DCIT, Jaipur V. SHRI CHAMPA LAL CHOUDHARY, Jaipur

ITA 456/JPR/2012

• Counselvise Citation: 45623114 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 11-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DILIP SHARMA
• Assessee Lawyers: MANISH AGARWAL CA DHK
• Keywords: Unexplained investment; Gift
• Section: 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 456/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE DCIT CENTRAL CIRCLE- 2 JAIPUR CUKE VS. SHRI CHAMPA LAL CHOUDHARY B-423, PRADHAN MARG, MALIVYA NAGAR, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAHPC 9350 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY :SHRI DILIP SHARMA, ADDL. CIT . FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11/02/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /03/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST T HE ORDER OF THE LD. CIT(A), CENTRAL, JAIPUR DATED 28-02-2012 FOR THE ASSESSMENT YEAR 2008- 09 WHEREIN THE REVENUE HAS RAISED FOLLOWING GROUND. 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), CENTRAL, JAIPUR HAS ER RED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 8,99/6 73/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOLD AND JEWELLERY AND SILVER ARTICLES. ITA NO. 456/JP/2012 DCIT, CENTRAL CIRCLE-2, JAIPUR VS. SHRI CHAMPA LAL CHOUDHARY,JAIPUR . 2 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND A SEARCH OPERATION U/S 132 OF THE ACT WAS CARRIED OUT AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE ON 23-08-2007. TH E RETURN OF INCOME WAS FILED DECLARING INCOME OF RS. 92,87,380 WHICH I NCLUDED THE AMOUNT OF RS. 34.00 LACS AS ADMITTED BY THE ASSESSEE IN TH E STATEMENTS RECORDED DURING THE SURVEY AS HIS UNDISCLOSED INCOME TOWARDS THE INVESTMENTS IN ACQUISITION OF GOLD AND SILVERY JEWELLERY AND IT PE RTAINS TO HIS FAMILY MEMBERS. THE AO HOWEVER, MADE FURTHER ADDITION OF R S. 8,99,673/- TOWARDS GOLD AND SILVER JEWELLERY. 2.2 BEING AGGRIEVED, THE ASSESSEE PREFERRED FIRST A PPEAL BEFORE THE LD. CIT(A) WHEREIN HE DELETED THE ADDITION BY OBSERVING AS UNDER:- 2.4.1 NOW COMING TO STATEMENT, WHICH HAS BEEN RELIED ON BY THE AO. FROM THE FACTS NOTICED AB OVE, IT IS CLEAR THAT THE APPELLANT SURRENDERED RS. 40 LAKHS CONSIDERING JEWELLERY REFLECTED IN THE BALANCE SHEET IS AMOUNTI NG TO AROUND RS. 12 LAKHS. HOWEVER, THIS AMOUNT IS THE CO ST OF THE JEWELLERY AND NOT THE VALUE AS ON THE DATE OF SEARC H. ACCORDINGLY, THE VALUE OF THIS EXPLAINED JEWELLERY IS TO BE DETERMINED AS ON THE DATE OF SEARCH, WHICH TAKEN ON AVERAGE BASIS HAS BEEN RIGHTLY WORKED OUT AT RS. 16,43,710/ . IT IS SEEN THAT JEWELLERY FOUND DURING THE COURSE OF SEARCH NO T ONLY INCLUDES JEWELLERY BELONGING TO APPELLANT AND HIS W IFE AND ALSO INCLUDES JEWELLERY OF SON SHRI AKASH CHOUDHARY , HIS ITA NO. 456/JP/2012 DCIT, CENTRAL CIRCLE-2, JAIPUR VS. SHRI CHAMPA LAL CHOUDHARY,JAIPUR . 3 WIFE SMT. VINITA CHOUDHARY, WHICH MUST HAVE BEEN RE CEIVED BY BOTH OF THEM ON VARIOUS SOCIAL OCCASIONS FROM IN -LAWS AND OTHER RELATIVES. HOWEVER, NO FURTHER CREDIT CAN BE GIVEN IN RELATION TO THE JEWELLERY GIVEN AS GIFT BY APPEL LANT AND HIS WIFE BECAUSE SAME WOULD BE OUT OF THE JEWELLERY AVA ILABLE WITH THEM, WHICH HAS ALREADY BEEN CONSIDERED. CONSI DERING THESE FACTS, ONLY 250 GMS OF JEWELLERY CAN BE CONSI DERED TO BE RECEIVED BY SMT. VINITA CHOUDHARY FROM HER PAREN TS AND OTHER RELATIVE (EXCLUDING PARENTS-IN-LAWS NAMELY AP PELLANT AND HIS WIFE). 