITARY GROUND: THE WORTHY CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ACIT, CC-25, NEW DELHI TO THE EXTENT OF RS.3,75,000/-. IN I.T.A. NO. 6284/DEL/2012 OF KRITIKA SETH, WE HAV E DEALT WITH THIS ISSUE OF UNEXPLAINED CASH FROM PARA 15 TO 16 CONSISTENT WIT H THE VIEW TAKEN THEREIN, WE DELETE THIS ADDITION AND ALLOW THE APPEAL OF THE ASSESSEE. 19. IN I.T.A.NO. 4505/DEL/2014 OF SHRI RAHUL SETH, THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND: THE WORTHY CIT(A) HAS CONFIRMED THE ADDITION MADE BY THE ACIT, CC-25, NEW DELHI TO THE EXTENT OF RS.4,37,000/-. IN I.T.A. NO. 6284/DEL/2012 OF KRITIKA SETH, WE HAV E DEALT WITH THIS ISSUE OF UNEXPLAINED CASH FROM PARA 15 TO 16. CONSISTENT WI TH THE VIEW TAKEN THEREIN, WE DELETE THIS ADDITION AND ALLOW THE APPE AL OF THE ASSESSEE. ITA NOS.6284,6436/DEL/2012 I.T.A.NOS.4500, 4505/DEL/2014 12 20. IN THE RESULT, ASSESSEES APPEALS IN I.T.A.NO. 6284/DEL/2012, 4500/DEL/2014 AND 4505/DEL/2014 ARE ALLOWED AND THE APPEAL OF REVENUE IN I.T.A.NO. 6436/DEL/2012 IS DISMISSED. 21. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH AUG., 2015. SD./- SD./- ( I. C. SUDHIR) (J. S. RED DY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 14 TH AUG., 2015 SP COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 12/8 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 14/8/15 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 14/8 SR. PS/PS 7 FILE SENT TO BENCH CLERK 14/8 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER