Smt. Gurpreet Kaur, New Delhi V. DCIT, Dehradun

ITA 4729/DEL/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9257 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 16-07-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D, NEW DELHI BEFORE SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER I.T.A. NO.4729/DEL/2015 (ASSESSMENT YEARS 2011-12) SMT. GURPREET KAUR VS. DCIT BH-6, SHALIMAR BAGH WEST CENTRAL CIRCLE NEW DELHI DEHRADUN PAN : AAZPA2208B I.T.A. NO.4730/DEL/2015 (ASSESSMENT YEARS 2011-12) SMT. HARMINDER KAUR NANDA VS. DCIT BH-6, SHALIMAR BAGH WEST CENTRAL CIRCLE NEW DELHI DEHRADUN PAN : AAZPA2208B APPELLANT RESPONDENT ASSESSEE BY : SH. DR. RAKESH GUPTA, ADV. , SH. S OMIL AGGARWAL, ADV. REVENUE BY : SH. J.K.MISHRA, CIT-DR DATE OF HEARING: 03.12.2018 DATE OF PRONOUNCEMENT: 21 .12.2018 ORDER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID INTER CONNECTED APPEALS, THE SAME ARE BEING 2 ITA NO. 4729, 4730/DEL/2015 DISPOSED OF BY WAY OF CONSOLIDATED ORDER TO AVOID R EPETITION OF DISCUSSION. 2. THE APPELLANT, GURPREET KAUR (ITA NO. 4729/DEL/ 2015) AND HARMINDER KAUR NANDA (ITA NO. 4730/DEL/2015) (HERE INAFTER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDERS BOTH DATED 29.05.2015 & 26.05.2015 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)- DEHRADUN ON THE GROUNDS INTER ALIA THAT :- (ITA NO. 4729/DEL/2015 ) 1. THAT IN FACTS AND CIRCUMSTANCE OF THE CASE, TH E LEARNED CIT (APPEALS) HAS ERRED WRONGLY IN SUSTAINI NG THE ADDITION OF RS. 6,08,118/- ON ACCOUNT OF JEWELL ERY AS UNEXPLAINED. 2. THAT IN FACTS AND CIRCUMSTANCES OF THE CASE, THE AUTHORITIES BELOW HAS NOT GIVEN THE CREDIT OF THE J EWELLERY PURCHASED FOR RS. 3.06,000/- DURING THE ASSESSMENT YEAR 2011-12 WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE CAPITAL ACCOUNT OF THE ASSESSEE AS W ELL AS MENTIONED IN CIT(APPEALS) ORDER, ADDITION OF THE SA ME IN THE HANDS OF THE APPELLANT IS WRONG AND UNJUSTIFIED . 3. THAT IN FACTS AND CIRCUMSTANCES OF THE CASE, TH AT THE CIT (APPEALS) HAS NOT GIVEN ANY CREDIT OF A CHILD I N ACCORDANCE TO CBDT CIRCULAR NO. 1916 DATED 11.05.19 94, IS BAD AT LAW. 3 ITA NO. 4729, 4730/DEL/2015 4. THAT THE ADDITION TO THE RETURNED INCOME AS SUS TAINED BY THE LD. CIT(A) MAY PLEASE BE DELETED. ( ITA NO. 4730/DEL/2015) 1. THAT IN FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED CIT (APPEALS) HAS ERRED WRONGLY IN SUSTAINI NG THE ADDITION OF RS. 8.08,118/- ON ACCOUNT OF JEWELL ERY AS UNEXPLAINED. 2. THAT IN FACTS AND CIRCUMSTANCES OF THE CASE, TH E AUTHORITIES BELOW HAS NOT GIVEN THE CREDIT OF THE J EWELLERY PURCHASED FOR RS. 2,02,590/- DURING THE ASSESSMENT YEAR 2010-11 & 2011-12 WHICH HAS BEEN ACCEPTED BY THE ASSESSING OFFICER IN THE CAPITAL ACCOUNT OF THE ASS ESSEE AS WELL AS MENTIONED IN CIT(APPEALS) ORDER AT PAGE 3, ADDITION OF THE SAME IN THE HANDS OF THE APPELLANT IS WRONG AND UNJUSTIFIED. 3. THAT IN FACTS AND CIRCUMSTANCES OF THE CASE, TH AT THE CIT(APPEALS) HAS NOT GIVEN ANY CREDIT OF A CHILD IN ACCORDANCE TO CBDT CIRCULAR NO. 1916 DATED 11.05.1994, IS BAD AT LAW. 4. THAT THE ADDITION TO THE RETURNED INCOME AS SUS TAINED BY THE LD. CIT(A) MAY PLEASE BE DELETED. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : THE ASSESSING OFFICER NO TICED THAT DURING THE SEARCH OPERATION JEWELLERY WORTH RS. 13,68,415/ - WAS FOUND IN A LOCKER NO. 633 AND JEWELLERY WORTH RS. 17,06,680/- FROM LOCKER NO. 119, PUNJAB & SINDH BANK, JKPS, SHALIMAR BAGH, DELHI JOINTLY 4 ITA NO. 4729, 4730/DEL/2015 OWNED BY SMT. HARMINDER KAUR AND HER DAUGHTER SMT. GURPREET KAUR. DECLINING THE CONTENTION RAISED BY THE ASSES SEE, AO MADE ADDITION OF RS. 18,12,112/- IN CASE OF HERMINDER K AUR AND GURPREET KAUR ASSESSEES IN BOTH THE AFORESAID APPEA LS TO THE EXTENT OF 50% SHARE IN CASE OF BOTH THE ASSESSEES DURING THE YEAR UNDER ASSESSMENT. 4. ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT( A) BY WAY OF FILING THE APPEAL WHO IS PARTLY ALLOWED THE SAME. F EELING AGGRIEVED THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIV E OF THE ASSESSEE GONE THROUGH THE DOCUMENTS RELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN THE LIGH T OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. UNDISPUTEDLY JEWELLERY WEIGHING 1805.30 GMS WORTH RS. 36,24,225/- WAS SEIZED FROM THE RESIDENCE AND LOCKE RS OF THE ASSESSEES DURING SEARCH AND SEIZURE OPERATION CONDU CTED ON 21.10.2000, WHICH IS DETAILED AS UNDER :- 5 ITA NO. 4729, 4730/DEL/2015 AMOUNT WEIGHT LOCATION RS.5,49,154/- 2.46.600GM JEWELLERY WAS FOUND FROM RESIDENCE, OWNER HARMINDER KAUR AND GURPREET KAUR. RS. 17,06,680/- 847.400GM JEWELLERY WAS FOUND FROM LOCKER NO. 119, P&S BANK, DELHI RS. 13,68,415/- 684.300GM JEWELLERY WAS FOUND FROM LOCKER NO. 238 P&S BANK, PATEL NAGAR. RS. 36,24,249/- 1805.300GM TOTAL JEWELLERY 7. THE LD. AR FOR THE ASSESSEE CHALLENGING THE IMPU GNED ORDER DREW OUR ATTENTION TOWARDS OPENING PARA AT PAGE 3 O F THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) WHEREIN THE ASSESSEE EXPLAINED THAT THE LOCKERS FROM WHICH THE JEWELLERY WAS FOUND BELONGS TO HER AND HER MOTHER, BUT JEWELLERY BELONGS TO SH. HARMINER KAUR, GURPREET KAUR, BABY BISREEN KAUR AND HER HUSBAND. LD. AO AS WELL AS CIT(A) HAVE NOT DEALT WITH THE AFORESAID CONTENTION OF THE ASSE SSEE THAT THE JEWELLERY SEIZED BELONGS TO FOUR PERSONS NAMELY HARMINDER KAU R, HER HUSBAND SMT. GURPREET KAUR AND BABY BISREEN KAUR. 6 ITA NO. 4729, 4730/DEL/2015 8. THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF AO B Y THE ASSESSEE BY FILING REPLY DATED 12 TH MARCH, 2013 WHEREIN IT IS CATEGORICALLY MENTIONED THAT THE JEWELLERY