100 GMS EACH OF JEWELLERY CAN BE CON SIDERED AS REASONABLY ACQUIRED BY TWO SONS NAMELY AKASH AND VIKASH CHOUDHARY CONSIDERING THE CUSTOMS AND USAGES AND THE STATUS OF THE FAMILY, AS HAS BEE UPHELD BY RAJA STHAN HIGH COURT IN THE CASE OF KAILASH CHAND SHARMA, 198 CTR 201 AND GUJARAT HIGH COURT IN THE CASE OF RATAN LAL VY APARI LAL JAIN 45 ITR 290. THE VALUE OF 450 GMS OF JEWELLERY TAKEN ON AVERAGE BASIS COMES TO RS. 4,80,150/-.THUS THE VALU E OF EXPLAINED JEWELLERY COMES TO RS. 21,23,860/- LEAVIN G UNEXPLAINED GOLD JEWELLERY AS RS. 30,97,624/-. 2.4.2 AS REGARDS SILVER ARTICLES ARE CONCERNED, THE AO HAS ALLOWED THE DEDUCTION OF 12.99 KGS SILVER HAVIN G COST OF RS. 1,11,927/- AS DISCLOSED IN THE BALANCE SHEET OF SMT. RENU CHOUDHARY. HOWEVER, AO HAS GIVEN CREDIT OF THE COST OF SILVER UTENSILS PURCHASED LONG BACK BY THE APPELLAN TS WIFE AS ON 31-03-2002. HENCE.A.R. HAS RIGHTLY TAKEN THE PRE SENT VALUE ON DATE OF SEARCH AS RS. 1,84,800/-, LEAVING ITA NO. 456/JP/2012 DCIT, CENTRAL CIRCLE-2, JAIPUR VS. SHRI CHAMPA LAL CHOUDHARY,JAIPUR . 4 UNEXPLAINED SILVER ORNAMENTS COMES TO RS. 33,23,064 /-, WHEREAS APPELLANT HAS SURRENDERED RS. 34,00,000/- W HICH HAS MENTIONED BY AO ALSO. THEREFORE, NO ADDITION IS CAL LED FOR AND HENCE ADDITION OF RS.8,99,673/- MADE BY AO IS DELETED. 2.3 NOW THE REVENUE IS BEFORE US WHEREIN THE LD. DR HAS SUPPORTED THE ORDER OF THE AO. 2.4 THE LD. COUNSEL FOR THE ASSESSEE IN REPLY DREW OUR ATTENTION TO THE STATEMENTS OF THE ASSESSEE RECORDED ON 23-08-2007 AND 20-08-2007 RECORDED U/S 132(4) OF THE ACT WHICH STATES THAT TH E JEWELLERY FOUND FROM THE ASSESSEE'S PREMISES CONSIST OF THE JEWELLERY BE LONGING TO HIS WIFE, SON AND DAUGHTER-IN-LAW WHICH HAS BEEN REFERRED BY THE LD. CIT(A). THE LD. AR OF THE ASSESSEE CONTENDS THAT THIS FINDING OF TH E AO THAT ENTIRE JEWELLERY PERTAINING TO THE ASSESSEE IS NOT A CORRE CT FINDING. THE LD. CIT(A) AFTER APPRECIATING CBDT INSTRUCTION DATED 1 1-05-1994, RELYING ON HON'BLE RAJASTHAN HIGH COURT JUDGEMENT IN THE C ASE OF CIT VS. KAILASH CHAND SHARMA, 146 TAXMAN 375 AND PROPER VER IFICATION OF THE FACTS HAS DELETED THE ADDITION. 2.5 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND FROM THE RECORD THAT T HE LD. CIT(A) HAS ITA NO. 456/JP/2012 DCIT, CENTRAL CIRCLE-2, JAIPUR VS. SHRI CHAMPA LAL CHOUDHARY,JAIPUR . 5 DELETED THE ADDITION BY OBSERVING THAT JEWELLERY IN QUESTION BELONGS TO THE ASSESSEE AS WELL AS HIS FAMILY MEMBERS. THUS IN VIEW OF THE CBDT INSTRUCTION AND HON'BLE RAJASTHAN HIGH COURT DECIS ION IN THE CASE OF CIT VS. KAILASH CHAND SHARMA (SUPRA), WE UPHOLD THE ORD ER OF THE LD. CIT(A). THUS THE APPEAL OF THE REVENUE IS DISMISSED. 3.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/03/2015 . SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/03/2015 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DCIT,CENTRAL CIRCLE- 2, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI CHAMPA LAL CHOUDHARY, JAIPUR 3. VK;DJ VK;QDRVIHY@ THE CIT(A). 4. VK;DJ VK;QDR@ CIT, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.456/JP/2012) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR