DCIT CEN CIR 36, MUMBAI V. HAROON MOHD. UNNI., MUMBAI

ITA 463/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5732 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 09-12-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 20-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH H , MUMBAI BEFORE SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 463/M/2012 ASSESSMENT YEAR: 2009 - 10 DCIT, CENTRAL CIRCLE - 36, ROOM NO.11, AAYAKAR BHAVAN, M.K. M ARG , MUMBAI - 400020 VS. SHRI HAROON MOHD. UNNI, FLAT NO.603, TARADEEP CO - OP. HSG., 28 TH ROAD, TPS III, BANDRA (W), MUMBAI 400 050 PAN: AAOPU2467P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DEEP AK TRALSHAWALA REVENUE BY : SHRI RAVI PRAKASH, D.R. DATE OF HEARING : 09.12 .201 3 DATE OF PRONOUNCEMENT : 31.01.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE R EVENUE AGAINST THE ORDER OF THE CIT(A) DATE D 20.10.2011 RELEVANT TO ASSESSMENT YEAR 2009 - 10. THE R EVENUE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL: ' GROUND NO.1 : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN HOLDING THAT JEWELLERY OF RS.10, 23,635/ - IS EXPLAINED JEWELLERY ON THE BASIS OF CBDT CIRCULAR NO.1916 DT. 11 - 05 - 1994 WHICH LAYS DOWN GUIDELINES FOR SEIZURE OF UNEXPLAINED JEWELLERY AND CONTENTS OF THIS CIRCULAR CANNOT BE INTERPRETED TO MEAN THAT JEWELLERY, WHICH CANNOT BE SEIZED AS PER T HIS CIRCULAR, IS EXPLAINED JEWELLERY WHEN THE ASSESSEE HAS NO EVIDENCE TO EXPLAIN THE JEWELLERY WHICH HAS BEEN TREATED AS UNEXPLAINED BY THE ASSESSING OFFICER. ITA NO.463/M/2012 M/S. SHRI HAROON MOHD. UNNI 2 2. THE APPELLANT PRAYS THAT THE ORDER OF COMMISSIONER OF INCOME - TAX (APPEAL) ON THE ABOVE GROU ND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE SEARCH & SEIZURE OPERATION, G OLD J EWE LLE RY WEIGH ING 1472.80 GMS VALUED AT RS. 20 , 71 , 670/ - AND D IAMOND JEWELLERY WORTH RS. 5 , 67 , 410/ - WAS FOUND. THE ASSESSEE EXPLAINED THAT THE SAID JEWELLERY BELONGED TO HIS FAMILY CONSISTING OF FIVE FAMILY MEMBERS I.E. THE ASSESSEE HIMSELF, HIS WIFE, MOTHE R AND TWO DAUGHTERS. THE ASSESSING OFFICER, KEEPING IN VIEW THE STATUS OF THE FAMILY AND ALSO IN VIEW OF THE CIRCULAR NO.1914, ALLOWED 250 GMS. EACH TO THE MARRIED LADIES OF THE FAMILY AS THEIR STREEDHAN AND TREATED THE REMAINING GOLD JEWELLERY WEIGHING 972.80GMS AND THE DIAMOND JEWELLERY SO FOUND AS UNDISCLOSED JEWELLERY U/S69A OF THE INCOME TAX ACT. HE AFTER DEDUCTING THE VOLUNTARY DISCLOSURE OF RS. 9 , 05 , 695/ - ADDED THE COST OF UNDISCLOSED JEWELLERY OF RS.10 , 23 , 635/ - TO THE TOTAL INCOME OF THE ASSESSEE . 3. IN APPEAL, THE LD. CIT (A) RELYING UPON THE CBDT CIRCULAR NO.1916 DATED 11.5.1994 WHEREBY THE GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500GMS PER MARRIED LADY, 250 GMS PER UNMARRIED LADY AND 100 GMS PER MALE MEMBER OF THE FAMILY NEED NOT BE SEIZE D AND FURTHER RELYING UPON THE LAW LAID DOWN BY THE H ONBLE GUJ A RAT HIGH COURT IN THE CASE OF CIT VS. RATANLAL VYAPARILAL JAIN 235 CTR (GUJ) 568 DELETED THE ADDITIONS SO MADE BY THE ASSESSING OFFICER. AGGRIEVED FROM THE ORDER OF THE CIT(A) , THE R EVENUE H AS PREFERRED THE PRESENT APPEAL. 4 . WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE PARTIES AND ALSO HAVE GONE THROUGH THE RECORDS. THE LD. REPRESENTATIVE OF THE ASSESSEE (AR) HAS SUBMITTED THAT THE JEWELLERY SEIZED BY THE DEPARTMENT IN FACT WAS THE OLD JEWELLERY OF THE FAMILY PURCHASED FROM TIME TO TIME AND SOME OF IT ALSO ITA NO.463/M/2012 M/S. SHRI HAROON MOHD. UNNI 3 RECEIVED AS GIFTS FROM RELATIVES AND FRIENDS ON CERTAIN OCCASIONS FROM TIME TO TIME FOR THE PAST SO MANY YEARS. THE LD. DR HAS RELIED UPON THE OBSERVATIONS OF THE ASSESSING OFFICER AN D HAS STRESSED THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF THE JEWELLERY. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE REPRESENTATIVES OF THE PARTIES. THE ASSESSEE IS A BUSINESSMAN HAVING GOOD FINANCIAL STATUS. IT IS ALSO VERY COMMON THAT A S PER THE CUSTOMS AND PRACTICES PREVALENT IN OUR COUNTRY, THE JEWELLERY/GOLD ETC. IS GIFTED BY THE RELATIVES AND FRIENDS OF A PERSON AT THE TIME OF CERTAIN OCCASIONS LIKE MARRIAGES, BIRTH OF A CHILD, BIRTHDAYS, MARRIAGE ANNIVERSARIES ETC. THE QUANTUM AND T HE WORTH OF THE GIFTS ALSO DEPEND UPON THE SOCIAL AS WELL AS FINANCIAL STATUS NOT ONLY OF THE DONOR BUT OF THE DONEE ALSO. FURTHER, AS PER CBDT CIRCULA R N O.1916 DATED 11.5.1994 WHICH CONTAIN S GUIDELINES TO BE FOLLOWED IN THE MATTERS OF SEIZURE OF GOLD AND JEWELLERY DURING THE COURSE OF SEARCH ACTION, IT IS APPARENT THAT IN CASE OF A PERSON NOT ASSESSED TO WEALTH - TAX, GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500 GMS. PER MARRIED LADY, 250 GMS. PER UNMARRIED LADY AND 100 GMS. PER MALE MEMBER OF THE FAMIL Y NEED NOT BE SEIZED. HE HAS FURTHER BROUGHT OUR ATTENTION TO THE CLAUSE (III) OF THE SAID GUIDELINES WHEREIN IT HAS BEEN MENTIONED THAT THE AUTHORIZED OFFICER MAY, HAVING REGARD TO THE STATUS OF THE FAMILY, AND THE CUSTOM AND PRACTICES OF THE COMMUNITY TO WHICH THE FAMILY BELONGS AND OTHER CIRCUMSTANCES OF THE CASE, DECIDE TO EXCLUDE A LARGER QUANTITY OF JEWELLERY AND ORNAMENTS FROM SEIZURE. 6. THE HONBLE GUJ A RAT H IGH C OURT IN THE CASE OF CIT VS. RATANLAL VYAPARILAL JAIN(SUPRA) HAS HELD THAT THOUGH THE SAID CIRCULAR HAD BEEN ISSUED FOR THE PURPOSE OF NON SEIZURE OF THE JEWELLERY, BUT THE BASIS FOR THE SAME ITA NO.463/M/2012 M/S. SHRI HAROON MOHD. UNNI 4 RECOGNIZES CUSTOMS OF GIFTS OF JEWELLERY BY THE RELATIVES AND FRIENDS ON CERTAIN OCCASIONS SUCH AS M ARRIAGES, BIRTHDAYS, MARRIAGE ANNIVERSARY AND OT HER FESTIVALS. IN SUCH CIRCUMSTANCES, UNLESS THE R EVENUE SHOWS ANYTHING TO THE CONTRARY, IT CAN BE SAFELY PRESUMED THAT SOURCE TO THE EXTENT OF THE JEWELLERY STATED IN THE CIRCULAR STANDS EXPLAINED. IN VIEW OF ABOVE STATED POSITION OF LAW, WE DO NOT FIND ANY INFIRMITY IN THE WELL REASONED ORDER OF THE CIT(A). 7. IN THE RESULT, THE APPEAL OF THE R EVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.01. 201 4 . SD/ - SD/ - ( D. KARUNAKARA RAO ) (SANJAY GARG) ACCOU NTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 31.01. 201 4 . * KISHORE COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBA I.