IN QUESTION BELONGS TO HARMINDER KAUR, GURPREET KAUR, BISREEN KAUR AND HUSBAND OF GURPREET KAUR. 9. IT IS SETTLED PRINCIPLE OF LAW THAT AS PER CBDT CIRCULAR NO. 1916 DATED 11.05.1994 THAT EVEN IF A PERSON IS NOT ASSES SED TO WEALTH TAX, GOLD JEWELLERY OR ORNAMENT TO THE EXTENT OF 500 GM PER FEMALE, 250 GM PER UNMARRIED FEMALE AND 100 GM PER MALE MEMBER OF THE FAMILY IS NOT TO BE SEIZED AND UNLESS ANYTHING CONTRARY IS N OT PROVED IT CAN BE PRESUMED THAT THE SOURCE TO THE EXTENT OF AFORESAID JEWELLERY PER FEMALE AND MALE MEMBERS IS EXPLAINED. 10. NOW IN VIEW OF ADMITTED FACT THAT SMT. HARMINDE R KAUR AND GURPREET KAUR ARE MARRIED FEMALES AND JEWELLERY TO THE EXTENT OF 500 GM EACH BELONGS TO THEM AND THE PURCHASE OF ITS S OURCE IS PRESUMED TO BE EXPLAINED BECAUSE NOTHING CONTRARY HAS BEEN B ROUGHT ON RECORD BY THE REVENUE. LIKEWISE SOURCE OF PURCHASE OF JEWEL LERY TO THE EXTENT OF 250 GMS FALLING INTO SHARE OF BABY BISREEN IS ALSO EXPLAINED. SIMILARLY HUSBAND OF GURPREET KAUR IS ALSO PRESUMED OWNER OF THE JEWELLERY TO THE EXTENT OF 100 GM. 7 ITA NO. 4729, 4730/DEL/2015 11. IN THE ABSENCE OF ANY CONTRARY MATERIAL ON RECO RD, WE ARE OF THE CONSIDERED VIEW THAT BOTH THE ASSESSEES ARE OWNER O F THE JEWELLERY TO THE EXTENT OF 1350 GM I.E. (SMT. GURPREET KAUR 500 GM + SMT. HARMINER KAUR 500 GM + BABY BISREEN 250 GM + 100 GM OF HUSBAND OF GURPREET KAUR). HOWEVER, THE LD. AR FOR THE ASS ESSEE ACCEPTED THE ADDITION QUA REMAINING 500 GM OF JEWELLERY SEIZED F ROM GURPREET KAUR AND HARMINDER KAUR. SO THE ADDITION ON ACCOUNT OF 5 00 GM OF JEWELLERY THE VALUE OF WHICH IS TO BE ASSESSED AS ON DATE OF THE SEARCH I.E. 21.10.2010 BY THE AO IS CONFIRMED. 12. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, BOTH THE APPEALS FILED BY THE ASSESSEES ARE PARTLY ALLOWED, HOWEVER, THE AO IS DIRECTED TO VERIFY THE FACT WHILE GRANTING THE RELIEF AS PER C BDT CIRCULAR (SUPRA) THAT NO DOUBLE BENEFIT IS TO BE GRANTED TO ANY OF T HE FAMILY MEMBER OF GURPREET KAUR AND HARMINDER KAUR. 13. CONSEQUENTLY BOTH THE APPEALS ARE PARTLY ALLOWE D. ORDER PRONOUNCED IN OPEN COURT ON THIS 21 ST DAY OF DECEMBER, 2018. SD/- SD/- (N.K.BILLAIYA) (KULDIP SIN GH) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED THE 21 ST DAY OF DECEMBER, 2018 BR 8 ITA NO. 4729, 4730/DEL/2015 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI. DATE OF DICTATION 03.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 0 4 . 1 2 . 2 0 1 8 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 2 1 . 1 2 . 2 0 1 8 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 2 1 . 1 2 . 2 0 1 8 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 2 1 . 1 2 . 2 0 1 8 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 1 . 1 2 . 2 0 1 8 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER